conservatives bob and weave on constitutional originalism, james dean

Dahlia Lithwick and Jeff Shesol at Slate pick on Eric Cantor(R-Va) and the Tea Stains talk about state’s rights and the right to nullify federal laws, Repealing Common Sense – The conservative mission to destroy the Constitution in order to save it.

Now, just two months after the proposal was a twinkle in a Virginia legislator’s eye, the leadership of nine states is showing interest, and the popularity of the amendment’s Web site (they have them nowadays) has “mushroomed.” And this week, completing the proposal’s rapid march from the margins to the mainstream, Rep. Rob Bishop of Utah introduced the amendment in the U.S. House of Representatives, pledging to put “an arrow in the quiver of states.” The soon-to-be House Majority Leader, Eric Cantor, said this week that “the Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around.” Fawning editorials in the Wall Street Journal and chest-heaving Fox News interviews quickly followed.

For a party (whether of the Tea or Grand Old variety) that sees the Constitution as something so perfect as to have been divinely inspired, the idea that it needs to be altered fundamentally is beyond crediting, something like putting the Fifth Commandment up to a popular referendum. But the Tea Party vision of the Constitution has never been one of fidelity to the document itself, or even to the Framers. Instead, it’s a devotion to those scraps and snippets of the Constitution they accept, an embrace of only the Framers they admire, and an eagerness to jettison anything that conflicts with or complicates that vision, including the rest of the Constitution.

If the radically conservative Dick Cheney is Darth Vader then Supreme Court Justice Antonin Scalia is the evil spawn of Vader and he has claimed the Civil War pretty much answered the question of succession, thus a limit to state’s rights.

“I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

In an often overlooked legal case Texas v. White in 1869 the SCOTUS looked at the sale of some bonds held by Texas since 1850. The Reconstruction government of Texas claimed the Confederate government had no right to sell those bonds. Even filing such a suit contained an explicit acknowledgment – under the United States Constitution, the federal Supreme Court retains original jurisdiction on cases in which a state is a party. The bond issue contained the issue of succession and state’s rights. So deciding on the merits of whether the sale of the bonds was binding on the Reconstruction Texas ( Texas returning to the union) the court held  the U.S. Constitution did not permit states to secede from the United States. Which made the articles of secession and all the acts of the Confederate legislatures “absolutely null”. Chief Justice Salmon Chase laid out some general principles under which the issue of the bonds and state’s rights were bound. Chase said the original 13 colonies freely decided to form an original and perpetual Union in which they were legally and culturally bound by the creation of the original Articles of Confederation. That Union of states was further codified and perfected in its common cause and unity when they ratified the U.S. Constitution,

“The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? ”

[  ]…“ When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. 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.”

That last passage may seem to offer some thin ray of hope for committed secessionists or tenthers, but he is talking about a real revolution in which a state defeats the armies of the Union. Unable to win through the courts and any state ( or Old Dominion) legislative actions to pass an unconstitutional nullification law, I’m willing to hazard Cantor and the Virginia Tea Stains are not up for a bloody revolution.

“Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”

Virginia happens to have the world’s largest Naval facility. It, among other real estate and physical properties are not the property of the Old Dominion. Ant attempt by the state to either succeed or to act contrary to legal precedents established by the SCOTUS would contain an element of thief from the federal government and thus the tax payers of every other state. Cantor and the tea nut’s state’s rights fetish are not new or any less silly than similar talk by the far Right, since …well the Civil War. By acting as a Union we have, sometimes for better , sometimes not, become one of history’s great economic and military powers. Our cultural reach extends around the world. English or rather American English is the world’s de facto common language because of a United America’s influence. Breaking us up into little independent states or a few loosely associated confederations would only drain that economic power and cultural influence. It is a common fear among right-wing pundits and their toadies to whine at any waning of U.S. hegemony and exceptionalism. So as usual the Right continues not to think through their frequently contradictory views on the United States and its legal foundations.

Oh… and the court did rule that as a member of the Union, Texas the Confederation had no right to sell those bonds and should have the title to those bonds returned to the state.


James Dean in an old car on the set of “Giant” in Edna Texas 1956



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