Balkinization: Will the United States Survive the 2016 Election: A continuing series

Comments:

Sandy:

Nothing Trump is doing threatens to destroy the United States.

Deporting illegal immigrants to their home countries is hardly analogous to returning African Americans to slavery. Trump would have to deport a 1-2 million illegal alien residents before matching the precedent of Hoover/Roosevelt Mexican repatriation or Eisenhower's "Operation Wetback."

During wartime, presidents routinely ban travel from enemy nations or nations occupied by the enemy. Until the Democrats became unhinged over Trump, no one thought to contest such common sense national security precautions. The Democrats certainly had no problem with the Carter ban on Iran or the Obama ban on Iraq.

I suspect we are in for increased political polarization, but nothing approaching the Civil War.

Democrat rioting, assault, looting and vandalism is not remotely analogous to the Civil War or even rises to the level of Democrat mayhem during the 1960s and 1970s. This problem can be dealt with through normal criminal justice measures. AG Sessions should begin a criminal RICO investigation of the Democrat Party front groups who organize and finance this violence. Meanwhile, state AGs should demand serious jail or prison time for the perpetrators.

There is not GOP counterpart to the Democrat mayhem.

The analogy to 1860 is apt in one respect - Democrats have gone confederate again with their sanctuary cities and Calexit plans. Even factoring in current Democrat mayhem, your analogy concerning the threat of violence is massively overblown. 1860's Democrat confederates raised an army to plunge the nation into Civil War. Today's regular Army and National Guard are are hardly going to support today's Democrat confederates in their secession plans.

# posted by

Bart DePalma : 4:14 PM

I'd agree that the conditions exist and create the risk, but I don't think the risk is immediate just yet. I'd say we're closer to 1853 than to 1858. And even in 1858 I don't think most people actually expected disunion; as they say, sometimes life just comes at you quickly.

# posted by

Mark Field : 4:15 PM

Mark: "And even in 1858 I don't think most people actually expected disunion [...]"

That's largely true, but I also think that many people engaging in the conventional wisdom of the day did not expect the "fire eaters" (particularly Yancey and Rhett) in South Carolina to deliberately blow up the Democratic Party at the 1860 convention in Charleston, thereby fomenting the final political crisis leading to secession.

For myself, Sandy, I agree... I believe there is a danger of something we would recognize as civil war. Perhaps not imminently, but over time a "balkanization" (if you'll excuse the phrase) that will make parts of the U.S. resemble Northern Ireland in in the mid-1970s. That is what concerns me...

# posted by

Anonymous : 4:22 PM

The factor that largely differentiates the current situation from 1853 or 1858 or 1860 in the US is the complexity of the geographical distribution of the factions in 2017. California may be the exception to this rule, but even there, the dispersion of red and blue is complex enough to make it difficult to see how a physical secession might be possible. The European analogs all have linguistic or religious elements as well which helped to geographically outline the territories involved.

But I can't shake off the strange and uneasy sensation that this cannot continue, that somehow, in some way, there will be a calamity (John Dean's word). The legal avenues for 'regime change' (impeachment, 25th Amendment) seem out of the question, but the possibility, even the likelihood that 45 or one of the minions, or Congress or some other actor will do something that causes fundamental change seems to stare us in the face.

The response of POTUS' defenders to almost everything said or done is 'it is not a big deal' (as in 'affecting the visa rights of 100,000 people is not a big deal'). In this context, I wonder what a 'big deal' would look like? Chaffetz thought the tweet regarding clothing lines was 'not a big deal' but he does seem to have reacted to government spokespeople pushing brands on the American population. I don't have the legal, business or rhetorical acumen to be able to distinguish the two cases, but perhaps we will start to see the definition of 'a big deal.' Similarly Gorsuch's reported remarks may indicate some line drawing as well. If this happens strongly enough and quickly enough, the worst may be averted. We have come very far very fast...it will take a big effort to stop this train....

# posted by

Unknown : 5:13 PM

The short answer is yes. One need only read Bart DP's response to recognize that the Union cannot stand when not insignificant minorities of people share his delusions. No doubt he feels safe up there in Teller County, protected from Democrat (sic) rioting and thugs by the altitude and the distance from the "inner city". And that's probably true in conservative (sic) communities across America. But, the sort of routine delusional demonization of non-Republicans will eventually result in Republican office holders adopting these same delusions and implementing policies to address them. And thus we'll see delusion turn into discrimination and hence into persecution. This will be driven by the same power-as-right ideology behind Republican vote suppression and procedural rigging in places like North Carolina. But, with people like Trump and Bannon at the helm urging it along, I suspect it could go much, much further. At that point, I expect we'll start to see a real breakdown of the social construct. Once that happens, civil war seems like a real possibility to me. And when that happens, no one will be safe, even in Teller County.

Thus, I don't think it is possible to really answer Mr. Levinson's question until we determine whether Republican office holders are as delusional (cynical?) as Bart DP.

# posted by

Drogon Saurischian : 5:26 PM

"In this context, I wonder what a 'big deal' would look like"

Something a Democrat does, from what I can tell, real or imagined.

# posted by

Joe : 5:40 PM

David: In this context, I wonder what a 'big deal' would look like?

Enforcing the immigration law and stays of travel from Iran and AQ/ISIS dominated nations most definitely are not a big deal.

A big deal to me would be Trump continuing Obama's rule by decree through the absolute bureaucracy and the rewriting of or the royal dispensations from the laws of Congress.

A very big deal to me would be Trump bringing to full flower the budding dictatorship of the Obama administration through things like enacting law by emergency decree, issuing executive orders nullifying laws of Congress, or ignoring rulings of the Supreme Court.

# posted by

Bart DePalma : 5:43 PM

The ties that unite us today adds to the geographic distribution in my view to provide a difference from the antebellum situation. The federal government then was smaller, the idea of separation more accepted (contra Scalia, I don't think the issue is "decided for all time," but few today truly deem it legitimate -- then, it was deemed quite an acceptable constitutional viewpoint), the bounds that tied together less etc.

The warning signs for me would be a sign that we are truly breaking apart at the seams. The Fugitive Slave Law was a major moment there and there were various clashes with the federal government. I think the small clash cited isn't comparable on scale there though it's possible that in time it might be. The previous law was passed by Congress, the current one a slipshod executive order. And, the opposition to slavery was longer and more extensive generally in scope than the challenge to the ban here. So, thinking big term, country splitting apart literally, no.

I guess the early 1850s is a reasonable comparison. But, there are shades of other eras, where the country accepted bigotry and injustice, was greatly divided in various respects, but actual breaking apart wasn't really in the works. As with Trump, the worst isn't necessary for it to be bad enough to worry a lot.

