Wednesday, August 24, 2005
Nothing fails like secession:
My earlier post needs some elaboration.
As a matter of federal constitutional law, can a state leave the union?
Texas v White holds that it cannot, but I don't find the decision persuasive. It is history written by the victors, and assumes its conclusion.
It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States. Id.
The argument in White that the articles of confederation create an indisovable union is interesting, but fails. The constitution supplanted the articles, so if a state cannot leave, there must be something in the text that says so.
The guarantee clause, of a republican form of government, fails. The government of Texas during the war of northern aggression was republican (not Republican.) Conventions, ratification by popular vote, election of legislators, selection of representatives to the Confederate states, and so forth, used democratic process.
The Union's objection wasn't that Texas was acting as a republic, but that it was.
White mentions in passing the ninth and tenth amendment's core ideas that rights are reserved to the states and the people, except those rights expressly delegated.
By looking to state constitutions in which the right to alter or abolish goverment is often the first paragraph, and by looking to the Declaration for the same principle, it would not be hard to argue the the right to exit is protected by the 9th and 10th, unless there is some text in the original constitution that settles the question.
Perhaps there is; we focus so much on the bill of rights sometimes we overlook the original text. But if so, what? Again, I've chosen not to accept the guarantee clause as the basis for a judicial holding on this issue, and courts have often held that that clause is a political question rather than a legal one. What else we got?
The issue is not some quaint historical point, but goes to the feeling in Dixie that they have been living under an occupation government for 100some years, and have many of the social problems that are often found in occupied territories. Texas v White gives some details on the post-war military occupation of texas. This was dispensed with later when Texas adopted a state constitution giving up the right to exit, but Texas patriots could reasonably claim this clause was the result of duress.
My earlier post needs some elaboration.
As a matter of federal constitutional law, can a state leave the union?
Texas v White holds that it cannot, but I don't find the decision persuasive. It is history written by the victors, and assumes its conclusion.
It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States. Id.
The argument in White that the articles of confederation create an indisovable union is interesting, but fails. The constitution supplanted the articles, so if a state cannot leave, there must be something in the text that says so.
The guarantee clause, of a republican form of government, fails. The government of Texas during the war of northern aggression was republican (not Republican.) Conventions, ratification by popular vote, election of legislators, selection of representatives to the Confederate states, and so forth, used democratic process.
The Union's objection wasn't that Texas was acting as a republic, but that it was.
White mentions in passing the ninth and tenth amendment's core ideas that rights are reserved to the states and the people, except those rights expressly delegated.
By looking to state constitutions in which the right to alter or abolish goverment is often the first paragraph, and by looking to the Declaration for the same principle, it would not be hard to argue the the right to exit is protected by the 9th and 10th, unless there is some text in the original constitution that settles the question.
Perhaps there is; we focus so much on the bill of rights sometimes we overlook the original text. But if so, what? Again, I've chosen not to accept the guarantee clause as the basis for a judicial holding on this issue, and courts have often held that that clause is a political question rather than a legal one. What else we got?
The issue is not some quaint historical point, but goes to the feeling in Dixie that they have been living under an occupation government for 100some years, and have many of the social problems that are often found in occupied territories. Texas v White gives some details on the post-war military occupation of texas. This was dispensed with later when Texas adopted a state constitution giving up the right to exit, but Texas patriots could reasonably claim this clause was the result of duress.
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