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Subdeacon Joe

The Question of Secession

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The question was raised, in the thread about the US flag during the States War, about what "gave" states, specifically TX, the right to secede from the union.

 

From (that is a link)

 

A VIEW OF THE CONSTITUTION OF THE United States of America. BY WILLIAM RAWLE, LL.D. SECOND EDITION. PHILADELPHIA: PHILIP H. NICKLIN, LAW BOOKSELLER, NO. 175, CHESTNUT STREET. 1829.

 

CHAPTER XXXII.

OF THE PERMANENCE OF THE UNION.

 

Quassata respublica multa perderet et ornamenta dignitatis et præsidia stabilitatis suæ. Oratio pro Marcello.

 

HAVING thus endeavoured to delineate the general features of this peculiar and invaluable form of government, we shall conclude with adverting to the principles of its cohesion, and to the provisions it contains for its own duration and extension.

 

The subject cannot perhaps be better introduced than by presenting in its own words an emphatical clause in the Constitution.

 

The United States shall guarantee to every state in the Union a republican form of government, shall protect each of them against invasion, and on application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence.

 

The Union is an association of the people of republics; its preservation is calculated to depend on the preservation of those republics. The people of each pledge themselves to preserve that form of government in all. Thus each becomes responsible to the rest, that no other form of government shall prevail in it, and all are bound to preserve it in every one.

 

But the mere compact, without the power to enforce it, would be of little value. Now this power can be no where so properly lodged, as in the Union itself. Hence, the term guarantee, indicates that the United States are authorized to oppose, and if possible, prevent every state in the Union from relinquishing the republican form of government, and as auxiliary means, they are expressly authorized and required to employ their force on the application of the constituted authorities of each state, "to repress domestic violence." If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.

 

Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the, express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States.

 

The principle of representation, although certainly the wisest and best, is not essential to the being of a republic, but to continue a member of the Union, it must be preserved, and therefore the guarantee must be so construed. It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.

 

This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood, and the doctrine heretofore presented to the reader in regard to the indefeasible nature of personal allegiance, is so far qualified in respect to allegiance to the United States. It was observed, that it was competent for a state to make a compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; and it was further observed, that allegiance would necessarily cease on the dissolution of the society to which it was due.

 

The states, then, may wholly withdraw from the Union, but while they continue, they must retain the character of representative republics. Governments of dissimilar forms and principles cannot long maintain a binding coalition. "Greece," says Montesquieu, "was undone as soon as the king of Macedon obtained a seat in the amphyctionic council." 1 It is probable, however, that the disproportionate force as well as the monarchical form of the new confederate had its share of influence in the event. But whether the historical fact supports the theory or not, the principle in respect to ourselves is unquestionable.

 

This was the textbook on the Constitution used at the US Military Academy until 1861. The Corps of Cadets was taught that the several states could remove themselves from the Union.

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Always ready to dive in!

 

A claimed right of secession for other than the original colonies/states and (just possibly) Texas was based upon a pure fallacy: that there was a voluntary coming-together of independent sovereign polities.

 

I'll leave out the original colonies and Texas (it having been a republic for a bit). That's a different issue.

 

The post-constitutional territories of the United States were organized for the purpose of gaining admission to the Union. Whether it be Alabama or Mississippi or Tennessee, or Ohio or Minnesota, or Wisconsin, etc. They had no historical existence outside of the organizied United States. They practically fell over themselves to get organized and petition Congress for territorial status and then for statehood, with all of its advantages.

 

That's about the size of it. I was one thing for a Virginian to pontificate about the Commonwealth's pre-existence to the Constitution; for a Mississipian or the like it was ridiculous.

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Guest Tennessee Stud, SASS# 43634 Life

Although this great country of ourn has been 'round for over 200 years... that is still a relatively short period of time in history.

 

Durin' the past millennia... if ya think 'bout all the boundary changes that have taken place in the world... one primary rule seems to stand out in my thinkin'...

 

Land is only yores... as long as you can defend it.

 

Somewhere... sometime... the artificial boundaries of this world WILL change again...

 

ts

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Then you are saying that Rawle was wrong, and that the states could not withdraw? What is the constitutional basis for your claim? I have never found any provision in the Constitution which prohibits states from leaving the Union, and your take on it, that those not part of the original colonies were created specifically to join the Union, creates a two tiered concept of statehood, in which some are more equal than others.

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Article IV, section 2:

 

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

 

 

 

...sounds like once a state is created, it has the same rights under the Constitution as any other state, at least to a non-lawyer like me.