# posted by

Joe : 5:55 PM

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# posted by

Bart DePalma : 5:59 PM

Drogon:

The vast majority of the nation is safe from Democrat rioting, assault, looting and vandalism. Democrat thugs largely trash their own blue cities. Thus, my point the current situation is nothing remotely like the Civil War.

# posted by

Bart DePalma : 6:01 PM

Although there is clearly something to be said for emphasizing that sectionalism was far greater in 1860 than today, we may tend to underestimate the extent to which even the slave states were in fact divided. In Texas, for example, Sam Houston led the anti-secessionist forces, and there was similar division, I think, throughout the South. Similarly, as is well known, the North was scarcely united behind prosecution of the war. Think only of the Draft Riots in New York in 1863 and the support of many people from New York City, economically integrated with the cotton trade, who were opponents of Lincoln.

Also, it is obviously the case that military suppress of secession requires the willingness to the military to shoot their fellow citizens and/or the willingness of people to volunteer to join the army in order to keep, say, California in the Union. I find the latter hard to envision, and I'm scarcely confident about the former.

I clearly do not think we're in a state of civil war, not do I think the Phoenix episode counts as the equivalent of Anthony Burns. All I'm suggesting is that that is the most likely way that violence could escalate, i.e., larger and larger "solidarity movements," particularly in "sanctuary cities," that will require confrontation with armed officials from ICE who are trying to deport de facto attractive people (i.e., not convicted felons) from long-term residence in the U.S.

I am grateful to those who have participated in the discussion so far.

# posted by

Sandy Levinson : 6:39 PM

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# posted by

Bart DePalma : 7:15 PM

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# posted by

Bart DePalma : 7:20 PM

Sandy: Also, it is obviously the case that military suppress of secession requires the willingness to the military to shoot their fellow citizens and/or the willingness of people to volunteer to join the army in order to keep, say, California in the Union. I find the latter hard to envision, and I'm scarcely confident about the former.

Game this out using CA as an example.

Responding to a yes vote in favor of the CalExit referendum, the Democrat legislature enacts and the Democrat governor signs articles of secession and legislation forming the new People's Republic of California (PRC).

The president nationalizes the California NG like Eisenhower did the Arkansas NG, denying the new PRC a military. There is no need to deploy the NG from their barracks, however. This is still a criminal justice matter.

The Attorney General indicts all of the members of the new PRC government for rebellion or insurrection in violation of 18 U.S. Code § 2383 and orders the US Marshals to arrest the secessionists.

In the highly doubtful event the state and/or local police support the secessionists and they or Democrat mobs resist the US Marshals, then the President deploys the National Guard to disarm the police and disperse the mobs.

As I noted at the outset, we are not looking at a civil war when the modern Democrat confederates cannot field an army like their 1860 predecessors. This is more analogous to the federal government dealing with Democrat segregationists during the 1950s and 1960s.

# posted by

Bart DePalma : 7:29 PM

The 9th Circuit denied Justice's request for an emergency stay of the injunction against the Trump travel order pending briefing and hearing of the appeal of the injunction.

I doubt the Supremes will grant an emergency stay, so I suspect Justice will have to wait until the appeal process is completed.

# posted by

Bart DePalma : 7:32 PM

I believe we are in the intriguing beginnings of a cycle that could lead to a secession crisis as the cultural moment (that is, a true California or West Coast nationalist movement, the “imagined community” of a distinct nation) catches up to the still coalescing energy of the dividing national political mood. Absent true nationalist separatism, we are looking at a radicalized embrace of decentralized federalism, not true secessionism.

California has only just begun to develop the separatist cultural ideology which is required for a true secessionist movement to become widespread. But it could develop quickly with the right program and the right campaign/propagandists. In ideological terms, California is far behind the conceptions in the South or Texas, which of course have historical wells of separatism and a ready vocabulary. But it is much ahead of other states, and the Bear Flag design is suddenly everywhere in the state in a way similar to the Lone Star flag. California has the ready narrative, the imagery, the sense of difference, and the independence to push the button on the issue. What this nascent movements needs is an external catalyst. True overstepping by Trump (which I believe is likely) coupled with increased radicalism on the part of the Republican party will have a corrosive effect. I think we are in 1848. A successful/symbolic CalExit would be the equivalent of the Nashville convention of 1850.

# posted by

DM : 7:36 PM

DM:

The only way a Democrat secession could work is if a Democrat president refused to stop it.

# posted by

Bart DePalma : 8:05 PM

America has not experienced as yet secession by agreement. I assume that is what is being discussed or suggested, in particular with respect to CA. What would be considered in such an agreement, assuming it would be constitutional, can be quite complex. While I am a lifetime resident of MA, as a natural born citizen I have certain rights with respect to CA and each and every other state that makes up America. Sandy in a major law review article on secession and nullification gave a descriptive of TX seceding by agreement, raising the issue of nuclear weapons in TX. In a much earlier thread at this Blog I commented on Sandy's article and the suggested TX secession, suggesting that TX just might for its own defense wish to retain such nuclear weapons. Perhaps a few of the usual suspects (e.g., the "unBreit") might be thinking of secession as in 1860. But I don't think that will happen. As to secession by agreement, perhaps someone who has expertise in the art of the deal is needed, like casinos for example. Now that would be a real gamble.

# posted by

Shag from Brookline : 8:14 PM

There are very basic problems with the proposed secession.

1. People do not identify nearly so strongly with their states today. So, supposing that California votes to secede, the losers of the vote will likely not feel obliged to go along with the result, instead viewing the proposal as basically illegitimate.

2. Secessionist support is likely to be highly concentrated geographically, mirroring on a state level the "Tiny (But densely populated!) islands of 'blue' in a sea of 'red'" phenomenon we see across the country. Are the secessionist areas really expecting to drag most of the state, unwilling, with them?

3. So, the new country would be relatively small, densely populated, and probably not contiguous. Doesn't sound very viable to me.

4. Still, the rest of the country might agree to it, just to be shut of you.

5. You have to take your share of the national debt.

6. So, a small, non-contiguous, densely populated country, without much in the way of natural resources, ideologically opposed to extracting them anyway, dependent on imported water and energy, sheltering a large population of Mexicans, opposed to border security, and no military. Really, really doesn't look viable to me.

# posted by

Brett : 8:18 PM

Shag's comment hits to a point on the problems with secession without agreement.

A teacher I know told me recently she compared the Civil War to a sort of divorce. I told her that it wasn't quite the same, putting aside that some of the "kids" here (e.g., slaves) were in a sort of special situation.

