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Saturday, June 24, 2017

Texas boys speak, and what they want is secession

Like many states, Texas has an annual "Boys State," as well as a Bluebonnet Girl's State, both sponsored by the American Legion, where presumably talented and ambitious youngsters descend on Austin to take on the role of would-be leaders of the State.   Both met earlier this month, but I am interested in the boys and their enthusiastic endorsement that America's second-largest state secede from the United States.  I can do no better than quote its own website and the excitement it conveys:


Today the Statesmen of Texas Boys State marched to capital to visit the various offices of elected officials and to tour the facility. The day began with the Statesmen lining up to march together with the band in the lead playing different music pieces. The capitol building of Texas is an amazing feat of architecture. Many people were able to see the march and many were impressed by the uniformity of the Statesmen. The House and Senate members reported to their respective chambers and began debating and passing laws.  One bill in particular was highly favored by both chambers, the bill for secession. The senators and representatives of the Texas Boys State government passed the bill and created a constitution and a declaration of independence. This is the first time in Texas Boys State history that the government body decided to secede from the United States.
The gallery of each chamber were cheering and celebrating because they have now made history by becoming a nation....


Should we pay attention to this?  I think the answer is yes, independent of whether or not one is sympathetic or hostile to the plethora of secessionist talk that one can find in the United States today. One might put this in the context as well of a 2014 Pew Poll that found a considerable diminution in the percentage of Americans that believed the US was the "greatest country" on earth. Unfortunately, the poll does not measure the views of young teenagers (such as those who were delegates to Boys's State.  But it did indicate that only 15% of the 18-29 cohort believed that the US was the "greatest country in the world."  Even geezers like myself, who had been at the 50% mark in 2011, slipped to 40% by 2014.  I'd be interested in know how many readers of Balkanization (including the lurkers who never comment--you know you are!) would disagree with the youth of America on this point.  Believe it or not, I'm ambivalent, rather than a simple dismisser of the chauvinism underlying the terminology.  I have no doubt that there are other nations that are better, from the perspective of social justice, led by the Scandinavian countries.  One might well wish to be born a Swede these days.  But the reality of Scandinavia, of course, is that it is constituted of small, relatively homogeneous, populations.  The glory of the U.S. (though one would never know this from our sociopathic President) is the remarkable pluralism and relative openness to people of remarkably different backgrounds, religions, languages, etc.  Given that my own mother was an immigrant from Poland in the aftermath of World War I, I cannot help but be grateful to a country that has made possible my own life (which, for better or worse, is a very different one from the one that I suspect my mother would have chosen for me, another profound reality of American life and, perhaps, "American exceptionalism").  But I'm certainly with the majority of Americans who believe that the country is very much going in the wrong direction and with the majority of Americans who have little or no esteem for the so-called "leaders" of our country as found particularly in the Congress and the White House.  And the Supreme Court looks good only by comparison.  One must realize that basic elements of what we have taken for granted as foundations of our constitutional order may rest on Anthony Kennedy's decision to retire or stay the course.  Can there be any real doubt that Trump would nominate, and the supine Senate readily confirm, a smart conservative who believes in basically untrammeled executive power (for starters)?

So, back to the youth of Texas.  What is it that keeps a country together? Publius in Federalist 2 suggested that it was basically homogeneity.  Thus his preposterous argument that providence had placed in the New World a group of people who were fundamentally the same in religion, language, manners, and political aspirations.  That was false at the time, and it has become even more so today.  So is it the development of a genuine notion of fellowship--"constitutional faith"--that links all of us together in a common enterprise instantiated in Preamble of the Constitution or the aspirations of the Declaration of Independence?  That obviously did not work to prevent the carnage of 1861-1865, when Robert E. Lee and Jefferson Davis, both graduates of West Point, betrayed what had been their country in favor of the Confederate States of America (or, perhaps, in Lee's case, simply Virginia). As David Blight has emphasized, the "reunion" that took place after the War depended ultimately on whites coalescing and agreeing to ignore the plight of African Americans.  And, of course, access to the United States was significantly restricted, especially to Asians.  See, e.g., the aptly named Chinese Exclusion Cases, in which the Supreme Court unanimously sustained the iniquitous display of "sovereign power" by the US regarding control of its border.

The terms of "reunion"were perhaps illustrated best by the election of the most malevolently racist president in our history, Woodrow Wilson.  It has become a cliche that we have not been so polarized since the 1850s, when slavery and racism tore the country apart.  Anyone who ignores the degree to which racism underlies at least some of the Trump phenomenon (consider only the symbolism and reality of appointing Jefferson Beauregard Sessions as Attorney General) is ignoring reality.  Look only at the spate of acquittals and deadlocked juries with regard to rogue cops who have killed African-American men and women.  (I use the word "rogue" advisedly, for I do believe that most police officers are honorable people trying to do their best in performing what at times are near-impossible roles.  But that doesn't gainsay the criminality of some of those permitted to wear the badge and, more to the point, carry the means of death).  Nor can one ignore the desperate efforts to maintain the US as a "Christian country," which it clearly was until the living memory of anyone over 60.

In any event, the formula for "reunion" no longer works.  We are in no real sense a "United States of America."  One might also consider in this context the boycott announced by the State of California against state-funded travel to Texas, Kansas, and other states in protest of their adopting discriminatory polices particularly against the GLBT community.  I am put in mind of the pre-Constitutional use of tariffs by states against one another, which led Madison and Hamilton to call for a new Constitution to prevent the almost certain breakup of the Confederation into two or three separate countries.  Both, at least in 1787, were skeptical of the virtues of federalism.  Indeed, the most truly vehement critique of "local control" in our entire history is that penned by Madison in Federalist 10, where states are exposed as cesspools of factional interests eager to oppress vulnerable minorities.  But, of course, one state's notion of "tyranny" is another state's notion of "local mores," and federalism is most explicable as a means of allowing groups of people, distributed geographically, who basically don't like or trust one another, nonetheless to come together in some kind of political union largely for purposes of national defense and achieving an economic free market, while adopting a live and let live policy with regard, say, to slavery, racial discrimination, and, these days especially, discrimination against GLBT persons and, for that matter, decidedly straight women who wish to maintain control of their own bodies.  This is, incidentally, when we are brought face-to-face with the practical limits of the amount of "diversity" we are willing to tolerate throughout the country.  In any event, are there sufficient social-psychological resources--what Lincoln called the "mystic chords of memory"--to maintain the Union today?  Presumably, the youth of Texas, as represented in Boys State, do not think so.  Nor do the 30% of California (down slightly from an earlier poll) who seemingly favor the prospect of secession and referendum on the issue in 2018.  Are these canaries in the coal mine that we should be discussing with at least the same seriousness as Donald Trump's latest ignorant tweets?

Note to commentators:  I am not interested in what your predictions are about the U.S. staying together (which it almost certainly, though not necessarily, will).  Rather, I want to know if you believe it is really unthinkable that we come to the conclusion that the experiment begun in 1787--and interrupted in the mid-19th century--is necessarily worth continuing or whether secession really should be thinkable.




75 comments:

  1. To the Texas Boys, I'd just say "don't let the door hit you in the ass on the way out." If they left, we'd have a much better chance of making a much better nation.

    I'm not sure "greatest country in the world" is a static description. No country which would elect Donald Trump to any office whatsoever, much less President, can rightly be called "great". Not only was the process by which he obtained office defective and/or fraudulent, but he himself is among the most defective human beings on the planet. It may take beyond the remainder of my lifetime just to undo the damage he has caused and will cause.

