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  1. Greg says

    Jemmy Madison. Yes … really.

    BTW, I have to presume that Hamilton and Madison are supposed to be sitting in that last illustration. If not, you made Jemmy way too tall.

  2. psionl0 says

    I would have to say that the civil war proved that the people could NOT take back the powers given to a federal government.

    • No, it didn’t. The US Civil War about many things, depending on your level of cynicism, but one of those issues was not “government misusing its powers granted by the people”.

      • It could be considered to have been, at least in part, by the southern states fearing that the government was going to restrict their right to continue commerce in certain (human) goods, which was the “government misusing its powers granted by the people”.

        • Such deals weren’t limited to “human trade”… one of the sparking points was the New England had passed laws saying that states could not sell their products overseas without prior first refusal from New England (sounds familiar, eh)…

        • The government was not denying the South the right to representation. They had the right to elect representatives and make their voices heard, and they did.

          Plus, you’re really not going to convince me that the people who were fighting for the right to continue to own other people were having their basic rights trampled on.

        • It is clear that you don’t believe in the sovereignty of the people (so “we the people” is a meaningless phrase for you).

          The problem is that if you are going to say that a just cause makes everything legal then we might as well not have a legal system. Just go back to having a monarch wield all the power.

    • Sorry, psionl0, but when the southern states seceded, that was not an attempt by “the people” to amend the powers of the federal government. It had nothing to do with reclaiming powers that had been delegated by the people.

      It had everything to do with the southern state governments abandoning the union, in order to preserve and perpetuate the institution of slavery.

      (It would be an error to step in here and say it was instead a matter of the South acting to preserve states’ rights. The South had never been trying to assert their state rights against any imposition by the feds. On the contrary, from the get-go the southern states had pursued the policy of using the federal government to block the exercise of states rights, to prevent the northern states from exercising their sovereignty in any way that didn’t suit southern slavery interests. The fugitive slave clause of Article IV, the Fugitive Slave Act, the Missouri Compromise, the 1850 Compromise, the 1850 Fugitive Slave Act… all were instances of the South using the federal government to dictate what all the other states had to do. Dictating what laws the other states’ legislatures could pass, what actions their executives could take, and what their decisions their courts could make. If anything, when secession came it was because the free states were finally asserting states’ rights, and that was a deal-breaker for the South.)

          • I’ll be very interested to know your argument about that. I’ve always thought it was basically, “No, because the Confederacy tried to and couldn’t win militarily.”. Just like the American secession from Britain: “Do we have the right to secede from Britain? Yes, because the Continental Congress tried to and won militarily.”.

            And if some faction of “The People” ever try to take back their “powers” from the federal government, whether they have a right to do that will be determined by whether they can succeed militarily in overthrowing the federal government. Given we have by far the most capable militarily in the whole world, and “The People” have what might as well be toy guns, they’ll need at least some of the military on their side to even have a sliver of a chance.

            Honestly, Nathan, I love this comic … but I’m having trouble seeing how you could make a good case for this particular line of legal philosophy. But, hey, I’m definitely willing to listen :)

            • If I’ve understood previous pages correctly “a faction of” the people doesn’t have sovereignty, or any right to take back the powers. Only all of “the people” collectively have that power. Which as far as I can tell is the same as not having it, because the only way for the people to collectively exercise this right to repeal and annul is through electing politicians who are never compelled to follow through on that mandate.

              Of course, I’m hoping Nathan can explain why this cynical take on it isn’t quite accurate.

              • You will never get literally all of the 350+ million citizens of the United States to agree on anything whatsoever. So whoever is trying to “take back” the government’s “powers” will be a faction. It may be a faction supported by 75% of the US population, but then why not just use the Constitution’s amendment procedure? It may also be a faction supported by 33% of the US population, like the faction of the US population that fought and won the Revolutionary War against Britain.

                Read that again: only about a third of the US population wanted to secede from Britain. Another third didn’t care either way, and the final third wanted to stay part of Britain. The pro-secession third won because the pro-union third didn’t care enough about the issue to actually fight and die for what they wanted.

                Now, like anything in history, the above of course isn’t 100% true: after defecting, Benedict Arnold actually commanded a troop of colonists who were “Loyalist” volunteers. But, in general, Britain only got lukewarm support from that third of colonists that were happy to stay with Britain.

                Both the Civil War and the Revolutionary War were won and lost on the battlefield. What was “legal” had nothing to do with it. It will be the same for any future attempts at revolution or secession.

            • Several southern states were either majority black or had a combined majority of blacks+abolitionists before the Civil War, yet those people were unable to democratically overwhelm entrenched white interests due to black people being unable to vote and denied access to education and media. This rather undermined those states’ claims to being legitimately democratic governments.

              It might well be the case that “the people” cannot easily take back powers delegated to the government today. But I don’t see how the civil war is relevant to this, in that one side was largely governed by a (sometimes minority) ethnic group that only believed in voting rights for their own caste.

          • Secession is not a state’s right, ok, but, is it a peoples’ right?
            (Due note, the plurals intended)

            • Not really. The people have the right to replace their government if it is not properly representing them, by force if necessary as a last resort, and that may involve forming another country (as it did with the US). But that’s not the same as a “right to secede”.