# posted by

Joe : 8:43 PM

A couple of years ago at the Political Dysfunction symposium at BU Law School, BU Prof. Gary Lawson had an interesting paper on a bunch of regional secessions that political dysfunction might lead to. I don't know if Lawson followed up on this theme. It was a year or so later that Sandy came up with his Secession Nullification major article. While there may be continued political dysfunction today, it is different in the sense that Republicans control Congress, soon the Court and the Executive waves the Republican banner but with Bannon as the wild card. I don't see Lawson's 4-5 regional secessions working without, say, the EU approach backwards. Dividing the World's superpower might lead to challenges. I'm thinking of George W's National Security Strategy of Sept./Oct 2002 (pre-Iraq invasion), asserting that America is No. 1 economically, militarily and politically in the world and would do whatever it took, including pre-emptively, to remain No. 1. America and the world have changed since then. Breaking up America might result in each such sovereignty looking warily at the others, competitively and otherwise. While breaking up might work in a utopian world, that's not the world we got. Would such sovereigns have a NATO-like pact?

Lincoln favored Union. Even if Fort Sumpter did not happen, there still might have been a Civil War.

# posted by

Shag from Brookline : 9:50 PM

"Trump would have to deport a 1-2 million illegal alien residents before matching the precedent of Hoover/Roosevelt Mexican repatriation or Eisenhower's "Operation Wetback.""

I've learned to expect little but partisan propaganda, in the truest sense of the word, from Bart. What's interesting here to me with this passage is how, like most partisan propagandists, there's so much obtuseness. Since Bart is a shameless partisan he thinks the magical incantation of 'Roosevelt' sets liberals back on their heels automatically, as if liberals, especially modern ones, haven't had much criticism for many things the Roosevelt administration did, including what's directly alluded to here (you see conservatives do this with Wilson all the time too). Additionally, the obtuseness is so great that I think he really thinks his comparison to something called 'Operation Wetback' is somehow *helping* how Trump's hypothetically comparable program looks.

"During wartime, presidents routinely ban travel from enemy nations or nations occupied by the enemy. Until the Democrats became unhinged over Trump, no one thought to contest such common sense national security precautions."

Bart here practices his usual approach of invoking the traditional war time powers for a war that he concedes at time is a very non-traditional one. It's as if he insists that there is nothing, nothing strange at all about putting ketchup on steak, after all, we've been putting it on meat (hamburgers) for ages!

"The Democrats certainly had no problem with the Carter ban on Iran or the Obama ban on Iraq."

The 'Obama ban on Iraq' was, of course, something quite different than what Trump is doing here.

"Democrat rioting, assault, looting and vandalism "

It's worth noting that the last time Bart made such a charge and I challenged him for evidence he supplied a link where a leftist newspaper advertised the many left organizations endorsing a march in Minnesota that turned out to be entirely peaceful.

"1860's Democrat confederates"

People like Bart interestingly always invoke the party affiliation of the Confederacy but never the geographical location. Odd given the synonym of 'the South' for the Confederacy, right? But if your goal is only partisan propaganda it makes sense (because the fact that the South is the hard core base of the current GOP is obvious).

# posted by

Mista Whiskas : 10:57 PM

It's great what Brett actually says.

""Tiny (But densely populated!) islands of 'blue' in a sea of 'red'" "
"expecting to drag most of the state"

If ever there was more clear evidence that Brett thinks of this as a nation by the places, for the places, and people, well, they're just an inconvenience, what with their concentrating into tiny islands and all...

# posted by

Mista Whiskas : 11:05 PM

As a follow up to Mr. W's 10:58 PM comment in its closing, I would posit that during SPAM I AM!'s lifetime the Republican Party has NOT been the Party of Lincoln.

# posted by

Shag from Brookline : 11:15 PM

BD: "Trump would have to deport a 1-2 million illegal alien residents before matching the precedent of Hoover/Roosevelt Mexican repatriation or Eisenhower's "Operation Wetback.""

Mr. W: Since Bart is a shameless partisan he thinks the magical incantation of 'Roosevelt' sets liberals back on their heels automatically...

I noted the bipartisan precedent set by two Republicans and one Democrat.

I think he really thinks his comparison to something called 'Operation Wetback' is somehow *helping* how Trump's hypothetically comparable program looks.

The question posed by Sandy was whether mass deportations of illegal aliens would threaten the survival of the United States. The answer provided by history is obviously no.

BD: During wartime, presidents routinely ban travel from enemy nations or nations occupied by the enemy. Until the Democrats became unhinged over Trump, no one thought to contest such common sense national security precautions.

Mr. W: Bart here practices his usual approach of invoking the traditional war time powers for a war that he concedes at time is a very non-traditional one

This non-traditional enemy is killing our citizens and has been doing so for a generation now. Are you really going to argue we are not at war?

BD: The Democrats certainly had no problem with the Carter ban on Iran or the Obama ban on Iraq.

Mr. W: The 'Obama ban on Iraq' was, of course, something quite different than what Trump is doing here.

In what way. Team Trump modeled their order after the Obama order.

BD: Democrat rioting, assault, looting and vandalism "

Mr. W: It's worth noting that the last time Bart made such a charge and I challenged him for evidence he supplied a link where a leftist newspaper advertised the many left organizations endorsing a march in Minnesota that turned out to be entirely peaceful.

Not worth much. No one honestly disputes the reality of Democrat rioting, assault, looting and vandalism.

BD: 1860's Democrat confederates

Mr. W: People like Bart interestingly always invoke the party affiliation of the Confederacy but never the geographical location.

Geography is irrelevant. Democrat confederates may have started in the South, but they are now multiplying in the Northeast and West. The common denominator is that they are generally Democrats.

# posted by

Bart DePalma : 11:34 PM

This non-traditional enemy is killing our citizens and has been doing so for a generation now. Are you really going to argue we are not at war?

# posted by Blogger Bart DePalma : 11:34 PM

You know that almost all of the 9/11 attackers were from Saudi Arabia, right? That country is not on the ban list. You really are an imbecile.