    That said, there are some pretty great parts of America based on which one could construct the greatest country on Earth. California really is the leading light here, though plenty of other states have something to offer as well. Assuming that the Republicans ever allow free elections again, perhaps we can work on that. I always saw the opening of the DoI (or the "City on a hill", if you prefer) as aspirational anyway. As long as we can and do pursue those aspirations, we can justly call ourselves "great".

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  2. Sandy: a 2014 Pew Poll that found a considerable diminution in the percentage of Americans that believed the US was the "greatest country" on earth...I'd be interested in know how many readers of Balkanization (including the lurkers who never comment--you know you are!) would disagree with the youth of America on this point.

    The United States is no longer the Land of the Free and, thus, is no longer great. However, given we have arguably the least worst progressive political economy, the U.S. is by default the greatest nation on Earth.

    I have no doubt that there are other nations that are better, from the perspective of social justice, led by the Scandinavian countries.

    All Americans who share this belief would do those of us who still believe in the Land of the Free a great favor by leaving immediately for these bastions of social justice. It would be easier to update the Constitution to reverse your progressive political economy and return to being a Land of the Free.

    But I'm certainly with the majority of Americans who believe that the country is very much going in the wrong direction...

    Seriously, why? We are far closer now to a Euro-socialist nation than we were in the year 2000. Progressives are winning everywhere but the ballot box, but then again we really are not much of representative democracy any longer.

    What is it that keeps a country together?

    Most progressives and Democrats venting about Trump are no more serious about secession than they were about their pre-election promises to leave the U.S. for France or Canada if Trump was elected. Each would require genuine self sacrifice.

    Of course, calling progressives and Democrats unserious is repeating one's self. What adult can really take seriously proclamations of blue progressive bastions like California they will continue to abide by the Paris Accord (except, of course, for all the parts which cost money) or they will discontinue government travel to or relations with various politically incorrect red states?

    These are the people who are supposed to lead a real life secession, which would almost certainly require a shooting war to carry out?

    I want to know if you believe it is really unthinkable that we come to the conclusion that the experiment begun in 1787--and interrupted in the mid-19th century--is necessarily worth continuing or whether secession really should be thinkable.

    The American experiment of limited government and personal liberty started to end back in the 1930s.

    Do you seriously believe the founders envisioned or the Constitution they ratified allows the modern progressive political economy?

    The real question is whether America should or even can continue as a progressive political economy and what realistic remedies remain to reverse this system?

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  3. California really is the leading light here.

    New York might have something to offer. One of our senators does have a pretty good motto (if you aren't helping, go the fuck home ... I spell that out since Sandy Levinson in the past has sneered when the NYT doesn't).

    I don't welcome secession, particularly for the millions of sane Texans out there. It isn't the answer to our problems. As to being the greatest country. We have our good points. But, have reason to be modest. Especially these days.

    But, perhaps this is a conversation for ten days from now.


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  4. Sandy, it's always nice, for me, to hear from you. Early on in your post you staate that you wish to hear from:

    " ... many readers of Balkanization (including the lurkers who never comment--you know you are!) ... "

    I'd like to hear from them as well. The use of "lurkers" brought to mind Lamont Cranston, the Shadow, who knew "what evil lurks in the hearts of men." I don't think that's why you wish to hear from lurkers. I for one would appreciate hearing from other than the usual suspects that includes myself. For the time being, as I await comments from those lurkers, let me respond to what you are interested in hearing back on:

    "Rather, I want to know if you believe it is really unthinkable that we come to the conclusion that the experiment begun in 1787--and interrupted in the mid-19th century--is necessarily worth continuing or whether secession really should be thinkable."

    In this day and age it is not unthinkable. I have been thinking about it primarily after your important essay at Arkansas Law School a few years back in which you provided a "what if" negotiated secession by the State of Texas that included a discussion of nuclear weaponry in Texas that would be part of the negotiations. Sometime back regarding one of yourposts I suggested that Texas might be reluctant to give up the nuclear arsenal, perhaps as security with Mexico to its south as well as the 47 states to its north. Might Texas and the remainder of the US potentially engage in conflict at some point following secession? Similarly were CA to secede. The North Korea mentality of security might prevail in a seceded TX or CA.

    As an aside if TX were to secede, would Sens. Cornyn and Cruz stick with TX? What about Perry?

    It's time for a light dinner, but I'll be back in the hopes that some of the lurkers will comment.

    And Sandy, your post suggests to me that you remain in good health. We need to hear from you more frequently.

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  5. To Professor Levinson's question of "Is secession thinkable," the answer is, yes, it's thinkable, and it should be available to any state whose people wish to secede.

    President Lincoln emphasized preserving the Union only because he knew that if he expressly stated that the top priority was ending slavery, he would have lost support amongst northerners who cared nothing for the plight of African-Americans held in slavery.

    And in today's world, we don't try to preserve previous national borders just for the sake of preserving them. Czechoslovakia split in two, and both new nations are doing fine on their own. The only reason that more nations have not split is the desire of strong central governments (e.g., in Spain) to thwart a splinter region's majority desire to split.

    So if the majority of voters in any state want to leave the United States, then the USA should negotiate reasonable terms of divorce and permit that state to leave. Unfortunately, whomever is running our national government at the time would probably try to make it difficult or impossible for a state to secede. But they shouldn't.

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  6. The nation is a united whole and no state is an island. Some more than others, they work together and affect each other, and unilateral secession to me doesn't make sense. The Constitution, the basis of our government, was a supermajority deal. And, secession in various ways can greatly affect the rest of the nation, especially if it is not just one state but some sort of union of states. So, any secession should be done by at least a majority vote, probably a supermamority.

    This doesn't mean secession is never a good idea. Our nation seceded from Great Britain. Czechoslovakia splitting doesn't really tell me much though. Do know that, Brexit aside, Europe has deemed it in their self-interest to unite in various ways, it not merely a collection of independent countries. Europe has learned splintering causes problems. The desire for some sort of central government there is in place for a reason. See, e.g., the problems in the former Yugoslavia.

    Finally, Lincoln emphasized preserving the Union because he deemed it a basic strength of our country and thought there was no valid grounds to secede based on the facts at the time. It also was the immediate problem at issue, seven states in rebellion. If there was actually a tyranny in place, he very well might have supported independence. He also thought slavery was wrong but that the way to end it was gradual. This was the median position of the Republican Party.

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  7. Joe, I probably should have been clearer: I didn't mean Texas, the state, should leave. I meant the idiots who want to secede should leave. Nothing stops any individual from personal secession.

    Of course NY has lots to offer. But I wouldn't trade you governors or legislatures just now. We solved our Republican problem by voting them all out. NY hasn't done that yet, but things will be so much better when you do.

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  9. Thanks, MF. My secession comment was more general anyhow.

    As to NY, some things are better than others.

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  10. You unquestionably have better museums and better subways. :)

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  11. "The American experiment of limited government and personal liberty started to end back in the 1930s."

    This is obtuse.

    In 1930 America, back before 'limited government and personal liberty started to end,' most blacks lived under Jim Crow in a peonage like state; it was a felony in most places to be gay; women were effectively shut out of many professions, especially those that tended to earn well and/or involve exercising 'power.'

    "Do you seriously believe the founders envisioned or the Constitution they ratified allows the modern progressive political economy?"

    Yes to the second part, but more importantly, the founders had some really 'messed up' ideas about 'liberty' in that they lived in and sanctioned a system that allowed and protected actual slavery of human beings (and the Constitution they created was part of this, see the Fugitive Slave Clause). So I'm in no hurry to have our political vision of how our free society was going to look like be determined by their expectations.

    Re: Sandy's questions

    1. The problem with secession as I see it is, in theory an American is promised under the DOI and Constitution certain protections regardless of what state they happen to be born in. If a state decides to leave that compact, can it take that an American out of it as well?

