Laws only have the power you give them.

If a state decides to secede and the federal government is against it, tough cookies.

The state better be ready to defend itself, but there’s not made up “law” that can stop a people who feel oppressed by a government they no longer believe in.

So when the Texas Governor speaks publicly of secession — even though, as EV points out, it is not at all practical — that is really harmful. Also it encourages talk of the related concept of nullification, which harks back to John C. Calhoun…..and the coming of the Civil War.

The seceding states expected a negative response from the other states. That is exactly what today’s secession advocates are alluding to: departure from the federal Union (because they don’t like to pay federal income taxes, don’t want the federal government to provide, or to compel one to have, health insurance, etc.) even if it means, or leads to, violence.

-Maj. League
Dallas

As to the DOI, Justice Stevens and others have occasionally cited the DOI for the principle that we have certain inalienable liberties as a means to determine the true meaning of due process of law. The same might be said about the Ninth Amendment, which pretty clearly was understood to recognize some natural rights that the government could not alienate. Thus, like legislative history, the DOI is legally relevant. It provides a means to understand what our independence was understood to mean. The true nature of legitimate governmental power. And, it has been so cited in legal opinions repeatedly. Yes, the basic grounds rested on other matters — like again Due Process — but the DOI (as a citation of Casey noted) was a bit more relevant legally than a “speech” or campaign pamphlet.

BTW, act of independence was a separate vote from accepting this “legislative report” that discusses its meaning. So, citing the document as conclusive as a sign of the legal moment of independence is misguided.

Bottom line, a modern president is almost powerless to do anything anywhere near to what Lincoln did. If Obama/Bush even tried to make such moves, he would simply encourage other states to join the fight. Likely, a modern president would just turn the other cheek.

Withdrawal without the permission of the Congress? Forget it. If Lincoln had had in his arsenal one tenth of the financial weapons the President and Congress have today, there would not have been a Civil War and no Appomattox. Social Security payments, medicare payments,obligations of corporations (including multistate corporations) and citizens to remit taxes — No need to call out the militia. All Lincoln would have needed to do in the circumstances that now exist would have been to make a phone call to the IRS.

It wasn’t until after President Lincoln’s reign that the phrase “the United States are” was abandoned in favor of “the United States is” — a phrasing that is quite grammatically incorrect. But I guess if you’re responsible for killing 620,000 people, you get to write the history books.

Your definition of “settled” is such that the Constitution itself is not settled– the polity could reach the decision to abrogate it, change it in fundamental ways, or ignore it.

Secession isn’t really a constitutional question, is it? A state electing to secede isn’t going to be suing the federal government for a declaratory statement, and the state is not going to recognize the validity of a federal court decision against secession.

Secession is ultimately a matter of military might and the nature of our union, and this is what the Civil War answered.

Bruce Hayden:
I disagree to some extent. I would consider it also a philosophical document justifying our form of government, as well as our revolt from GB. And as such, I think that it has more, not less, moral power.

You may want to re-read the Declaration. There’s nothing in it justifying any form of government, just the ends of government.

2) Rawl’s ” A View on the Constitution”, a textbook used in Westpoint (I guess until the War For Southern Independence) tought that secession was legal.

3) The Constitution defines “rebellion” and “insurrection” as “Domestic Violence” and requires that the militia be employed by request of the State’s Legislature (or Executive). Then the Congress, by report of the Federal Executive of the request, can call the Militia. No request by the State’s Legislature (or Executive) no Federal Involvment. That request by the State’s Legislature (or Executive) is the requirement that triggers the Federal involvement.

4) Ft. Sumnter: The commander of Ft. Sumnter stated, upon receiving the letter informing him that resupplying ship was on its way, that the war ahd already begun. It was Lincoln that waged war first and if the States really did not seceded then Lincoln commited treason by waging war against States.

5) The Articles of Confederation states that it is a “confederacy” and the “style” of a “united States of America” with the States retaining their respective “sovereignty” and “independence”. Sounds familiar? Look in the Unanimous Declaration “We, therefore” paragraph.

The text of the Constitution says nothing about secession one way or the other, so I am not sure what originalism has to do with this.

