Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
"Interesting that James Madison, "The Father of the Constitution," and the man who wrote the Tenth Amendment, didn't see it that way." Again, its not what any one person says about the Constitution that counts, its what the Constitution says that counts.
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And James Madison, who knows better than anyone what it says, says that it says a state cannot unilaterally secede.
"It's nothing more than your opinion." I agree, in part. Some things are opinion, and should be left for the individual to agree or disagree. But if I say that the sun rises in the east, that's a factual statement that's true regardless of whether its documented by some scientific quarterly.
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And if I were to ask you for evidence of this, you can direct me to the source. You can say, "go out in the morning before sunrise and face east, then you can see where it rises." When I do that I will have empirical data to back up your statement.
If I go to the library, it'll be on an issue I don't already know to be factually true based on past research which I no longer have at hand to quote to you.
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To paraphrase a wise man, "It's not what they don't know that's the problem. The problem is what they know to be true that simply isn't true."
Based on my research it is factually true that secession is illegal and unconstitutional as the Constitution is written, without it having to specifically state that secession is forbidden. Do you accept that statement without evidence? Will evidence convince you of its truth? What evidence would you accept?
And I'll never go to prove an opinion, because opinions are by definition unprovable. I think we could make this easier if we on the 'axiomatic,' and save research for truly contested facts. I invite your agreement. And I'll give you an example. You say that if I maintain the states are sovereign, prove it. I say that I shouldn't have to, that such is axiomatic.
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I say it isn't, and for me it's axiomatic that they are not truly sovereign. That there are people who speak of states being sovereign merely shows they've been taken in by the mirage. Only the People of the United State are the true sovereigns.
For your proof, I'll offer:
"The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. See Lanza, supra, at 382. The States are equal to each other "in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself." Coyle v. Oklahoma, 221 U.S. 559, 567 (1911).
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Thank you for providing this evidence, Russ. I sincerely appreciate it.
And especially thank you for pointing me to Coyle v. Oklahoma, Skiriotes v. Florida, and Heath v. Alabama, as I have not read these cases previously. I'm quite familiar with Ableman v. Booth, but it's always good to plow that ground again to refresh my memory.
Coyle v. Oklahoma does have the statement about "residuum of sovereignty not delegated to the United States by the Constitution itself." I don't suppose you noticed the irony of a Federal Court passing judgment on a state law when supposedly the state is sovereign, and as you claimed sovereignty involves absolute authority.
I note the following from this opinion: "The constitutional provision concerning the admission of new states is not a mandate, but a power to be exercised with discretion. From this alone it would follow that Congress may require, under penalty of denying admission, that the organic law of a new state at the time of admission shall be such as to meet its approval." [221 U.S. 559, 568] This certainly shows a lack of sovereignty on the part of the state prior to its admission, otherwise Congress could not dictate what that state's constitution entailed. The crux of the matter in this case, as it pertains to our discussion, seems to me to be this statement: "The plain deduction from this case is that when a new state is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original states, and that such powers may not be constitutionally diminished, impaired, or shorn away by any conditions, compacts, or stipulations embraced in the act under which the new state came into the Union, which would not be valid and effectual if the subject of congressional legislation after admission." [221 U.S. 559, 573]
As I argue that with the ratification none of the states is truly sovereign, this does not conflict with me in any way. The amount of true sovereignty an admitted state has is exactly equal to that of the original 13 after ratification: zero.
See Skiriotes v. Florida, 313 U.S. 69, 77 (1941)."
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I take it from this case we are primarily looking at such things as: "Save for the powers committed by the Constitution to the Union, the State of Florida has retained the status of a sovereign. Florida was admitted to the Union 'on equal footing with the original States, in all respects whatsoever'. And the power given to Congress by Section 3 of Article IV of the Constitution to admit new States relate only to such States as are equal to each other 'in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself'. Coyle v. Smith, 221 U.S. 559, 567 , 31 S.Ct. 688, 690." [313 U.S. 69, 77]
I would say that Florida has the status of a sovereign as long as the People of the United States wish her to have that status. Once they decide differently, though, the mirage of Florida's sovereignty will vanish and she will be left with merely the desert sands.
I like this statement: "When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances." [313 U.S. 69, 78-79]
Certainly Florida's, or any state's authority over its individual citizens is analogous to the authority of the United States over its individual citizens. I agree. But as the People of the United States can amend the Constitution any way they wish, I maintain they have the ultimate authority over both the United States and the individual states, making them the true sovereigns with absolute authority. I don't believe this case contradicts that.