# posted by

Bartbuster : 11:42 PM

We, are using two entirely different languages when we attempt to 'argue our point' with Bart and the likes of Bart.
When 'we' argue - we use facts, reason, logic, analysis, hypothesis, etc as 'gentle tools' to prove a point or to win an argument.
The other side does not understand 'our language' at all. These people have fallen prey to 'weaponized propaganda' over a couple of decades, that at the outset demands unilateral surrender of the very tools our side uses, namely facts, logic, analysis, hypothesis and so on - all to form our opinions, argue, reach conclusions and finally use all this to inform and guide our beliefs and behavior.
In my opinion, the only way these people will see past the veil of propaganda is a life-changing event/experience (something akin to some Obamacare hating individual whose life is saved by it!) that will be big enough to shock them out of it.
The other manner in which these people may snap out of their 'propagandized state of mind' is counter-brainwashing (which I do not recommend or endorse).
This is not a personal attack on Bart, but my assessment of the reasons we just cannot communicate. We are bewildered why 'sense' does not make sense to such people. And, in all likelihood they are panicked that we are all so oblivious to what seems so very obvious to them (based on the echo chamber propaganda they are victim of) as they clearly see a nation at the brink, their wellbeing in immediate danger and the world at footsteps of collapse because 'muslims are coming', gays are coming, 'mexicans are coming', 'terrorists are coming', 'black thugs are coming', drug dealers are coming', 'sharia law is coming', 'liberals are coming', 'democrats are coming' and joblessness, food riots, crime and life as they know it is coming crashing down around them and they are the Helpless Victims of all this and 'we liberals' are to blame! It is sad that they blame liberals to always play the victim card whereas they are now believing, behaving, acting and protesting as the ultimate victims!
We use the cerebral brain as our lead into a human argument while the other party uses the limbic brain making for a perfect impasse we all find ourselves in!

I'm not saying problems do not exist and the above needs to be taken within context please.

And lastly, this is NOT a personal attack on Bart or the 'like' I have loosely lumped together. No offence is meant or implied.

# posted by

Unknown : 4:24 AM

And, to the question of the day - if Trump were to removed from office by any event and/or political, legal maneuver, we run the risk that his rabid supporters take to the streets in a violent manner.
We definitely have ingredients that I believe can rapidly get out of hand and devolve into civil strife.
I live in the small town deep in the Bible Belt where local republicans routinely get 70% of the vote and I can vouch for the fact that the folk here are genuinely nice, neighborly and helpful and they feel deeply that they have been mocked and misunderstood by the educated 'elite' and their beliefs, religiosity, social conservatism is looked down upon as being inferior. The more we do this the more protective they become of it. Lastly, like I mentioned, they are very nice at the individual level (I apologize for generalizing and stereotyping but cannot make my point without this) but the group dynamics take on a mob mentality and that is the streak that does not portend well for public peace in the event things go 'south' for their man Trump!

I firmly believe that we are at the mercy of a handful of Republicans who have yet to rise up though, but will need to rise up soon and risk their political futures (which will be destroyed in all likelihood) and try to hold Trump back from major catastrophes while they let him keep busy with minor histrionics on twitter and/or the TV. After Trump’s cabinet is in place, Trump can pretend he is king while McConnell/Ryan act as adults and govern on the lines they did with Obama. Never move a limb unless it benefits their narrow partisan agenda, otherwise nod/dodge everything out of existence. They did it to Obama and I hope and pray they can successfully do it to Trump. The nation can survive that, what we may not is an unfettered, unchecked, unchallenged president. The check has to come from within the Republican party.

# posted by

Unknown : 4:25 AM

"If ever there was more clear evidence that Brett thinks of this as a nation by the places, for the places, and people, well, they're just an inconvenience, what with their concentrating into tiny islands and all..."

The context here is secession.

If group A here,(California) is entitled to leave group A+B, (USA), because they want to, despite being part of the same political unit..

Why is group C, (Everywhere in California except a few coastal areas.) not entitled to leave group C+D, (The state as a whole.)?

If you're dissolving bonds, why this far, and no further? Give me one good reason why the country as a whole should respect the desire of "California" to leave the US, but California doesn't have to respect the desire of non-South coastal California to stay.

No, if the people of the LA basin decide they don't want to be in the US anymore, that doesn't entitle them to drag everybody else in the state out with them.

You're some kind of irrational majority fetishist. You seem to think any bunch of people who outnumber another group of people somewhere else are entitled to rule over them.

The here and there really does matter, when you're drawing borders.

# posted by

Brett : 5:49 AM

I don't think we are in an '1860' situation. The biggest reason is that the biggest reason is that the social gropuings who fear for their long term decline actually control the national government for the moment. The social groupings that don't and which are slowly growing have no real reason to secede as long as they (in my view correctly) view the long run (next 5-20 years) correctly. The real danger will occur when the Democratic party controls the national government and the Republican party still controls large parts of the midwest and the less urban south. I think, however, that without NC, GA, FL and, possibly TX, even in that case a genuine base for secessionist politics that threatens the Republic doesn't exist.

# posted by

Anowenite : 8:39 AM

bb: You know that almost all of the 9/11 attackers were from Saudi Arabia, right? That country is not on the ban list.

You are making a valid argument to expand the Trump order, not to reverse it.

# posted by

Bart DePalma : 8:51 AM

Perhaps SPAM I AM!'s argument would be to expand the Trump order to include all Greater Middle East nations in which the Trump Empire has business interests, making SPAM's acclaimed fascist an equal opportunity fascist.

# posted by

Shag from Brookline : 9:01 AM

Sanjiv Kapur: We, are using two entirely different languages when we attempt to 'argue our point' with Bart and the likes of Bart.

The misuse of language is part of our national ideological divide, but I believe most of it arises from fundamentally different world views, which are partly the consequence of progressive self segregation from the rest of the nation, its concerns and its values. This self-segregation is even more extreme among the mandarin caste dominating our bureaucracies, academia, media and finance.

This is not a personal attack on Bart...

Of course not...

And, to the question of the day - if Trump were to removed from office by any event and/or political, legal maneuver, we run the risk that his rabid supporters take to the streets in a violent manner.

Here is a good example of the misuse of language. What you mildly describe as "removed from office by any event and/or political, legal maneuver" is normally called an overthrow, coup d'tat or putch. Such acts normally lead to civil unrest.

# posted by

Bart DePalma : 9:02 AM

You are making a valid argument to expand the Trump order, not to reverse it.

# posted by Blogger Bart DePalma : 8:51 AM

No, I'm just pointing out that the people who issued this order are incompetent frauds. If you weren't an incompetent fraud you would have realized that fact long ago.

# posted by

Bartbuster : 9:08 AM

Shag: Perhaps SPAM I AM!'s argument would be to expand the Trump order to include all Greater Middle East nations...

Team Trump claims their criteria in making their list of stayed nations is terrorist activity and the nation's ability to screen travelers. The latter criteria is supposedly the difference between Saudi and a failed state like Libya.

I am not privy to the intelligence, so I have no opinion on Team Trump's application of what appear to be reasonable criteria. This lack of knowledge is also why the courts should also defer in this matter. Oversight in intelligence matters is the job of Congress.