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Seems to me, based upon our history, that the only real issue is, "Can you and will you successfully defend any claimed right to secede with force of arms"; if you can't, any theoretical "right" to secede ain't worth spit.

 

So...who here thinks that any state in the Union has (1) the political will, and (2) the military might, to secede and defend itself from the inevitable federal forces? And I don't mean chest-thumpin' and false bravado - I mean real committment to shoot others and see your neighbors killed.

 

So...second thought...who thinks it might be wiser to work assiduously to resolve those issues that divide us?

 

LL

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Of course Rawle was wrong: that's what was decided on the battlefields of the Civil War.

 

That this or any other nation consists only in its written constitution is hardly the case. Or is the subject of the legality of secession an open one? I hardly think so... except maybe in internet forums!

 

To quote an early President of the United States:

 

"[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."

 

This of course was Thomas Jefferson, answering his own, and others', doubts about the constitutionality of the Louisiana Purchase. He should know....he was there at the beginning!

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Further to the superannuated Rawles: he goes from the Constitutional guarantee to each state of a "republican form of government" directly to his assertion that the states are republics, and the Union an association of republics. This is a breathtaking non-sequitur.

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There is no given right to secede nor to be forcibly retained.

 

I once read that NY, VA and RI had incorporated in their agreement to join the union the right to secede.

I cannot find a primary source on this yet.

As far as TX having any special right because it was an entity on itself. That logic falls short of the mark as all the 13 originals had been separate entities as well. Not to mention that Hawaii and Alaska were also separate entities.

 

As far as any writing about this subject being right or wrong based upon the outcome of the civil war, the results of the CW are only that; the results of the CW. They are not a legal interpretation. They are the outcome of war. The result of the CW was not decided in court it was decided in blood.

 

It was interesting to read Supreme Court Justice A. Scalia's observations on this subject.

Justice Scalia

Scalia's response is that CW ruled on the right of secession; no! He also appears to believe that the pledge of allegiance is a legal thing.

 

Personally, I think that there should be a way that a state could secede from the union.

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The idea of secession was almost universally accepted in this country before April, 1861.

 

At the Hartford Convention (Oct. 1814 - Feb. 1815), the New England states considered secession, as a response to unpopular policies by Jefferson and his successor Madison during the War of 1812. Only the end of the war prevented the breakaway of several New England States.

 

Also discussed was the expulsion of the western (west of the Alleghenies) states.

 

During the illegal War of Northern Aggression, northern abolitionists hailed the withdrawal of southern states to "purge the stain of slavery" from the nation." It was only after a New York newspaper asked how the federal government would be supported that the cry of "union" was heard. At that time, 80% of the federal budget came from tariff's paid by the south on imported goods; and 75% of the federal budget was spent in the north. The south had good reasons for separation. It was then that Lincoln called up the state militias.

 

Of course, under the Constitution, only CONGRESS can call up the militia (Article 1, Sec. 8). But neither that provision, nor habeas corpus, nor the First Amendment's protection of free speech and the press, nor protections of due process impressed Lincoln. Worst President in our history, but unlike Nixon, he remained in office.

 

Unfortunately, "Might makes right," so the question of the legality of secession was settled in April, 1865.

 

Sic semper tyrannis,

eGG

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NEWS FLASH! The issue of Secession was settled in 1865. The South lost. Given the strength of the Federal Armed Forces today a civil war would not last very long.

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I am willing to compromise. I suggest we agree that each state has a right to secede from the United States, and that we inform the governors and legislatures of the several states of our agreement.

 

They can then act on the matter as they choose.

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I agree in principle but reserve the right to secede from this agreement.

Agreed?

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Seems to me, based upon our history, that the only real issue is, "Can you and will you successfully defend any claimed right to secede with force of arms"; if you can't, any theoretical "right" to secede ain't worth spit.

 

So...who here thinks that any state in the Union has (1) the political will, and (2) the military might, to secede and defend itself from the inevitable federal forces? And I don't mean chest-thumpin' and false bravado - I mean real committment to shoot others and see your neighbors killed.

 

So...second thought...who thinks it might be wiser to work assiduously to resolve those issues that divide us?

 

LL

It's been suggested that Texas is in the best position to do this being a Republic, in addition to their large oil supply and strength and numbers of State Guard units. Not saying it would happen or even be possible, but the elements are there.

 

BSD

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NEWS FLASH! The issue of Secession was settled in 1865. The South lost. Given the strength of the Federal Armed Forces today a civil war would not last very long.

