Civil War History - General DiscussionFor Discussions on Civil War Era Personalities, Politics, Issues, Campaigns, Battles, and more. Serious Civil War Discussions Only Please! All other posts will be deleted.
You said "Virginia had a body in Richmond that claimed to be the legislature and a body in Wheeling that claimed to be the legislature. By the Constitution, the United States has the authority to determine which one is a republican form of government and which is the legitimate government of the state. Since the body in Richmond was constitutionally unqualified to hold office, they cannot possibly be a republican government under the US Constitution." Then I said "You said that the Va. legislature was unqualified because it was no longer a republican gov't." I'll stand by my reading of what you said. Aren't you getting tired of this 'you said, I said' thing.
BTW, I was agreeing that if Va. was a separate sovereign, then the area of W.Va. was conqured territory and eligible to apply for statehood. I suggest we let that part go.
"Either you haven't been reading the thread or you don't understand that Virginia's legislature was unqualified to hold office due to its support of secession." I understand that such is your position. I'd asked you where in the Constitution does it give the fed "the power to determine which of those two bodies is the legitimate government of that state." You replied Art., Section 4. But that clause, as you know, does not say that the fed has that power. So you went to Luther. I never asked what Luther said, and Luther is not the Constitution. Nor do I find anywhere in the Constitution that says that the fed has that power. And even if it did, it would also have to be a self-executing provision to get to where you want to go. As usual, you're position is devoid of support by constitutional text.
"The US Constitution, in giving the US Government the responsibility and the power to guarantee a republican form of government gives the Federal government the power to recognize which government is the legitimate government of a state, and it also gives the Federal government the power to say a particular state government is not qualified to hold office." You keep saying that. I don't buy it anymore now than the first time you said it. You've taken a small piece of constitutional text and improperly extended it far beyond what the Constitution says. Va., not the fed, has the privilege of determining its own legislature and their qualifications. I see nowhere in the Constitution where the states delegated to the fed the power to determine who was elected to a state legislature, or delegated to the fed the power to impeach state legislators, or to obtain consent to split a state in two by anyone other than the duly elected legislature of a state. Whatever spin you want to put on it, the Va. legislature, elected by Va.'s electorate, didn't consent.
You've said that Va. has officially recognized the legitimacy of W.Va. Given Hal's post, may I ask how and when this official recognition took place? Did Va. recognize W.Va. as constitutionally legitimate?
You said "Virginia had a body in Richmond that claimed to be the legislature and a body in Wheeling that claimed to be the legislature. By the Constitution, the United States has the authority to determine which one is a republican form of government and which is the legitimate government of the state. Since the body in Richmond was constitutionally unqualified to hold office, they cannot possibly be a republican government under the US Constitution." Then I said "You said that the Va. legislature was unqualified because it was no longer a republican gov't." I'll stand by my reading of what you said. Aren't you getting tired of this 'you said, I said' thing.
---------------
You forget the four words that followed--"under the US Constitution." Going by the US Constitution, Virginia had no government, republican or otherwise, between secession and the organization of the Restored Government. It's not that the Richmond legislature was not republican in form. It's that it was not a valid government under the US Constitution.
"Either you haven't been reading the thread or you don't understand that Virginia's legislature was unqualified to hold office due to its support of secession." I understand that such is your position. I'd asked you where in the Constitution does it give the fed "the power to determine which of those two bodies is the legitimate government of that state." You replied Art., Section 4. But that clause, as you know, does not say that the fed has that power.
---------------------
As I understand it, it is a fundamental concept in law that whoever is granted a responsibility must also be granted the powers necessary to carry out that responsibility.
Does that agree with what you've been taught? It seems to agree with what James Madison was taught, with what John Marshall was taught, and with what Roger B. Taney was taught.
Article IV, Section 4 states that the United States shall guarantee to the states a republican form of government. In order to guarantee to the states a republican form of government, the United States must have certain powers. Among these are the power to determine what a republican form of government is and to determine which of two competing bodies is the legitimate government of that state.
Additionally, Article IV, Section 4 gives the United States the responsibility to protect each state against invasion and, on application of the legislature or executive of that state, against domestic violence. If there are two competing governments of a state, the United States cannot come to the aid of both of them, but rather has to have the power to choose which of them is the legitimate government of the state in order to come to their aid.