    2. Are we the greatest nation? To me, the question is as immaterial as asking me if my child is the 'greatest child'. She's my child, and therefore she's the greatest to me. Likewise my nation.

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  12. There are issues of interdepence among the states that may be taken for granted for the most part as America is one nation. Internationally, interdependence among nations has been recognized as populations and economies have grown. Few nations are self-suffient. (A year or so ago I read a paper on the role of America's Bureau of the Interior in the late 1930s as WW II was in progress to identifywhat America needed for its economy that America did not control, with America's possible entry int the war. There were many items identified by Interior's study critical to America's economy that could be impacted by the war. The Bureau had to address how America could be assured of the availability of these items. It seemed unusual that the Bureau was assigned this world-wide search for such items.)

    America grew by expansion westward to the Pacific. Many Americans benefitted from this expansion, including those who did not go west. One undivided nation could accomplish this. Consider the formation of the EU and its accomplishments over the years economically, with so many different languages, cultures, etc. Now we have Brexit, a form of secession. The process is to be negotiated under EU rules. The process is in the very early stages. It may take a year or more before the full impacts of Brexit may be felt. Our Constitution does not include provisions for secession. The Civil War, which arose from secession, led to the 12th, 14th and 15th As; but these As did not address the concept of a state seceding from the Union. The fact that secession was not addressed in these As suggests that secession would not be a right of a state. The discussions in Sandy's interesting article of several years ago focussed on the concept of negotiated secession. Maybe the EU provisions governing Brexit might serve as sort of a guide for an American style Brexit. But keep in mind that Europe had a long history of sovereign nations long before the EU came into being. EU had growing pains as each participating nation had to make certain adjustments to grow the economy visualized by the EU. That was much more complex that the expansion of the original 13 American states to the Pacific as an expansion of one nation.

    Let's assume that a constitutional amendment would not be required for an American state to secede by agreement. Many issues, including national security would have to be addressed. At a minimum some determinations might be required because of interdependence issues that up to now have been taken for granted with 50 states under one umbrella. What issues might new borders create? Citizenship? So many other issues to explore. Rights of travel? Meantime, as America goes through such a process, might enemies see America as weak and vulnerable? America through its federal system helps states that may have problems. How might this be impacted by secessions?

    Regarding the TX Boys State decision, perhaps it was based upon the failings of TX political leaders (they know who they are, especially Rick Perry). Maybe the TX Boys State would prefer a wall at its northern border that America will pay for to keep out immigrants from the north. I don't know if the TX Boys State addressed any of the questions I raised; and there are a lot more questions to be considered. Maybe the TX leaders will heed concerns of the Boys State decision.

    We need to hear from more lurkers. Don't be bashful. There are no easy answers.

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  13. "Let's assume that a constitutional amendment would not be required for an American state to secede by agreement. Many issues, including national security would have to be addressed."

    -- That would be true in any negotiated secession. A non-US example is that the UK's entire nuclear arsenal is based in Scotland, and that would be an issue to address if Scotland seceded. The fact that secession is not as easy as flipping a light switch should not control the question of whether or not secession should be available to those who want it.

    There are questions of rights. Do we believe that self-determination is a fundamental right, and that the residents of a state or region can choose whether or not to continue to belong to a nation, or do we believe that a nation-state has certain "rights" that supersede the rights and liberties of its citizens?

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  15. It should be pointed out that Brexit seems to have become more complex since the referendum vote. There is a procedure built into the EU that we can watch play out. Consider border security for Northern Ireland and how that might be resolved from the standpoint of Northern Ireland.

    American secession may be more complex than Brexit what with separating waters from the continent (not counting the Republic of Ireland and its border with Northern Ireland).

    But imagine CO seceding by agreement. It is surrounded by other states. CO as a seceding sovereign nation would have concerns with airspace access via adjoining states that remain in America. CA has that nice Pacific boundary if it were to secede. I think of water issues out West that involve multiple states and water sources, with significant waters provided to CA. Remaining states with control over water sources might have a view differenct from what had been worked out over many years as one nation. Matters of interdependence would have to be addressed. Which side of the secession equation has negotiating leverage? (Maybe the "Art of the Deal: might be helpful, although some of that art led to deals that went bankrupt.)

    Perhaps as Brexit is handled we may bet a better understanding of issues American secession may face. There is greater complexity today than there was at the time of the DOI and the Constitutional Convention and the secession proceedings would not be in secret. Maybe a second constitutional convention might be necessary to pave the way for secessions. Sandy may get his wish after all.

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  16. Michael Wolf: So if the majority of voters in any state want to leave the United States, then the USA should negotiate reasonable terms of divorce and permit that state to leave.

    A majority of a state's population has no right to take the territory or the remainder of the resident citizenry out of the nation.

    They are free to leave the nation and migrate to any nation willing to accept them.

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  17. There are questions of rights. Do we believe that self-determination is a fundamental right, and that the residents of a state or region can choose whether or not to continue to belong to a nation, or do we believe that a nation-state has certain "rights" that supersede the rights and liberties of its citizens?

    Individuals have the right to self-determination though realistically they might not have the power to simply leave the country given their resources and such.

    As a matter of principle, we don't act like we believe that each "region" has some complete right to leave on demand. The nation is created as an interconnected whole and this protects the rights and liberties of those involved. Breaking it apart could rightly require agreement of the whole, not 51% of the voters in 1/50th of it having the right to secede on demand.

    The US Constitution has an example of a limit here:

    "New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress."

    Nations have certain powers that require obligations from citizens, limiting liberty to some degree, but under a fair system, they agree to the rules and have a right to leave if they don't want to live under them. If they do stay, they get benefits in the process. Including a better protection of liberty.

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  18. Majority rule in an arbitrary area doesn't control in lots of cases. There's no reason to treat secession as requiring that we abrogate other principles.

    Moreover, as Lincoln noted, the basic principle of secession is anarchy. If a state may secede, why not a city or a county? Can East Texas secede from West Texas (and see Joe's point)?

    I can envision circumstances where a state might negotiate a departure from the Union, but it would have to be consensual and is in no way a matter of right.

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  19. BD: "The American experiment of limited government and personal liberty started to end back in the 1930s."

    Mr. W: In 1930 America, back before 'limited government and personal liberty started to end,' most blacks lived under Jim Crow in a peonage like state; it was a felony in most places to be gay; women were effectively shut out of many professions, especially those that tended to earn well and/or involve exercising 'power.'


    Most of the ills you note were already illegal under the Constitution as written, but that constitution was not enforced by the courts. Even so, equality under the law constantly improved before 1930 and would have been realized as quickly or sooner if we maintained a limited government. Remember, the progressive party championing the expansion of government was the same party imposing Jim Crow.

    BD: "Do you seriously believe the founders envisioned or the Constitution they ratified allows the modern progressive political economy?"

    Yes to the second part...


    You mean apart from the constitutional provisions strictly separating powers between the branches of the federal government and between the federal and state governments, expressly limiting the powers of government and guaranteeing individual liberties? You know, virtually the entire constitutional structure. The absolute bureaucracy is facially unconstitutional.

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  20. As protections for the minority positions (e.g. filibusters and perhaps just the simple notion of cooperation and compromise) are removed from the legislature, polarized citizens begin to have a lack of representation in our government. If the party that wins will have its way and never need to bend even a bit to convince the opposition to come on board, then why send representatives at all? I think a secession is quite thinkable, but easily subverted if rules were put into place that required representatives to act in good faith and with collegiality.

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  21. "Moreover, as Lincoln noted, the basic principle of secession is anarchy. If a state may secede, why not a city or a county? Can East Texas secede from West Texas?"

