Removal of Confederate statues and flags?

Feb 2013
4,193
Coastal Florida
Federal courts can only strike down laws that contradict the Constitution. There is no clause in the Constitution for the court to cite.
How do federal courts strike down state laws without citing clauses of the Constitution? It seems to me they typically cite clauses of the Constitution in their decisions when they do so...

If there were a Constitution clause preempting States from repealing their own ratification, then probably no one would have thought it legal. I doubt such a clause would have made it out of committee at the convention.
This kind of takes us back to Federalist 43. Madison criticized the Articles of Confederation for exactly this reason...that states could pretty much leave at any time because it was merely a treaty. Madison didn't make this up on his own. He was echoing the sentiment of the Convention as none of the delegates thought their states would be better off alone. All of them acknowledged the inherent weaknesses of the Articles and, by empowering a federal government, sought to create greater cohesion between the states, not less. Nobody suggested the "perpetual" concept from the Articles should be thrown overboard either. In fact, a break-up of the states was one of their biggest concerns if they couldn't agree on a workable document. Really, I don't think anyone was actively contemplating a way for states to leave because they were obsessed with producing a document which would result in a union they expressly intended would be permanent.

It is interesting what when I ask about the location of this phantom law - finding the requisite "literal legal citations that I can use to buttress the case against secession (and thus in favor of Jefferson as a traitor)" - your respond, "good luck with that." But you continue to argue as though such law exists.
You want "literal legal citations" that show "Jefferson as a traitor"? That doesn't even make sense.

No one said the states were "superior." (Straw man).
The Constitution does not say "law of the land." It says the law is "established between the States so ratifying." It is established in States ('the land)' so ratifying, and not established among States (the land) not ratifying.
Perhaps you should read the Constitution again. I'm pretty sure it explicitly says the Constitution is the supreme law of the land.

Nowhere does it say that the States may not withdraw their ratification.
But it explicitly spells out how states may join it. The Constitution has an on-ramp but no off-ramp. That seems pretty strange if an off-ramp was intended to exist.

No one is talking about revoking the Constitution or amending it. (Straw man). When South Carolina became the first to withdraw their ratification, they simply repealed their own state enactment.
If a state secedes, it has revoked the Constitution in that state. Indeed, that's even the terminology used about this in Texas v. White:

The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.
 
Feb 2015
3,584
Caribbean
Did you miss my point? How many contenders actually read the case?

Am I the issue? FWIW, mostly I hate murders, thieves, perjurers and rapists, especially child rapists. Group think is not necessarily bad. Group non think probably is.

Just to clarify the statement you are addressing. I wrote Taney treated it like an inalienable right. As I recall the reasoning was something like - the citizen slave owner had just as much right to bring his property into territories and the non slave owning citizen. Do you think it is unreasonable to infer that he saying - the slave owner can't be alienated from his right to own slaves just because he is moving to a territory? That's what it sound like to me.
1)Even law students only read edited landmark cases that talk about the legally relevant points. Dred Scott is not a relevant case, the law in it is not relevant so therefore very few legal scholars are going to have reason to read it unless making some sort of unflattering comparison.

2)Context is everything. I see this movement where people are distrusting established things and concepts for the sake of distrusting them, because there used to the general narrative being false. We have an underlying bias for discovering truth or figuring out things are different no matter how obvious they might seem.

3)He brought up the Property Clause but it sickens me to even entertain this for the purpose of rebuttal but other types of property can be banned in one state and not another, and a person's moving to a state where said practice is illegal and even then there's the whole "due process", "just compensation issues" and the fact in pro slave states under state law you know humans might be treated as humans not as chattels(part of what made this case so disgusting is it made free Africans in states that deemed them citizens not citizens based on racial inferiority, something that no matter how you interpret it was not something that the Founders intended even if many of them and the Constitution was "pro slavery"(and it isn't, it specifically ignores the issue). This case made no sense no matter what years twisted social lens, legal precedents etc you view it through. Congress didn't have to admit a new state, the reason Missouri and it's successors were admitted in the first place was because under the infrastructure of the Missouri Compromise, it maintained the balance of power in Congress and states were willing to vote for it and wouldn't have if the Compromise wasn't in place.
I agree with a lot of this. I almost posted some of the same stuff, and almost used the phrase that parts of the Dred Scott ruling have to "sicken" - but I'd argue that has less to do with the court's opinion and the confederated partition of jurisdiction of the Constitution - and a lot more to do with the nature of slavery itself.