# posted by

Bart DePalma : 9:12 AM

The Constitution of 1787 is a very strange document in many ways and the bloggers here have done much to illuminate its quirks and deficiencies. In listening to current political discourse, particularly the words of 45, it is striking that the 1787 Constitution omits two matters that are so significant today. First, there is no mention of what the 'more perfect union' has or will have as BORDERS. The original 'Union' was defined without a set of physical boundaries. (The relationship between the NW Territories Act of '84 and the Constitution was never clarified-as the arguments over the admission of the State of Ohio show. And the debate around the LA Purchase demonstrated that Parchment was less interesting than money and will - force would come later). Then there is no mention of who the 'CITIZENS' of this Union are or would be. On this point perhaps we should give Madison and his brethren a pass, since the French Revolution was still in the future when they were drafting and the notion of 'citizenship' was very much up for grabs. On both these points there has been excellent historical scholarship. P. Onuf has devoted much of his life to the first question and, as a non-expert, I have found his books very useful on both topics.

Professor Levinson (among others) has actively pointed out how our 18th century document sits uncomfortably in its 21st century context, and his arguments are both refreshing and compelling. But perhaps there was some wisdom as well in these omissions. Sure, the question of citizenship was intimately tied to slavery and the boundaries question had more to do with the individual states at that point than the 'Union.' But none of this precludes the possibility that there were positive and articulated reasons for not including definitions or delimitations like these in the document. Ours is indeed a mongrel type of government, and perhaps, initially, was not designed to be a 'nation-state.'

From 1787 - 1860 these omissions led to much harm. The Civil War Amendments - in essence Constitution 2.0 - re-birthed us as a Nation-State, but in the 19th c style, so the US as a Nation-State-Empire came into being. Can we imagine a 1787 style 'constitution' where the 'Union' is not 'defined' by who its citizens are or what its boundaries might be in the 21st c? Can we imagine this without the automatically re-creating the problems that the failure to defined citizenship caused for the first constitution? And can we imagine this without automatically authorizing empire building? This may be too dreamy or impractical. If the realists, pragmatists and practical folks among have better ideas, lead on! If not, let's start thinking.

# posted by

Unknown : 9:12 AM

"The social groupings that don't and which are slowly growing have no real reason to secede as long as they (in my view correctly) view the long run (next 5-20 years) correctly."

I would say you've identified why the Democratic party has reacted with such horror to the immigration order, and what it portends.

The Democrats have long anticipated inevitable demographic victory. But it's not a natural demographic victory resulting from Democrats reproducing faster than Republicans. It's an engineered demographic victory resulting from the importation of people who move into Democratic areas, effecting apportionment favorably to Democrats, and then get amnestied or have anchor babies, who grow up to be Democrats.

Stopping illegal immigration threatens to derail the left's efforts to "elect a new people".

And, it's not just the illegal immigration. We have a census coming up, during Trump's first term, while Republicans are almost certainly going to control Congress. The Supreme court has ruled that it isn't unconstitutional to count illegal immigrants in apportionment. But they haven't ruled that it's mandatory.

Democratic party representation in Congress, and thus the Electoral College, is swelled by the Census counting illegal immigrants for purposes of apportionment. If the next Census decides that's not appropriate? Illegal immigrants mostly live in Democratic areas, so it's Democratic areas that lose representation if only legal residents are counted for apportionment purposes.

That's why the issue of illegal immigration is so important to the Democrats. Not only their future demographic victory, but their current power, depends on how the illegals are handled.

# posted by

Brett : 9:18 AM

The 14th A states that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State....." It doesn't surprise me that Brett is willing to treat undocumented immigrants as "non-persons" for this or any other purpose (due process, for example). It's a bit hard, though, to see the textual basis for that.

# posted by

Mark Field : 9:59 AM

SPAM I AM! responds:

"I am not privy to the intelligence, so I have no opinion on Team Trump's application of what appear to be reasonable criteria. This lack of knowledge is also why the courts should also defer in this matter. Oversight in intelligence matters is the job of Congress."

SPAM's opening clause makes sense only if the definitive article is deleted. And his closing sentence should be considered in connection with his lockstep support of the Bush/Cheney Administration's WMD misrepresentations that led to the invasion of Iraq which, with tax cuts, contributed to the Bush/Cheney 2007-8 Great Recession. Did Congress provide oversight? How did that work out? The Bush/Cheney Administration went fully public on its claims of WMD (as well as claims that Iraq was involved with 9/11), most all false. Trump campaigned on a Muslim ban, presumable inspired by mentor "Ban Ban" Bannon. As President in his second week, Trump/Bannon came up with the EO under challenge. Evidence? Trump and "Ban Ban" need no stinkin' evidence. Swallow the mandate Trump got. That man date put Trump and "Ban Ban" in the WH.

# posted by

Shag from Brookline : 10:18 AM

Anyway, in terms of the question posed...

Assuming the side seceding or starting the civil war is the left, as seems at this point likely.

I don't believe that there is, at this point, a serious likelihood of secession. The areas that seriously would want to secede are not large enough, nor economically diverse enough, to constitute a viable country. The new country would be radically dependent on the old for water, food, energy, and lacking in any military. It's just not workable. Bart's scenario, where an abortive attempt is followed by mass arrests, is somewhat plausible, and is actually the optimistic scenario, as success would end up uglier, it would probably involve being absorbed by Mexico.

Nor is civil war at all likely at this point, as the imbalance of forces is just too great. Not just a matter of the national military against a few states' National Guards, but the reality that they'd probably find their own National Guard units refusing to back them. It's quite a handicap in a civil war to be culturally hostile to military enlistment, and private gun ownership.

OTOH, widespread violence short of civil war? Quite plausible.

The left has already demonstrated a proclivity to riot when not getting its way, or even just exposed to viewpoints it disagrees with, and romanticizes revolutionary violence. Terrorists like Alinsky, have managed to be respected figures on the left. Our universities are turning out Red Guard by the thousands. The raw material for something like the Irish "Troubles" is definitely present.

I am expecting that, at some point, Trump's Justice department is going to start going after left-wing groups like the black block, as they are blatantly violating civil rights laws created to fight the Klan. They're going to go after the organizers, start tracking the money paying for this to its sources.

At that point it's either going to subside as the backers get scared off, or go underground and become a persistent problem.

# posted by

Brett : 10:22 AM

"It's a bit hard, though, to see the textual basis for that."

Not counting illegals for purposes of apportionment between states would be tough for a textualist, though it would be a slam dunk compared to some things living constitutionalists swallow without complaint.

But redistricting within a state, at this point, is merely permitted to be based on populations including illegal immigrants. Political power within a state could easily being redistributed if the Census delivered numbers that omitted the illegal population.

Further, there's the question of where people counted are attributed to. For instance, do prison residents count as resident in the location of the prison, or where they lived before being incarcerated? What if the census starts recording the place of residence of illegal immigrants as their nation of origin?

# posted by

Brett : 10:28 AM

"Terrorists like Alinsky, have managed to be respected figures on the left."