    The U.S. constitution, and governmental structure, make a state an important entity in a way that a city or county is not. See, for example, the 10th amendment to the U.S. constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    The U.S. constitution does not prohibit a state from leaving the U.S., and thus under the 10th amendment that power should belong to each state. Again, the fact that leaving would be a more complicated or longer process than it would have been in 1789, or than it was in 1861, does not mean that a state that decides to leave should be prevented from leaving.

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  22. The 10th A suggestion with its closing 4 words would seem to give the people, however defined and however accomplished, to secede. Some claim that each person has sovereignty. So why not a commune of people who are prepared to stand their ground seceded from America (aka a Bundy secession)?

    Query: Is the 10th A the tail that can wag the dog?

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  23. The 10th amendment, unfortunately, sits under the edge of Bork's "inkblot", even if that blot is centered on the 9th. The basic problem with both these amendments is that everybody in the chain of authority to interpret them has a structural incentive to ignore them.

    It's one of the basic flaws in the way the Constitution was constructed.

    So, yes, the 10th gives the power of secession to the states or the people, but in practice this doesn't matter.

    OTOH, if a friendly parting could be negotiated, the Constitution certainly would not stand in the way. The real problem is that a friendly parting would undoubtedly require the departing state to assume its share of the national debt.

    At which point it would instantly, and obviously, become insolvent.

    So, as a practical matter, while I expect that the US will eventually break up into several independent nations, this won't come until *after* default on the national debt. And the federal government is still wringing the last bit of cash out of the world's creditors; That's why you see so little talk anymore about balancing the budget. We've made the transition from not thinking the debt serious enough to deal with, to it being seen as hopeless, and the US is now the debtor who knows they're going to default, and simply wants to go on one last spending spree before the bank figures it out, too.

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  24. To directly address Sandy's question: Of course secession should be thinkable. Are we frightened children, that there are topics we don't dare think about? Secession was ALWAYS thinkable. There has never been a time when people weren't thinking about it.

    All things are thinkable. How would you rationally reject a course of action without thinking about it?

    As a federation, our viability was based on the central government only taking on those areas of responsibility which could only be effectively addressed at a central level; Chiefly national defense. Regulation of interstate commerce was centralized only to take it away from the states, and make the US a free trade area.

    But, as a federation run by fallible humans, the central government was unwilling to restrict itself to the subjects it was entrusted with. Gradually at first, but faster and faster, it has usurped more and more power.

    This has been eroding our viability as a federation, because federations rely upon mostly letting the areas go their own ways, to reduce friction. The omnipresent weight of the federal government has been increasing that friction, ironically driving us apart.

    I think the last hope of keeping the federation together is a constitutional convention to drastically scale back the power of the federal government, and increase the independence of the states. Return the federal government to its original function: Managing external relations, and ONLY external relations.

    If that can't be done, yes, we should go our separate ways.

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  25. Is Brett suggesting an eventual Chapter 11 reorganizing the US into several regional nations? Dare we call this Brettsick?

    Brett seems to buy in with the 10th A suggestion. But keep in mind the federal powers lurking in Article IV of the Constitution, including:

    "The United States shall guarantee to every State in this Union a Republican Form of Government, ... "

    The Constitution has to be read as a whole in addressing secession. And it's not clear to me that secession can be accomplished by agreement without a constitutional amendment.

    As to Brett's focus on America's demise because of lack of balanced budgets, I wonder what America would look like in today's world if the Constitution required a balanced budget. Hey, bankruptcy worked for The Donald, why not for America? A reissue of "The Art of the Deal" might include a "Chapter 11." [Note: I haven't checked the book to see if it includes a Chapter 11; if it does, it's a different subject. It's Sunday and my people who check on stuff like this got the day off.]

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  26. "Is Brett suggesting an eventual Chapter 11 reorganizing the US into several regional nations?"

    No, I'm simply suggesting that the enormous federal debt presents an obvious obstacle to secession negotiations being successful. Once default has happened, (And it will.) the subject will be substantially easier to address.

    "The United States shall guarantee to every State in this Union a Republican Form of Government, ... "

    This doesn't have any obvious application to the question of whether states remain in the union. It would be like a hotel that promises every customer a daily change of sheets claiming you can't check out, because how would they change your sheets if you were someplace else?

    "The Constitution has to be read as a whole in addressing secession."

    Indeed, and the 10th amendment has an obvious application here, being an explicit rule of construction: Powers the Constitution doesn't mention are delegated to the states. Since secession isn't mentioned, it's a state power.

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  27. Reference was made to the 9th and 10th Amendments.

    The incentive to ignore was a tad exaggerated. The people of each state elect members of Congress. Thus, e.g., they have an incentive to respect the concerns of said people, including not wrongly invading the powers of the states where said people come from and generally are closest too. The incentive of members of the government in general to invade rights, e.g., is noted. Thus, the importance of the later amendments to restrain the excesses of the states. Their absence was one of the basic flaws of the original Constitution as seen in time.

    It is noted that "Powers the Constitution doesn't mention are delegated to the states." The 10A doesn't say "mentioned," of course. It says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." A power doesn't have to be explicitly mentioned. It might be implied, for instance.

    The power of secession is possible [possibly as an inherent check if the federal government goes beyond its power] but questionable given the overall structure of the Constitution. As I noted, the nation is a united whole and parts having the power simply to leave would be problematic given the nature of the enterprise. There is a natural right to leave, but that would be independence and the formation of new government. See the Declaration of Independence.

    A "friendly parting" can be negotiated upon general agreement. Territory has become independent -- see, e.g., the Philippines. Puerto Rico is another possibility. A state can be involved here too. But, only if the nation as a whole, represented in Congress, works out a solution, with amendment (states more complicated than territories) if necessary. Each region, however, don't have a right to leave on demand. The prohibition like certain rights (see 9A) is somewhat implied.

    Money matters will be an issue here partially the ability of the part that wishes to be independent to be able to survive on its own. Repeatedly, the party that wants to leave finds it better to stay on that front. Not that debt is always the most important thing. As Hamilton argued, debt correctly handled can be useful.

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  29. "The U.S. constitution, and governmental structure, make a state an important entity in a way that a city or county is not."

    True enough but the discussion spoke about basic principle including the rights of "regions" so where this take you is unclear.

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  30. Michael Wolf: The U.S. constitution does not prohibit a state from leaving the U.S., and thus under the 10th amendment that power should belong to each state.

    Article IV, Section 3 grants Congress the power to add states to the union. There is no concurrent power for states to leave. Expressio unius est exclusio alterius: to express one thing is to exclude another. For the same reason, Congress cannot agree to allow a state to leave. That would require an amendment to the Constitution.

    The Tenth Amendment grants all powers to the States not otherwise reserved for the federal government. The Constitution grants all the powers necessary to a national government to the federal government. Thus, no state can cite the Tenth Amendment to seize the powers of a national government and leave the union.

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  31. The question whether the Constitution protects a right to secede was settled at Appomattox. Joe's points are important also, including the ones he alludes to but didn't discuss in detail.

    As for the debt issue, that's economic ignorance by Brett. The US is not overburdened by debt, at least not in the eyes of those willing to lend money at generational low interest rates. It's true that the last 3 R administrations did their level best to skyrocket the debt in the service of plunder for their supporters, but Clinton and Obama stabilized the situation at its current manageable level. It's likely that the Trump regime will make matters much worse, and then we'll have to see. In any case, debt is just one of the matters subject to negotiation upon leaving, and it's probably not the most important (control of nukes seems pretty relevant, as do water rights, travel, protection of those who don't want to leave, etc.).

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  32. "The question whether the Constitution protects a right to secede was settled at Appomattox."

