Posted by aogThursday, 30 April 2009 at 08:44
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Many folk have been ragging on Texas Governor Rick Perry for alledgedly talking about secession (which he didn’t — he was citing the federalism implicit in the 10th Amendment) but apparently this has had some effect on the Obama Administration. Hot Air reports that the US Department of State now considers Texas a foreign country.
Friday, 01 May 2009 at 14:21|
Historical note: During the nullification crisis of 1833, when South Carolina threatened to secede, President Andrew Jackson threatened in turn to hang anyone who advocated scession. Ole Hickory was old school. He used the following argument:
The Ordinance (of Nullification) is founded… on the strange position that any one state may not only declare an act of Congress void, but prohibit its execution; that they may do this consistently with the Constitution; that the true construction of [the Constitution] permits a state to retain its place in the Union and yet be bound by no other of its laws than those it may choose to consider as constitutional.… Look for a moment to the consequence. If South Carolina considers the revenue laws unconstitutional and has a right to prevent their execution in the port of Charleston, there would be a clear constitutional objection to their collection in every other port; and no revenue shall be collected anywhere.… If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy.…
I consider, then, the power to annul a law of the United States, assumed by one state, incompatible with the existence of the Union, contradicted explicitly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.
In vain these sages [the framers of the Constitution] declared that Congress should have the power to lay and collect taxes, duties, etc.; in vain they have provided that they shall have the power to pass laws which shall be necessary and proper to carry those powers into execution, that those laws and the Constitution should be the Îsupreme law of the land, and that judges in every state shall be bound thereby…Ì Vain provisions! ineffectual restrictions! vile profanation of oaths! miserable mockery of legislation! if a bare majority of voters in any one state may, on real or supposed knowledge of the intent with which a law has been passed, declare themselves free from its operation.…
The right to secede is deduced from the nature of the Constitution, which they say, is a compact between sovereign states who have preserved their whole sovereignty and are subject to no superior: that because they make the compact they can break it when their opinion has been departed from by other states.…
The Constitution forms a government, not a league.… Each state having expressly parted with so many powers as to constitute jointly with other nations, a single nation, cannot from that period, posses any right to secede, because such succession does not break a league, but destroys the unity of a nation.… To say that any state may at pleasure secede from the union is to say that the United States is not a nation.… Because the union was formed by a compact, it is said that the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they may not. A compact is a binding obligation.…
Saturday, 02 May 2009 at 08:30|
Let’s start with what “aid and comfort” means. It does not mean saying nice things about them. It means what the common law of England understood it to mean in 1789. As always, we look to Blackstone to tell us:
IF a man be adherent to the king’s enemies in his “realm, giving to them aid and comfort in the realm, or elfewhere,” he is alfo declared guilty of high treafon. This muft likewife be proved by fome overt act, as by giving them intelligence, by fending them provifions, by felling them arms, by treacheroufly furrendering a fortrefs, or the like. By enemies are here underftood the fubjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coafts, without any open hoftilities between their nation and our own, and without any commiffion from any prince or ftate at enmity with the crown of Great Britain, the giving the many affiftance is alfo clearly treafon; either in the light of adhering to the public enemies of the king and kingdom, or elfe in that of levying war againft his majefty. And, moft indifputably, the fame acts of adherence or aid, which (when applied to foreign enemies) will conftitute treafon under this branch of the ftatute, will (when afforded to our own fellow-fubjects in actual rebellion at home) amount to high treafon under the defcription of levying war againft the king. But to relieve a rebel, fled out of the kingdom, is no treafon: for the ftatute is taken ftrictly, and a rebel is not an enemy; an enemy being always the fubject of fome foreign prince, and one who owes no allegiance to the crown of England. And if a perfon be under circumftances of actual force and conftraint, through a well-grounded apprehenfion of injury to his life or perfon, this fear or compulfion will excufe his even joining with either rebels or enemfes in the kingdom, provided he leaves them whenever he hath a fafe opportunity.
Blackstone’s Commentaries, Book IV, Ch. 6 (emphasis added).
So making a speech in Texas hinting at the possibility of secession is not conceivably treason. It’s free speech, it’s not “aid and comfort,” there is no “enemy,” there is no overt act and there is no making war on the sovereign.
