Intro: A Moment in Time with Dan Roberts.
Content: The American crisis of 1860-1861 brought into bold relief one of the most important constitutional questions left unresolved by the Founders, just what were the parameters of Federal and State sovereignty. Where did the powers of the new Union begin and end, and did a State, having committed itself to the united Republic, have the right resist the power of the Federal government and ultimately separate itself in an act of secession. In other words, was secession constitutional?
The U.S. Constitution is silent on the subject; in fact, a case can be made from that silence. There is no provision for breaking the bonds of the Union. It was considered by the Founders to be a perpetual institution. By abandoning the clearly ineffective Articles of Confederation they had constructed something far more enduring than a mere collection of independent states who had the option of participation or not. Once ratification took place, the Constitution assumed that the political process within the system was the only means of redressing the desires and aspirations of the people and the states. The Tenth Amendment with its reservation of powers doctrine, clearly envisions continued participation by the states. Any attempt to get secession out of that Amendment has to be implied. It is not in the text.
The Confederate Constitution is not very much help either. This shrine of secessionist jurisprudence contains no provision allowing states to secede. In fact its language of perpetuity parallels the U.S. Constitution’s enthusiasm for a “permanent federal government.”
Next time: the people, nullification and Texas vs. White.
In Richmond Virginia, this is Dan Roberts.
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