    I wonder what you'd call that fallacy? "Argumentum ab occisio"?

    Sorry, the "argument from killing" only works so long as people think you'll kill them if they assert a proposition.

    "The US is not overburdened by debt, at least not in the eyes of those willing to lend money at generational low interest rates."

    Indeed, I did say that the bank hasn't woke to the fact that the debtor plans to default. "I can't be overburdened with debt, people are still willing to lend me money!" is not really good reasoning; When you're persistently, in good times and bad, not merely borrowing, but even borrowing to make interest payments, the question is not whether you're eventually going to default.

    The only question is "when".

    We are currently at a debt to GDP ratio last seen in the worst of WWII. We have gotten here, not as a result of desperation spending in an existential emergency, but just because it's politically inexpedient to only spend as much as we take in.

    It was reasonable to think that the WWII debt would not lead to default, because the war was not forever, and once the war was over, spending would fall dramatically.

    It is NOT reasonable to think the current debt will not lead to default, because it wasn't arrived at as a result of a temporary emergency. It was arrived at by living on our credit cards.

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  33. So "Brettsick" is off the table?

    And SPAM seems to be in line with me on the 10th A suggestion?

    Maybe we're getting some place on the secession discussion.

    Query: Might SPAM join with Brett on the balanced budget issue with SPAM's chronic Hayek economics?

    FIFA has preempted Fox Sunday so I got a short time out before addressing the competing Meet the Press and Face the Nation. I'll be back after lunch to rejoin what has been a good discussion.

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  34. Brett:

    When GDP grew at an average of around 3%, the progressive rule of thumb was the government can safely borrow that gain in wealth. The problem is that progressive policy has now destroyed productivity growth at the same time its welfare state expands. Unless these policies are reversed, sovereign insolvency is insvitable.

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  35. IOW, are you suggesting that we're going to have a vast economic expansion, while interest rates remain essentially zero? Are you suggesting that it's suddenly going to become politically expedient to spend much less than revenues?

    No? Then we'll default.

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  36. Sorry, the "argument from killing" only works so long as people think you'll kill them if they assert a proposition.

    I haven't seen anybody try to secede since. Must be working pretty well.

    I did say that the bank hasn't woke to the fact that the debtor plans to default.

    There is no "the" bank. There are millions of people and institutions independently willing to lend at historically low rates, meaning they aren't worried about risk. Unless you think that markets don't work, that undercuts your whole point.

    We are currently at a debt to GDP ratio last seen in the worst of WWII.

    And the economy crashed then? Oh, you mean that the US then entered an era of unprecedented prosperity and power.

    Also, debt/GDP is not the right measure. It's the interest rate burden of the debt which matters, just as it does on a home loan, and right now that burden is pretty low by historical measures (lower than it was, e.g., in the Reagan administration).

    Your argument rests ultimately on the unspoken assumption that the government is like a household when it comes to debt. This is a common but false understanding about how economies work. Governments are not like households for lots of reasons, among them the following:

    1. Governments don't ever have to repay their debts. Like corporations, governments can just roll over the debt. The US has done just that for 225 years now. England has done it for longer.

    2. Governments can't run out of money. They literally can print it. Now, that may cause inflation, but they can't run out of it.

    3. Most of the US debt is owed to American citizens. That means we are paying the debt to ourselves.

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  37. IOW, are you suggesting that we're going to have a vast economic expansion, while interest rates remain essentially zero? Are you suggesting that it's suddenly going to become politically expedient to spend much less than revenues?

    These questions aren't meaningful. To take the second one first, the economy has been growing for roughly 80 consecutive months now, since Obama stabilized the free fall Bush left us. Could it grow faster? Sure. If the Rs in Congress hadn't deliberately stifled growth (that is, they impoverished us all deliberately) for partisan electoral purposes, growth could and would have been faster. Give Democrats control of the government again, and growth will likely improve.

    Part of growth is technical advance. It's hard to know when and why that will happen. Governments can probably do a few things to foster that growth, but (pace Paul Romer) some aspects of that may be exogenous.

    As for your first question, economies can expand while interest rates are near zero. Ours has done so for the last 7 years. Paying off the debt isn't necessary for economic expansion and may very well be inconsistent with it, depending on the circumstances. And if we did slow down government spending, as you seem to suggest we should, that would lower GDP in the short term by definition, since government spending is one component of GDP. The impact in the long term depends on other factors such as whether the economy is currently at full employment.

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  38. Mark Field: There is no "the" bank. There are millions of people and institutions independently willing to lend at historically low rates, meaning they aren't worried about risk. Unless you think that markets don't work, that undercuts your whole point.

    Banks and investment funds conduct the vast majority of lending to governments because loans collected by force from taxpayers are a fairly safe place to park capital reserves.

    Our public debt is currently about 3/4 of GDP and still below levels where banks and investment funds cut off lending because of the risk of sovereign default. Brett appears to be including Congress's IOUs (intra-governmental debt) to Social Security in his calculation that overall debt is now above 100% of GDP, rivaling our 1944 WWII debt. Banks and investment funds are not yet including future SS obligations in their risk calculations.

    The banks and investment funds are currently lending to the US at low interest rates because (1) the world is awash in cash because of the lack of private investment in failing progressive political economies, (2) the other OECD nations are generally closer to sovereign insolvency than we are, and (3) our Constitution compels payment of debts before all other expenditures.

    Yes, the government must repay its debts. It does so primarily by borrowing new money to retire past debts.

    Historically, the US was running out of credit by 1944. The government launched a big push to sell war bonds to American citizens to get them to the end of the war, then Truman was forced to cut federal spending by half.

    Governments who owe debts in their own currency can print money to pay off those debts at the cost of destroying the wealth of currency holders and cratering the economy through hyperinflation (see Weimar Germany).

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  39. Mark Field going George Bailey one better on discussing banking.

    Sorry, the "argument from killing" only works so long as people think you'll kill them if they assert a proposition.

    First, let me say that I don't think the event cited closes off the idea for all time. Times bring forth events that might be seen as unlikely in the past and new surprising things can occur, both good and bad. Might take a while -- see the Roman Empire -- but things might develop where secession again becomes a strong possibility.

    Second, the argument is not from an event or killing alone. It is also based on the aftermath of said event, including the general societal agreement as a whole growing out of said killing. To quote one of my allusions:

    "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

    The Civil War, especially for the South, was such a learning experience, but not only for the South. This I might add includes supposed evils. People are still willing to die for certain things. But, secession net has been judged not to be worth the candle, at least for the things people are upset about.

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  40. Mark Field: if we did slow down government spending, as you seem to suggest we should, that would lower GDP in the short term by definition, since government spending is one component of GDP.

    This is a fundamental progressive error.

    Government does not create wealth (goods and services).

    Every penny which the government spends is taxed or borrowed out of the economy creating wealth and can no longer be used to create that wealth.

    When the government instead spends than money on economically inefficient or destructive things (like paying businesses to create more expensive energy or paying individuals to remain under of unemployed), government spending lowers GDP growth.

    Generally, GDP growth slows after government spends about 20% of GDP and starts collapsing after spending reaches 40% of GDP.

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  41. I'm feeling a bit guilty for diverting the conversation to an issue tangential to the OP, so let me go back to the practicalities of secession.

    Without worrying about the legalities -- since I think most everyone here agrees that any secession would need to be negotiated, the practicalities become critical as I suggested above. I'll treat CA as an example because it's easily the most favorable case for a single state secession.

