Much ado about nothing – the Cheesehead Edition

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Dave

Dave is a part-time blogger that writes about whatever suits him at the time.

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  1. Avatar Saul DeGraw
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    Stuff like this is basically destroying the GOP in the eyes of anyone under 40. I know some pretty libertarianish under 40s but they find this stuff bonkers.Report

    • Avatar Dave in reply to Saul DeGraw
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      says:

      Saul,

      I would think that issues like same sex marriage, immigration, safety nets, repeated failed attempts to repeal the ACA, etc. would have a far greater negative impact on the GOP in the eyes of younger voters than assertions of state sovereignty.

      The ideas themselves don’t faze me, but what I think is off the wall is the fact that people attempt to incorporate these ideals into the Republican Party platform. That’s more bonkers to me than someone asserting a state’s unilateral right to secede (although I think that claim is very incorrect, there are historical arguments for it).Report

    • Avatar Gabriel Conroy in reply to Saul DeGraw
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      I think it’s a mistake to assume that all people under 40 see the world in a substantially similar way.Report

      • Avatar NewishLawyer in reply to Gabriel Conroy
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        says:

        @gabriel-conroy

        No doubt. There are probably a good number of under 40s that are conservative but all the demographic and poli sci evidence shows that young people are drifting more towards liberalism and that the politics of your youth are generally the politics of your adulthood:

        http://nymag.com/daily/intelligencer/2014/04/the-rising-democratic-majority-doomed.html

        Note the headline is sarcastic.Report

      • Avatar Kim in reply to Gabriel Conroy
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        says:

        It’s true. Some of them are slaves and others are free men.
        Guess which ones are taxpayers?Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        says:

        @newishlawyer @saul-degraw

        My snarky one-liner was probably too snarky, but still, I have very mixed views about the notion of the inexorability of the triumph of “liberalism” because they young will someday be adults.

        It’s not that you’re wrong. Youngsters probably are increasingly in favor of some things we identify as “liberalism.” Ssm and an end to the War on Drugs come to mind.

        But here are my reservations, put in a way that I hope is less snark-filled.

        One, I’m not familiar with “all the demographic and poli sci evidence,” but I suspect that there is some countervailing evidence. And more important, I suspect that the evidence probably shows “politics of one’s adulthood” actually refers to partisan identity and not necessarily substantive policy positions. Those who in their youth oppose the War on Drugs might strike a different tune when they have children. They might still vote Democratic, but insist on saving their communities from the scourge of drugs. Those who at 20 vote Democratic because they’re strong supporters of unions might at 50 vote Democratic because its union-questioning DLC faction appeals to them. Of course, your original comment was meant as much as a comment about the respective futures of the GOP and the Dems as it was a comment on conservatism and liberalism per se, and as such, it wasn’t half bad when it comes to the near future. Political parties, though, have a way of changing after the near future and embracing new constituencies. (Also, ssm appears–I hope–to be one of those issues where we’ll be getting a consensus within the next 50 years and–again, I hope–it’ll fall off the radar as a political “controversy,” but who knows?)

        Which brings me to my second reservation. It seems to me that to evoke the under 40-somethings risks suggesting that liberalism = whatever those under 40 believe. The old social conservatives of today used to be younger than 40 years old. And I do believe that the populism the Dems appear to be able to muster in the last couple of presidential elections could veer in a direction that a certain style of liberal will call rightward.

        My remark that it’s a mistake to assume all under 40-year-olds trend liberal could be rephrased as it’s a mistake to assume that there is this one, good thing called “liberalism” and that that good thing is inexorably destined to triumph. There’s not necessarily a “true and only heaven” we’re marching toward. And not recognizing that can lead to disappointment.Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        says:

        P.S. You should probably know (if you didn’t already) that I’m the commenter formerly known as Pierre Corneille. I don’t necessarily want to hide the fact, and I think you should know just because we’ve sparred a lot in the past and that context might (or might not) determine whether or how you want to respond.Report

  2. Avatar Will Truman
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    Back when I was involved in my state GOP back home, it was actually explained to me quite bluntly. The fanatics were given wide berth to put all sorts of nutty things in the party platform. They were actually described, by very conservative Republicans, as being nutty. (The classic example was the good ole’ Gold Standard. Nullification laws was another biggie.) But they’d get to fume, then “our” guys would get the nomination, and “we’d” govern.

