I'm not sure that Prof. Martin is right to suggest that the Supreme Court is the proper forum for the resolution of all or most serious state-federal disputes that might lead to secession. After all, the Court can only hear such disputes as can be the subject of legal cases. In the case of Confederate secession, their most important concern was the fear that Lincoln or a sucessor would, IN THE FUTURE, use federal power to abolish slavery or severely restrict it. I don't see how the Supreme Court could have resolved this particular dispute. After all, the Court (in most situations) can't hear claims about possible future violations of the Constitution that haven't happened yet. Even if the Court did hear the South's "case" and ruled in their favor, I doubt that the Confederates would have been satisfied. After all, the Court had already gone far out of its way to protect slaveowners' interests in Dred Scott, yet this did not prevent Confederate secession.
Ilya Somin On Wed, 1 Oct 2003, Francisco Martin wrote: > Prof. Levinson correctly points out the problem of secession with federalist forms > of government when a state believes that either another state or the federal > government itself has violated the constitution. However, the legal (and often > practical) answer is either to explicitly provide for unilateral secession in the > constitution or to provide for a supreme court to settle interstate or state-federal > government conflicts. In the case of Iraq, a supreme court would be the preferable > option because of Turkish concerns over and independent Kurdistan. > > Turning to the U.S. . . . . Although the U.S. Constitution may be -- strictly > speaking -- silent on the issue of secession (as Prof. Levinson correctly points > out in his FINDLAW article), thee southern states did violate the Constitution by > seceding because they were parties to the Constitution (a treaty). Pacta sunt > servanda. Any disagreements with the federal government (or any northern states) > were to be resolved by the U.S. Supreme Court because the Supreme Court (like the > federal courts under the Articles of Confederation) was the customary mechanism for > resolving conflicts between states-parties to treaties. Arguable breaches of the > Constitution by the federal government -- an otherwise lawful cause for secession -- > were to be remedied by using a Supreme Court to decide whether there had indeed been > a breach and to order the appropriate remedy. The southern states could not > lawfully secede without violating their customary international legal obligation to > comply! > with their treaty (i.e., constitutional) obligations that included appeals to the > Supreme Court to remedy arguable constitutional violations by the federal government > (or the northern states). Customary international law required that states seek > peaceful means (specifically, arbitration) to resolving their conflicts. > > Of course, the southern states did not understand this. When they did secede and > ratify their own constitution (remarkably similar to the U.S. Constitution) that > provided for the establishment of a Confederate Supreme Court, they never > implemented this provision because they subsequently recognized that a Supreme Court > could erode states' rights. As a result, there was never any final authority to > determine whether the Confederate Constitution was being violated by Jefferson Davis > or other southern states, and there were calls for state secession from the > Confederacy. > > Francisco Forrest Martin > ----- Original Message ----- > From: Sanford Levinson > To: [EMAIL PROTECTED] > Sent: 10/1/2003 12:13:47 PM > Subject: Re: The Iraqi constitutional convention > > > I'm delighted to include federalism, but the question raised by federalism is its > limits, i.e., is the possibility of secession addressed. I take the liberty of > including a link to a Findlaw essay discussing this question in the context of Iraq. > > �SECESSION AND THE FUTURE OF IRAQ: Should the Kurds, and Others, Be Able to > Withdraw to Create Their Own Nations? April 17, 2003 > http://writ.news.findlaw.com/commentary/20030417_levinson.html > > sandy > > At 08:11 PM 9/30/2003, you wrote: > > absent from the list is > > 9) federalism > > Sanford Levinson wrote: > > > A news story today indicates that some Iraqis are suggesting that it will > take up to a year to negotiate a new constitution, whereas the > Administration seems to suggest that six months will be enough. For > all of > our ostensible expertise on constitutional issues, do we, as American > constitutional lawyers (who probably, as an empirical matter, have not > engaged in the close study of any non-American constitutional system), > have > anything relevant to say about the optimal amount of time a remarkably > divided, dysfunctional society like Iraq should be expected to take to > draft a new constitution? And, of course, the more volatile question is > whether we, as American constitutional lawyers, have anything relevant to > say about what the new constitution should say. Riding several of my own > hobbyhorses, I'd be interested in knowing how many people on the list > would > advise (or even insist that) the Iraqis adopt the following features > of our > constitution: > > 1) Article V > 2) life tenure for judges (who will be presumed to have the power of > judicial review) > 3) the electoral college > 4) bicameralism plus a presidential veto > 5) a right to bear arms > 6) capital punishment as a constitutionally legitimate punishment (see > Amendments V, XIV) > 7) the prohibition of an established religion > 8) toleration of seditious and/or religious/ethnic "hate speech" > > sandy