    CA has roughly 10% of the US population (making the math easy), so it would have to take responsibility for 10% of the US debt. Would this be a burden? Not in the least. CA has no debt and interest rates on CA bonds are quite low (partly that's due to a federal tax subsidy, so bond prices might fall if we left depending on other policies). It's a rich state with a diverse economy and population, high educational levels, lots of area, excellent transportation, access to world markets, etc. CA pays a ton of taxes to the feds and gets back just 70 cents on the dollar. It could easily handle the debt burden.

    That said, there would still be issues to work out. What happens, for example, to Social Security and Medicare payments (almost entirely funded by past taxes) to CA residents? How much of the US nuclear arsenal would CA want/get? What happens with Colorado River water? What if other states see CA leave and decide they want out -- HI, for example, or OR and WA, or NV (Las Vegas would wither without SoCal). I could go on and on with these issues.

    And that's the easy case. For any red state other than TX, the issues would be much worse. They're mostly debtor states, dependent on the blue states to function. Many are landlocked and lack economic diversity. Etc. They couldn't exist as individual nations, but only as part of some larger entity. The mechanics of the process make it little more than hypothetical in my view.

    Tl;dr: Breakin' up is hard to do.

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  42. "Article IV, Section 3 grants Congress the power to add states to the union."

    Yes. And neither Article IV nor any other part of the U.S. constitution grants Congress the power to prevent states from deciding they no longer want to be in the union.

    A business analogy: If two separate corporations enter into a joint business operation, either one of them can leave the joint operation if they so choose. In contrast, if a corporation is a wholly-owned subsidiary of a parent corporation, then the subsidiary's officers can't decide on their own to break away from the parent corporation. The subsidiary can only leave if the parent corporation decides on its own to "spin off" the subsidiary.

    So, what is the relationship of each of the 50 states to the United States federal government? Are the 50 states partners with each other in a joint operation that any of them can choose to leave, or is each state a wholly-owned subsidiary of United States of America, Inc.?

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  43. "And the economy crashed then? Oh, you mean that the US then entered an era of unprecedented prosperity and power."

    Ah, so your plan for paying off the debt involves a world war that devastates the rest of the world, while leaving the US' industrial infrastructure miraculously untouched. Good to know.

    "To take the second one first, the economy has been growing for roughly 80 consecutive months now, since Obama stabilized the free fall Bush left us. Could it grow faster?"

    It could scarcely have grown any slower, without stopping completely. Obama was the first President since records began to never see as high as 3% growth during his time in office. Even most of the "Great Depression" saw higher growth rates than we experienced on Obama's watch.

    "CA has no debt and interest rates on CA bonds are quite low"

    How exactly does one "have no debt" AND issue bonds? I'm unclear about how that works.

    Well, no, I'm quite clear about the fact that it doesn't actually work. So is the state treasurer. $142B, not including local governments and pension obligations. Over $400B including unfunded liabilities and pension obligations. Estimated to total, including local obligations, well over $1T.

    No debt, indeed.

    What is my expectation in regards to the federal debt? Since we are running deficits even when the economy is doing well, borrowing just for day to day spending, the debt will continue to grow. It will continue to grow relative to the size of the economy.

    The US Constitution prohibiting honest default, our government will try to print its way out of the debt at some point, and in the process will trigger a ruinous hyperinflation.

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  44. The business analogy is inapt. Neither the Articles of Confederation nor the succeeding Constitution came about as a result of corporation modeling, much of which developed in much later years. The Constitution includes a supremacy clause making the states subject to, inter alia, the provisions of the Constitution. There is an amendment procedure in the Constitution that could provide for secessions by states; but the complexity of Article V requires a burdensome process for such an amendment, especially by means of actions by the states provided in Article V as an alternative to action by Congress. There was a uniqueness to both the Articles and the Constitution. Since their times, other nations have adopted constitutions. Perhaps a comparative study of our Constitution and constitutions that followed might be undertaken to consider whether any of them contained specific provision for secession and the extent of secessions undertaken pursuant to those other constitutions, whether or not containing specific provisions for secessions.

    Maybe there are some lurkers out there who are originalists we might hear from, or historians, to get an idea of the original meaning of the Constitution on secession. I assume that efforts at secession here, whether unilateral or by agreement would end up before SCOTUS. [Note: I am aware that many originalist are busy working overtime in defense of President Trump relative to alleged emoluments. Am I josh-ing? I'll let all know in a week or so.]

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  45. Michael Wolf: So, what is the relationship of each of the 50 states to the United States federal government?

    Co-sovereigns joined into a single federal nation state. Nation states are meant to be permanent, not mere business associations to be changed every so often.

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  46. Your revised claim about the WWII debt is not worthy of a response. You are, though, correct about the CA debt: I said "debt" when I meant "deficit". My fault.

    That said, the CA economy is 2.6 Trillion. Using your debt figure, the debt is 142 Billion. That means our debt/GDP ratio is just over 5%. That's close enough to zero that my original point remains valid. Counting unfunded liabilities is pointless and wrong without a time frame and expected future GDP, but even a debt of 1T would make a ratio of 38% to current GDP. For comparison, Germany's current ratio (that is, not counting future liabilities) is 70%. We're doomed.

    Since we are running deficits even when the economy is doing well, borrowing just for day to day spending, the debt will continue to grow. It will continue to grow relative to the size of the economy.

    Your second sentence doesn't follow from the first. It might, of course, moreso given the proven irresponsibility of Republican economic policies over the last 35 years. But you probably shouldn't hold your breath waiting for hyperinflation. US debt/gdp ratio is 104%. Japan's is 243%. If you define "hyperinflation" to mean .4%, well that would be Japan's current status.

    Anyway, as I said, I feel bad for diverting the conversation so I'll leave the details alone from now on.

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  47. I was interested in Mark's comment on a CA secession. What about federal ands in CA? What adjustments might be negotiated federal lands? And I'm curious as to negotiating water rights, having been a big fan of "Chinatown." Following a secession by CA, might water wars erupt? Or does CA have produce leverage? And would states easterly of CA be concerned with weather patterns via CA that might be impacted is CA changed its environmental ways?

    Yes breaking up is hard to do, even for CA.

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  48. Mark Field: But you probably shouldn't hold your breath waiting for hyperinflation. US debt/gdp ratio is 104%. Japan's is 243%. If you define "hyperinflation" to mean .4%, well that would be Japan's current status.

    Inflation is caused when the money supply increases faster than GDP. The only way government debt leads to inflation is of the government prints money to pay off the debt.

    Japan is unique in that its government borrows from its own people, who use this debt as a means of savings. The government can never repay debt equal to 243% of GDP and this ponzi scheme will only continue for so long as new generations of Japanese keep borrowing so prior generations can be repaid. Once a new generation says no, the debt becomes worthless and two and a half years of GDP is wiped out.

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  49. "There is an amendment procedure in the Constitution that could provide for secessions by states"

    Your comment is based on the assumption that the Constitution prohibits secession and would have to be amended in order to permit it. But the Constitution is silent on the topic. There is neither explicit permission nor explicit prohibition.

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  50. Michael Wolf:

    In the Constitution, the states expressly ceded all the powers necessary to operate a nation state to the federal government. This effectively precludes secession.

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  51. I can only assume that Michael Wolf refuses to give the Pledge of Allegiance. The US is not a "partnership" of 50 states, it's a nation. One nation, indivisible.

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  52. Shag, the only water issue in CA that affects other states involves the Colorado River. Obviously that would have to be negotiated. My personal view is that CA can obtain water via de-salinization, so there's no need for the river water. That would be more expensive, but the supply is effectively infinite. However, my personal view is not likely to control. Most Californians tend to think we stole that Colorado water fair and square.

    And Chinatown is a great movie.

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  53. "In the Constitution, the states expressly ceded all the powers necessary to operate a nation state to the federal government."