              Keep in mind this is not “I don’t like what the government is doing”, it’s “The government is ignoring our election results and breaking all of the rules we set for it”. Revolution is an absolute last resort.

              • People don’t have a right of association to choose which, if any, government they wish to live under? No right to withdraw?

                • Whether it’s a right or not, American law says it’s at least allowed to renounce one’s citizenship, severing one’s obligations to a country and its government, as well as its protections. It’s allowed by our law, at any rate. But it’s a mutual thing, isn’t it? It doesn’t really count unless the government agrees. Otherwise, they can just assert their authority over you whether you like it or not. Certain totalitarian states, for example, have been notoriously reluctant to consent. The U.S. does impose a couple of conditions before it will agree — notably, physically removing yourself from its territory first, and also paying an ever-increasing fee. Most U.S. citizens who renounce (or “expatriate” themselves) do so to avoid paying taxes, and so the IRS tries very hard to dissuade it with such tactics as “naming and shaming” those who do. But it’s still perfectly allowed, and people actually do it all the time. (Careful, though: The U.S. lets you do this without first gaining the protection of citizenship in another country. Unwary expatriates can find themselves stateless, unprotected by the laws or arms of any nation, which can make life incredibly dangerous and difficult.)

                  But if the government has to consent before you can exercise it, it’s hardly a right, is it?

                  Nevertheless, should it be? And let’s take it to the extreme: Should you have the right to renounce your country’s citizenship, all the obligations and protections of its laws, without even leaving its territory? Conceivably. That’s what the word “outlaw” used to mean, isn’t it? Sure, you’re still living here, but anyone can do anything to you and your stuff, and we’re not going to lift a finger, sorry, sucks to be you. As a practical matter in the modern world, it’d be a moot point, because the courts would still apply their laws to citizens and noncitizens alike within their juridiction. Their power is imposed and enforced regardless of whether that particular person wants to be subject to them. That’s going to happen no matter where in the world you happen to find yourself.

                  But let’s leave practicality aside, and just ask the theoretical. Birthright citizenship, after all, is imposed on us by pure accident of birth, like our sex or eye color, without us having had any say in the matter. But citizenship is something that can be chosen. So shouldn’t we be able to choose whether to accept what our parents did to us, like a Catholic sacrament of Confirmation? If we can’t, then isn’t that like being conscripted into an army against our will, when others can choose to enlist or not?

                  That’s actually been the subject of serious thought. Yale professors Peter Schuck and Rogers Smith wrote a book back in the 80s that traced parallel schools of thought back through the common law and natural rights, and came out proposing that birthright citizenship be provisional until a child reaches adulthood and chooses to accept it or not. This of course would require an amendment to rewrite the 14th Amendment, and would have dramatic repercussions on children of noncitizens who otherwise would have gained citizenship by being born on U.S. soil, and thus conflicts with a lot of important policies.

                  It struck me when I read it as kind of a tribal rite-of-passage thing, that children born to the tribe are part of us, but when they reach the age of majority they’re going to have to make a choice to commit or else pfft they’re out. Although I am firmly convinced of the importance of such rituals to human beings, this kind of thing, where we’re going to cut you loose from the protection we’ve given you since birth if you don’t commit to us, seems more likely to result in injustice than otherwise. I think the default should be protection is there, period, and it’s up to you to affirmatively renounce it.

                  But none of that is a “right of association” kind of thing. And more than that: it’s only individual. Something one person can do, not a collective people. Interesting how an individual here can do something a collective isn’t entitled to do!

                  • This may be too far from the actual topic (and feel free to say so), but the 14th Amendment Section 1 says:
                    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
                    What does the phrase “subject to the jurisdiction thereof” mean, especially with respect to people who are in the country illegally?

                    • Quote from wikipedia:
                      « U.S. law holds that natural persons born on foreign ships docked at U.S. ports or born within the limit of U.S. territorial waters are U.S. citizens. An important exception to this rule is that children born to people who (in line with the Fourteenth Amendment to the United States Constitution) are not “subject to the jurisdiction” of the United States (e.g., foreign diplomats accredited with the United States Department of State or invading foreign enemy forces) are not automatically U.S. citizens. »
                      [Jeffrey A. Schoenblum (2006). Multistate and Multinational Estate Planning (Third ed.). CCH. pp. 9–56. ISBN 0-8080-8950-1.]

                    • That one’s easy.

                      Someone who is “subject to the jurisdiction” of the United States is simply anyone who has to obey its laws (whether they like it or not).

                      You don’t have to be a citizen to be subject to a country’s jurisdiction. You don’t even have to have agreed to abide by its laws. Usually, all you have to do is be physically present within its borders.

                      You can even be subject to U.S. jurisdiction without setting foot on its territory, with respect to specific conduct, to the extent your conduct used U.S. resources or took advantage of U.S. protections. But of course that’s not important to your question.

                      As jzx0 points out, there are exceptions to the territorial rule and the rule of “minimum contacts.” Most territorial exceptions are carved out from the general rule by Congress. Plenty of extraterritorial exceptions exist under international law — whether by treaty, or the law of the sea (the first international law!) or by a variety of principles permitting nations to protect their citizens and interests, or under the “universal jurisdiction” that lets any country prosecute supervillains no matter where they’re found. (For more on stuff like that, back in ’07 I hastily wrote a primer on international law that for some reason still gets cited quite a lot, and has been translated into a bunch of languages and even got made into a handbook for small nations at one point. One of these days I’m going to update and illustrate that. But first I want to illustrate the motorcycle riding tips I wrote for some pals on the SV650 message board back in the dim and distant past. And this project comes before that. And work and family and this article I’m writing and… Anyway, there’s a lot more you might find interesting elsewhere.)