Yes, and originalism is the interpretive rule which says that when the Constitution is silent (or ambiguous) we should look to the original public meaning in order to interpret the text. It’s an argument which says, in essence, “let history judge”.

But in that case, we can let history decide other issues as well. And few issues are decided so, well, decisively, as when they are fought out in a war which results in the surrender of one side.

If, for some reason, we’re going to ignore the history of secession — including the small matter of total defeat — then we should feel equally free to ignore the much less convincing evidence of “original public meaning”.

Federal Farmer: Representatives of the States of America which are united…yes yes. I see nothing contradicting me.

If you all you want is to find somnething that doesn’t contradict you, you are not going to get very far. History isn’t a game, it should be a pursuit of the truth, and the truth will often lead you in directions you don’t expect.

epluribus: You are raising some interesting questions. I suggest you do some research if you want answers. As an example, see the following, which is from the concluding words of the Declaration of Independence. I have added the bolding:

Representatives of the States of America which are united…yes yes. I see nothing contradicting me.

Federal Farmer: The term “United States” was used certainly in the sense of Thirteen United States. But a Country named “United States of America” arising out of the DoI does not make sense given the title’s phrase “…Thirteen United States of America”. That sounds like they are using “United” as a verb not part of the noun.

You are raising some interesting questions. I suggest you do some research if you want answers. As an example, see the following, which is from the concluding words of the Declaration of Independence. I have added the bolding:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

epluribus: The use of the term “United States” predates both the Declaration of Independence and the Articles of Confederation. The Declaration is legally important, not because it adopted the name, but because it established the independent sovereignty of the United States. No document before or after did that. The ARticles did not do that. The Constitution did not do that. The Declaration of Independence did that. And from that flowed (and still flow) enormous legal consequences.

The term “United States” was used certainly in the sense of Thirteen United States. But a Country named “United States of America” arising out of the DoI does not make sense given the title’s phrase “…Thirteen United States of America”. That sounds like they are using “United” as a verb not part of the noun.

Federal Farmer: The DoI is entitled “The Unanimous Declaration of the Thirteen United States of America” but those states were united by the Articles of Confederation in 1781 and arguably our actual legal ‘birth date’ is with the ratification of our current constitution, which could be considered an overthrow of the pre-existing government.

The use of the term “United States” predates both the Declaration of Independence and the Articles of Confederation. The Declaration is legally important, not because it adopted the name, but because it established the independent sovereignty of the United States. No document before or after did that. The ARticles did not do that. The Constitution did not do that. The Declaration of Independence did that. And from that flowed (and still flow) enormous legal consequences.

When people say the Declaration is “law”, they are not meaning that the Declaration is an official record of the birth of a nation, but rather that the principles therein are or should be enforceable.

epluribus: No, he is not correct. The United States is independent and sovereign. It has been since July 4, 1776. Its independence and sovereignty are legal. The legality and sovereignty derive from the Declaration of Independence. By establishing the legal independence and sovereignty of the United States, and incidentally of the separate states as well, it is a legal text.

The DoI is entitled “The Unanimous Declaration of the Thirteen United States of America” but those states were united by the Articles of Confederation in 1781 and arguably our actual legal ‘birth date’ is with the ratification of our current constitution, which could be considered an overthrow of the pre-existing government.

Federal Farmer: Despite being a member of the great unwashed, I’m sticking my nose into this little debate. I found this, which indicates that while the DoI has been cited in dicta 100 times, it has never been the basis for a supreme court decision.My feeling is that the DoI is an integral part of our national identity, and certainly should be considered when interpreting our Constitution, especially the fundamental rights of all mankind (US citizen or not) but Dilan is correct it is not actual law.

No, he is not correct. The United States is independent and sovereign. It has been since July 4, 1776. Its independence and sovereignty are legal. The legality and sovereignty derive from the Declaration of Independence. By establishing the legal independence and sovereignty of the United States, and incidentally of the separate states as well, it is a legal text.