    That’s pretty much the way it worked at the time.

    It feels a bit different now, the nutty things in state party platforms. I am not sure if it’s because the distinction between “nutty” and “we” got blurred. Or because in that time and place, the nutties would primary people but their chances of taking down anyone significant were even more slim than they are now. Maybe it’s the Internet and that these things get more publicity than they used to.

    In any event, as Dave mentions this was put on the platform by a very, very small number of people. Even so, I wonder if the decision not to nip this sort of thing in the bud one way or another, is rooted in the old compromise. That, it increasingly seems to me, is untenable and probably always was untenable.Report

    • Avatar Dave in reply to Will Truman
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      (The classic example was the good ole’ Gold Standard. Nullification laws was another biggie.)

      As a form of “folk constitutionalism”, it’s a lot easier to sell nullification these days. It’s being associated with James Madison and Thomas Jefferson (and thus distanced from the doctrine of nullification as defended by John Calhoun) and crafting an “intellectual” argument that can have broad appeal to people of certain political persuasions takes little to no work.

      I’m constantly reading that states have either contemplated these measures or they’ve passed. Most of them don’t seem to fall within the traditional 19th Century definition, the intended effect is to prevent the government from enforcing certain kinds of laws (i.e. drug laws as they pertain to medicinal marijuana).

      Personally, in some areas, the distinction between “nutty” an “we” got blurred, especially if long dormant and discredited doctrines are being resurrected.Report

    • Avatar NewishLawyer in reply to Will Truman
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      I think you are right on here. This is what the end result of letting the yahoos in looks like:

      http://www.nytimes.com/2014/04/24/us/politics/rancher-proudly-breaks-the-law-becoming-a-hero-in-the-west.html?_r=2Report

  3. Avatar Damon
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    Count me as one who “didn’t” get the memo. Sorry, I don’t see how any political union entered into voluntarily, which did not specificiallly state withdrawl was prohibited, somehow prevents said withdrawl from that union.

    But regardless of that, Wisconsin likely gets some nice ag subsidies that their farmers would be loathe to give up. So I don’t see them bailing anyway.Report

    • Avatar Gabriel Conroy in reply to Damon
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      @damon

      I’m of two minds. One mind agrees with Dave (and Abraham Lincoln, in h is first inaugural speech) that secession, if it is ever right, is something that is to be done extra-constitutionally, preferably to secure or restore a basic liberty.

      The other mind sees it similarly to the way you do. I’m not convinced that there wasn’t an understanding ca. 1787 that states would be able to leave if they didn’t like it. (I’m not convinced there wasn’t either, mind.) The arguments I see advanced for “legal secession was never contemplated” seem to make the following arguments:

      1. No nation-state* ever legally provides for its own destruction. (I was, however, under the impression that the USSR constitution on paper permitted secession of each SSR. I don’t know if that’s true, though.)
      2. The Articles of Confederation uses the phrase “perpetual union,” which supposedly binds all people for all time afterward.
      3. The US constitution mentions “create a more perfect union” and therefore implies that a union already exists, and “perfecting” that union means keeping it around.

      It’s not that those arguments are wrong, but that they just seem pretty thin reeds to insist that there was never any understanding that states could secede.

      Finally, just to show where I stand, I believe that whatever the legal ought’s or is’s, secession in 1860-1861 was wrong. It was done to support the survival of a brutal institution.

      *I realize “nation-state” has certain precise meanings and that it’s difficult to call the US a “nation-state” in the same way that, say, France or Spain is. But because calling the US a state is confusing (because it’s made up of “states”) and calling it a “nation” compounds the problems, I’ll just say “nation-state.”Report

      • Avatar Dave in reply to Gabriel Conroy
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        I had written a much longer response and it blew up. That was probably a good thing since it had gotten very technical. I’ll try to keep this short…

        The arguments I see advanced for “legal secession was never contemplated” seem to make the following arguments

        The argument that there is no legal right for a single state to unilaterally withdraw from the union (again, recognizing that extra-legal rights still exist) is that the legal parties to the Constitution and not the sovereign states but a separate single sovereign people of the United States.

