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Jim Valvano
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« on: October 27, 2005, 09:17:23 pm »
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You may have noticed I haven't been very acitve since the beginning of October. Much has transpired since then (and as a byproduct of these transpirations, I have become much more conservative and much less libertarian than I was just before I left) and it has become my intention to no longer post regularly at this board, but I'll still be checking in from time to time like MarkDel does. At any rate, I thought I'd post this interesting article


THE LOST STATE OF MISSOURI
by Liberty   October 27, 2005

How many states have at any time been members of the United States? Jokes about the State of Franklin aside, most insist the current fifty we have now. Actually the real answer is 51, because almost everyone overlooks Missouri. Not the Missouri we have today but the original Missouri that existed from August 10, 1821 to October 31, 1861.

The intention of this article is not to make an argument for the legality of secession although that is the premise on which it will continue. While not accepted by most scholars, it is my view that the Southern States did indeed leave the United States of America and were not again members until May 5, 1865 when the Confederacy was dissolved. An example of the United States accepting this view is the creation of West Virginia on July 20, 1863. The Constitution stipulates that no state may be erected within another without the mother state's approval. Since West Virginia was created without the approval of Virginia, the only conclusion that Virginia was no longer was considered a state due to the fact that it had repealed its membership  April 17, 1861.

While it is this articles premise that the states actually left the United States, the question is how many? Mainstream historians are almost unanimous in asserting that only 11 states left (of course, they will add that those 11 never actually left). Most add as a footnote that illegitimate governments in Kentucky and Missouri seceeded and were accepted by the Confederate States of America. This is certainly true for Kentucky, the government that seceeded was clearly a bunch of yeehaws who had no authority whatsoever for their actions. Missouri however, is a different story.

When Lincoln got wind that Missouri was probably going to leave the Union, he sent the army there in order to "persuade" the state otherwise. Lincoln, as detractors on this board know, would use the same technique to keep Maryland in the union that same year. Lincoln's troops under the command of Nathaniel Lyon, would spark a massacre in St. Louis, causing an outcry accross the state for secession. Governor Jackson however, offered Lyon Missouri's support for the Union in exchange for withdrawal of his troops. Lyon responded that rather than allow Missouri to function as a republican state without military tyranny that he would "see every man, woman, and child in the state dead and buried!"

As Lyon advanced on Jefferson City the entire Missouri government fled downstate. When he arrived at the capital he declared all government offices vacated and set up a new Missouri government on July 30, 1861. In doing so they clearly violated the clause of the Constitution that said that the United States "shall guarantee every state a republican form of government." The United States would recognize this military government as the true government of Missouri, thus I consider July 30, 1861 to be the statehood date of the new Missouri.

If the overthrow of a republican government and the instillation of another was enough to say that there are two states, then there would be a lot more than a total of 51 (see reconstruction). However, a lapse in a republican government is substantially different than a lapse in statehood. Of all the Constitutional governments overthrown in reconstruction, none of them would leave the United States, and thus the singular statehood of VA, NC, SC, GA, Fl, MS, AL, AR, TX, TN, and LA are preserved with just the secession lapses from 1861 to 1865 (with a lapse of 1860 to 1865 in SC's case).

The Constitutionally elected government of Missouri, now a fugitive of the tyrannical rule of the non-republican false Missouri government, was by October camped out in Neosho. In late October the legislature approved a resolution of seccession which governor Jackson made official on October 31. Keep in mind that this was still the official government of Missouri; Lyon's declaration that all offices were vacant was blatantly unconstituional. After Missouri left the United States, the government set up by the army would eventually turn republican, and since this new government had the recognition of the United States, it is therefore necessary to conclude that although Missouri did secede (and not come back as discussed in the next paragraph) because of US recognition a second state of Missouri does exist today with the most logical date of admission at 1861. One may argue that since there was no formal resolution admitting this new state that it is technically not a state, as Ohio wasn't until 1953. I'm going to have reject that argument simply because it's passage of the duck test (if it looks like a duck, and quacks like a duck...) looms too large.

With the new Missouri recognized, the United states now had no need for the old one, even though it was the Missouri that had been admitted on August 10, 1821 and not just some new entity hastily "created" 4 years previously. While 11 states were welcomed back (although "welcomed" is not even close to the appropriate word) after the Confederacy's dissolution on May 5, the illegitimate Kentucky and the legitimate Missouri would fade into oblivion, never to be heard from again.