 

You are making the presumption that the US Military will automatically back the sitting President (regardless of party) in the case of seccession. I think the reason for seccesion will determine the response of the Federal Government and whether the military is used.

 

I find it entirely feasible that in the case of the country breaking up, that the military will take over, remove the sitting President, Congress and other career politicans and career bureaucrats from power and call for new elections. Call it hitting the reset button.

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I'm ready to hit the reset button meownself, given the current set of politicians that we have.

 

...being in Indian Territory, Creek Nation; we may have to join Texas in the effort.

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What I find interesting, and a bit scary, is that those who are saying that the states didn't (or don't) have the right to withdraw from the Union have two basic arguments. First, that the Constitution doesn't matter, and can be set aside. Second, that might makes right.

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SJ, I am not sure how you are getting the constitution doesn't matter. But it doesn't directly say that a state has a right to secede nor does it say that the union must be preserved. As for might makes right..... The only part we know is that the North won the CW. That does NOT end the possibility of secession it just defines that the attempt by the south to secede failed. As some have pointed out at the point of a northern bayonet.

 

If a state today attempted to secede; would it succeed?

Would militias take on ng units?

Would regulars take on ng units?

Would they really fire on each other?

I would hope they would use a radio to communicate FIRST.

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SJ, I am not sure how you are getting the constitution doesn't matter. But it doesn't directly say that a state has a right to secede nor does it say that the union must be preserved. As for might makes right..... The only part we know is that the North won the CW. That does NOT end the possibility of secession it just defines that the attempt by the south to secede failed. As some have pointed out at the point of a northern bayonet.

 

If a state today attempted to secede; would it succeed?

Would militias take on ng units?

Would regulars take on ng units?

Would they really fire on each other?

I would hope they would use a radio to communicate FIRST.

 

I took: That this or any other nation consists only in its written constitution is hardly the case. and a few other comments as dismissive of the limits the Constitution places on the federal government. And, as far as nothing in the Constitution not saying that the states have the right to leave, you need to turn that around since the Constitution is about the FEDERAL government. And look at the 10th Amendment - 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. - since it is not specifically prohibited, should not the states have that right? And since there is nothing that specifically grants to the federal government the legal authority to force states to stay, does it have that legal authority?

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SDJ:

 

While I respect your desire to have a vivid discussion of legal and Constitutional "what ifs", I have a dang hard time imagining a scenario where a Court is going to determine the right of secession. If a state or states decided to secede, what are the chances that they would go to the courts of the U.S. to seek approval of that plan? Or if they did, that the Federal courts would give them license to go? Ultimately, just as before, the issue of secession would be determined by blood, manpower and capital, not by legal arguments. Those would be reserved for subsequent justifications and 150 years of front porch debates.

 

Personally, I do not see any indication that any state, no matter how displeased some groups may be with the current political situation, has the gumption, the resources or the firepower to even try to secede. Like it or not, we are more tightly interwoven as a country today than we were 150 years ago; the states and local governmental units depend heavily upon the Federal government for funding and other assistance; our communication, transportation and commercial activities are absolutely welded to each other and to the Federal framework; our general population is accustomed to relative peace, unlikely to accept war or privation, and much less independent than were our ancestors; and perhaps most importantly, our disappointment and anger is not as focused on the Union as it is on certain fools and incompetents who have lost sight of our rights and their responsibilities.

 

Blue or Grey, we are all Americans, and we owe it to each other to find common ground. I find the idea of secession to be personally repulsive.

 

LL

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What I find interesting, and a bit scary, is that those who are saying that the states didn't (or don't) have the right to withdraw from the Union have two basic arguments. First, that the Constitution doesn't matter, and can be set aside. Second, that might makes right.

 

 

It's interesting, perhaps, but definitely not scary!

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Did any state have to go to the courts to be admitted to the Union? I don't think so. So why would they need to go to the courts to leave? Seems like it would be a matter of the state legislature passing a bill to sever the ties.

 

Now...

 

I'm not saying it is, or was, a good idea. Especially now. An honest look at the seven states of the deep south - the original CSA - didn't have the natural resources to make it as a nation.

 

But that doesn't touch on the constitutional matters of it. At the military academy the future officers were taught that the states did have the right to leave. I kind of doubt that would have been taught if the legal opinion at the time was that they couldn't.