Dilan Esper: Dilan, you original assertion was: “The Declaration of Independence is not a legal text.” That is an opinion, not a fact, and I thoroughly disagree with it. Ipse dixit is not enough to prevail on this point.Epluribus, this is not an ipse dixit. It doesn’t matter how many times you say “I disagree with it”, you still can’t bring a claim or make a legal argument before a tribunal that an enforceable right under the Declaration of Independence has been violated. A document that creates no obligations and no enforceable rights is not law.This is undisputed and undisputable fact.

Since you insist on prolonging this argument, I will answer you. First, if I was prosecuting a case that depended on an act of parliament pertaining to the colonies and passed after July 4, 1776, I would argue that the act created no rights or duties and was a nullity. I would cite the Declaration of Independence as authority for that proposition. If I was prosecuting a case that depended on an act of the Virginia General Assembly passed after July 4, 1776, and my opponent argued that it was a nullity because Virginia was at that time subject to parliament, I would argue that it was not because Virginia was an independent sovereign at the time, and I would cite the Declaration of Independence as authority for the proposition. If I represented a client who held a promissory note incurred in the Commonwealth of Massachusetts after July 4, 1776, and if obligor on the note argued that it was invalid under a particular act of parliament passed after July 4, 1776, I would argue that the act of Paliament had no operation in Massachusetts after July 4, 1776, and I would cite the Declaration of Independence for that proposition. If I had a case that depended on the validity of the treaty between France and the United States made after July 4, 1776, and if an argument was made that the treaty was invalid because the United States was then subject to the authority of the King of England, I would argue that the United States was then an independent sovereign and fully capable of making a treaty with France, and I would cite the Declaration of Independence as authority. I could go on and on and on. The Declaration of Independence had real and important legal consequences. It was thus, and remains today, a legal text. It is printed in the United States Code. It is preserved in the National Archives alongside the Constitution and the Bill of Rights. All three of those documents are legal texts. I would argue further that the Declaration of Independence can be a valuable tool in interpreting particular provisions of the U.S. Constitution. Interpreting the Constitution is of course a legal exereice, perhaps the highest legal exercise that can be engaged in in the United States.

Mark Field: I’ll agree with this if we hear no more about originalism when it comes to interpreting the Constitution. I’m perfectly fine with running everything according to current wishes, but if the past holds any precedent at all then the issue of secession surely is one of them.

The text of the Constitution says nothing about secession one way or the other, so I am not sure what originalism has to do with this.

Dilan Esper: Dilan, you original assertion was: “The Declaration of Independence is not a legal text.” That is an opinion, not a fact, and I thoroughly disagree with it. Ipse dixit is not enough to prevail on this point.Epluribus, this is not an ipse dixit. It doesn’t matter how many times you say “I disagree with it”, you still can’t bring a claim or make a legal argument before a tribunal that an enforceable right under the Declaration of Independence has been violated. A document that creates no obligations and no enforceable rights is not law.This is undisputed and undisputable fact.

Despite being a member of the great unwashed, I’m sticking my nose into this little debate. I found this, which indicates that while the DoI has been cited in dicta 100 times, it has never been the basis for a supreme court decision.

My feeling is that the DoI is an integral part of our national identity, and certainly should be considered when interpreting our Constitution, especially the fundamental rights of all mankind (US citizen or not) but Dilan is correct it is not actual law.

Epluribus, this is not an ipse dixit. It doesn’t matter how many times you say “I disagree with it”, you still can’t bring a claim or make a legal argument before a tribunal that an enforceable right under the Declaration of Independence has been violated. A document that creates no obligations and no enforceable rights is not law.

This is undisputed and undisputable fact.

epluribus:

It is a fact that the principles set forth in the Declaration of Independence do not impose any legal obligations recognized in the American legal system on the American people. If you don’t believe me, try filing a lawsuit or filing a legal brief arguing that your rights under the Declaration were violated.

That’s just a fact. As I said, if you want to get into the airy world of what “rights” one might have that preexist the state, that’s fine, we can have that discussion, but that’s not a discussion about the content of American LAW.

An excellent question. The only reason I could think of for anyone to “keep hearing this” is that one hangs out with a secessionist cabal, and someone tries to inject some reality into the scheming. The FBI will be knocking any day now.