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"In order to guarantee the state a republican form of government the United States must have some means of certifying that the body representing itself as the state government is the legitimate government of the state." But, again, for purposes of this thread, we've agreed that Va. had a republican form of gov't; i.e., its legislature was chosen by its citizenry. I'm assuming you're trying to extend this 'republican form of gov't' argument to another point. If you think I've missed it, please state it again or cut and paste a prior post. We seem to be going in circles.
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As I've said so many times, because the U.S. Constitution requires all state officeholders to be bound to support the U.S. Constitution, once they seceded they declared they were no longer bound to support the U.S. Constitution anymore than a Frenchman or an Australian was bound to support the U.S. Constitution. Since, for the purposes of this discussion, we are assuming secession to be an unconstitutional act, then they were no longer qualified to hold state office according to the U.S. Constitution. Therefore, until the restored government was formed Virginia had no government, republican or otherwise. The legislature in Richmond was republican in form, but legally void from the standpoint of the Constitution. Therefore, in the eyes of U.S. law it did not exist.
Let's take a hypothetical situation to illustrate. Let's say in Rhode Island a group of people who want to institute vegetarianism throughout the state organize and "elect" a state legislature. Since they are elected representatives, they have the form of a republican type of government. But they have no legitimacy because they don't meet the constitutional requirements, therefore in the eyes of the law they don't exist as a legislature. Similarly, the Richmond apparatus no longer professed to be bound by the U.S. Constitution, so they didn't meet the constitutional requirements for office and thus in the eyes of U.S. law they did not exist.
Since the Constitution empowers the Federal Government to guarantee Virginia a republican form of government, the Federal Government has the power to certify the body representing itself as the state government of Virginia is republican in form and the legitimate government of the state. When the representatives of the Restored Government presented themselves in Washington as the legitimate government of the state, they were recognized as such by both Congress and the President.
"As it recognizes no vote for state secession, the legislature in Richmond, in claiming..." If there's no vote for secession, whatever the Va. legislature was 'claiming' was protected free speech, not grounds for disqualification from office.
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No, they went beyond the bounds of protected free speech. They are constitutionally required to be bound to support the U.S. Constitution, and they no longer fulfilled that requirement.
"As I've said so many times, because the U.S. Constitution requires all state officeholders to be bound to support the U.S. Constitution, once they seceded they declared they were no longer bound to support the U.S. Constitution anymore than a Frenchman or an Australian was bound to support the U.S. Constitution." I acknowledge that you've said that, and in response I've said that you can't split the baby. Let me elaborate. I believe that you are trying to create a distinction between Va.'s territory and its legislature; that it was proper for the fed to 'split the baby' by embracing one as state and discarding the other as rebellious, treasonous, etc. I believe the distinction attempted is entirely artificial and without constitutional authority. That is why I believe that "expediency" is the true and only basis for the admission of W.Va. as a state. As to your example, I can say I'm not bound by the Constitution. But as a citizen, I am so bound regardless of whether I like it. Likewise, Va's legislators can say their not bound but, if Va. is a state, they were. Any words of claiming not to be remain protected speech.
"No, they went beyond the bounds of protected free speech." I'm particularly close to my 1st Amend., and I think you're underestimating it. Freedom of political speech is the core value of the 1st Amend. It's virtually impossible for political speech to go beyond the bounds of protected speech. "Madison's Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press." 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908). I admit that not every word is protected speech. But, if you're going to convince me that political speech can be the basis for disqualification from state office under the Constitution, you're going to have to go much further than you have so far.
"As I've said so many times, because the U.S. Constitution requires all state officeholders to be bound to support the U.S. Constitution, once they seceded they declared they were no longer bound to support the U.S. Constitution anymore than a Frenchman or an Australian was bound to support the U.S. Constitution." I acknowledge that you've said that, and in response I've said that you can't split the baby. Let me elaborate. I believe that you are trying to create a distinction between Va.'s territory and its legislature; that it was proper for the fed to 'split the baby' by embracing one as state and discarding the other as rebellious, treasonous, etc. I believe the distinction attempted is entirely artificial and without constitutional authority. That is why I believe that "expediency" is the true and only basis for the admission of W.Va. as a state. As to your example, I can say I'm not bound by the Constitution. But as a citizen, I am so bound regardless of whether I like it. Likewise, Va's legislators can say their not bound but, if Va. is a state, they were. Any words of claiming not to be remain protected speech.