This brings me back to my original question: How many states left the United States? Since the Constitutionally elected government of MO voted to secceed, it certainly appears 12 did. Many historians vehemently deny this, citing that because there isn't proper documentation of a quorum in one of the state houses, we can't be sure. However, it is indicated in extant writings that several times the vote was postponed due to lack of a quorum. Also, many newspapers of the time reported that a quorum did exist. Refusing to accept seccession because the offical scrap of paper saying a quorum was present is missing is jsut plain ludicrous.

While no one else to my knowledge accepts the this unique two-Missouri view, I do. What about you? Look at the facts and decide for yourself. 
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« Reply #1 on: October 28, 2005, 03:59:14 pm »
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Question: Did the government of Missouri have the support of the population of Missouri for this action (secession, that is)? Judging by the spectacularly nasty civil war that erupted within Missouri during the larger Civil War, you could make a good case that the majority of the population of Missouri rejected secession with only a minority - a substantial minority, but a minority - supporting secession. This might make Missouri like Kentucky in regards to the governmental secession bit.
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« Reply #2 on: October 28, 2005, 04:24:44 pm »
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The intention of this article is not to make an argument for the legality of secession although that is the premise on which it will continue. While not accepted by most scholars, it is my view that the Southern States did indeed leave the United States of America and were not again members until May 5, 1865 when the Confederacy was dissolved.
I realize that the point of the article is not to defend the legality of secession. However, since the whole argument is based on that premise, I would suggest that secession is indeed unconstitutional.

Secession is prohibited by Art. VI, Cl. 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." If the Constitution and laws of the United States are supreme, it follows that no state may nullify them. However, when a state secedes from the union, that is precisely what it is doing: nullifying the effect of the Constitution and the laws of the United States.

One may ask the question, what does "secession" mean? Semantically, secession is the act of leaving the union. But substantively, secession is nothing more than a declaration that the Constitution and the laws of the United States no longer apply to a particular area. Such an action is clearly forbidden by the supremacy clause. Thus, I would disagree with the underlying premise of this article.

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An example of the United States accepting this view is the creation of West Virginia on July 20, 1863. The Constitution stipulates that no state may be erected within another without the mother state's approval. Since West Virginia was created without the approval of Virginia, the only conclusion that Virginia was no longer was considered a state due to the fact that it had repealed its membership  April 17, 1861.
On the contrary, it can be argued that Virginia did indeed approve of the creation of West Virginia.

The state of Virginia declared its secession from the United States in 1861. Soon after the declaration was made, a group of delegates representing western Virginian counties convened in the city of Wheeling. This convention passed an ordinance, in the name of the People of Virginia, "reorganizing" the government of the state and establishing a new legislature. Thus, for a short period of time, there were two distinct bodies that claimed to be the legitimate legislature of Virginia: one favoring the union, and one favoring the confederacy.

The pro-union Legislature of Virginia assembled in Wheeling declared its consent to the formation of West Virginia. Thus, the Constitution's requirement that a state's approval is required for boundary changes was met (assuming that the Wheeling legislature was legitimate).
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Jim Valvano
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« Reply #3 on: October 28, 2005, 09:01:27 pm »
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Secession is prohibited by Art. VI, Cl. 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." If the Constitution and laws of the United States are supreme, it follows that no state may nullify them. However, when a state secedes from the union, that is precisely what it is doing: nullifying the effect of the Constitution and the laws of the United States.

If this view of the article were correct, then the independence of the Phillippines and the return of the canal zone to Panama would be unconstitutional. Many will justify this by arguing that because they weren't fully incorporated territories that therefore the supremacy clause did not apply according to supreme court decisions. I will argue these decisions were in error. It's clear that congress has no voice outside the Constitution and thus Justice Harlan in dissent wrote "The Consitution is the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place." The supremacy clause makes it clear that anything not under it is therefore not part of the United States, therefore congress would then have no authority to govern the Phillippines or the Canal Zone.

Besides this, there is simply no direct prohibition of secession in the Constitution (some will tirelessly point to the "perpetual union" clause of the Articles of Confederation but I don't buy that argument). Having already established that foreign area is not under any Constituional responsibility whatsoever, once a state seceded (see paragraph below) they would therefore not be subject to any requirements of the supremacy clause which doesn't prohibit secession for the same reason that it doesn't prohibit the release of the Canal Zone and the Phillippines.

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One may ask the question, what does "secession" mean? Semantically, secession is the act of leaving the union. But substantively, secession is nothing more than a declaration that the Constitution and the laws of the United States no longer apply to a particular area. Such an action is clearly forbidden by the supremacy clause.