Sunday, 03 May 2009 at 13:45|
The executive branch, the legislative branch as well as the states and the people (juries) have a role to play. All legislative power delegated by the states is vested in the Congress although the SC has seen fit to legislate in fact. How can that be? Dred Scott, Roe, Doe, Griswald and many other cases were legislative decisions put forward by the court as favoring the laws of one state over those of another or the federal government over the states without any basis other than pure rationalization, as in the case of Griswald, perceiving ‘rights emanating from penumbras’. Are the states truly obligated by those decisions other than by voluntary compliance? How would the court enforce those decisions without such compliance? The basic principle embodied in our constitution, unlike most others, is based on an assumed reasonableness and moderation in governmnet and minimal coercion rather than utopianism or abstractions regarding absolute Democracy or the general will. When such is no longer the case the states and the people have a role to play in maintaing a moderate govermnet which adheres to it’s charter.
The Virginia and Kentucky resolutions answering the Alien and Sedition Act provided a ‘wake-up call’ to the executive and legislative branches without any action by the court only by some of the states and ultimately the people. The entire bill of rights, spelling out the realtionships between the branches of governmnet and the states was cited as to it’s clear meaning and intent. Written by James Madison and Thos. Jefferson, the Resolutions forced the central governmnet to aknolwedged the check on it’s power provided by the states.
The power of taxation, both direct and indirect, was plainly delegated, with strict limitations, to the central governmnet and no real conflict arose that couldn’t have been addressed by the amendment process so Jackson was correct regarding the S. Carolina secessionists as well as his power as executive versus the court in the case of the Georgian Cherokees regardless of our more ‘enlightened’ feelings about the case or the President’s actions.
The question now arises as to the constitutional power of the Court vis a vis the states. Slavery is no longer a point of contention and the powers assumed by the central governmnet as a remedy to that evil may no longer serve any purpose other than consolidating unwarranted (unconstitutional?) power at the central level, particularly since many of the states ratifying those civil war amendmnetds did so at the point of a gun under military occupation. The role of the states is that of basic governmnet under ‘republican’ principles, the federal as that of strictly limited power consolidating the ‘voices’ of the states through their representatives into one regarding truly national issues as enumerated in the constitution. Modern technology in communication and mobility make the 9th and 10th amendments even more far-sighted and significant than they were at the time of ratification regardless of the fact that the Court has declared them to be mainly witout force since the civil war amendments were ratified even though there was no repeal of the 9th or the 10th.
As James Madison made clear at the time of the Alien and Sedition Act crisis, the states are the last bulwark against encroachments of the Federal Governmnet in those cases where the plain meaning of the constitution is violated as in the case when the federal branches assume powers not delegated. It’s a sensitive issue which should not be clouded by characterizing criticism of unwarranted assumptions of power by the central state as ‘treasonous’. The real treason may be in letting it continue without real opposition or even by state legislation if necessary. Governmnets want power and they will do almost anything to enlarge that power even if it means ignoring or rationalizing away the basic charter establishing that governmnet. The Supreme Court is part of that governmnet but the charter is still in effect regardless of some of it’s ‘interpretations’.
The intersting point regarding the constitional defintion of treason is it’s emphasis on describing treasonous actions against “them” (the individual states) rather than against “it” (the federal governmnet).
Monday, 27 July 2009 at 16:38|
Great comments some very insightful but none of any value. Read the Declaration of Independence. Those that wrote and signed it had had enough. Legality was no longer a question.
The framers of our constitution could not forsee everything. Certainly, that a future population would not only willingly surrender their freedom for government guarantees but that the population would evolve to what it is today. Greedy, sel-seeking and envious of those that work harder or manage their lives more prudently.
Does this government provide anyone more military protection from foreign powers than other citizens? Special diplomatic services? What reason could there be for me to pay more taxes to the federal government than anyone else? Our founders would look on what we have done with a great gift in absolute horror.
So, does this “majority” have a right to change the country into something else (more communist than anything else)? yes, obviously as a group they do. However, the Constitution was not a suicide pact. The states freely joined. There was no “till death we part” clause. Contract law is much older than our country. Clearly, those that made the contract have the right to modify or break it since there was nothing in the resolution that forbade it.
They called our founders traitors too. They risked everything for freedom and self determination. How is it different now? Because those in power say it is? When would those in power ever willingly give up power? Never in the course of human events has this happened. It has always been taken.
The fact that Lincoln and others inforced their will on the Confederacy settles nothing. The fact that the Supreme Court backed them means nothing either. They were hardly honest brokers.
The majority of our population is so far from the ideals of generations ago they might as well have just arrived from Mars. How else could you explain a person that would insist on taking fom another their just labor in the name of fairness?
In the final analysis the producers, read innovators, risk takers, workaholics etc whatever you choose to call them, what will they do? Continue to watch as the fruits of their labor and freedom are taken by politicians so that they can use it to buy votes and political power? Even if they do their children will rarely walk the same path.
What will a nation of “takers” be like? My prayer is that I don’t live to see it.