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The Constitution specifies they be bound by oath or affirmation to support the Constitution. If they no longer support the Constitution, they are in violation of the Constitution. Again, remember that we are assuming secession to be unconstitutional for the purpose of this discussion. Therefore, claiming to be no longer bound by the Constitution is acting opposite to supporting it. Raising militia to fight against the United States is not supporting the Constitution. Allowing armies levying war against the United States into your state and integrating them with your own forces is not supporting the Constitution. You can try all the sophistry you like, but the fact is that the Richmond government was no longer qualified to hold office according to the U.S. Constitution.
"No, they went beyond the bounds of protected free speech." I'm particularly close to my 1st Amend., and I think you're underestimating it. Freedom of political speech is the core value of the 1st Amend. It's virtually impossible for political speech to go beyond the bounds of protected speech.
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Integrating the militia of your state with a military force in arms against the United States is not protected speech.
"the fact is that the Richmond government was no longer qualified to hold office according to the U.S. Constitution." As your "fact" has no constitutional support, its no more than your opinion. And your opinion is wrong again. :-)
Claiming not to be bound by the Constitution is not the opposite of supporting it, just as bad faith is not the opposite of good faith.
I agree that those firing the bullets are in rebellion, if secession is unconstitutional. But if Va. is a state, then a presumption of innocense applies to its citizens and legislators until an individual is shown by due process to be guilty. Further, the 'support the US Const.' requirement of the Constitution is not self-executing. You can't just call them unqualified, you have to prove it first. IMO, your position is a bit ahead of itself.
"the fact is that the Richmond government was no longer qualified to hold office according to the U.S. Constitution." As your "fact" has no constitutional support, its no more than your opinion.
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False statement.
Claiming not to be bound by the Constitution is not the opposite of supporting it.
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Yes, in fact it is.
I agree that those firing the bullets are in rebellion, if secession is unconstitutional.
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In fact, according to Chief Justice John Marshall, those having an armed body in the field for the purpose of opposing the government are in rebellion also, not just those who are firing the bullets. Virginia met that criterion.
But if Va. is a state, then a presumption of innocense applies to its citizens and legislators until an individual is shown by due process to be guilty. Further, the 'support the US Const.' requirement of the Constitution is not self-executing. You can't just call them unqualified, you have to prove it first. IMO, your position is a bit ahead of itself.
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Wrong again. As the Federal Government has the responsibility to guarantee to each state a republican form of government, it must therefore have the power to certify if a government is legitimate or not, otherwise it would not know if the state had a republican form of government. The People of Virginia are not denied any rights by the Federal government recognizing the Restored Government as the legitimate government of the state. No presumption of innocence is necessary since this is not a criminal prosecution or a court proceeding. Nothing is being taken away from the citizens of Virginia, so no due process is necessary.
"As your "fact" has no constitutional support, its no more than your opinion." True statement. But there's no need to go back and forth. I know your position. Like I said, you can't split the baby.
"according to Chief Justice John Marshall" Citation please. Cash on Constitutional Law is no more persuasive to me that Russ on Constitutional Law is persuasive to you. :-)
"As the Federal Government has the responsibility to guarantee to each state a republican form of government, it must therefore have the power to certify if a government is legitimate or not. If it's elected by the People, its a republican form of gov't. 'Legitimacy' is something entirely different, and the Constitution says nothing about legitimacy.
"The People of Virginia are not denied any rights by the Federal government recognizing the Restored Government..." They were denied the opportunity, guaranteed by the Constitution, to consent or not to having their state split in two.
"Nothing is being taken away from the citizens of Virginia..." Forty counties is nothing? Due process applies to more than just criminal proceedings. How about a full and fair opportunity to be heard, before a neutral arbiter. Your desire to punish Va. for exercising its 1st Amend. rights is palpable.