 

 

 

 

SDJ:

 

While I respect your desire to have a vivid discussion of legal and Constitutional "what ifs", I have a dang hard time imagining a scenario where a Court is going to determine the right of secession. If a state or states decided to secede, what are the chances that they would go to the courts of the U.S. to seek approval of that plan? Or if they did, that the Federal courts would give them license to go? Ultimately, just as before, the issue of secession would be determined by blood, manpower and capital, not by legal arguments. Those would be reserved for subsequent justifications and 150 years of front porch debates.

 

Personally, I do not see any indication that any state, no matter how displeased some groups may be with the current political situation, has the gumption, the resources or the firepower to even try to secede. Like it or not, we are more tightly interwoven as a country today than we were 150 years ago; the states and local governmental units depend heavily upon the Federal government for funding and other assistance; our communication, transportation and commercial activities are absolutely welded to each other and to the Federal framework; our general population is accustomed to relative peace, unlikely to accept war or privation, and much less independent than were our ancestors; and perhaps most importantly, our disappointment and anger is not as focused on the Union as it is on certain fools and incompetents who have lost sight of our rights and their responsibilities.

 

Blue or Grey, we are all Americans, and we owe it to each other to find common ground. I find the idea of secession to be personally repulsive.

 

LL

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Then you are saying that Rawle was wrong, and that the states could not withdraw? What is the constitutional basis for your claim? I have never found any provision in the Constitution which prohibits states from leaving the Union, and your take on it, that those not part of the original colonies were created specifically to join the Union, creates a two tiered concept of statehood, in which some are more equal than others.

 

Yes, he was wrong.

 

The Union is a voluntary association of republics and those republics surrendered substantial sovereignty (the power to coin money; the power to make war; the power to conduct foreign relations; the power to collect duties and imposts; and many others) in order to become part of that union. Upon admission they assumed the duties and responsibilities of Union, as well as the benefits of Union.

 

A state was admitted to the Union by the process outlined in the Constitution (Art. VII for the original States; Art. IV, Sec. 3 for new states). There is no provision in the Constitution for rescission of membership.

 

There was, and remains, a legal process of secession. That process is the Amendment provision of Art. V.

 

This is usually a subject that generates more heat than light. Read the Constitution and you get a pretty clear answer, even if it's the answer that some folks want to have.

 

SQQ

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It's interesting, perhaps, but definitely not scary!

 

Saying that the Constitution is basically meaningless, and can be set aside at whim, isn't scary?

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As much as I side with the Confederacy on their right to secede, I am happy that things turned out as they did. Had they succeeded, we would not be the Country that we are today. We may not be perfect but we are still the best option available on this rock.

 

As far as what would I do if it happened today... That's a tough decision and one that would pit my personal preferences against my oath that I took as a U.S. Marine.

 

Being as I tout that a man is only as good as his word, I would be wearing (My ancestors forgive me) yankee blue. I took an oath and I will never break it.

 

 

NEVER!

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As much as I side with the Confederacy on their right to secede, I am happy that things turned out as they did. Had they succeeded, we would not be the Country that we are today. We may not be perfect but we are still the best option available on this rock.

 

As far as what would I do if it happened today... That's a tough decision and one that would pit my personal preferences against my oath that I took as a U.S. Marine.

 

Being as I tout that a man is only as good as his word, I would be wearing (My ancestors forgive me) yankee blue. I took an oath and I will never break it.

 

 

NEVER!

 

Or the two nations might have ended up forming a strong alliance.

 

As to your oath -

 

"I, XXXXXXXXXX, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

 

It is to the Constitution. And there it enters into a somewhat grey area. If the orders are unconstitutional, what do you do?

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Saying that the Constitution is basically meaningless, and can be set aside at whim, isn't scary?

 

 

Of course it is scary. But it has been done many times, by many administrations. To my mind, Lincoln is the foremost example.

 

About the only thing that saves us, internally, as a free nation, is people's willingness to stand up against the status quo and those in power.

 

eGG

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Of course it is scary. But it has been done many times, by many administrations. To my mind, Lincoln is the foremost example.

 

About the only thing that saves us, internally, as a free nation, is people's willingness to stand up against the status quo and those in power.

 

eGG

 

I'm a Strict Constructionist (but not an Absolutist). How can one condemn Lincoln on one hand for extra-Constitutional measures to preserve the Union and not condemn the Secessionist States for their extra-Constitutional actions in attempting to leave the Union? Before you interpret a document you first read it. Where in the Constitution is there a method for withdrawl (beyond Art. V)? Seems to me that the "sauce for the gander" rule is being grossly ignored. ;)

 

The Constitution was written for an agrarian nation where the speed of life was governed by the seasons and news moved at the speed of a man on a good horse (or in a fast ship). We are no longer that society. We can still Strictly Construe the Constitution without turning it into "india rubber."