                      “But what about illegal aliens?” I hear you say. (“Can’t you read? That was my question,” I also hear you add under your breath.) Well, if they weren’t subject to U.S. law & its jurisdiction, their presence here wouldn’t be illegal. If you’re going to declare someone an illegal alien, then by definition you’re declaring them subject to the country’s jurisdiction.

                      So an alien who happens to have come into the country in violation of U.S. law is (with extremely rare and limited exceptions carved out by Congress) “subject to the jurisdiction thereof,” and therefore if they happen to give birth to a child within the territory of the United States then that child is going to be automatically a U.S. citizen.

                      I keep bringing up Congress and treaties and courts and such because jurisdiction is strictly invented law. At its heart, jurisdiction is whatever the government can enforce. China, for example, can pass a law outlawing the production of lucky cat figurines in Kansas. Nothing prevents them from passing that law. But as a practical matter, it is impossible for them to enforce that law. Their jurisdiction simply doesn’t extend to a factory in Salina. But within the realm of enforceability, jurisdiction is literally whatever the government says it is. So a government can say “we don’t have jurisdiction over X” and that’s fine. But if they could enforce it, there’s nothing preventing them from changing that rule tomorrow.

                      The U.S. Constitution has a little to say on federal jurisdiction, the federal courts have a lot more to say about it, and Congress has the most. And insofar as they can put their muscle where their mouth is, then that’s what it is.

                      Interestingly, however (you just knew there was going to be a “however,” didn’t you), the idea of birthright citizenship was not created by the 14th Amendment. All that did was to clarify that the pre-existing rule actually did apply in the U.S. And this is important for your “illegal alien” context because slaves were literally considered aliens. On the day prior to their emancipation, slaves were not U.S. citizens any more than was Tokugawa Yoshinobu. The point of this 1868 amendment, therefore, was to ensure that these former aliens were now full citizens, with all the rights and obligations and protections that go along with full citizenship. (Sadly, of course, that’s taken a while to be fully realized.)

                      But if the courts had had any guts, they could have made this point clear on day 1 of emancipation, simply by reinforcing the age-old common law doctrine of jus soli — birthright citizenship. The awful Dred Scott decision in 1857 had said jus soli didn’t apply to slaves, reaching that conclusion with awful reasoning, and would have been easy to overrule. But the courts were pussies, and it was up to Congress to propose an amendment, and the states to ratify it, to restore this ancient and, to most at the time, deeply common-sensical legal principle and elevate it to constitutional status.

                      And it absolutely was commonly understood to already be the way things were supposed to be under our law. That’s not me editorializing or injecting a modern interpretation. Here’s what Sen. Jacob Howard of Michigan said when introducing it:

                      This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

                      The only limitation, he said, would be the children of foreigners who are here as part of a foreign embassy.

                      This interpretation wasn’t disputed by any Senators. In fact, the main opposition to the amendment was that it was not necessary, that it simply restated what the law already said.

                      A couple of Senators voiced concern that this would lead to California being overrun by a breeding invasion of Chinese immigrants, and Gypsies (seriously) in Pennsylvania. But the general reply was either “that’s not what would happen in reality” or “so what if it did?” Native American babies, on the other hand, raised more debate. The Indian tribes are their own sovereigns, and though the U.S. had chosen from time to time to assert jurisdiction over them it didn’t technically have it. And nobody wanted to suddenly grant them all U.S. citizenship. One of the senators proposed extra language making this clear, but it was eventually decided that it wasn’t necessary. (And therefore a bad idea: When you start listing what doesn’t count, there’s a real danger that this will be interpreted to mean that everything else you didn’t list now does count, and nobody wants a policy to be undone for a lack of imagination and precognition.)

                      Subsequent debate in Congress and during the state ratifications, and the case law ever since, have only reconfirmed and solidified the fact that this amendment was always understood and intended to grant citizenship to the babies of illegal aliens on U.S. soil. Birthright citizenship was how we’d done it since before there’d been a U.S., and we were going to ensure that it was how we’d continue to do it.

                    • Nathan – thanks for the link to the primer. I now have another useful term (besides “Kharijite,” which only half of my listeners will get) for terrorists who claim to kill in the name of Islam.

                  • Sort of switching sides here, but….

                    as the act of renunciation involves leaving the territory of the United States, it does not really apply to succession since the succeeding states wanted to take the territory with them. It is a right that applies both individually and collectively, in so far as the entire population of the Confederacy could have collectively renounced their citizenship and ran off to Cuba or wherever.

      • “It had everything to do with the southern state governments abandoning the union, in order to preserve and perpetuate the institution of slavery”.

        If the issue had been (say) adult suffrage, would the same issue apply?

      • I would say that that makes no sense – it’s not like the Union would have respected the various fugitive slave laws post-secession – but I doubt that the secessionists were doing much thinking at the time.

      • No, it was not an attempt at “reclaiming powers that had been delegated by the people.” It was more in the nature of a preemptive strike.