        The people that tend to argue the opposite take the position that no such sovereign people exists and can’t exist. As the story goes, when the colonies declared independence from Great Britain, sovereignty transferred from the crown to the people of each of the thirteen colonies, thereby creating thirteen sovereign states. They remained sovereign states during the Continental Congress and the Articles of Confederation. When the Constitution was ratified, they never surrendered any part of their sovereignty. Therefore, the highest legal authority is the sovereign states people.

        If you’d like, I can explain why I think this view (aka the compact theory of the states is problematic). It could get long though. 😉

        Your arguments regarding the Articles of Confederation actually support the legal right to secede.Report

      • Avatar Kolohe in reply to Gabriel Conroy
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        There’s also the third option, i.e. West Virginia, that a people in a region of a state can secede from that state and do whatever.

        But it does all, in the end, boil down to who has the better leverage over the population, whether via guns, or gold, or guts.Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        says:

        @dave

        Thanks for the response (and thanks more for not being technical 🙂 ), but here are one questions and one quasi-objection:

        Question: How does my Articles of Confederation “argument” support legal right to secession? I would assume that stipulating from the outset that a union is “perpetual” suggests that the union can’t be disbanded. (However and as I said in my comment, I think it’s a pretty weak argument.)

        Quasi-objection: I get your argument about the federal constitution being a creation of “the people” and not a compact among the states. And even if it were a compact among the states, it doesn’t follow that one state could unilaterally negate the compact. (I would imagine all the states would have to agree to the dissolution in that case. I also understand that was the point Lincoln’s for-the-sake-of-argument discussion of the compact theory in his first inaugural.)

        Where I object is that I’m bothered by “the people” as a construct. It’s not so much that “the people” in 1787 included only certain people–although that’s true, too–but it’s more that it seems too easy to say too much or do too much in the name of “the people.” It reminds me of Rousseau’s general will (to the extent that I understand that concept….it’s been a while since I’ve read his Social Contract). It’s hard to determine what “the people” want, and we must rely on proxies (legislatures, constitutional conventions, executives elected by a college of electors who are in turn elected by “the people” or by their own legislators) to make that determination. It’s also hard for me to determine why I should submit to “the people’s” will for other than pragmatic reasons.

        That’s a quasi-objection because I do believe in the benefits of living in a society and the benefits of the rule of law and the necessity of having a construction like “the people” (or something else) in order to explain and imagine our system of governance. And that objection doesn’t refute the argument against secession you raise here. In fact, I hadn’t thought of it until you mentioned it. And of course, you’re talking about legal right to secession, and if the legality of union and secession is based on the construct of “the people,” then I suppose you have the better of the argument.Report

      • Avatar Dave in reply to Gabriel Conroy
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        @gabriel-conroy

        Question: How does my Articles of Confederation “argument” support legal right to secession? I would assume that stipulating from the outset that a union is “perpetual” suggests that the union can’t be disbanded. (However and as I said in my comment, I think it’s a pretty weak argument.)

        I’ll do my best not to get too technical…

        The pro-secession/compact theory argument assumes that the relationship between the federal government and the states under the Constitution was/is the same as it was under the Articles of Confederation. The Articles of Confederation was a compact amongst the thirteen free, sovereign and independent states. Each state remained a free, independent and sovereign state under the Articles and delegated very few sovereign powers to the central government, powers that could only be exercised with unanimous approval from the states.

        It is my understanding that any sovereign state can enter and exit treaties/allegiances at its own choosing. This was no different under the Articles given that each state was a sovereign. Besides, it’s not like the central government of 1783 had any means to keep a state from seceding.

        If the Constitution preserved this arrangement (it didn’t), then the original Constitution was a compact between thirteen sovereign states that remained sovereign states after ratification. Since no central authority can force a sovereign state to remain a party to an agreement that it no longer wishes to be a part of, each state has its right to secede. It’s amazing how much staying power this argument still has today despite a mountain of historical evidence to the contrary and a few very basis textual arguments within the Constitution itself.

        Quasi-objection: I get your argument about the federal constitution being a creation of “the people” and not a compact among the states. And even if it were a compact among the states, it doesn’t follow that one state could unilaterally negate the compact.

        A right to secede only means that a state can exit an agreement. If the remaining parties wish to be a part of that agreement, then the agreement is between the remaining parties.