    Gah, that's revoltingly living constitutional. In the Constitution, the states expressly ceded to the federal government all the powers they expressly ceded, and expressly reserved everything else. Reading into the Constitution a purpose, and using that purpose to override the actual text, is a typical living constitution move.

    "I can only assume that Michael Wolf refuses to give the Pledge of Allegiance. "

    Hokey oaths vs actual constitutional text. Gee, I wonder which prevails. Well, actually neither, or else we wouldn't be in this pickle to begin with. Immediate political interest prevails.

    California could obtain water by desalinization. But that would require icky infrastructure investment. The sort that doesn't get done when there's water, and is too late when there isn't.

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  54. In the Constitution, the states expressly ceded to the federal government all the powers they expressly ceded, and expressly reserved everything else.

    "The states" didn't cede anything. Power originates in the people, and that's who granted power to both the states and the federal government. And I don't recall the word "expressly" being used in the Constitution (it was in the Articles). Perhaps you can point me to it.

    Hokey oaths vs actual constitutional text.

    Sounds like you're not big on the Pledge either, whether there's "actual constitutional text" or not. In this case, not.

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  55. "Your comment is based on the assumption that the Constitution prohibits secession and would have to be amended in order to permit it. But the Constitution is silent on the topic. There is neither explicit permission nor explicit prohibition."

    I don't necessarily think the comment about amendments requires an assumption about secession being prohibited. Shag does offer part of a structural argument making a case for prohibition. But, to me, he leaves it open. "Could" go either way. Amendments repeatedly have done things that arguably only reaffirm what is there already but make things clearer. The Bill of Rights included, arguably.

    "Silence" is to me overblown; the Constitution "says" somethings; at best, it is an open question based on various things that are "said" explicitly and otherwise. As with the 9th Amendment, the 10A is an overall statement that is provided meaning by implicit and explicit construction means.

    ---

    Jack Balkin wrote an article providing historical evidence that the framers followed a principle of ceding to the federal government what was deemed unable to be performed by states. But, the actual text provides specific powers, though they are broad enough that I'm not sure how much difference this makes in practice.

    The 10A yet again does not use the word "expressly" and its framers advisedly did not. Repeatedly using that word is misleading at best. The "living Constitution" (Mark Field prefers another term but LC does express something John Marshall, one of the Framers, famously said) approach is also what the people at the time expressed and meets practicality and the text. I know Brett, like Sandy Levinson, however, dislikes various aspects of the Constitution.

    The actual constitutional text speaks of a "republic" just like the Pledge Allegiance. As to the word "nation," George Washington in the letter of transmittal of the document to Congress spoke of our "national existence" and "nation" was repeatedly used at the time to reference. If one cares about original understanding.

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  56. BD: "In the Constitution, the states expressly ceded all the powers necessary to operate a nation state to the federal government."

    Brett: Gah, that's revoltingly living constitutional. In the Constitution, the states expressly ceded to the federal government all the powers they expressly ceded, and expressly reserved everything else. Reading into the Constitution a purpose, and using that purpose to override the actual text, is a typical living constitution move.


    Huh? The powers the states expressly ceded to the federal government are all the powers necessary to operate a nation state. The president is the head of state, CiC of the military and sole executive. Congress has the power lay taxes, borrow money, create money, regulate foreign trade, raise and discipline the military. The federal judiciary resolves national and international cases and controversies.

    Mark Field: "The states" didn't cede anything. Power originates in the people, and that's who granted power to both the states and the federal government.

    Under the Articles of Confederation, the states retained many of the powers necessary to operate a nation. The state governments by ratifying the Constitution ceded those powers to a federal government.


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  57. Neither Article III nor any other provision in the Constitution expressly provides for "judicial review" by SCOTUS. But "judicial review" has long been accepted as within the province of SCOTUS (although still questioned by some constitutional scholars).

    Nor does the Constitution specifically provide for judicial supremacy of SCOTUS over the federal Executive or Legislative Branches. But the Constitution's supremacy clause does provide that the Constitution and laws thereunder, including decisions of SCOTUS, reign supreme over the states.

    The Constitution does not include an express provision on the manner of its interpretation/construction. CJ Marshall in Marbury v. Madison said it is the function of the Court to interpret the Constitution. But there continue to be question of methods of interpretation. (Also, see preceding paragraph re: the question of judicial supremacy over the Executive and Legislative Branches.)

    SCOTUS doews not offer advisory opinions. So we have to await actual steps taken towards secession before SCOTUS can get into the act. It's my view that secession may require a constitutional amendment for reasons stated in earlier comments. We can all speculate on ConLaw, but sometimes there's more con than law expressed. Maybe Sandy will provide his views on how the Constitution does or does not permit secession, by agreement or otherwise.

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  58. The Preamble to the Constitution begins with "We, the People," not We, the States. America has had only one experience with secessions following the Revolution, and it was like a revolution. The US is a government of laws, not of men, it is said. But it is operated by men, and now women. The laws, especially the Constitution, are not always clear in their meaning, as demonstrated in this thread. Back in the early 1950s I asked my ConLaw professor how he thought the Court might rule on a particular case in the federal court (I think it had to do with baseball). He responded: "I stopped trying to figure what those bozos might do a long time ago." And he knew many of the then Justices well over decades. I've commented on this before, noting that "bozos" was not part of my vocabulary back then. The Constitution continues to be sliced and diced ad infinitum, including the search for the Holy Grail of its interpretation/construction. New legal theories surface quite frequently. Alas, unlike the hard (physical) sciences, legal theories cannot be similarly tested suggesting they are at best hypotheses.

    Maybe it's time to listen to Barbra Streisand's version of "People." [Query: Are people who don't need people actually the luckiest people ... ?]

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  59. Further thoughts on a secession by CA. The federal government lays claims to waters bordering the US that are distinct from claims of states bordeing those waters. This is based upon national security. Also there may be valuable mineral and other assets to be claimed in such waters. CA has a long coastline along the Pacific. To what extent would such federal claims be taken into consideration in negotiating secession? Might "no fault secession" like no fault divorce result in an "equitable" property settlement with certain elements of "custody" rights?

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  60. Control over coastal waters would be essential to any nation and would be recognized under international law. If the federal government demanded control over coastal waters as part of any negotiation, that would preclude secession for all coastal states.

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  61. I do appreciate the thoughtful constitutional analysis in the original post and many of the comments about why Texas shouldn't be allowed to leave the union. But setting all that legal analysis aside, I feel like we ought to make an exception for Texas. Then we should build the wall.

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  62. "The 10A yet again does not use the word "expressly""

    It doesn't say, "We hereby put down in writing the following", either. I didn't say it used the word expressly, I said it did it expressly. The word means "explicitly, particularly, specifically"; They didn't beat around the bush, they came out and said it.:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    The 10th amendment is a rule of interpretation ruling out implied powers. If it's not mentioned, the states get it.

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  63. What Brett says is "a rule of interpretation ruling out implied powers" depends upon how the 10th A is interpreted/construed. Brett does not keep in mind the Constitution as a whole. As I suggested in an earlier comment the 10th A is not the tail that wags the dog. SPAM and I separately have referenced separate provisions in the Constitution to be considered regarding the subject of secession. Brett is ineffective in what he perceives as cunning linguistics. The 10th A is a bridge to nowhere. While Brett focuses on what he perceives as a state power under the 10th A, he ignores the role of its last four words " ... or to the people." Are the "people" second to the States or on a par with the States in his rule of interpretation? Of course what's reserved to the "people" is also subject to interpretation/construction. But keep in mind the Constitution's Preamble: "We, the People," not We, the States, in the expressly stated goal of "a more perfect Union," not disunion. As CJ Marshall said in Marbury, "This is a Constitution we're construing, not an IKEA assembly instruction."