        The Southern states were justifiably fearsome that the Federal government was going to abolish slavery in their states (which would have been a good thing, before anyone misattributes a pro-slavery opinion to me). They feared that a bedrock of their society would be wiped away should they stay in the Union by a Federal government more concerned with human rights than in the right of a State to control commerce within its own boundaries.

    • It can legitimately be argued that the South tried to secede from the Union for a number of different, though interconnected, reasons. (I find the argument that the Civil War was *entirely* about slavery to be just as disingenuous and overly simplistic as the argument you often hear from Southern apologists that the Civil War was not really about slavery at all. Slavery was clearly at the heart of the conflict, but there were other factors at play as well.*) But it would be hard to defend the argument that secession was about standing up for the right of “the people” to take back powers they had delegated to the government. It was more about standing up for the “right” of Southern states—and the economic interests that ran those states—to continue doing things the way they had traditionally been done in the South (*especially*, but not exclusively, with regard to slavery) without interference from the federal government or unwanted “meddling” from northern states. If the secessionists had truly cared about the rights of “the people” to self-determination, then they would have allowed those Southern counties that voted *against* secession (and there were many that did, as you can see from the map I’ve linked to) to remain part of the Union instead of imposing secession on them (and even drafting their young men into the Confederate army and forcing them to fight by threatening to retaliate against their families back home if they didn’t).

      (* One of the factors that ultimately led to the Civil War was the “culture war” between the Deep South and the “Yankee” northeast that had been going on since before the founding of the Republic. These two regions had vastly different cultures based on vastly different values, which frequently brought Yankees and Southerners into conflict over a wide variety of issues—not just slavery. If you want to learn more about this longstanding cultural rivalry between North and South, which still persists to this day, I would highly recommend the book ‘American Nations: A History of the Eleven Rival Regional Cultures of North America’ by Colin Woodard. It is a well-written book that is very educational, and it sheds a lot of light not only on the cultural forces that shaped American history but also on the ongoing “culture wars” that seem to be driving American politics today.)

      • @Greg,

        Was any polling done prior to the declaration of independence? I’m sure that there would have been pockets of the population that were loyal to “King and Country”. Maybe they should have had the right to remain with the British Empire instead of being required to form part of the “We the People”.

        This whole civil war thing seems to be a moral issue rather than a legal one. If secession is permissible only when the cause is “just” or the people involved have the military might to do so then congress reigns supreme over the people just like the King used to.

        • I think you may be missing my point. I wasn’t arguing that secession was unjustified because many Southerners were opposed to it. I was simply saying that you can’t defend the claim that secession had anything to do with “the people” taking back powers that they had delegated to the federal government. It was instead about a minority of *states* taking the powers that *the people* of the United States had legitimately delegated to the federal government, and keeping some of those powers for themselves while transferring others to a newly-created Confederate government.

          The right of *the people* to take back powers delegated to the government has to be a collective right. A dissatisfied minority can’t just decide to “opt out” of the current political and legal system and set up an new one that is more to their liking. (If that were true, then those Southern counties that voted against secession should have been allowed to opt out of the Confederacy. The same logic that would allow states to secede from the Union ought to allow counties to secede from a state.)

          So, when we say that “the people” have a right to take back powers delegated to the federal government, we are talking about a collective right of the people of the United States as a whole, acting by means of the ballot box (whenever possible), or else by means of a popular uprising (should it ever become necessary). But we are definitely *not* talking about the right of a minority of the population to secede from the Union if they don’t like its policies, and we are certainly not talking about the right of *states* to do so.

          • “So, when we say that “the people” have a right to take back powers delegated to the federal government, we are talking about a collective right of the people of the United States as a whole, acting by means of the ballot box (whenever possible), or else by means of a popular uprising (should it ever become necessary)”.

            This of course is not codified in the constitution in any way so I guess it is up to some other authority (probably SCOTUS but definitely not “we the people”) to decide under what conditions (if any) secession is permissible. That makes the government as a whole sovereign rather than the people.

            • Of course it’s codified in the Constitution. The Constitution clearly specifies that we are to hold elections every few years so that We the People of the United States can choose who gets to make public policy on our behalf; it specifies how federal laws are to be made; and it even specifies how the Constitution itself can be amended if We the People of the United States want to make more substantive changes to how our country is governed. So, if We the People of the United States collectively want to take back some (or all) of the powers that we have delegated to the federal government, the Constitution gives us a process for doing so. (I never said it would be easy. It *shouldn’t* be easy, because we don’t want people making radical changes to how our country is governed every time they get upset with something the president, Congress, or the Supreme Court does. But the mechanisms that allow us to make these changes are provided for in the Constitution.)

              As for secession, if We the People of the United States collectively decide that states ought to be free to secede from the Union, then we can always amend the Constitution to allow it.

              And as for a popular uprising against the government, the only circumstances I can imagine under which that would ever be either necessary or appropriate would if an oppressive regime came to power that ruled in a manner that was contrary to the Constitution. But as long as the Constitution is still in effect, then We the People of the United States have more peaceful means available to us for holding our elected officials accountable and for affecting how our country is governed. So, there’s no need for the Constitution itself to explicitly acknowledge the people’s right to revolt against a tyrannical government that is acting in defiance of the Constitution. (I should note, however, that the right to revolt *is* acknowledged, quite explicitly, in the Declaration of Independence.)