"according to Chief Justice John Marshall" Citation please.
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US v. Burr.
"As the Federal Government has the responsibility to guarantee to each state a republican form of government, it must therefore have the power to certify if a government is legitimate or not. If it's elected by the People, its a republican form of gov't. 'Legitimacy' is something entirely different, and the Constitution says nothing about legitimacy.
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Once again, the US has the responsibility to guarantee to each state a republican form of government. The US must therefore have the power to determine if a body calling itself the state's government is a legitimate government. If it is not, then the state does not have a republican form of government--it has no government at all. The US must have the power to determine legitimacy if it is to carry out its responsibility of guaranteeing a republican form of government.
"The People of Virginia are not denied any rights by the Federal government recognizing the Restored Government..." They were denied the opportunity, guaranteed by the Constitution, to consent or not to having their state split in two.
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Wrong. The Constitution says nothing about the people of a state having to consent to erecting another state within the jurisdiction of their state.
If you mean United States v. Burr, 25 Fed. Cas. 187 (No. 14,694) (CCD.Va. 1807), I was unable to find the full opinion. Do you have an online citation?
"Once again, the US has the responsibility to guarantee to each state a republican form of government." Agreed. The Constitution says that.
"The US must therefore have the power to determine if a body calling itself the state's government is a legitimate government." Disagreed. The power to guarantee a republican form of gov't does not require, or permit, the fed to determine the legitimacy of a state's gov't. That is an issue for the state to decide. This is especially true when when there's no question that either is a republican form. I'm not at all certain, though, that the 'restored gov't' could be called republican in form. It was a gov't of the people it chose to represent, and not all the people of Va.
"The Constitution says nothing about the people of a state having to consent to erecting another state within the jurisdiction of their state." You're splitting hairs. The Constitution requires the consent of the duly elected representatives of the people - the Va. legislature. Va.'s citizenry were denied the right to have their legislature consent or not.
If you mean United States v. Burr, 25 Fed. Cas. 187 (No. 14,694) (CCD.Va. 1807), I was unable to find the full opinion. Do you have an online citation?
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I do not. I photocopied the entire opinion from the Federal Case Book. It laid the foundation and remains the basis for US legal theory regarding treason.
"Once again, the US has the responsibility to guarantee to each state a republican form of government." Agreed. The Constitution says that.
"The US must therefore have the power to determine if a body calling itself the state's government is a legitimate government." Disagreed. The power to guarantee a republican form of gov't does not require, or permit, the fed to determine the legitimacy of a state's gov't.
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It most certainly does. The Federal government must be able to tell if the government of a state is legitimate in order to determine if that state has a republican form of government, so it can carry out its constitutional responsibility of guaranteeing such a government to the state.
"The Constitution says nothing about the people of a state having to consent to erecting another state within the jurisdiction of their state." You're splitting hairs.
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No, I'm reading the plain text of the Constitution. It says you're wrong.
The Constitution requires the consent of the duly elected representatives of the people - the Va. legislature. Va.'s citizenry were denied the right to have their legislature consent or not.
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No, that's wrong. The legitimate legislature of the State of Virginia gave its consent.
I believe to be incorrect your fundamental premise that "The Federal government must be able to tell if the government of a state is legitimate in order to determine if that state has a republican form of government..." 'Republican form,' on the one hand, and 'legitimacy,' on the other hand, are two separate inquiries. They are not interdependent, and an inquiry into the former in no way depends on an inquiry into the latter. More importantly, the fed has authority to inquire into 'republican form,' but has no authority to inquire into 'legitimacy.' 'Legitimacy' of a state gov't is a question left to the states by the Constitution.
I know what the Constitution says; you're still splitting hairs. And you still can't split the baby.
"The legitimate legislature of the State of Virginia gave its consent." Calling the 'restored gov't' legitimate is an insult to the word 'legitimate' as well as an insult to the people of Va. Of course, your position still begs the question of who determines state gov't legitimacy, which by the Constitution is a question reserved to the states.
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