IMO, arguing that the Taney Court went too far ought to be systematic and not ranting. I'd approach that from the ground up, with the decision even to hear the case. The Missouri Court had not freed Scott. Probably few expect them to do otherwise. So, the Supremes cold just leave it alone. The second spot - in my opinion - is the question of how could so many Framers get the Constitution wrong on Congressional authority of territories when they passed the Northwest Ordinance? As I stated before that clause seems to convey plenary and not mere custodial authority.

On the other side of the coin, how can the court rule that somehow Scott self-naturalized or self-manumitted, or that a State can naturalize a non-citizen - without creating a loophole through which every runaway slave can follow? And you know what the Constitution says about runaways. It is blood simple, as you say to filter through an "underlying bias" and think - oh, I hate slavery and I am going to strike it down. And how simplistic is it to project that process - oh, the judges owned slaves, they were pro slavery. It is quite another thing to imagine that you sworn an oath to uphold the law, and it is a law of abominations.

------
As an aside, the issue of bias is indeed omnipresent. About a year ago, I decided to fill some gaps, and read about 50-100 pages and watched 3 documentaries on the Franco-Prussian War. Every author was biased against Bismarck.:)
 
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Feb 2015
3,584
Caribbean
The Union went with a "if the crime wasn't legal and you aren't able to do it, it never actually happened" sort of logic even when maintaining secession was illegal, can see the Chase court seeing recognizing Davis's role as recognizing the existence of the CSA, rather than just another former US Senator who left the Union. Lincoln was in the process of ignoring Habeus, and this probably didn't make the Courts a fan so who knows but I'm very skeptical SCOTUS would rule on that.
You can't get the politics out of these cases. There is no way, IMO, that the Supreme Court in 1857 was going to create a loophole for slaves to get out of slavery, and there is no way the court was going to allow in 1868 that there had been a loophole all along for States to get out of the Union. But the Davis case would not be decided by the Supreme Court.

The government could have put him in front of a military commission and before a week went by he would have been swinging from the end of a rope. However, the world was watching. and statecraft is symbolism. So Davis had to be convicted by a jury. And they could have cited White v Texas to the jury. Because, yes, three years later in 1868, they were still in a quandary about what to do with this Davis (and thus Lee, etc) that they could have executed in 1865 ex post haste. A failure to convict Davis would mean symbolically that the US lost the last battle of the war, a loss that would have created an indelible benchmark that Lincoln was just another conqueror, because "justice" had found a right to secede.

Think about it, symbolically, what they need to show is, in some way, that what happened is what i am saying didn't happen. They need to show a "country, so conceived, so dedicated, can long endure" and NOT that the noble experiment was a casualty of the war

And while I am on symbols, back to the OP and the monuments. I'll make the point a last time. It is a much sounder argument for getting rid of the statues to accept the legality of secession. That makes the symbols those of a foreign country. If these are just rebellious citizens, then their memorabilia is in some way inherently "American." (Like von Braun? :))
 
Feb 2015
3,584
Caribbean
How do federal courts strike down state laws without citing clauses of the Constitution? It seems to me they typically cite clauses of the Constitution in their decisions when they do so...
I agree. My sentence didn't say what I was trying to say.

Yes, federal courts declare enactments unconstitutional (at least they started to with Dred Scott). However, in the case of secession, the state legislature is not passing an enactment. The State is repealing an enactment. I am not sure that is authority ever claimed. Has a court ever struck down an appeal? Isn't that what the court did in White V Texas? But without admitting it.

because they were obsessed with producing a document which would result in a union they expressly intended would be permanent.
They had already created something permanent in 1781, "the perpetual union." No matter how much one beats around the bush, one cannot credibly make terms of surrender out of thin air, supposition and whimsy.

Perhaps you should read the Constitution again. I'm pretty sure it explicitly says the Constitution is the supreme law of the land.
Not the way you use it to defeat and ignore the rest of the Constitution. Misconstruction of that clause to exaggerate the power of the general government is called "sophistry" by Alexander Hamilton in Federalist 27. And if any Framer was going to be on your side of this...

It is the law of the land:
- under Article VII, a state has to ratify the Constitution for it to be established in that State; and
- under Article 1 Section 10 and Article IV that the power, right, privilege or option to withdraw ratification not forbidden to the States; and
(for those who refuse to adhere to the canon - expressio unius est exclusio alterius - the States insisted on a Bill of Rights that preempted your misconstructions)
- under Amendment 10, "powers not prohibited" to the States are reserved by the States

On the other side of the argument, there is your contention that the Constitution is the law of the land as the blanks are filled in with supposition and whimsy about "subjugation."
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If a state secedes, it has revoked the Constitution in that state. Indeed, that's even the terminology used about this in Texas v. White:
When SC seceded the Constitution was not revoked - only their relationship with it. Arguing that one state can revoke the relationship between 2 or more other States is ridiculous. The moment after SC left, the rest of the union was sitting there, with a Constitution in place pursuing happiness and enjoying domestic tranquility. I would think a lot more domestic tranquility without the loud mouth trouble-making sons of Calhoun.
 