              • “The Constitution clearly specifies that we are to hold elections every few years so that We the People of the United States can choose who gets to make public policy on our behalf; it specifies how federal laws are to be made; and it even specifies how the Constitution itself can be amended if We the People of the United States want to make more substantive changes to how our country is governed”.

                And with that verbal dodge, you rendered the “we the people” concept meaningless and declared the US to be no different to any other country that holds free elections (eg England, Australia, New Zealand).

                It’s funny that you mention “we the people” and changing the constitution in the same sentence. Some states may hold conventions before deciding to ratify a change to the constitution but changes to the constitution are the sole prerogative of the state and federal legislators and the people have no direct say at all (unlike Australia). If they don’t like the changes then they can vote for the other mob.

                • I don’t think Greg made a verbal dodge there, psionl0. Consider this:

                  The federal government has started using power X in a way that people generally think is an abuse of power. Outrage becomes a movement, and demands for a constitutional amendment gain traction.

                  There are two ways to propose an amendment: (1) Congress proposes it with a 2/3 majority of both the House and Senate; or (2) The legislatures of 2/3 of the states call for a convention. Zero of the ratified amendments were proposed by a convention, so let’s say that doesn’t happen here, either.

                  And let’s say the feds are so enamored of this power they’re abusing, that it’s impossible to get enough votes in Congress the first time around. If it’s a big enough deal to the people, the idea is that they’ll vote the bums out of office, and replace them with representatives who’ll vote to propose that amendment.

                  Congress now votes to propose the desired amendment. It also specifies whether it must be ratified by 38 of the state legislatures, or by conventions of 38 states. Either way, it’s a simple up-or-down vote. There’s no dickering over the language, it’s either yes or no.

                  If it goes to legislatures, the same thinking applies as above: If the amendment’s that important, then the people will replace represenatives to make sure it passes. If there’s a convention, it’s even easier: the electorate of each state will start from scratch and elect a number of delegates to take part, based on whether they’ll vote up or down.

                  The convention method was only used once–to repeal Prohibition. But it shows how fast the will of the people can be asserted in this manner. Congress proposed the amendment on February 20. Just 49 days later, Michigan had already called a convention, elected its delegates, held the convention, and voted to ratify the amendment. More than half of the necessary states had ratified within six months, and ratification was complete before the year was out.

                  However it’s done, the people are the ones making the decision. As with everything else in our federal system, they speak not by popular referendum, but through delegates chosen to vote on their behalf. That doesn’t change the fact that it’s their voice and their will being carried out. And it doesn’t change the fact that it’s their powers being delegated, and that once taken back its to the people they return. It’s not the state’s powers, nor is it the state’s voice.

                  • The more detailed the explanations are about “we the people”, the less significant the concept seems. Given its historical context, it might have been more honest if Wilson/Morris had stated “We the framers of the constitution” instead.

                    If the people can only effect changes through their elected representatives then the US is no different to any other representative democracy. New Zealand for example managed to have its voting system changed through “people power” but NZ doesn’t even have a constitution! (Just a constitution “act”).

              • Greg, you said: “As for secession, if We the People of the United States collectively decide that states ought to be free to secede from the Union, then we can always amend the Constitution to allow it.”

                I think you are misunderstanding the Constitution and the 9th and 10th Amendments.
                IX “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
                X “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.”

                These two amendments make the constitution an exclusionary document, and reiterate that intent. In essence, anything the Constitution does not say government can do, is excluded from it’s legal authority to do; doing such an act would be an unlawful usurpation of a power it never was licensed to have. And anything the Constitution does not say the states cannot do, the states have all power and authority to do.

                Secession is not mentioned anywhere in the Constitution, therefore, it remains a power of the states, respectively, or the people. And the government has no lawful power to prevent it. But it does have power to declare and wage war upon any foreign state, regardless of how newly it may have been formed, or from where-ever that states people may have originated. Dirty little secret.

                • Telling the lawyer that he misunderstands the Constitution. Funny.

                  Texas v White actually established that states do possibly have the ability to secede, but they do not have the right to do so unilaterally. To do so, they need to either come to an agreement with the rest of the Union, or actually succeed in their revolution. The general idea, though, is that the United States is a “perpetual union”, and once you join, you can’t leave.

                  • Close.

                    Texas v White did reaffirm the principle that a state cannot secede once it’s part of the union. However, when it goes on to talk about revolution or the agreement of the states, it’s not talking about secession, but alternatives to secession. So it’s not saying there’s the possibility of secession — it’s very firmly saying that secession is not a possibility, but still recognizing the practical fact that a successful revolution or a constitutional amendment could of course sever a state from the union.

                    Although Chase doesn’t use the phrase “constitutional amendment,” that’s almost certainly what he meant by “consent of the states.” Lincoln said much the same thing in his first inaugural address: “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government they can exercise their constitutional right of amending it.”

                    And this comes back to the point being made at this point in the comic: A state lacks the sovereign authority to amend the Constitution, but the people of the United States certainly have the authority to do so, and if it is their will that Texas, in this case, should leave the Union, then that’s what must be.

                    There’s more to this concept, and we’ll be touching on some of it in the next page or two.