        Speaking of Lincoln, I read this from his first inaugural address:

        But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

        Perpetuity is not what makes the Constitution a more perfect union. What achieves that is dual sovereignty. The Articles was an agreement amongst states and only bound those states to the very limited extent it was bound. The Constitution was ordained and established by a sovereign People of the United States as the highest authority. What the compact theorists don’t like is the fact that a sovereign American people can exist and can force the states to comply (since the states are subordinate to the people themselves). They dislike it so much they reject the existence of a sovereign American people.

        Burt Likko hammered this point home in his post about the Martin’s Lessee case.

        Where I object is that I’m bothered by “the people” as a construct. It’s not so much that “the people” in 1787 included only certain people–although that’s true, too–but it’s more that it seems too easy to say too much or do too much in the name of “the people.”

        This opens a whole other can of worms involving constitutional legitimacy and ways to interpret the Constitution.

        In addition to “too much”, I’d also add “too little” since that was one of the problems progressives addressed when they developed the modern constitutional doctrines that were given life during the New Deal.

        And of course, you’re talking about legal right to secession, and if the legality of union and secession is based on the construct of “the people,” then I suppose you have the better of the argument.

        Well, shucks.

        While I was researching a post on nullification that I never completed, I spent almost two months immersed in states rights literature, some of it historical (John Calhoun, Abel Upshur and John Taylor of Caroline) and some modern advocates (Donald Livingston, Tom Woods, Kevin Gutzman, etc.). I also read select writings of the so-called “nationalist school” of the 1830’s (i.e. Daniel Webster and excerpts from Joseph Story’s Commentaries).

        The arguments supporting the compact theory have not evolved at all since the Webster-Hayne meanwhile the arguments against it have largely because of the amount of historical research at our disposal. Compact theorists argued against a “nationalist school” of the Constitution that doesn’t even exist today (as far as being a way to accurately describe the nature of the union under the Constitution).Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        @dave

        Thanks for taking the time to respond, and you’ve certainly clarified some things, especially my question about the Articles of Confederation. I’m still gonna have to mull over your comment about “the people” and the progressives, though.

        But again, thanks for responding.Report

  4. Avatar Jaybird
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    Is the Ukraine allowed to leave the USSR or does this principle only apply to the US of A?Report

    • Avatar Gabriel Conroy in reply to Jaybird
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      I had thought the USSR constitution had specifically provided for the SSR’s to be able to leave. (Whether that was permitted in practice before ca. 1990….probably not.)

      See the (potentially accurate) quotation from wikipedia: “Just like all preceding versions of the Soviet Constitution, the 1977 Constitution preserved the right of constituent Soviet republics to secede from the Union; this provision would later play an important role in the dissolution of the Soviet Union.” [ link: http://en.wikipedia.org/wiki/1977_Soviet_Constitution ]Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        But to answer your question more thoroughly, the issue is more whether secession is a constitutional/legal right or whether it is extra-constitutional. So even if the case of Ukraine is special (because it was an SSR in a system that at least nominally permitted secession), an entity’s exit does not necessarily counteract the justness of secession.

        I’d guess I’d take it on a case-by-case basis as to whether secession in any instance is just. As to whether it’s legal, I guess I’d look at the constitutions and understandings when the union was created. As I noted in my response to Damon, the arguments that secession was always understood to be illegal are not slam-dunk convincing to me.Report

      • Avatar Jaybird in reply to Gabriel Conroy
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        Well, if it was in the contract, it’s good.

        But that does sort of lead me to the conclusion that there’s no real moral content to being in the union or deciding to leave the union. It’s nothing more than a paragraph in the pre-nupt.Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        I see it differently (if I understand you aright). If a state is in a union that is doing dastardly deeds, then maybe staying in the union is morally bad If it leaves a union in order to do dastardly things, then maybe secession is bad.

        How far to carry this? I don’t know. Maybe the North should have seceded from the South.Report

      • Avatar Jaybird in reply to Gabriel Conroy
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        It’s not the secession that is bad, though. It’s the fact that secession was a tool used to protect and prolong the evil institution of slavery.

        If a state is in a union that is doing dastardly deeds, then maybe staying in the union is morally bad If it leaves a union in order to do dastardly things, then maybe secession is bad.