Heath v. Alabama, 474 U.S. 82 (1985)(discussing "dual sovereignty doctrine" in the context of the double jeopardy clause).
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I must say your citation was a little bit confusing, but when I got to this case I saw what you were doing.
This seems to be the salient section:
[begin quote]
The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." United States v. Lanza, 260 U.S. 377, 382 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 19 (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable." Id., at 20.
In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power. See, e. g., United States v. Wheeler, 435 U.S. 313, 320 (1978); Waller v. Florida, 397 U.S. 387, 393 (1970); Puerto Rico v. Shell Co., 302 U.S. 253, 264 -265 (1937); Lanza, supra, at 382; Grafton v. United States, 206 U.S. 333, 354 -355 (1907). Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own "inherent sovereignty," not from the Federal Government. Wheeler, supra, at 320, n. 14. See Abbate v. United States, 359 U.S. 187, 193 -194 (1959) (collecting cases); Lanza, supra. As stated in Lanza, supra, at 382:
"Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
"It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."
See also Bartkus v. Illinois, 359 U.S. 121 (1959); Westfall v. United States, 274 U.S. 256, 258 (1927) (Holmes, J.) (the proposition that the State and Federal Governments may punish the same conduct "is too plain to need more than statement").
The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. See Lanza, supra, at 382. The States are equal to each other "in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself." Coyle v. Oklahoma, 221 U.S. 559, 567 (1911). See Skiriotes v. Florida, 313 U.S. 69, 77 (1941). Thus, "[e]ach has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each `is exercising its own sovereignty, not that of the other.'" Wheeler, supra, at 320 (quoting Lanza, supra, at 382).
[end quote]
[474 U.S. 82, 88-90]
It seems to me the Court is using a definition of sovereignty that is different from yours, from the self-evident fact that a Federal Court is ruling on a state matter, and if the states had "absolute authority" the Federal Court could not rule on a state matter once the state courts have spoken.
John Austin, a 19th Century political theorist, defined a "sovereign" as one who receives "habitual obedience from the bulk of a given society." [Lee C. McDonald, _Western Political Theory,_ p. 433] This seems to be what the Court is using in this instance, rather than the definition you provided.
We might also check US Term Limits Inc. v. Thornton, 514 US 779 (1995). In a discussion of the Adam Clayton Powell case in this opinion, Justice John Paul Stevens wrote, " we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government." [514 US 779, 793] This appears to me to be the use of the definition of "sovereignty" you identified, that being "having absolute power."
This case also has another section of interest to us:
"Petitioners argue that the Constitution contains no express prohibition against state-added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State's reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the 'original powers' of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the Framers thereby "divested" States of any power to add qualifications." [514 US 779, 799-800] Now this I find interesting. Here the Court is saying that for a power to be a reserved power it must pass two tests. First, it must have been a power originally possessed by the states. Second, it must be a power that has not been divested from the states by the Framers, and notably it doesn't have to specify in the Constitution that this power has been divested from the states.
Now, I think you'll find the next part interesting also, because this part supports your thesis:
"The 'plan of the convention' as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment, draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, 'it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.' Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819).
"This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate '[a]n entire consolidation of the States into one complete national sovereignty,' but only a partial consolidation in which 'the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.' The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle:
"'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.'
"As we have frequently noted, '[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.' Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985) (internal quotation marks and citation omitted) (emphasis added); see also New York v. United States, 505 U.S. ___, ___ (slip op., at 8-9) (1992)." [514 US 779, 800-801]
Note Chief Justice Marshall's words that the sovereignty of the states remains except as abridged by the Constitution. This is important because as we've seen, The People of the United States have absolute power over the Constitution. If the People of 3/4 of the States choose to change the Constitution, it will change, and the other 1/4 of the States have no recourse, as their "sovereignty" will be abridged by whatever changes the majority decides to make. Under that scheme, how can we truly say the States have any sovereignty whatsoever when it can be abridged by the People at any time? We can't, and thus state sovereignty is a mirage.
Justice Stevens goes on:
"Contrary to petitioners' assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners' Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only 'reserve' that which existed before. As Justice Story recognized, 'the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. . . . No state can say, that it has reserved, what it never possessed.' 1 Story 627.