Actually, secession does ammount to leaving the union, because if it only ammounted to "declaration that the Constitution and the laws of the United States no longer apply to a particular area" than every instance of martial law in American history could be considered "secession" under your definition. You are correct however that your definition of secession is unconstitutional, so therefore we might say that we have just discovered definate proof that martial law is unconstitutional.

As for West Virginia's creation, if the "Virginia" government can indeed be considered to be the real government then why was it necessary for it to become a new state?

In any event, very good post. You really challenged me in a few places, and if you have any further problems with my arguments I'd be glad to hear them.
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« Reply #4 on: October 29, 2005, 07:40:13 am »
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If this view of the article were correct, then the independence of the Phillippines and the return of the canal zone to Panama would be unconstitutional. Many will justify this by arguing that because they weren't fully incorporated territories that therefore the supremacy clause did not apply according to supreme court decisions.
That is not how the independence of the Philippines and the return of the canal zone can be justified. It is true that the Constitution, including the supremacy clause, applies in these areas. However, there is a very important difference. Article IV, Section 3, Clause 2 provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Surely, this clause entitles Congress to "dispose of" the Philippines or the Panama canal zone. There is no analogy, however, in terms of unilateral secession by a state.

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As for West Virginia's creation, if the "Virginia" government can indeed be considered to be the real government then why was it necessary for it to become a new state?
It was not legally necessary; that was only a political reality.

I do not believe that the government in western Virginia was the "real" government of the state. However, when there are rival governments within a state, Congress has the power to determine which one is legitimate. In Luther v. Borden, the Supreme Court held, "Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not."

Thus, the question of which government was legitimate was not a judicial question. It was resolved by Congress that the Wheeling government was the legitimate one; this decision cannot be amended.
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Jim Valvano
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« Reply #5 on: October 29, 2005, 07:07:37 pm »
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That is not how the independence of the Philippines and the return of the canal zone can be justified. It is true that the Constitution, including the supremacy clause, applies in these areas. However, there is a very important difference. Article IV, Section 3, Clause 2 provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Surely, this clause entitles Congress to "dispose of" the Philippines or the Panama canal zone. There is no analogy, however, in terms of unilateral secession by a state.

Under your interpretation of why secession is unconstitutional, it doesn't matter if congress has the power to dispose of a possession or not. No matter who carries it out or how it's constitutionally justified, such cessions of territory still amount to "nullifying the effect of the Constitution and the laws of the United States", which you previously stated was in all cases unconstitutional.

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I do not believe that the government in western Virginia was the "real" government of the state. However, when there are rival governments within a state, Congress has the power to determine which one is legitimate. In Luther v. Borden, the Supreme Court held, "Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not."

Thus, the question of which government was legitimate was not a judicial question. It was resolved by Congress that the Wheeling government was the legitimate one; this decision cannot be amended.

Congress saying a government is legitimate is a far cry from a government actually being legitimate regardless of what any Supreme Court decision says. Congress has no power to recognize a government that is in fact illegitimate because to do so would be a violation of the republican government guarantee contained in the supreme law of the land.
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« Reply #6 on: October 29, 2005, 07:26:05 pm »
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Under your interpretation of why secession is unconstitutional, it doesn't matter if congress has the power to dispose of a possession or not. No matter who carries it out or how it's constitutionally justified, such cessions of territory still amount to "nullifying the effect of the Constitution and the laws of the United States", which you previously stated was in all cases unconstitutional.
"Nullifying the effect of the Constitution and the laws of the United States" is not unconstitutional where the Constitution explicitly allows it. And the Constitution specifically permits such a nullification in the territory and property of the United States.

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Congress saying a government is legitimate is a far cry from a government actually being legitimate regardless of what any Supreme Court decision says. Congress has no power to recognize a government that is in fact illegitimate because to do so would be a violation of the republican government guarantee contained in the supreme law of the land.
As the Supreme Court held in Luther v. Borden, Congress must determine which government is truly established, before deciding whether it is republican or not.