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  64. OFF TOPIC: At my next stop from this Blog this morning at the Legal History Blog was its post on William Davenport Mercer's "Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty. Barron's majority decision was written by CJ Marshall. I eagerly await reviews of this book. I wonder if possibly the Civil War might have been averted if all but the 1st A of the Bill of Rights had been applied to the States. Alas, even with the Civil War Amendments, it wasn't until midway through the 20th century that the Court (via the activist Warren Court) seriously addressed individual rights.

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  65. "What Brett says is "a rule of interpretation ruling out implied powers" depends upon how the 10th A is interpreted/construed."

    I will readily concede that language has no power to compel somebody to accept a meaning that they are utterly determined to reject. I can only point out that this is what the words mean to somebody who isn't dead set on the federal government having a legitimate claim to implied powers.

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  66. The 10th amendment is a rule of interpretation ruling out implied powers. If it's not mentioned, the states get it.

    This is empirically false, as is easy to demonstrate. The Constitution fails to mention many things, yet there's no doubt the power belongs to the federal government. An easy example would be the presidential power to fire appointees. Nobody -- even in the age of the internet, I'm willing to say "literally nobody" -- thinks that means that the power to do so belongs to the states. The same is true for judicial review, and lots of other powers the feds actually exercise and have exercised from the beginning.

    As an interpretive matter, your reliance on the 10th A begs the question. That's not just on simple matters such as the N&P clause, but on larger issues like secession. Before the 10th can have any application, we first have to decide if the Constitution deals with the subject. If it does, positively or negatively, then the 10th, by its own terms, has no application. In every case, we have to answer the question before we even consider the 10th A.

    By the way, kudos for the irony of telling us the unstated purpose of the 10th A in the course of an argument against unstated powers.

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  67. So can we imply from Brett's:

    " ... somebody who isn't dead set on the federal government having a legitimate claim to implied powers."

    that he is such a somebody? Of course Brett can speak for himself, but for whom else? No implied powers in the Constitution absolutely?

    Ditto what Mark said.

    Frankly, Brett seems under the influence of the fifth regarding his views on the 10th A.

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  68. Brett:

    I think you need to better define what you mean by implied powers.

    When the Constitution makes a general grant of a category of power to a government entity, this implies a grant of all subsidiary powers which fall under that category. For example, the grant of CiC and executive powers to the president implies a grant of the subsidiary power to protect our borders, even though Article II does not expressly grant this subsidiary power.

    I think your complaint is with imaginary powers which have no basis in or conflict with the written provisions of the Constitution.

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  69. Speaking of protecting the borders, the Supremes largely stayed the lower court nationwide injunctions against enforcement of the POTUS travel stay order, with a dissent arguing for a complete stay.

    https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

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  70. This comment has been removed by the author.

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  71. Very busy SCOTUS day.

    The orders earlier also. Important gay rights decision. Supreme Court yet again (even though in one case two liberals, in another two conservatives wanted them too) avoid taking gun cases. Gorsuch and Roberts dispute what is obvious and have competing Scalia citations etc.

    It doesn't say, "We hereby put down in writing the following", either. I didn't say it used the word expressly, I said it did it expressly. The word means "explicitly, particularly, specifically"; They didn't beat around the bush, they came out and said it.

    Brett: "the states expressly ceded to the federal government all the powers they expressly ceded, and expressly reserved everything else" The 10A speaks of things not "delegated." Brett also argued what the Constitution: "doesn't mention are delegated to the states." (The "mentions" here I guess include prohibitions.]

    To forestall confusion by the clear implication of his words, there is no rule that the Constitution has to explicitly expressly mention things. Certain powers, like rights, are implied and/or determined by such things as looking at the overall structural principles of the document as a whole.

    There are others to state a "clear statement rule." Like the Articles of Confederation:

    Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

    EXPRESSLY. Not in the Tenth Amendment. Words matter. The text:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Brett paraphrases it:

    The 10th amendment is a rule of interpretation ruling out implied powers. If it's not mentioned, the states get it.

    The 10th Amendment says powers not delegated to the U.S. nor prohibited to the States are reserved. It does not say something has to be explicitly "mentioned." There is a way to do that more clearly. See the text of the weaker Articles of Confederation that used "expressly."

    The Necessary and Proper Clause in particular "delegated" to Congress the power to pass laws necessary and proper to carry out its power. So, even beyond what Mark Field says, don't know what you "get" here exactly. The Constitution delegates powers to each branch including broad "executive" power. The 10A by its lonesome does not "rule out" implied powers without a special decoder ring.

    But, maybe it's implied.

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  72. I assume Sandy has been smiling in following this thread in that it might encourage a second constitutional convention that might include addressing secession. Or maybe Sandy is working on an article addressing secession issues under the Constitution. If the latter, I hope this thread helps.

    We had political dysfunction pre-Trump. Perhaps it has worsened. But I do not support secession by any state, or "by the People" per the 10th A or otherwise. Maybe the political dysfunction will be resolved. I don't think we have a constitutional crisis presently. I hope it's just "constitutional rot" as noted by Jack Balkin in a post here several weeks ago. I plan to check out the links in Jack's recent post later today, especially the panel discussion. Yes, secession is thinkable, but I don't think it's doable presently as it would be a sign of a weak America to its enemies.

    But perhaps we should explore secession of a state by action of the federal government rather than by state action. I am not aware of any provision in the Constitution that would so specifically empower the federal government. But might there be implied powers to do so? Let me toss out the federal guarantee of a republican form of government for the states. The term republican form of government is not specifically defined in that guarantee clause, but it should in some manner have resemblance to Articles I through III of the Constitution. What if a state is recalcitrant? What steps can the federal government take? What if the state fails to comply? Under certain circumstances, might the federal government have the right to force such a state out of the Union? Or would the federal government be limited to taking control, temporarily, of the state to bring it in compliance with the guarantee clause?

    At a second constitutional convention, perhaps secession might be addressed as a two-way street. But might addressing secession be a sign of a weak America as earlier noted?

    Brett may ignore SPAM's kindly advice and challenge per the 10th A any implied powers of the federal government that I suggest under the guarantee clause.

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  73. I too would be interested in whether Sandy sees a constitutional basis for secession which has eluded me.

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  74. The Guarantee Clause was involved in how Congress handled the states that purported to secede, including the contours of its Reconstruction policy.

    The protections of the Constitution (I'm reading a book on Prigg v. PA that makes Shag's point about the Preamble, btw) does suggest some grounds for usage of power against alleged seceded states. The Constitution as a whole is in place to protect liberty (quotes to Federalist Papers etc. left to others) and some state leaving without proper authority would interfere. MF also referenced powers like navigation.

    The thread suggests to limits of the results of Sandy Levinson's convention, but perhaps it has been helpful to air things out. Shag cohort Lyle Denniston (reporting on the Supreme Court since 1958; he's 86) has announced his retirement. That is the big retirement news, it seems.

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  75. In an earlier thread on a Gerard Bill of Rights post, I had mention that unlike ratification of the 1787 Constitution, ratification of the Bill of Rights disclosed little on the meaning/intent of the 10th A as well as the rest of the Bill of Rights. We do not have the benefit of "Federalist Papers "on the Bill of Rights. Maybe historians can be helpful. But SCOTUS was not very active with the Bill of Rights pre-Civil War and for a long time thereafter. Perhaps Madison's Notes might help, although not necessarily contemporaneous with the enactment/ratification of the Bill of Rights. Much of the Constitution is not Black Letter Law.

    Query: Lyle may be a lurker at this Blog. I look forward to his comments in his retirements. With his long reporting career, I assume he's had some experiences predicting decisions of the Court.

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