"Justice Story's position thus echoes that of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). In McCulloch, the Court rejected the argument that the Constitution's silence on the subject of state power to tax corporations chartered by Congress implies that the States have 'reserved' power to tax such federal instrumentalities. As Chief Justice Marshall pointed out, an 'original right to tax' such federal entities 'never existed, and the question whether it has been surrendered, cannot arise.' id., at 430. See also Crandall v. Nevada, 6 Wall. 35, 46 (1868). In language that presaged Justice Story's argument, Chief Justice Marshall concluded: 'This opinion does not deprive the States of any resources which they originally possessed.' 4 Wheat., at 436." [514 US 779, 801-802]
A question to ask at this point is, was secession a power possessed by the States previous to ratification? A reading of the Articles of Confederation, which formed a "perpetual union," might indicate in the negative. Thus, by the consistent interpretation since Justice Story, if secession was not a right possessed previous to ratification, it cannot be one of the Tenth Amendment reserved rights, since you cannot reserve what you never possessed. But I'm not making that argument. It seems to me that the burden is now on those who maintain secession to be a reserved power to show that it was a power possessed by the States prior to ratification.
Justice Stevens continues:
"Prior to the adoption of the Constitution, the States had joined together under the Articles of Confederation. In that system, 'the States retained most of their sovereignty, like independent nations bound together only by treaties.' Wesberry v. Sanders, 376 U.S. 1, 9 (1964). After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, 'a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature.' Id., at 10. In adopting that plan, the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. See, e. g., FERC v. Mississippi, 456 U.S. 742, 791 (1982) (O'Connor, J., concurring in the judgment in part and dissenting in part) ('The Constitution . . . permitt[ed] direct contact between the National Government and the individual citizen'). In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is 'an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. . . . Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.' 1 Story 627. Representatives and Senators are as much officers of the entire union as is the President. States thus 'have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. . . . It is no original prerogative of state power to appoint a representative, a senator, or president for the union.' Ibid." [514 US 779, 802-803]
And this appears to me to argue against a state having "absolute authority," thus against a state being sovereign under your definition. Note that it absolutely shows a change in the relationship of the states with the Federal government after ratification. N.B., the Framers rejected "the notion that the Nation was a collection of States," and instead created "a direct link between the National Government and the people of the United States." In other words, The United States, under the Constitution, is a single nation, not a collection of sovereign states.
The People are the only true sovereigns.
Stevens makes another very interesting argument:
"Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the 'basic principles of our democratic system' all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution." [514 US 779, 805]
So, even if a state possessed a power originally, the Framers may have precluded the states from exercising that power on ratification. Indeed, a strong case can be made, and has been made, that various parts of the Constitution, such as Article I, Section 10, Article IV, Section 4, Article V, and Article VI, Clause 2 all preclude the States from having a power of secession. As Chief Justice Chase wrote in Texas v. White, "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." [74 US 700, 725]
This opinion is a true treasure trove. Justice Stevens writes, "Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. From the start, the Framers recognized that the 'great and radical vice' of the Articles of Confederation was 'the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist.' The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. See, e. g., supra, at 22-23. The Framers implemented this ideal most clearly in the provision, extant from the beginning of the Republic, that calls for the Members of the House of Representatives to be 'chosen every second Year by the People of the several States.' Art. I, 2, cl. 1. Following the adoption of the 17th Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed: 'The government of the union, then, . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.' McCulloch v. Maryland, 4 Wheat., at 404-405. 31 Ours is a 'government of the people, by the people, for the people.' A. Lincoln, Gettysburg Address (1863). [514 US 779, 821-822]
Again, it's the People of the United States who are the true sovereigns.
Justice Stevens continues, "Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Cf. McCulloch v. Maryland, 4 Wheat., at 428-429 (1819) ('Those means are not given by the people of a particular State, not given by the constituents of the legislature, . . . but by the people of all the States. They are given by all, for the benefit of all and upon theory should be subjected to that government only which belongs to all'). Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States." [514 US 779, 823]
Again, it's the People who are the only true sovereigns. States have no absolute authority. They can't even formulate their own qualifications for their own representatives.
If you'd prefer a pre-ACW quote, how about "And the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres." Ableman v. Booth, 62 U.S. 506 (1858).
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Again, here the Court is using quite a different definition than you used. this is more akin to Austin's definition I quoted earlier, "one who receives habitual obedience from the bulk of a given society."
You state that "You asked me for my opinion regarding ALL of the Framers, and I told you I have not formed one yet because I have not read all of their statements yet." No, I asked you what "some" of the drafters preferred. It is to that question that I'd like a direct answer. I'm not sure that all of the drafters agreed on anything.