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Dec 2009
6,647
Here is my 2 cents on the topic:

1. While for the original 13th states, which existed in their own right before they joined the union and ratified the Constitution, it could be a question as to whether or not they had the right to voluntarily leave the union, because they voluntarily joined in the first place.

But for the states that come later, the states in the area of the Louisiana Purchase and other territory the US acquired after the Constitution was ratified. Those states were from lands that were purchased and acquired by the US government, by the efforts of citizens of all the states, and those states had no right to take land out of the Union that had been acquired by the resources that came from all the states. The land of those states, Alabama, Louisiana, belonged to the US, not just those states, and the citizens of those states had no right to take the land that had by acquired by the resources of the US for just their own use.


2. The statues in question for the most part are there to honor these men precisely for their efforts in the Civil War to destroy the US, and to perpetuate slavery, neither very honorable objectives. If the men were being honored for their post or pre Civil War achievements, like a statue of Lee honoring his work as Washington and Lee University president, then it would be more questionable removing them. But for most of the statues in question, they are being honored for their actions in the Civil War, for their efforts to destroy the US, and indirectly support slavery, and that is exactly why they should be removed or relocated.

3. In the case of men like Thomas Jefferson, or Washington, they are not being honored for their work in supporting slavery, but for their work in other things. If you wanted to raise a statue honoring man who happened to be a Confederate General at one time, but the statue was in honor of his work is fighting Yellow Fever, and that man had later regretted his support of the Confederacy, then I would say that a statue of him would be OK. Most figures in history are not perfect, most have done stuff at least some time in their life that we regret they had done. But it is one thing to honor a person that had done things we later judged were wrong, and quite another to honor him for his support for the very things we regard as wrong.
 
Feb 2015
3,584
Caribbean
Here is my 2 cents on the topic:

1. While for the original 13th states, which existed in their own right before they joined the union and ratified the Constitution, it could be a question as to whether or not they had the right to voluntarily leave the union, because they voluntarily joined in the first place.

But for the states that come later, the states in the area of the Louisiana Purchase and other territory the US acquired after the Constitution was ratified. Those states were from lands that were purchased and acquired by the US government, by the efforts of citizens of all the states, and those states had no right to take land out of the Union that had been acquired by the resources that came from all the states. The land of those states, Alabama, Louisiana, belonged to the US, not just those states, and the citizens of those states had no right to take the land that had by acquired by the resources of the US for just their own use.
Where do you place Vermont and Texas in that scheme?
 
Dec 2009
6,647
Where do you place Vermont and Texas in that scheme?
I would place Texas and Vermont in the same category as the original 13 states.

Since these states voluntarily joined the Union, and the land wasn't land that had been obtained from the US government using the resources of the nation, a strong case could be made that they should be able able to voluntarily leave the US .
 
Feb 2015
3,584
Caribbean
I would place Texas and Vermont in the same category as the original 13 states.

Since these states voluntarily joined the Union, and the land wasn't land that had been obtained from the US government using the resources of the nation, a strong case could be made that they should be able able to voluntarily leave the US .
That is pretty much how I thought of it. I would asked pro Southerners if they had anything to rebut that, and they didn't.

And then I found this.

NW Ordinance
"Sec. 13. And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest:...

Art 5. And, whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand."

Texas Admittance Joint Resolution of Congress July 29, 1845
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of Texas shall be one, and is hereby declared to be one, of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever."

Tennessee admittance
"on an equal footing with the original States in all respects whatever".
 
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Feb 2013
4,193
Coastal Florida
It is the law of the land:
- under Article VII, a state has to ratify the Constitution for it to be established in that State; and
- under Article 1 Section 10 and Article IV that the power, right, privilege or option to withdraw ratification not forbidden to the States; and
(for those who refuse to adhere to the canon - expressio unius est exclusio alterius - the States insisted on a Bill of Rights that preempted your misconstructions)
- under Amendment 10, "powers not prohibited" to the States are reserved by the States
Before I respond any further, I just want to clarify where you're coming from. Are you saying the federal government possesses no authority other than what is expressly delegated by the text (i.e. states retain the ability to do any and all things not explicitly assigned to the federal government or prohibited to them by the written text)? That seems to be the factor your entire argument rests upon.
 
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