        The problem is the dastardly.

        It seems to me that there might be a point at which a state might be able to say something to the effect of “we don’t want part of this anymore. We’re out. We secede.” and my automatic assumption shouldn’t be “well, that’s because they’re racist. (Insert speech about The Civil War here.)”Report

      • Avatar Gabriel Conroy in reply to Gabriel Conroy
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        @jaybird

        I don’t think we disagree. My main principled concern about secession is how the community of interest that secedes is delimited. I guess that in the US (and the USSR), we have readily defined community of interests in states (or SSR’s). But then what about a part of a state that seeks to secede? Sometimes that means an old minority becomes the new majority and that in turn might mean vengeance styled politics. Or maybe not, and then we’re back to secession being a tool, and it’s the end that is to be judged.Report

      • Avatar Will Truman in reply to Gabriel Conroy
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        It seems to me that the relatively straightforward answer is that a state can leave if the rest of the nation allows it to. The answer to whether the nation should allow them to is “It depends.” (But is not “No!”)

        I had a whole post in mind on this subject, before I came to my senses.Report

    • Avatar NewishLawyer in reply to Jaybird
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      says:

      Is Cliven Bundy allowed to be a spoiled and hypocritical asshole millionaire who willfully defies court orders for 20 years because of crackpot legal theories.Report

  5. Avatar Burt Likko
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    says:

    It’s time for Constitutional Law and Theory, with @dave and @burt-likko ! And here’s our first question from the audience….

    Q: Under extreme circumstances, does a state have the right to secede from the Union?

    A: No. Next question, please!Report

    • Avatar Kim in reply to Burt Likko
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      says:

      Exactly how much of a troll is Scalia being when he tells kids to consider revolt if they think taxes are too high?Report

    • Avatar Dave in reply to Burt Likko
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      says:

      @burt-likko

      A: Since we’re referring specifically to constitutional law, I’d agree.

      For our next question, we go all the way to Burt’s awesome post on Martin v Hunter’s Lessee.

      Creating and ratifying the Constitution was a direct act of the sovereign people, not of their various States as entities whether representative of or autonomous from the people…

      Was Burt suggesting that a sovereign American people ratified the Constitution? 😀

      I think you like Justice Story more than I do. While he was correct to reject the compact theory of the states, his rejection of the compact nature of the Constitution gave way too much intellectual ammo to the states rights advocates that believed that debunking the “nationalist school” (read: Story, Webster, Lincoln and other 19th Century nationalists) made their arguments valid.Report

      • Avatar Burt Likko in reply to Dave
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        says:

        Perhaps, but that was certainly not his intent. Story tried (and succeeded IMO) to establish that the Federal government had a claim to legitimately exercise power, plenary power within certain spheres. He wasn’t going any further than that; he didn’t need to and was smart enough not to do more than was needful.

        We can’t blame Story or Webster if Calhoun came up with some clever ideas by intellectually marrying excerpts of Jefferson and Burr. We can blame all the folks who picked up that banner and decided it was a hill worth dying on. Literally.Report

      • Avatar Dave in reply to Dave
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        @burt-likko

        Story tried (and succeeded IMO) to establish that the Federal government had a claim to legitimately exercise power, plenary power within certain spheres.

        I agree. They also had a good basis for doing so because the doctrine of state sovereignty was soundly rejected in Chisholm v Georgia. Similar arguments Story made in his Hunter’s Lessee decision can be found in the opinions of Chief Justice Jay and Justice Wilson, both of whom argued that the people were sovereigns.

        Even more telling is that the 11th Amendment only went so far as to address the holdings of the case and never addressed the broader issue of sovereignty. That tells me that the nature of the compact was well understood during ratification despite what the modern-day descendants of the anti-Federalists and Jeffersonians want to believe.

        If Story’s opinion in Hunter’s Lessee, puts the final nail in the coffin of the compact theory, then Marshall’s description in McCullough v Maryland burns the coffin to ashes.

        We can blame all the folks who picked up that banner and decided it was a hill worth dying on. Literally.

        In my humble opinion, all the banner did was attempt to provide legitimacy to actions the states would have undertaken anyway. Heck, that banner is the bedrock of the cottage industry known as southern revisionism.Report

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