A case could certainly be made that the Virginia legislature in Richmond was the illegitimate one. The Virginia Declaration of Rights reserves the right to reform the government to a majority of the People: "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal." The Virginia Constitution did not vest in the General Assembly a power to call a convention. However, such a convention was called solely by the action of the General Assembly, and such a convention declared secession from the United States. Thus, it could just as well be argued that the confederate legislature had usurped the authority of the People, and was "illegitimate."
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Jim Valvano
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« Reply #7 on: October 30, 2005, 02:25:44 pm »
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Under your interpretation of why secession is unconstitutional, it doesn't matter if congress has the power to dispose of a possession or not. No matter who carries it out or how it's constitutionally justified, such cessions of territory still amount to "nullifying the effect of the Constitution and the laws of the United States", which you previously stated was in all cases unconstitutional.
"Nullifying the effect of the Constitution and the laws of the United States" is not unconstitutional where the Constitution explicitly allows it. And the Constitution specifically permits such a nullification in the territory and property of the United States.

The Constitution also says that the powers not delegated to the United States by the Constitution (such as the power to dispose of territory), nor prohibited by it to the states, are reserved to the states. The power to nullify the Constitution in states is not delegated to congress, nor is it prohibited to the states in the list of prohibitions in Art I, Sec X. Therefore the right to leave the United States is reserved to the states.

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Congress saying a government is legitimate is a far cry from a government actually being legitimate regardless of what any Supreme Court decision says. Congress has no power to recognize a government that is in fact illegitimate because to do so would be a violation of the republican government guarantee contained in the supreme law of the land.
As the Supreme Court held in Luther v. Borden, Congress must determine which government is truly established, before deciding whether it is republican or not.

A case could certainly be made that the Virginia legislature in Richmond was the illegitimate one. The Virginia Declaration of Rights reserves the right to reform the government to a majority of the People: "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal." The Virginia Constitution did not vest in the General Assembly a power to call a convention. However, such a convention was called solely by the action of the General Assembly, and such a convention declared secession from the United States. Thus, it could just as well be argued that the confederate legislature had usurped the authority of the People, and was "illegitimate."

The important thing to remember though is that the work of the convention, (whether constitutional or not) was ratified by the people of Virginia in a democratic and statewide popular vote May 23. Such action is clearly an example of the majority of the community exericising their "indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal." In contrast, the legislature of Wheeling acted without statewide support since over two thirds of the Virginia counties believed it illegitimate.
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« Reply #8 on: October 30, 2005, 02:30:00 pm »
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The Constitution also says that the powers not delegated to the United States by the Constitution (such as the power to dispose of territory), nor prohibited by it to the states, are reserved to the states. The power to nullify the Constitution in states is not delegated to congress, nor is it prohibited to the states in the list of prohibitions in Art I, Sec X. Therefore the right to leave the United States is reserved to the states.
The power to nullify the Constitution in the states is indeed prohibited to the states, by the supremacy clause. The power to nullify the Constitution (by ending all American jurisdiction) in the territories is not prohibited to Congress. Thus, one cannot compare the two situations.

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The important thing to remember though is that the work of the convention, (whether constitutional or not) was ratified by the people of Virginia in a democratic and statewide popular vote May 23. Such action is clearly an example of the majority of the community exericising their "indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal." In contrast, the legislature of Wheeling acted without statewide support since over two thirds of the Virginia counties believed it illegitimate.
Indeed, as I said, I would argue that both legislatures, in Richmond and in Wheeling, were illegitimate (the former being in rebellion against the United States, the latter lacking any legal authority). However, as I indicated, the question of legitimacy in such a case is one that must properly be resolved by Congress.
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« Reply #9 on: October 31, 2005, 09:54:34 pm »
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The power to nullify the Constitution in the states is indeed prohibited to the states, by the supremacy clause. The power to nullify the Constitution (by ending all American jurisdiction) in the territories is not prohibited to Congress. Thus, one cannot compare the two situations.

I've already explained this to you (this debate is starting to go in circles), but I'll explain it again. The Constitution gives congress the right to absolve territories from the Constitution and componentship of the United States, and contains no prohibition of secession by states, thus unless your supremacy clause claim is true, the states have the right to secede under the 10th amendment. I hope we can agree to this much. The supremacy clause seems in its reading to apply equally to states and possessions, so if states cannot have their ties dissovled, than territories cannot have their ties dissolved either under your theory. However, the clause relating to disposal of possession looms so large that in the end it's a battle to see which clause trumps the other on the matter of territories. You, and indeed history, suggests that the clause of disposal trumps the supremacy clause for territories. This should be to anyone a clear and undisputable example of evidence of a right for a component of the United States to Constitutionally cease to be so, in spite of the supremacy clause. The supremacy clause making no distinction between states and territories and yielding to the right of components to have ties dissolved ought to suggest that an argument that states and territories cannot be compared is invalid. Therefore states have the Constitutional right to have their political bands eviscerated, and the question of who dissolves these bands is most obviously pointed out in the 10th amendment.

