zoomar said:
I've worked on legal agreements between US states, US states and Indian nations, and US states with the federal govt. They have all included termination criteria and clauses. Also, the US constitution is NOT a Treaty among sovereign nations.
Ok, here is my humble opinion on the issue...
The Articles of Confederation included a distinct prohibition against secession and the Constitution did not. This is true. However, there is this
Article I said:
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
I have seen the opinion that these are merely conditions stipulated while States are still a part the Union and still not a prohibition against secession. However, combined with the previous prohibtion in the Articles of Confederation legal precedent, the clauses giving Federal Government certain powers, and the clause declaring Constitutional law to be the supreme law of the land, the argument turns against secession as a legal option. I don't believe any unbiased court would say that it met the burden of proof in a civil case.
There is also the practical ramification to consider. When the Federal Government does legitimately use it's power, secession means that any State can delcare it null and void. Now that may be great when Federal Government is aubsing it's power, but the only true secession that ever happened in this country happened because people were pissed at the opinions of a legitimately elected President.
What appears to be the case and what I think would be borne out with more research is that Federalism, or the concept of duel sovereignty, was meant to replace the specific prohibition. Instead of just slapping on a clause that says you can't leave, an over-arching system is put in place to make sure that Federal Government didn't have it's fingers in too many pots. Federalism also did several other things, but this seems to have been a big one.
Re-reading the last part of Section 10, "...or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.", I think you could say that is an excception, allowing States to actively resist Federal encroachment, violently if need be. Combined with the sovereign powers reserved for them in the Consitution, you could make a strong case for that.
Looking at the language referring to the States in Amendments passed before and after the ACW, you find that States or "the Several States" was capitalized before and put in lower case after. This seems to be a shift in the legal perception of the States position. And make no mistake, they were views as sovereign powers at the time of the Constitution's drafting. But so was the Federal Government in this new system. The change after the ACW seems to be a perception that the States are subordinate to the Federal Government and share no equal status. Even if this wasn't the view in principal, it was certainly the practical effect after the ACW and expanding dramatically under successive Presidents.