Also, Article I, Section 8 specifies that the Congress shall have the power to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions. If there are two competing governments in a state, one of them is in a state of insurrection. In order to properly suppress the insurrection, the Congress needs to be able to determine which of the two competing governments is the legitimate government of the state. By the Militia Act of 1795, Congress delegated the authority to call out the Militia to the President of the United States. In order to properly suppress the insurrection, the President needs to be able to determine which of the two competing governments is the legitimate government of the state. If these two branches of the United States government did not have that authority, they would not be able to carry out their constitutional duties and the Constitution, then, would not be worth the paper it's printed on. It would not be supreme law but instead would be an empty shell.
So you went to Luther. I never asked what Luther said, and Luther is not the Constitution.
-------------------
Chief Justice Taney's holding in Luther v. Borden is law of the land, though, because it explains what the Constitution means, and is binding on all lower courts. This issue is settled law. The Federal government has the authority to determine which of two competing governments is the legitimate government of a state. There is no controversy about it.
You've said that Va. has officially recognized the legitimacy of W.Va. Given Hal's post, may I ask how and when this official recognition took place?
--------------------
In a General Assembly resolution and in Virginia's official position in the Supreme Court. There may have been other forms of recognition that I'm unaware of at this time.
Did Va. recognize W.Va. as constitutionally legitimate?
---------------------
On 28 Feb 1866 the General Assembly of Virginia adopted a resolution that, while recognizing the division of the state, lamented that division and expressed the sincere desire "to establish and perpetuate the reunion of Virginia and West Virginia." In that resolution, the General Assembly appeald to the people of West Virginia "to concur with them in the adoption of suitable measures of cooperation in the restoration of the ancient Commonwealth of Virginia with all her people and up to her former boundaries." The resolution also provided for commissioners to negotiate with West Virginia, in the event the plea for reunion was not accepted, for the fair apportionment of the public debt Virginia had at the time of the separation. This resolution can be found at "Acts of the General Assembly of Virginia, 1866-1867," p. 18.
In 1867, Virginia filed suit in Federal court for the return of Berkeley and Jefferson counties. This suit made its way to the US Supreme Court. Virginia's official position was that West Virginia was a legitimate state, but that Berkeley and Jefferson counties had been added to it improperly. The Supreme Court decided that they had been added to West Virginia properly.
In the convoluted Virginia Debt Controversy, Virginia's position was that West Virginia was a legitimate state and owed its fair share [one-third] of Virginia's public debt at the time of separation, plus interest. This was finally settled in 1919, and West Virginia completed its payments of the debt [which totaled over $14 million] in 1939.
Another interesting aspect is that in 2003 a mock lawsuit tested the constitutionality of West Virginia's formation. A 3-judge panel, consisting of Judge M. Blaine Michael of the 4th Judicial Circuit Court of Appeals in Richmond, Judge Robert H. King, another 4th Circuit Judge, and Judge Frederick B. Stamp, Jr., US District Judge for the Northern District of West Virginia, upheld the constitutionality of West Virginia's admission. I don't claim this is legally binding, but it's interesting.
"It's that it was not a valid government under the US Constitution." Nothing in the Constitution gives the fed the right to make that determination for a state. In other words, the states did not delegate to the fed the right to choose a legislature for the purposes of consenting to create 2 states out of 1. I don't think it's constitutional for the fed to accept the status of statehood for Va. but reject the legislature chosen by all of Va.'s electorate.
"As I understand it, it is a fundamental concept in law that whoever is granted a responsibility must also be granted the powers necessary to carry out that responsibility. Does that agree with what you've been taught?" So long as the end is legitimate and the means plainly adapted to that end, I think the proposition to be reasonable even if I don't specifically recall being taught the same.
"Among these are the power to determine what a republican form of government is and to determine which of two competing bodies is the legitimate government of that state." I thought we'd agreed that "It's not [as you said] that the Richmond legislature was not republican in form." I don't agree, however, that the fed has the power "to determine which of two competing bodies is the legitimate government of that state." Va's electorate made that decision, and it is their right and no one else's to do so. Again, there is no constitutional provision for splitting the baby.
"Luther v. Borden is law of the land." I didn't say otherwise; at least until 5 justices or a plurality disagree. But that was not my question. Moreover, Luther didn't involve the unique facts that exist regarding the consent of Va. to the creation of W.Va., or the creation of 2 states out of 1.
"There is no controversy about it." I can't say that I agree, so I guess there is a controversy. At least for the purposes of this thread.
Thanks for the information of Va.'s recognition of W.Va. It sounds more like acquiesence than anything else. Va. probably recognizes the futility of non-recognition.
Last edited by russ_aukerman; 06-29-2005 at 08:51 PM.
"It's that it was not a valid government under the US Constitution." Nothing in the Constitution gives the fed the right to make that determination for a state.