So many liberals never even heard of Alinksy or know nothing much about him other than "the right" or anyway people like Brett are a tad obsessed about him. He's an interesting figure, especially the real version of him vs. the specter that is haunting South Carolina at the moment.

It's useful to have the Trump side here, including largely because "he has the right enemies" (to quote a pre-election comment) support of increasing federal and executive power including going after protesters, who on the whole (with exceptions; meanwhile, with the exceptions, the right don't murder abortion providers, take over federal land, shoot up mosques etc.) have not been violent.

A libertarian might support Black Lives Matters, e.g., though wary about a few who broke the law, since they are upset about power of the police and how they repeatedly violate rights. Cf. 'stand your ground' type laws that in practice will in some cases result in tragic use of violence, which isn't enough for supporters since they believe as a whole it is a defense of a constitutional right.

But, a conservative would be less sympathetic. They will blandly, without concern, talk about the Trump Administration going against "the left," surely the increase in federal power would not cause problems later. A consistent concern for state rights would be sympathetic with the states suing the feds now. A conservative support for state rights, on the other hand. Ditto Trump use of executive orders. etc/

The newcomers, including discussion on how we are on different wavelengths here, are appreciated.

# posted by

Joe : 10:43 AM

"He's an interesting figure, especially the real version of him vs. the specter that is haunting South Carolina at the moment."

You know what? I must admit that for a moment I had Saul Alinsky confused with Bill Ayers. Ayers is the terrorist, Alinsky merely a criminal. There's such an embarrassing wealth of horrible figures the left embraces, sometimes it gets difficult to keep them straight.

# posted by

Brett : 10:57 AM

Mark Field is correct in a recent comment. I also would note the 5th and 14th Amendments speak of rights of "persons," not just citizens.

I gather "illegals" (or immigrants who are illegal) means those who break some sort of rule, like the many people who illegally don't follow licensing rules and are unlicensed/"illegal" plumbers, hairdressers, electricians or the like.

And, "living constitutionalists" would be those who apply text in a logical and appropriate way that develops over time as was expected by those who wrote and ratified it. In fact, the Committee of Detail PURPOSELY wrote the document in the way it was written to advance that approach. It is helpful though that we are reminded that "originalism" is not "textualism."

"Political power within a state could easily being redistributed if the Census delivered numbers that omitted the illegal population."

Well, if you want to ignore what the Constitution says, since "the left" isn't doing it, it's okay maybe, why stop there? Maybe, you can not count "the left," including let's say anyone who ever was prosecuted for breaking even a misdemeanor. I'm sure by creative usage of the "crime" language in the 14A you can get away with it.

Seems to me that for 200 years we managed to not make prisoners non-persons while dealing with the special concerns there. As to "What if the census starts recording the place of residence of illegal immigrants as their nation of origin?" Sounds almost biblical, if like in the case with that census, a tad impractical outside of the realm of faith. But, again, if the left isn't doing it [often in the right's mind], making stuff up apparently is acceptable to some people.

# posted by

Joe : 10:57 AM

This comment has been removed by the author.

# posted by

Joe : 11:03 AM

"Criminal" as a general label for Alinsky is confusion enough.

Ayers is even less known, supported etc., though if we want to play that game, various figures "the right" [rather, various members] support with unsavory pasts, including supporting violence, can be cited.

# posted by

Joe : 11:04 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:41 AM

BD: "I am not privy to the intelligence, so I have no opinion on Team Trump's application of what appear to be reasonable criteria. This lack of knowledge is also why the courts should also defer in this matter. Oversight in intelligence matters is the job of Congress."

Shag: And his closing sentence should be considered in connection with his lockstep support of the Bush/Cheney Administration's WMD misrepresentations that led to the invasion of Iraq...

Both the Democrat Senate and Parliament debunked the "Bush lied, people died" slander.

Did Congress provide oversight? How did that work out?

Precisely the way it was supposed to work.

As part of his request Congress provide him with a new AUMF (when the first Gulf War AUMF was still operative), Bush presented the intelligence to the House and Senate committees, which both supported the eventual bipartisan AUMF. As with all intelligence concerning totalitarian police states, the international community's intelligence on Iraq (Bush was relying on intelligence from multiple nations) was incomplete.

Our intelligence on ISIS, AQ and their affiliates is similarly incomplete. We do not have a good idea who are members and supporters of these enemy groups. Thus, the problem with vetting travelers from nations with active enemy operations. Team Trump needs to brief the House and Senate intel committees on what they do and do not know and the strengths and weaknesses of the current vetting programs. Then they can work together to address the problem. The courts have no part in this process.

# posted by

Bart DePalma : 11:42 AM

Brett: Alinsky merely a criminal.

What crimes did Alinsky commit?

Alinsky's claim to fame is modifying classic socialist agitprop techniques for use in America, which have since become part of the progressive playbook. See Rules for Radicals and Reveille for Radicals.

# posted by

Bart DePalma : 12:29 PM

What crimes did Alinsky commit?

Alinsky's claim to fame is modifying classic socialist agitprop techniques for use in America, which have since become part of the progressive playbook. See Rules for Radicals and Reveille for Radicals.

So yes. What crimes did Alinsky commit?

# posted by

Joe Schneider : 12:43 PM

He studied gang culture from the inside, and while doing so ended up complicit in criminal activities. It was his inspiration for going into politics, where you could rob people legally, because your gang decides what's 'legal'.

He actually bragged in a Playboy interview about committing larceny, with an organized scam he came up with to cheat the university cafeteria system.

Now, maybe you think that's no big deal that he found a way to steal food from the university, and shared it with his friends. But we're talking a guy who really didn't have any problem with criminality, and hung out with the mob, and you're going to believe he never did anything illegal, just watched?

# posted by

Brett : 1:13 PM

It is helpful though that we are reminded that "originalism" is not "textualism."

It would be pretty hard to come up with an originalist interpretation of the 14th A that excludes undocumented aliens. But maybe Brett expects the conservatives to use the same high intellectual standards they apply to the 11th A.

# posted by

Mark Field : 1:25 PM

No, Mark, I expect Trump to live down to the left's standards. Fortunately, he's committed to nominating judges who wouldn't be inclined to let him, such as Gorsuch.

It's not hard to lay out a non-textualist argument for illegal aliens not counting in apportionment. Tourists and business travelers, even though present in the US at the time of the census, do not count. Neither do diplomats. Are any of these exceptions mentioned in the first clause of the 14th amendment? No, the only exception are "Indians not taxed". And if I, a US citizen, happen to be visiting Tennessee when the Census comes by, do I get counted towards Tennessee's count? No, I get counted towards the number at my legal residence.

So, just consider illegal aliens akin to tourists, and declare their legal residence to be their state of origin, since they have none in the US. Do I like this? Not really, I'd prefer to see an amendment that explicitly states that only citizens and legal residents count, and restricting birthright citizenship to their children, and no others'.