 

SQQ

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I'm a Strict Constructionist (but not an Absolutist). How can one condemn Lincoln on one hand for extra-Constitutional measures to preserve the Union and not condemn the Secessionist States for their extra-Constitutional actions in attempting to leave the Union? Before you interpret a document you first read it. Where in the Constitution is there a method for withdrawl (beyond Art. V)? Seems to me that the "sauce for the gander" rule is being grossly ignored. ;)

 

The Constitution was written for an agrarian nation where the speed of life was governed by the seasons and news moved at the speed of a man on a good horse (or in a fast ship). We are no longer that society. We can still Strictly Construe the Constitution without turning it into "india rubber."

 

SQQ

 

Since there is nothing in the Constitution prohibiting the states from leaving the Union, nor declaring it a perpetual union, how can states leaving it be extra-Constitutional?

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I am willing to compromise. I suggest we agree that each state has a right to secede from the United States, and that we inform the governors and legislatures of the several states of our agreement.

 

They can then act on the matter as they choose.

 

 

 

Dat's rat !!

 

 

 

Den we can whop dem Yankees wif corn stalks ! ! :lol: :lol: :FlagAm:

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OK I just have to respond.

1. It ain't 1861 and attitudes have changed. As we support uprisings in the middle east to overthrow governments that do not represent the will of the people it is hipacrital to say we do not have the same right.

2. Since every state voted itself into the union reflecting the will of the people it must have the right to vote itself out if that is the current population desire.

3. I believe we are indeed two countries and we may as well face it and go our seperate ways.

4. I do not believe it must result in armed conflict. That may sound silly given the history of secession but I can hope that popular opinion can allow for a peaceful seperation.

 

Bugs

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OK I just have to respond.

1. It ain't 1861 and attitudes have changed. As we support uprisings in the middle east to overthrow governments that do not represent the will of the people it is hipacrital to say we do not have the same right.

2. Since every state voted itself into the union reflecting the will of the people it must have the right to vote itself out if that is the current population desire.

3. I believe we are indeed two countries and we may as well face it and go our seperate ways.

4. I do not believe it must result in armed conflict. That may sound silly given the history of secession but I can hope that popular opinion can allow for a peaceful seperation.

 

Bugs

 

 

And which "two" countries would those be? North and South? Urban and rural? Left and Right? Repub and Dem? White and black? One percent and 99? Religious and not? Christian and other? Working and not? Gun folk and anti?

 

My God, we are a Nation of diverse and conflicting interests and beliefs. That diversity is a strength, giving us a wider scope of capabilities and experience...but it also a challange, to find a common basis upon which to rule ourselves. You could draw a hundred virtual lines between various groups, until the country looked like graph paper, and still have conflicting views in the same square.

 

The answer is not further division. We all draw strength and security from a unified republic, with the shared wealth and resources (including each other) unmatched elsewhere in the world. Dividing it would be like cutting a Ferrari in half because the left side and the right side can't agree on which way to turn - and leaving you with two basically worthless pieces.

 

Assume for a moment that you did divide the country by secession, say approximately along the lines of red and blue states, and assuming that no state was left surrounded by others of the differing color. What would you say to folks who lived next door whose political philosophy was closer to the opposition? Get out? Would you tell your neighbor to take his family and get over the border? How about a neighbor who, 2 years after the secession, developed an opposing philosophy? Would you arrest him? Prosecute him? Exile him? Run him out of the kingdom on a rail? Or make his life so miserable that he would have no choice but to move?

 

I just find it hard to believe that such antipathy exists on either side of the differences we feel. I may believe in strict constructionism, but I don't want to cut myself off from half the country because of it. We either find internal resolutions to these issues, or we will eventually devolve into the disconnected, castrated remnant of a once great power, similar to the Soviet break-up. We are better than that; our heritage is stronger than that; and we owe it to ourselves and to our country to rise above these differences and remember who and what we are.

 

The answer? Leadership. Do not be despondent because we are temporarily lacking the level of leadership that is required in these times. Instead, search for it, support it, vote for it, or provide it yourself. Stand up, speak out and insist on it. And don't be fooled or mislead by the false voices that urge division or scapegoating as a solution to our problems. Look for leadership that rises above division, and strives for unity. It's hard, but it's out there.

 

I know, I know....LL crawled back up on the soapbox again. Some things just get me fired up. Rant over.

 

LL

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