                    • So, if I’m following this right, secession is a power currently held by the people, which can be given to the government via a constitutional amendment if we so choose.

                      So, are there any powers the people can’t give to the government? Or could we literally copy and paste the constitution of the Soviet Union, and setup USSR V.2 (assuming people/senators would vote for that)?

                    • Of course we can amend the constitution to match the old USSR constitution. There’s nothing stopping us. Interestingly, the Indian Supreme Court has ruled several amendments to their Constitution unconstitutional, but the US constitution doesn’t permit such a ruling.

                    • At least with Puerto Rico, they’ve had non-binding referendums frequently, and have chosen the status quo over independence or statehood. If they did choose one of those options, at that point I’d say Congress should work out terms of independence or statehood, as appropriate, but until then, they’ve accepted their status in the US.

                  • Well, seeing as the constitution is one of the most argued-over(by lawyers) documents in the US, I don’t see how thinking that a lawyer is wrong about the constitution is so absurd.

          • “A dissatisfied minority can’t just decide to “opt out” of the current political and legal system and set up an new one that is more to their liking.”

            So, the Revolution was an unjustifiable attempt of a dissatisfied minority of British subjects to opt out of their current political and legal system?

            • So, the Revolution was an unjustifiable attempt of a dissatisfied minority of British subjects to opt out of their current political and legal system?

              Aha! That’s an excellent question, and one that doesn’t get answered well enough, often enough.

              It’s a good starting point to say they were dissatisfied British subjects. But they wouldn’t have agreed that they were “opting out” of that system. On the contrary, they would have said that the government had already cut them out, was refusing to let them in, and so as an absolute last resort they were forced to go it alone.

              Remember, the conflict didn’t start in 1776. It had been going on for more than a decade by that point. And that whole time, practically nobody in the colonies wanted independence. All they wanted was for the Crown and Parliament to treat them like any other subjects. By the 18th century, English law had come to recognize important individual rights that, under the rule of law, the government was forbidden to violate. But not for the colonists. The government imposed obligations on those subjects, but didn’t recognize their rights. What the colonists desired most of all was simply the Rights of Englishmen.

              And back home in England, believe it or not, there was a strong sentiment that they should be afforded these rights. When the 1764 Sugar Act and 1765 Stamp Act and Quartering Act really kicked things into gear, (imposing taxes on huge swaths of commerce and family law, among other obligations, without giving any colonists a say in the matter), it wasn’t only the colonists who cried foul. It was an established right of Englishmen that government could not impose direct taxes or obligations on subjects unless they had a chance, through an elected representative, to participate in that decision. It was felt on both sides of the Atlantic that this “taxation without representation” was the act of a tyrant over its slaves, rather than of a representative government that respected the people’s rights.

              English thinkers who knew their jurisprudence called these impositions “pernicious” and yes, “unconstitutional.” Even William Pitt the Elder decried them, saying government “had no right” to impose them without first giving the colonists seats in Parliament.

              But those running the show disagreed. To the extent they felt the colonists might even be entitled to representation, the idea was that Parliament served well enough as it was, acting as a sort of “virtual” representative on their behalf. Besides, all these objections sounded like the whining of a brat who didn’t want to pull his weight with the chores. England had just fought a damn war for them over there, and even if they couldn’t be grateful they could jolly well do their share. Fucking ingrates, the lot of them.

              In 1766, they did repeal the Stamp Act. But not because it was illegal, just because it wasn’t working (and turned out not to be economically necessary anyway). Parliament insisted that it could continue to impose duties without respecting the concomitant rights. And the colonies still didn’t want independence.

              In 1767, the Townshend Acts renewed this insistence on taxation without representation, and the colonies still didn’t want independence. In 1770, the conflict drew blood at the Boston Massacre, and still they only wanted the rights of Englishmen. Things went to hell in 1773 and 1774, with tea parties, with Parliament doubling down and imposing harsh penalties like the Coercive Acts in retaliation (acting more and more like a tyrant than a constitutional government). By the beginning of 1775, many in the colonies were beginning to feel that armed resistance might actually be necessary to protect their rights. But even now most still didn’t want independence, but reconciliation.

              In 1775, Parliament practically declared war, declaring that Massachusetts was in rebellion, and sending in the army to put it down. At the same time, it passed the “Conciliatory Resolution,” saying colonies who supported the crown against any rebellion wouldn’t have to pay taxes. Well, except for necessary taxes. It wasn’t seen as very conciliatory. Within weeks, shots were fired in Lexington and Concord, and soon major battles were taking place.

              And in May 1775, the Continental Congress convened to draft… no, not a declaration of independence… an “Olive Branch Petition,” asking the king for reconciliation. Although a significant minority people were now resigned to the fact that war was inevitable, it was still seen as a war to gain British citizenship, not to cut themselves free of it.

              But back in London, the Olive Branch Petition was flatly rejected. The king and those in control of Parliament were convinced that this was a rebellion that had to be put down. They weren’t about to listen to stuff and nonsense about respecting the rights of citizens. They doubled down yet again, sending in more troops, hiring Hessian mercenaries, to force an end to this treasonous mutiny.

