And I return to you the same backhanded compliment.

Indeed, I think it was Mr. Chips who quoted Hamilton from the Federalist Papers. Hamilton was the uberfederalist whose economic proposals like the establishment of a national bank met with strong opposition from fellow Federalist Papers author Madison, among others, who argued that the Constitution did not grant such powers to the federal government. Some of Hamiltons’ Federalist letters prattle on about state sovereignty and how the federal government would be small and its powers limited. Hamilton wrote these letters not because he wanted a puny and weak federal government but to reassure fellow government leaders and voting citizens who were suspicious of the final Constitution and Hamilton’s grand plans. I’ll admit I haven’t read this idea anywhere. It’s just my conclusion about the author’s purpose putting together what I know about Hamilton and the varied themes of his letters in the Federalist Papers collection.

Tells me you’re scrapping this stuff up on the fly only for the sake of argument and have no real idea what it means or where it’s taking you.

Amen and bravo. Proof-texting is a favorite tactic of sophists and firebrands: it requires only memorization of a few selected texts, which are by necessity divorced from their proper contexts. In this Age of Google, it doesn’t even require a good memory; the collective consciousness of the digital abyss far exceeds any human’s capacity for rote memorization.

What Google can’t do, however, is analyze texts in their context, even-handedly weighing differing viewpoints and interpretations to arrive at a genuine sense of the status quaestionis. This is the work of the scholar, and it’s what you’ve been doing here. Anyone who is not just here to belittle others and inflate his own ego has undoubtedly learned something from your posts. Again, bravo.

Proof-texting is not scholarship.

You’ve aided my argument with both of your quotes. First, Andrew Jackson is the last person in the world you should be quoting concerning the sanctity of the Constitution and its restrictions on power, nor was he in a position to be passing interpretation on the Constitution since there is another branch responsible for that. Second, the very quote from Madison that you used is particularly compelling. He converys quite clearly that the Constitution copmpletely avoided the discussion of secession. His only recourse was to state, rather, that he thought it bad for the Union that such a thing would take place and he never wanted to see a time when a ruling would have to be made in order to prevent the loss of a state. He openly states that supremity over states lasts only as long as they are a part of the Union,hence, they can leave the union. Quite clear that its legality was left open.

It would help if you chewed your own quotes before using them to aid those you are arguing against.

As for your Islamo hyperbole, you used the word “conquer.” That means, foreign or domestic, the military would have gotten involved; furthermore, only rhetoric could see such a situation neatly confined with the boundaries of a single state. Or perhaps you meant Muslim fundamentalists gradually assume a majority and are able to democratically choose to leave the Union and start their own government? But then you didn’t say that so I’m not sure if you really know how to argue your point.

The only case you need to be concerned with regarding secession is White vs. Texas. CJ Chase, regardless of what the founders intended the rights of the states to be, changed the course of the federal government and granted it supremity over state governments in all matters. From 1869 on from that case, precedence determined that secession was, in his words “not possible.” But I’m sure his being handpicked by Lincoln just following the War had nothing to do with his opinion on that. Justices from Jackson (no not the President), to Powell to Hughes to Rehnquist have all cited the sharp difference between Chase’s ruling and the spirit of the 10th Amendment which Jefferson had called the “Cornerstone of the Constitution.” But you never even mentioned that case or the others following that cite White’s precedence. You never cited Mulford v. Smith or US v. Darby which effectively stripped State’s powers from teh 10th Amendment. All of that made possible by the expressly worded opinion of Chief Justice Chase in 1869 saying secession was illegal. But you didn’t mention any of that. Not so clear cut and dry as you make it out to be with so many people holding different opinions and claiming the to “know” the true intent of the founders. Tells me you’re scrapping this stuff up on the fly only for the sake of argument and have no real idea what it means or where it’s taking you.

Chew on these for awhile, Mr. Chips:

“The States “retained all the power they did not grant. But each State, having expressly parted with so many powers as to constitute, jointly with the other States, a single nation, can not, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation.”

–Andrew Jackson

” In the event of an actual secession without the Consent of the Co-States, the course to be pursued by these involves questions painful in the discussion of them. GOD GRANT that the menacing appearances, which obtruded it may NOT be followed by positive occurrences requiring the more painful task of deciding them”

–James Madison(After the Nullification crisis)

Chew on these quotes for awhile, buddy. I’ll be back with a follup lecture on the main weaknesses in your argument(Hint: It concerns your comically overstretched interpretation of the 10th Amendment.)

Also, when did I say the Islamic terrorists in my scenario were foreign? Are you saying the scenario in question would be legal if the agents were domestic?)

“We the People” Think about it.