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I apologize for confusing the question. From the statements of the Framers [by the way, that is the proper term, rather than "drafters." A Constitution is framed] I have read thus far, I haven't seen any who "fear" a strong central government. So until I do or until I can read statements from all the Framers, I shall have to withhold having an opinion on it.
I still don't get your point there; it seems like a straightforward application of Art. V.
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My point will be made clear, I promise you, once I have a direct answer from you. I gave you a direct answer. I even agreed with you; if 3/4 of the states vote for the amendment, it passes and is operative on the remaining states that didn't vote for it. What more do you want.
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I asked what would happen to slavery in the remaining three states, I didn't say what would happen to it, so there's no way you could have agreed with me since I offered no opinion on it. But here I see what I think is a direct answer, it "is operative on the remaining states that didn't vote for it." I interpret this as your saying slavery in those states is abolished.
To recap the hypothetical, in 1800 there are 16 states in the Union. 13 of them vote to ratify a hypothetical constitutional amendment that abolishes slavery nationwide, with 3 states voting against. And you say that the amendment is operative on the remaining states, i.e., it abolishes slavery in those states, even though they opposed that action. Now, I ask you. How can a state be said to have any sovereignty, any "absolute authority" over its own internal laws when 13 other states can at one stroke abolish its entire slave code? That's my point, Russ. There is no real state sovereignty in terms of having "absolute authority." The only true sovereigns are the American People.
"On the site I found the Articles, the commentary states that "The United States had no independent power of taxation, relying on the good faith of the states to pay bills sent to them for the maintenance of the national treasury." usconstitution.net. Is this site wrong?
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Essentially correct..." My original point was that the Articles didn't fund the central gov't's declaration of war, that the central gov't (under the Art. of Confed) therefore lacked the power to impose its will and, therefore, the delegation of by the states to that central gov't was merely the delegation of a power, not a sovereign power. You disagreed, but as you later said, my point was "essentially correct." Whether the same occurred in or out of session is, IMO, immaterial.
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No, I never said your point was essentially correct. I said what the site wrote was essentially correct, but was different from the clause you were talking about before. Again, read Article VIII. It's not immaterial. It's a very important distinction. Article VIII required the states to furnish their portion of the taxation.
Thank you for the internet resources. They wouldn't be slanted toward your existing opinions, would they? :-)
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They are from constitutional scholars of the highest caliber, and in my view are very objective commentators. That they happen to agree with me, I think, shows my view is correct.
To quote Prof. Sunstein's article, "Constitutionalism and Secession," "In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law. It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise." [Cass R. Sunstein, "Constitutionalism and Secession," University of Chicago Law Review, Vol 58, No. 2, Spring, 1991, p. 633]
I think in my original post, I stated one man had the gun, the other man supplied the bullets, knowing the man with the gun was going to commit a murder. Is the man supplying the bullets as guilty as the man who shoots them into the body of the victim?
And, is a newspaper as guilty when printing a story that it knows will result in murder as the informant that gives the information for the story?
In effect, are there times when freedom of speech in printing a newspaper story must take a back seat to other, national concerns? Like security? National survival? In my own experience and opinion, of course there is.
My other thoughts on this area is, it is often claimed that Lincoln and his administration shut down newspapers for just their political views. I have just one request. Prove it. Which papers, when and for what political views?
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
Thank you for providing the examples of court cases that you felt backed up your views. It is much appreciated.
From what I gather of your short post to me, I was to understand that you had answered my views on providing research and facts to back up your opinions. In short, you felt such effort was not necessary. I assure you, it makes for a much more compelling and convincing argument when you provide such. It is your own choice, of course, if you wish to do so, but your most recent reply was much better appreciated as it had content that made me search out and find information and most appreciated of all, made me stop and think.
I await your response to my bullet/murder post.
Thanks,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
Thank you for the extremely interesting websites, especially the articles by Amar & Co. I enjoyed them very much.
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
"When I do that I will have empirical data to back up your statement." Must you go to the electric chair to prove to yourself that the state has the sovereign power to convict you of a capital offense?
"Based on my research it is factually true that secession is illegal and unconstitutional as the Constitution is written, without it having to specifically state that secession is forbidden. Do you accept that statement without evidence?" I don't have to. I"ve demonstrated by constitutional text that you are wrong.
"That there are people who speak of states being sovereign merely shows they've been taken in by the mirage." The Constitution retains state sovereignty; the S.Ct. says the states are sovereign; only Cash say its a mirage. Hmmmm.