              After many more months of fighting and failed diplomacy, a tipping point was reached. A strong argument can be made that Paine’s “Common Sense” was that point, though at any rate it coincided with it. All at once a wave of resignation swept the colonies — a majority now came to accept that the government was never — never — going to agree to any reconciliation, or any recognition that they had the same rights as any other Englishman. Although a strong minority still opposed thoughts of independence, the colonists’ delegates to the Continental Congress first began drafting measures denying British authority, and finally felt they had no choice but to draft a declaration of independence.

              But they did not see it as an act of cutting themselves free of Britain. Britain had already cut them free, over their strenuous objections. And now it wanted to tyrannize them, and they refused to subject themselves to that tyranny.

              They weren’t a dissatisfied minority opting out of a system they disliked. They had liked the system and wanted to be part of it, but they refused to be oppressed by that system in violation of its own constitutional rules.

              • “but they refused to be oppressed by that system in violation of its own constitutional rules.”

                But at that time the British constitutional system was most custom and precedent, so could an unwritten Constitution even be violated?

                • Excellent observation. As noted a page or two back, the thinking for nearly a century, since the Glorious Revolution, had been that whatever Parliament did was automatically constitutional, because it was sovereign. Its powers weren’t handed down from the people, but inherent as ruler. Parliament is the supreme lawgiver, and its laws are supreme. It’s not bound by its own previous laws, and nothing is off-limits. So if Parliament passed a law saying colonists should be taxed without regard to their input, then that would have been by definition a constitutional act, right?

                  And yet important legal minds were saying it would be unconstitutional, referring to the body of tradition going back to Magna Carta. How could one reconcile this with parliamentary sovereignty?

                  The answer is that “unconstitutional” didn’t mean the same thing in 18th century England as it does in the 21st century United States. And one can argue that it still doesn’t.

                  When English jurists said an act of Parliament would be unconstitutional, what they meant was that it was contrary to the traditional values and expectations of what was right. It was immoral, or unjust, or simply un-English. But it wasn’t illegal. They meant “it’s not something we do,” rather than “it’s not something we can do.” So if Parliament went ahead and did it anyway? Well, it’s constitutional now.

                  In 1969 (or was it 1968?), Lord Reid made the point in this way:

                  It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things, If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.

                  Madzimbamuto v. Lardner-Burke, [1969] 1 A.C. 645, 723.

                  In the 21st century, there has been a slight movement towards the idea that “unconstitutional” means Parliament cannot, rather than should not. See, for example, this House of Lords debate in 2004, where the Lords held it a violation of the rule of law for a minister to terminate an asylum-seeker’s benefits without notice and an opportunity to be heard — in other words, due process of law. Notable quotes from Lord Lester, for example:

                  The rule of law is, as the noble and learned Lord, Lord Bridge of Harwich, once observed, in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law”. Parliamentary sovereignty exists only because the courts interpret the constitution and the common law as conferring wide law-making powers on the legislature. But if Clause 14 had been enacted, our courts would have had to decide whether that provision could be refused judicial recognition as an unconstitutional abuse of legislative power.

                  Asylum and Immigration (Treatment of Claimants, etc.) Bill, HL Deb 15 March 2004 vol 659 cc49, 90 (emphasis added)

                  and Lord Plant:

                  First, the sovereignty of Parliament itself is a product of the common law; and, secondly, the common law, as both customary and judge made, has over the years embodied principles of constitutionality which, over the past generation or so, have been made much more explicit by judges exercising judicial review. Hence both parliamentary sovereignty and constitutional constraints are equally products of the common law and therefore Parliament should accept that its own sovereignty is in some sense constrained by the principles of constitutionality enshrined in the common law from which it derives its own authority and sovereignty.

                  Id. at 110 (emph. add.)

                  and Lord Brennan:

                  Judges have now come to speak of [access to justice] as a constitutional right. What is this constitutional right in relation to appeals in the asylum and immigration system? It is judicial review.

                  Judicial review is at the application of the person aggrieved; it is not triggered by a judge or a court. In order to obtain judicial review, leave has to be obtained. In other words, the applicant has to establish that he or she has a properly arguable case. If the case goes to judicial review, there are three basic reasons upon which the court will find that government action has been wrong if the evidence justifies it.

                  The first reason is illegality, meaning that the body or process in question was outside the law. The second is irrationality, meaning that within the framework of the law, no reasonable person could ever have come to such a decision—it is beyond reason. The third reason is that there has been serious injustice in the process of inquiry or adjudication. So we have illegality, irrationality or fundamental injustice. Are we to deny a litigant the opportunity of showing, if he or she can, that he or she was subject to one or more of those aspects of wrongful government action? If we were to do so, we would divorce ourselves from the common-law countries which we founded—Australia, Canada, South Africa, India, the United States—all of which permit and promote a well controlled system of judicial review.

                  Not long after, you had R (Jackson) v Attorney General, [2005] UKHL 56 [2006] 1AC 262 (about fox-hunting, of course), whose critics lambasted the executive for allowing the case to even be heard, setting the precedent that courts could even adjudicate and interpret parliamentary legislation. The Lords’ takeaway was that parliamentary sovereignty is still a thing, but that doesn’t mean the courts don’t have the power to step in and render a legal opinion on the legislation. Lord Steyn went further, saying that now that some sovereignty has been given up to the European Convention on Human Rights, the traditional view of parliamentary sovereignty is “out of place in the modern United Kingdom,” adding that

                  [Parliamentary sovereignty] is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.