--------------------------
The US Supreme Court disagrees with you, and they are the authorities on what the Constitution means.
"The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not." [48 U.S. 1, 42]
"As I understand it, it is a fundamental concept in law that whoever is granted a responsibility must also be granted the powers necessary to carry out that responsibility. Does that agree with what you've been taught?" So long as the end is legitimate and the means plainly adapted to that end, I think the proposition to be reasonable even if I don't specifically recall being taught the same.
-----------------------
Then I don't see why you would disagree with Luther v. Borden, and I don't see why you would disagree with the United States having the power to recognize the Restored Government as the legitimate government of the state.
"Among these are the power to determine what a republican form of government is and to determine which of two competing bodies is the legitimate government of that state." I thought we'd agreed that "It's not [as you said] that the Richmond legislature was not republican in form."
-----------------------
We did. That is only one of the powers which I am using as examples.
I don't agree, however, that the fed has the power "to determine which of two competing bodies is the legitimate government of that state." Va's electorate made that decision, and it is their right and no one else's to do so. Again, there is no constitutional provision for splitting the baby.
-------------------------
Once again, the US Supreme Court, the authorities on what the Constitution means, says you're wrong.
"The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not." [48 U.S. 1, 42]
"Luther v. Borden is law of the land." I didn't say otherwise; at least until 5 justices or a plurality disagree. But that was not my question. Moreover, Luther didn't involve the unique facts that exist regarding the consent of Va. to the creation of W.Va., or the creation of 2 states out of 1.
-------------------------
Nice try to obfuscate, but it won't work.
Luther v. Borden involved determining which government is the legitimate government of a state.
"There is no controversy about it." I can't say that I agree, so I guess there is a controversy. At least for the purposes of this thread.
-----------------------
Let's just say there's no controversy that anyone would take seriously.
I see your cut and paste function is still working. :-)
I tried to read the whole Luther decision, but I just couldn't do it. It's so poorly written. I did get to the part you've cited. What I didn't find is any basis for a federal court to assert jurisdiction in the first place. There's no federal question in a trespass case, and no apparant basis for diversity jurisdiction. For the time being I'll assume it says what you say it does. But I still don't see any basis for federal jurisdiction and I still don't see anywhere in the Constitution the authority for the fed to determine (except in the limited circumstances I stated earlier) who is the rightful state legislature. The language you've cited would seem to disagree with me. From what I saw, its another case of the President recognizing a gov't other than that chosen by the state electorate. So I'll stand by my position that the Constitution does not authorize what the S.Ct. says it does.
"I don't see why you would disagree with the United States having the power to recognize the Restored Government as the legitimate government of the state." I disagree for 2 reasons. First, the Constitution does not give the fed that power. Second, the 'Restored Gov't' wasn't elected by the electorate of Va. If a gov't derives its power from the consent of the governed, then the 'Restored Gov't' had no power.
At bottom, my problem with W.Va. is that it was not formed with the voluntary consent of Va. - a consent which the Constitution requires. But I do recognize expediency when I see it.
I tried to read the whole Luther decision, but I just couldn't do it. It's so poorly written. I did get to the part you've cited. What I didn't find is any basis for a federal court to assert jurisdiction in the first place.
-----------------
It is a case in Law and Equity arising under the U.S. Constitution.
There's no federal question in a trespass case,
-----------------
There's a federal question in this one--whether the state government that issued the arrest warrant was the legitimate government of the state.
and no apparant basis for diversity jurisdiction. For the time being I'll assume it says what you say it does.
------------------
Since you got to the part I quoted, I would think no assumptions would be necessary.
But I still don't see any basis for federal jurisdiction and I still don't see anywhere in the Constitution the authority for the fed to determine (except in the limited circumstances I stated earlier) who is the rightful state legislature. The language you've cited would seem to disagree with me.
------------------------
And Taney goes further into it, further disagreeing with you.
From what I saw, its another case of the President recognizing a gov't other than that chosen by the state electorate. So I'll stand by my position that the Constitution does not authorize what the S.Ct. says it does.
------------------------
Then I'd say you're contradicting your earlier agreement that if the Constitution levies a responsibility on the government, then the government must have the power to carry out that responsibility.
"I don't see why you would disagree with the United States having the power to recognize the Restored Government as the legitimate government of the state." I disagree for 2 reasons. First, the Constitution does not give the fed that power.
-----------------------
The Supreme Court, who is the authority in what the Constitution means, says it does.