"I maintain they have the ultimate authority over both the United States and the individual states, making them the true sovereigns with absolute authority." I have agreed that the People are the ultimate sovereigns. As it stands, the People have delegated that power to the states and, in turn, partly to the fed pursuant to the Constitution. The Poeple could take back their sovereign powers, BUT THEY HAVEN'T. Let's stick to the reality of the way things are. If the People someday want to take back their sovereign powers, I'll cross that bridge when I come to it.
You state that "...if the states had "absolute authority" the Federal Court could not rule on a state matter once the state courts have spoken." Anyone with the filing fee and a word processor can go to fed court and challenge a state law as violative of the Constitution. As the cited law shows, that challenge will fail if the court determines the state was acting within its own sovereign power in enacting the state law. BTW, have you ever heard of the 'independent and adequate state grounds' doctrine?
The S.Ct. says "Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own "inherent sovereignty," not from the Federal Government." Somehow, you get to a definition of sovereignty from a Mr. Austin; a definition never actually considered by the S.Ct. in its opinion. Seems like a stretch to me. Perhaps you'll explain how the court based its decision on a definition it never considered. But I'm not sure that your explanation will hold water until you also show it to have been considered by the court. While I await your explanation, I'll stick with the definition of sovereignty provided by Webster's dictionary.
Thanks for the citations which support my position. I agree, as you say, that they do support what I've been saying.
First you quote the S.Ct. that "This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that THE PLAN OF THE CONSTITUTIONAL CONVENTION DID NOT CONTEMPLATE '[A]N ENTIRE CONSOLIDATION OF THE STATES INTO ONE COMPLETE NATIONAL SOVEREIGNTY,..." (emphasis added) Then you somehow conclude that "The United States, under the Constitution, is a single nation, not a collection of sovereign states." I find those statements irreconcialable. Perhaps you can explain?
You state that "The People are the only true sovereigns." Are you saying that the People cannot delegate that sovereign power to a political entity such as a state or fed gov't? The absurd consequence of that contention is that there are no political entities at all; just a collection of individuals. But we have states and we have a fed, so that contention must be wrong. It must be, then, that (as I've said before) the People CAN delegate their sovereignty and that they have; first to the states and then a part to the fed. Again, should the People decide to abolish the political entities to whom they've delegated sovereignty, I'll cross that bridge when I come to it.
"Framers [by the way, that is the proper term, rather than "drafters." A Constitution is framed]. I don't mean to quibble and I'm not being facetious, but isn't a constitution (like any document) both framed and drafted? If 'framer' and 'drafter' aren't thus interchageable, I'd appreciate learning the difference and why the former is THE proper term. BTW, I hope your local schools will soon be having a remedial course on 'what is a direct answer,' and I hope that you'll attend. :-) You state that "I haven't seen any who "fear" a strong central government." Again, that's not the question. As I said in my prior post, "I asked you what "some" of the drafters PREFERRED. It is to that question that I'd like a direct answer." (emphasis added)
You state that the internet resources you've offered "in my view are very objective commentators." It's your view of their objectivity that concerns me. :-)
Your Prof. Sunstein has confused the 'legality of secession' with the 'effects of secession.' It does not follow from the secession of one or more states that the 'basic enterprise' will be 'defeated.' To the contrary, there's nothing to suggest that the basic enterprise wouln't simply continue to go on with one ore more less states. Those states still adhering to the basic enterprise would still be bound to the Constitution. He also, as you have, appears to have confused what one drafter (Madison) says with what the Constitution says. Its not what any one person says that counts, its what the Constitution says that counts.
My response to your bullet/gun post is that I think that the man supplying the bulletts is at least an accessory and guilty of conspiracy. I don't know if he's guilty as a principal; I'm awaiting you or someone else for that piece.
If the man with the bullets willingly hands them over knowing that they will be used to committ an act of murder, then my first moral reaction is that the "bullet man" is just as guilty as the man who pulls the trigger. I know that legally it is much more complicated than that but if intent can be proven, I would consider that a verdict of conspiracy or accessory would be too lenient...it's a fine line and a jury that I would not like to sit on.
In my opinion, with as little legal background as 'Law & Order' series will provide, I view the supplier of the bullets as just as guilty as the man who pulls the trigger. Hence, the editor who provides an informer or source with information that will cause harm to others and knows his actions will result in such, should be considered just as guilty too.
Hope that helps,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
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