But the reasoning I suggested is certainly less dodgy than, say, the extension of interstate commerce clause jurisdiction to non-commerce within a single state. There are people with the moral standing to criticize it.

But you're not among them, not being either a textualist or originalist.

# posted by

Brett : 1:58 PM

Brett:

Gotchya. I forgot about the Playboy interview.

# posted by

Bart DePalma : 2:03 PM

SPAM I AM!'s 11:42 AM response closes with this:

" Team Trump needs to brief the House and Senate intel committees on what they do and do not know and the strengths and weaknesses of the current vetting programs. Then they can work together to address the problem. The courts have no part in this process."

But "Team Trump" failed to do this in issuing its EO in the second week of his term, and apparently without input and consultation with federal agencies that would implement the EO. That's why the courts became involved. And keep in mind Trump's claims that he knew more than the Generals and that he was not into receiving intelligence briefings. It's clear Trump lacks intelligence. And yes, intelligence is sometimes lacking or may be inaccurate.

Earlier in SPAM's response he made excuses for the Bush/Cheney Administration mis-intelligence, failing to recite intentional mis-intelligence that the Administration came up with. Bush/Cheney pulled the wool over the eyes of Congress with mis-intelligence. Picture Colin Powell before the UnN making the case for Bush/Cheney with the mis-intelligence provided to Powell. When Powell realized he was snookered by the Administration and went public on it. But SPAM tries to lay the blame on other nations for faulty intelligence when it was primarily the Bush/Cheney Fawlty Towers Administration that pushed it mis-intelligence.

So maybe if Team Trump had done its job well and Congress its job well, the courts might not have gotten involved. As noted, this did not happen. But even then, circumstances may still provide a role for the courts.

By the Bybee (expletives deleted), it has just been revealed that Flynn pre-inauguration spoke with Russia about the lifting of sanctions. Can Congress do its oversight with Trump's "To Russia With Love" campaign on the back burner?

# posted by

Shag from Brookline : 2:17 PM

The law distinguishes between residents and tourists. Now, a literalist textualist might argue that tourists should be counted too, but that's irrelevant to the issue of undocumented immigrants, who are indisputably resident in a state.

But FYI: in the legal business, everyone -- literally -- starts the process of interpretation with the text. We're all textualists, we just don't necessarily agree on how to apply that. Kind of like the Constitution itself.

# posted by

Mark Field : 2:21 PM

Brett continues with his chronic case of "Wickburn" despite the late Justice Scalia's up-in-smoke opinion in Raich. Maybe Brett should visit SPAM in CO for recreational to at least ease the pain.

# posted by

Shag from Brookline : 2:24 PM

But they're not legally resident in a state, and often they entered as.. wait for it... tourists! Would it be crazy to keep them in that status?

We have an established rule that the census counts people according to their legal residence, not where they just happen to be at the time they're encountered. If there were a burglar in my home at the time the Census came by, would they record him as a resident at that address?

Why is the legal residence of an illegal alien not simply recorded as their country of origin?

As I say, I'd personally prefer an amendment. But the argument above is considerably less dodgy than a lot of established constitutional doctrine.

# posted by

Brett : 2:34 PM

"extension of interstate commerce clause jurisdiction to non-commerce within a single state"

A textualist might note the actual clause: "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes"

When so regulating, you are going to bring in "non-commerce within a single state" in various cases like regulation of postal roads will also include non-postal road things necessary and proper to further that power. And, the laws involved often regulate more than commerce, providing multiple jurisdictional hooks. Finally, a micro-view of terms here is both not what was originally understood or a very reasonable means of applying the Constitution in general.

History was also repeatedly used here as well but when it results in conclusions that seem wrong (see, e.g., response to Jack Balkin's long article on "Commerce"), it is fairly malleable as applied to constitutional reasoning by conservative "originalists" or whatever label suits.

# posted by

Joe : 3:16 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 3:26 PM

BD: Team Trump needs to brief the House and Senate intel committees on what they do and do not know and the strengths and weaknesses of the current vetting programs. Then they can work together to address the problem. The courts have no part in this process.

Shag: But "Team Trump" failed to do this in issuing its EO in the second week of his term...

The express purpose of the Trump order, as discussed repeatedly in his campaign, was to temporarily stay travel to gather this information.

That's why the courts became involved.

For no other purpose than obstruction, Democrat AGs brought completely law free claims and brought the courts into this. The courts should have shut them down from the outset:

As Justice Jackson famously noted in C. & S. Air Lines, Inc. v. Waterman S.S. Corp.
333 U.S. 103, 11 (1948)

The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

# posted by

Bart DePalma : 3:26 PM

This comment has been removed by the author.

# posted by

Joe : 3:33 PM

Now SPAM I AM! is "SPAM-'splainin'" The Donald. Some may find it hard to believe, but which one is the dummy? WHO SAID "BOTH?"

SPAM with this:

"The express purpose of the Trump order, as discussed repeatedly in his campaign, was to temporarily stay travel to gather this information."

stresses Trump's campaign when Trump called for a Muslim ban. Most telling is that Trump during his campaign had gathered no evidence. So when Trump became President, he put the ban in place to give Team Trump the opportunity to find evidence. It's sort of a fishing expedition, with the hooks baited for - drum roll - Muslims. Apparently Team Trump included Rudy "9/11" Giuliani. But not only wasn't Congress involved with this EO two weeks into Trump's presidency, neither were the agencies that would implement the EO. SPAM quotes Justice Jackson, but take care to consider the Team Trump circumstances to compare with the circumstances during the Truman Administration. Did Team Trump in its second week in office haveavailable intelligence service reports on which to base his campaign claims for a Muslim ban? How many intelligence briefings did Trump attend as President-elect? Team Trump's attorneys had no answers to pertinent questions asked at the Appeals Court hearing. Trump wanted to show his base action on his campaign promises. Soon I'll pick up on the TRUMPTY-DUMPTY WAILING WALL. SPAM is getting in lockstep with his acclaimed fascist now our President.

# posted by

Shag from Brookline : 4:01 PM

Being crazy in my case includes an admittedly annoying tendency to nitpick, I am sorry. Sandy, you write "the usually ignored peaceful secession of Slovenia from Yugoslavia". There might be a reason for ignoring the "peaceful" secession, since it was not. There was war, albeit a short one: The so-called "Ten-Days War". Forty-four Yugoslav federation soldiers and eighteen Slovenians lost their life, and there was even an allegation of a war crime ─ supposedly committed by the Slovenian side.

# posted by

Anonymous : 4:14 PM

But they're not legally resident in a state, and often they entered as.. wait for it... tourists!