It seems that the crux of this entire debate is whether a distinction exists in the supremacy clause between states and other possessions. Thus far you have offered no proof that such a distinction exists and unless you have any there seems to be no point in continuing this argument any further or it stands to become an exercise in going in circles.   

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Indeed, as I said, I would argue that both legislatures, in Richmond and in Wheeling, were illegitimate (the former being in rebellion against the United States, the latter lacking any legal authority). However, as I indicated, the question of legitimacy in such a case is one that must properly be resolved by Congress.

It does not matter much anyway in the long run. My digression on Virginia was merely intented to be a rudimentary example of how the government recognized secession. Just as a sidenote though, it's interesting to note that even if congress recognized the Richmond government as illegitimate and the Wheeling one as legitimate, they put both Virginia-Richmond's and Virginia-Wheeling's star on the 1864 United States flag. This perhaps might be seen as a somewhat tacit (if not official) admission that the Richmond government did have legitimacy.
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« Reply #10 on: October 31, 2005, 10:20:41 pm »
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The supremacy clause making no distinction between states and territories and yielding to the right of components to have ties dissolved ought to suggest that an argument that states and territories cannot be compared is invalid. Therefore states have the Constitutional right to have their political bands eviscerated, and the question of who dissolves these bands is most obviously pointed out in the 10th amendment.
On the contrary, the supremacy clause does (albeit subtly) make such a distinction. We need to keep in mind that, on the one hand, Congress is terminating the effect of the Constitution in a territory, and on the other, a state is purporting to terminate the effect of the Constitution within its own borders. 

First, let us consider the case of the states. The supremacy clause states, "This Constitution ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Thus, any state law that purports to nullify the effect of the Constitution of the United States is void.

Next, we may consider the altogether different case of the territories. The supremacy clause states that "the Laws of the United States which shall be made in Pursuance [of the Constitution] shall be the supreme Law of the Land." Thus, any law of the United States made in pursuance of the Constitution (even a law nullifying the effect of the Constitution within a territory) is not void.

Note, of course, that just as states cannot remove themselves from the union, so too can territories not remove themselves from the jurisdiction of the United States. In this regard, the supremacy clause applies equally on the states and on the territories.

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The Constitution gives congress the right to absolve territories from the Constitution and componentship of the United States, and contains no prohibition of secession by states, thus unless your supremacy clause claim is true, the states have the right to secede under the 10th amendment. I hope we can agree to this much.
There is a second argument against secession (that the Constitution is a compact between the states, and that no state may unilaterally breach it). This was the view advanced in Texas v. White.
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« Reply #11 on: November 02, 2005, 07:16:51 pm »
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On the contrary, the supremacy clause does (albeit subtly) make such a distinction. We need to keep in mind that, on the one hand, Congress is terminating the effect of the Constitution in a territory, and on the other, a state is purporting to terminate the effect of the Constitution within its own borders. 

First, let us consider the case of the states. The supremacy clause states, "This Constitution ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Thus, any state law that purports to nullify the effect of the Constitution of the United States is void.

Next, we may consider the altogether different case of the territories. The supremacy clause states that "the Laws of the United States which shall be made in Pursuance [of the Constitution] shall be the supreme Law of the Land." Thus, any law of the United States made in pursuance of the Constitution (even a law nullifying the effect of the Constitution within a territory) is not void.

Note, of course, that just as states cannot remove themselves from the union, so too can territories not remove themselves from the jurisdiction of the United States. In this regard, the supremacy clause applies equally on the states and on the territories.


You still fail to offer any proof besides your own opinion. Again I say it:
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It seems that the crux of this entire debate is whether a distinction exists in the supremacy clause between states and other possessions. Thus far you have offered no proof that such a distinction exists and unless you have any there seems to be no point in continuing this argument any further or it stands to become an exercise in going in circles.   
I very much doubt either of us is going to change our mind on our interpretations of the supremacy clause.


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There is a second argument against secession (that the Constitution is a compact between the states, and that no state may unilaterally breach it). This was the view advanced in Texas v. White.

That argument is incorrect as well. New York, Rhode Island, and most notably Virginia (whose ratification convention contained of course many of the principle Constitutional Convention delegates) affirmed in their ratifications that a right of the states to secede existed. Hardly seems to be a compact that considers secession unilateral breaching.
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