                  But others thought the judicial role should be more that of a mediator, than an arbiter of constitutionality. And they certainly did not adopt any such rule.

                  I won’t even begin to speculate on what effect Brexit will have on all this, as the shared sovereignty of EU membership looks to have been a major factor in the modernizing thought. But there are those who argue that parliamentary sovereignty was always fully in place regardless, because they always had the power to pull out. So far as I know, the fundamental principle of parliamentary sovereignty still remains in place, though now subject to much questioning.

                  There are a few different camps. You have those who say nothing’s changed. Others say it must change. You have those who say sovereignty is a creation of the common law, and the common law can create a new rule if it has to. You have those who say parliamentary sovereignty died in 1991 with the Factortame decision, only nobody’s noticed yet. You have others who say sovereignty has to be seen as belonging to the nation, not to its government (nor its people), and different parts of the nation’s government get different parts of the nation’s sovereignty — so that Parliament could be seen as having sovereignty over lawmaking, and the courts might have sovereignty over the constitutional limits of those laws.

                  But none of that’s the rule yet. So far as I can tell, it’s still the same there as it was in 1968, and in 1768. For the most part, if not entirely, an act that would be perceived as an unconstitutional violation of English legal tradition will nevertheless be constitutional the moment Parliament passes it.

                  • I appreciate this, as a Brit this is rather interesting to learn! I hadn’t realised we’d actually started taking constitutionality more seriously. Obviously the constitutionality of Brexit and the supreme court case on whether or not the government can just trigger Article 50 directly, bypassing parliament, has been a big issue recently (though one that, frustratingly, has largely been taken by the media to be a “leave vs remain” thing rather than a question of how much executive power the government should have). But I hadn’t realised the constitutionality of what parliament itself can do has also been discussed within the past decades.

                    All this still makes me wish to see your work inspire an English lawyer to make an equivalent comic. Ah well, I can dream…

                  • This question may well be tested soon. PM Theresa May has, after all, indicated her intention of abandoning the Human Rights Act – a short step away from a Parliament vs. courts battle.

                    Everyone: watch this comic closely. We have an Executive v. Supreme Court battle coming up in 1800.

              • Will you then be touching upon parallels with current U.S. policy? We (insofar as there is a coherent we) rebelled because we weren’t being afforded the rights of Englishmen, but we deny the rights of Americans to our own territories. The constitution is held to not fully apply to any of the inhabited territories, and American Samoans are not even allowed citizenship at birth. We tax our territories without (voting) representation Congress. The PROMESA has established a board which may exercise control over the financial situation of Puerto Rico, and over any Acts which they may wish to pass that they deem would impact the financial situation. We restrict the carriage of goods between the territories and other locales (cabotage laws), again without their consent. I’m not going to say that a revolution in the territories is likely or desirable, but don’t we seem to have ended up in a somewhat hypocritical position?

                • As far as I know, most of our territories are essentially self-running semi-independent states. Their income tax money goes to the territorial government, not to the Federal government, so you can’t really claim that they’re being taxed without being represented. While American Samoans are not citizens by birth unless they are the child of a citizen, the process doesn’t appear to be difficult, and they can pretty much live in the US proper if they wish. And there’s nothing stopping them from applying for statehood or making a push for it, or pushing for independence if they want it – it seems that the territories we have left are quite happy with their status. That’s the difference – we’re not forcing their status upon them. The choice remains largely theirs.

                  Washington D.C. is a different story, but that’s also kind of a unique situation, seeing as how it’s constitutionally a “neutral site” set aside specifically to not be part of any state.

  3. Michael Bagley says

    With all the arguing about we the people above, I just want to ask if that is (from left to right) George W. Bush, Teddy Roosevelt, Andrew Jackson, and Barack Obama in the lower left corner?

    • Yup. I’m not so good at drawing actual people.

      Though now that I look at it again, Jackson seems to have a bit of a Kylo Ren vibe going on. Which is kinda fitting. Maybe I should go all-out and portray him that way when we touch on his contributions to federal powers?

      (Just kidding, Disney. Someone better go stop your young lawyer down the hall before she sends out that cease-and-desist she’s already half finished with.)

      • Should have had Abraham Lincoln in there as well. Leaving aside the constitutionality of what started the Civil War to begin with, a lot of Lincoln’s actions during the war were unconstitutional abuses of power as well.

        • Leaving aside constitutionality, you are correct that he did have a, shall we say, “expansive” view of presidential powers. But I chose specifically not to include him in that bunch. FDR, too, for that matter. Anyone care to guess why?

  4. UsaSatsui says

    This discussion has a lot of sidetracks and tangents.

    Somehow I get the feeling that, if Nathan does get a professorship, he’d be the kind of teacher that gets off track 5 minutes in, spends all class discussing interesting but unrelated things, and end up 2 months behind at the end of the semester because of all the detours.

    My favorite kind.

    • I had a lecturer who seemed to be like this, in that you wouldn’t understand what on earth anything had to do with the subject matter. And yet then the exam came along and he’d have expertly woven all of his anecdotes that seemed completely offtopic at the time into logical exam questions where you now realised just how relevant to the subject they actually are. Absolute genius.

  5. Jonas says

    Happy holidays everybody; and merry Christmas! Here’s to the gift of rule of law!

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