In some cases, perhaps (e.g., Canadians overstaying a visa). In most cases, though, undocumented immigrants are NOT tourists because tourists are, by definition documented and thus not in violation of any law.

We have an established rule that the census counts people according to their legal residence, not where they just happen to be at the time they're encountered.

Hard as it may be to believe, the legal definition of "resident" is... where you actually reside. In any case, the 14th A does not use the word "resident". It just says "count the whole number of persons within a state".

# posted by

Mark Field : 4:27 PM

I deleted my previous comment since Mark Field covered it better.

My comments hold as a general matter, but fall in a trap by working harder to make a case because of what amounts to the "look a squirrel" method, here a theoretical one.

# posted by

Joe : 5:42 PM

Solve for X:

Jeff B. Sessions is to President Donald J. Trump as X was to President Andrew Jackson.

The winning entry will place this thread into moderation immediately.

# posted by

Shag from Brookline : 8:03 PM

Mark, tourists are not in violation of any law until they overstay. It would be a strange system where the innocent, law abiding tourist doesn't count, but let them decide to violate our laws, and suddenly they must be represented.

I say, deport them all, and those who can show that they did nothing wrong while in the US apply to be admitted through the legal immigration system... starting at the back of the line.

# posted by

Brett : 10:04 AM

Brett is back to his colorful "back of the bus" mode (assuming he ever left it). I'm sure Brett has solved who is X but wishes to keep this thread going. To keep this going, solve for Y:

Indian Genocide was to President Andrew Jackson what Y is to President Donald J. Trump.

# posted by

Shag from Brookline : 10:22 AM

One more time: the 14th A says nothing at all about residency, legality, or anything else. It expressly says to count the "whole number of persons".

Even if you wanted to argue that it's hard to count tourists (or "tourists") as a practical matter, the next level would be to count residents. By long-standing law, that's anybody who is residing in a place, legally or not (e.g., a squatter in a vacant house resides there, even if he could be evicted tomorrow). It counts me if I live in CA even though I plan to move to NY the following day. Etc.

For someone who's always complaining that liberals "ignore the text", you're awfully anxious to ignore it here. You're consistent with the conservatives in 11th A cases and in Shelby County, I'll give you that.

# posted by

Mark Field : 10:24 AM

I mentioned above the possibility of not counting those citizens who broke even minor laws. This focus on "law-abiding" makes that quite possible.

The provision regarding apportionment does clearly benefit the people who are counted in some fashion. But, that isn't the only reason for it. The people counted have needs and affect others (including their American citizen family members) in such a way that it makes sense to count them. Thus, even slaves in the original system were counted somehow for purposes of representation.

Not counting millions of undocumented immigrants is not just bad on a basic justice level. It's pragmatically ill-advised. Multiple reasons also make just deporting everyone and requiring them to prove their case a bad idea too. First, there is a lack of resources and will to provide them. Next, this lack of will is based on sound economic, moral and other reasons of the people in this country. Finally, there are various legal complications based on the rules in place.

# posted by

Joe : 10:49 AM

A new Twitter feed has been set for the blog.

This provides a (rather limited) means to respond to posts that don't allow comments.

# posted by

Joe : 12:07 PM

Let us assume Congress is willing to propose and a supermajority of states are willing to ratify a constitutional amendment permitting the secession of blue states.

How would this work?

How will a state determine to secede? Legislation? Referendum?

Can a majority of the state citizenry located in a fraction of the land occupied by blue cities force the remainder of the state to give up their American citizenship in secession or leave their homes as refugees? Or would the states split up with only blue city states seceding? If you want to see a shooting civil war, watch Colorado if Denver attempted to drag the rest of Colorado into secession.

Do the seceding states or city states become individual nations or do they attempt to form one nation? The former (especially if they are city states) may not be economically viable, while the latter would have the same geographical problems as the secession of the Muslim parts of India after the British left. For example, how does Wall Street trade financial instruments for America when it is located in the foreign city state of New York? If Wall Street left, what is really left of the New York city state?

How does American and the seceding states or city-states divide federal property and the debt which paid for it? Owners of US debt will not agree to a transfer of liability to a seceding state of questionable economic viability. The near insolvent Blue states governments cannot pay off their share of the debt. Thus, does the US take all of its moveable property, including military equipment?

# posted by

Bart DePalma : 12:12 PM

Secession is even more complex than the selective relevant questions posed by SPAM I AM! indicate. Does the Constitution in its present form permit for secession, whether by legislation or referendum, combinations thereof or otherwise? Consider the Preamble's goal of a more perfect Union. Would an Amendment be necessary? Perhaps SPAM in his amendments grab-bag has such a proposal. How might a second constitutional convention address this? The EU has a provision for exiting. We don't know how Brexit will workout for the UK or the remaining EU member nations.

Earlier in this thread, I made a second comment on secession:

"A couple of years ago at the Political Dysfunction symposium at BU Law School, BU Prof. Gary Lawson had an interesting paper on a bunch of regional secessions that political dysfunction might lead to. I don't know if Lawson followed up on this theme. It was a year or so later that Sandy came up with his Secession Nullification major article. While there may be continued political dysfunction today, it is different in the sense that Republicans control Congress, soon the Court and the Executive waves the Republican banner but with Bannon as the wild card. I don't see Lawson's 4-5 regional secessions working without, say, the EU approach backwards. Dividing the World's superpower might lead to challenges. I'm thinking of George W's National Security Strategy of Sept./Oct 2002 (pre-Iraq invasion), asserting that America is No. 1 economically, militarily and politically in the world and would do whatever it took, including pre-emptively, to remain No. 1. America and the world have changed since then. Breaking up America might result in each such sovereignty looking warily at the others, competitively and otherwise. While breaking up might work in a utopian world, that's not the world we got. Would such sovereigns have a NATO-like pact?

Lincoln favored Union. Even if Fort Sumpter did not happen, there still might have been a Civil War.

9:50 PM "

I hope discussion that might ensue doesn't breakdown into cavalier bravado. The one or potential seceding entities presumably would adopt a constitution(s) that might clash with that of the US that remains. Border walls? Limitation on entry? Some imposing lavery? I should note that the seceding CSof A had a constitution that significantly mirrored that of the US Constitution. Not only is there an interdependency for all nations in the world, which require some forms of cooperation, a beauty of America has been the ability of the Union to come to the aid of its parts that encounter serious natural and unnatural occurrences. If we are to consider secession, let it be civil, without war.

# posted by

Shag from Brookline : 2:56 PM

Here's the link to Gary Lawson's article"

http://www.bu.edu/law/workingpapers-archive/documents/lawsonssrn2014number2.pdf

Sandy is recognized by Lawson for remarks.

# posted by

Shag from Brookline : 3:02 PM