According to Prof. Erwin Chemirinsky, the above dissent is one of the “challenges [to the view of John Marshall in McCulloch v. Maryland] and reassertions of the theory of compact federalism.” The majority of the Thornton case responded to it by quoting Marshall’s opinion:

Once the National Government was formed under our Constitution, the same republican principles continued to guide its operation and practice. As James Madison explained, the House of Representatives “derive[s] its powers from the people of America,” and “the operation of the government on the people in their individual capacities” makes it “a national government,” not merely a federal one. Id., No. 39, at 244, 245 (emphasis deleted). The Court confirmed this principle in McCulloch v. Maryland, 4 Wheat. 316, 404-405 (1819), when it said: “The government of the Union, then, … is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” The same theory led us to observe as follows in Ex parte Yarbrough, 110 U. S. 651, 666 (1884): “In a republican government, like ours, … political power is reposed in representatives of the entire body of the people.” 514 U.S. at 839-40 (Kennedy, J., concurring).

In United States Term Limits v. Thornton, Justice Thomas, in dissent joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Scalia, stated that states retain ultimate sovereignty except in those areas where the Constitution expressly delegates power to the federal government. 514 U.S. 779 (1995).

He also added, “To be sure, when the Tenth Amendment uses the phrase “the people,” it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 5] would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President surely the most national of national figures - is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where “the Votes shall be taken by States, the Representatives from each State having one Vote”); Amdt. 12 (same).” Id. at 845.

This is, of course, different from the majority opinion in this case, which is a 5-4 decision.

The full text is here:
http://caselaw.lp.findlaw.com/.....p;page=779

The dissent starts at page 845 (”at 845″).

BTW, I think the hypo at #82 is “theoretically” possible. In reality, there would be another civil law, IMHO, however.

“repeatedly pointed out that unilateral secession on a state by state basis was objectionable.”

They never addressed secession, PERIOD. Specific application is the only relevent application of M.v.M. Anything beyond, would have been legislative.

“Grasping at straws” ?

Marshall argued only that the Maryland State legislature was unilaterally telling the Federal Government it couldn’t determine what how to implement what the Constitution specifically gave it the right to do. No where does he even hint at Federal Sovereignty which would necessarily come at the expense of any power of either State or people. He specifically veered away from breaking that balance.

“state by state secession was specifically pointed out and opposed. I’ve provided quotes to that effect.”

You have not provided a single quote from the framers or SC that even broaches the issue of secession, while I have provided quotes from the Federalist Papers saying it is the duty of the States to take measures to protect their people from the authorities of the Federal Government if necessary. So tell me again the difference between “government” and “Federal Sovereignty” isn’t important. Marshall understood that, why can’t you?

“secession is NOT a power”

That’s ridiculous. If you can do it, then it’s a power. Don’t even think about trying to test the intrinsicality of secession. So why even mention “powers not delegated” if everything “possible” has to be expressly stated.

“If, as you claim, the states, as sovereign entities, have the right to unilateral secession, then it stands to reason that a particular state itself, without the will of the people within the state, have the power to secede from the union as well.”

Another gross assumption that is patently false. I don’t know why people keep assuming that the States and the people are somehow completely alien to each other and that while the Federal government is represented by the people somehow the States seem to be this left field cadre of officials roaming the countryside ignorant of the people’s will. The States are the people and the State governments are the instrument of the people.

“slipping into hyperbole and ad hominem”

Questioning a man’s judicial philosophy is perfectly within reason when discussing the validity of his arguments. It doesn’t suggest exaggeration (hyperbole) and it doesn’t address his character (ad hominem).

“Its obvious that you know nothing about Akhil Amar’s background or scholarship.”

Now that is what you call ad hominem. While at the same time doing your little research project to bone up on someone you just learned about to prove your point, you accuse someone else of knowing nothing about that person, when in fact that person might actually (and does) know a fair bit about him. Reed Amar is indeed well known in constitutional legal circles. Being smart and prolific doesn’t make one immune to criticism or error. Questioning someone’s statements in light of their political philosophy is not ad hominem.

“are you seriously implying that Akhil Amar “overlooked” Article X?”

Prof. Amar has been consistent in his writings to imply meanings from the early constitutional writings that do not take into account the men that wrote them. In other words, ignoring what they said they meant while interpreting them to be what he wants. He also gives a much more genuine “democratic” flavor to the Constitution than what traditional Constitutional scholars have seen. He seems enamored with the pure democracy of how modern America views the Constitution in hindsight, rather than seeing what value the founders had in such institutions as the electoral college which was intended to protect small states, property owners and individuals alike from the potential “tyrrany” of the the purely democratic will of the people. He has stated outright that Article X grants sovereignty to a collective body of people, ignoring the fact that it was people of States that were granting that LIMITED authority in the first place. Say what you want about the compact between later territories and the Union. The initial contract was between peoples of independent states who relied on their States to form this Union which would protect them from without but still dependent on those States to protect them from the Union, when necessary. Madison and Hamilton show perfect agreement on that point in FPs 28, 32, 45, and 81.

Speaking of hyperbole…Islamic terrorists conqering Delaware? You’re assuming the Federal Government, to begin with, reneged on its EXPRESSLY WORDED duty under the Constitution to protect those people from invasion from without. Completely and INTRINSICALLy impossible under my intepretation of Article X.

Once you understand what “We the People” means you will be able to understand what place the State has in protecting them from the central authorities.