Second, the 'Restored Gov't' wasn't elected by the electorate of Va. If a gov't derives its power from the consent of the governed, then the 'Restored Gov't' had no power.
--------------------------
It was elected by a convention of the People, with delegates chosen by the People.
There are only three ways to get into federal court; federal question jurisdiction, diversity jurisdiction, and (rarely) cases involving extraordinary writs arising under original jurisdiction. Here, as you say, you're arguing federal question jurisdiction. But if, as I maintain, there was no fed question because the fed has no constitutional power to determine the issue of which state gov't to recognize, then there is no basis for jurisdiction and the case should have been dismissed at the district court (then circuit court) level. In other words, the case should never have been decided by a fed court.
"And Taney goes further into it, further disagreeing with you." He had no jurisdiction to go anywhere.
"Then I'd say you're contradicting your earlier agreement that if the Constitution levies a responsibility on the government, then the government must have the power to carry out that responsibility." No, I still agree with the proposition. I disagree that the Constitution leaves this authority to the fed.
"The Supreme Court, who is the authority in what the Constitution means, says it does." But they can, and often do, change their minds. I'm simply arguing that they should change their minds in this case because the Constitution does not say what they say it says. IMO, the first fed court which came to this question should have dismissed the case for lack of jurisdiction. That it didn't doesn't make it the right decision.
"It was elected by a convention of the People, with delegates chosen by the People." It wasn't chosen by the electorate of Va., so anything they did thereafter should be a nullity.
There are only three ways to get into federal court; federal question jurisdiction, diversity jurisdiction, and (rarely) cases involving extraordinary writs arising under original jurisdiction. Here, as you say, you're arguing federal question jurisdiction. But if, as I maintain, there was no fed question because the fed has no constitutional power to determine the issue of which state gov't to recognize, then there is no basis for jurisdiction and the case should have been dismissed at the district court (then circuit court) level. In other words, the case should never have been decided by a fed court.
------------------
But there is a federal question. By Article IV the United States must guarantee each state a republican form of government. This case goes to that requirement levied on the United States. Thus it is a case in law and equity arising under the Constitution.
"And Taney goes further into it, further disagreeing with you." He had no jurisdiction to go anywhere.
----------------------
The Chief Justice of the US Supreme Court, as well as a majority of the justices on the court at the time, says you're wrong.
"Then I'd say you're contradicting your earlier agreement that if the Constitution levies a responsibility on the government, then the government must have the power to carry out that responsibility." No, I still agree with the proposition. I disagree that the Constitution leaves this authority to the fed.
---------------------
Then read Article IV of the Constitution.
"The Supreme Court, who is the authority in what the Constitution means, says it does." But they can, and often do, change their minds.
-----------------------
Please show me where they've changed their minds on this. And considering the number of cases they've handled in 216 years, they don't change their minds very often at all.
I'm simply arguing that they should change their minds in this case because the Constitution does not say what they say it says. IMO, the first fed court which came to this question should have dismissed the case for lack of jurisdiction. That it didn't doesn't make it the right decision.
-----------------------
And you are completely mistaken.
"It was elected by a convention of the People, with delegates chosen by the People." It wasn't chosen by the electorate of Va., so anything they did thereafter should be a nullity.
-----------------------
Which electorate do you think chose it? The electorate of Mars?
Cash: "The Supreme Court, who is the authority in what the Constitution means, says it does."
Russ: But they can, and often do, change their minds. I'm simply arguing that they should change their minds in this case because the Constitution does not say what they say it says. IMO, the first fed court which came to this question should have dismissed the case for lack of jurisdiction. That it didn't doesn't make it the right decision.
History has proven that Story's warning holds true:
"And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice." --Joseph Story, Commentaries on the Constitution (1833)
"But there is a federal question. By Article IV the United States must guarantee each state a republican form of government." We've already agreed that Va., before and after secession, was a state with a 'republican form of gov't.' So there is a federal law, but no federal question. In other words, there's no "case or controversy" on the question of whether Va. had a republican form of gov't.
I've read Art. IV, and I still disagree with the S.Ct.'s assuming jurisdiction in the absense of a federal question. And I'm not completely mistaken - so there. :-)
"Please show me where they've changed their minds on this." The question of splitting 1 state into 2 has not, to my knowledge, ever been presented to the courts. Thus, there's nothing yet to change.
"Which electorate do you think chose it?" That of western Va. which is far less than half of the electorate of Va.
Mars may be where you get your theories on the constitutionality of secession. They certainly don't come from the Constitution.
CivilWarTalk.com -
A free and friendly Civil War community. 
Linear Mode
