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.
For someone who loves to use the constitution as 'back-up' its amazing the questions you sometimes ask. Article I, section 9, second paragraph of the Constitution states, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
The Constitution doesn't say anything about limiting it to Congress. It is a power possessed by the United States, and it is in the section of Article I that discusses limitations on the United States government, not limitations on Congress.
The Constitution doesn't say anything about limiting it to Congress. It is a power possessed by the United States, and it is in the section of Article I that discusses limitations on the United States government, not limitations on Congress.
Regards,
Cash
Cash, it is quite obvious to me that Article I is speaking of powers given to Congress, and not the Executive branch.
And, given your support of the politically motivated decisions of the Supreme Court on other threads, I assume you will remain consistent on this one. With that expectation, I review with you what the Supreme Court has said about where that particular delegated power lays:
Chief Justice Marshall, Supreme Court opinion in Ex parte Bollman and Swartwout, in 4 Cranch (8 U. S.) 95:
It may be worthy of remark, that this act [speaking of the one under which I am proceeding] was passed by the first congress of the United States, sitting under a Constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus....
If at any time, the public safety should require the suspension of the powers vested by this act in the Courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the the legislative will be expressed, this court can only see its duty, and must obey the laws.
In Ex Parte Milligan:
Has the President in time of war by his own mere will and judgement of the exigency, the power to bring before the military officers any man or woman in the land, to be there subject to trial and punishment, even to death? If the President has this awful power, whence does he derive it? From the Constitution? He can exercise no authority whatever, but that which the Constitution of the country gives him. Beyond it, he has no more power than any other citizen. Our system knows no authority beyond and above the law.
And,
The power to make the necessary laws is in Congress; the power to execute in the President . . . But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people . . . nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offenses, either of soldiers or civilians, unless in cases of controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature . . . What we do maintain is that when the nation is involved in war . . . it is within the power of Congress to determine to what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.
And Supreme Court jurist, Justice Story, in "Commentaries on the Constitution of the United States" says:
It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused, in bad times, to the worst of purposes. Hitherto, no suspension of the writ has ever been authorized by congress, since the establishment of the Constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body. --(3 Story, Comm. Const. section 1336)
And of course, the Merryman case:
With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency, or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defence in times of tumult and danger. The Government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the Amendments to the Constitution, in express terms, provides that "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....
If the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the Crown; a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.
it is quite obvious to me that Article I is speaking of powers given to Congress, and not the Executive branch.
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What seems obvious to you and what is fact are not necessarily the same thing. You should perhaps read the Constitution and see what it actually says.
Article I, Section 9 contains restrictions on the entire United States Government, not just on Congress. In addition to the habeas corpus clause being a restriction on the United States and not just on Congress we have "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." That is clearly a restriction laid on the Executive Branch, which executes the laws and thus spends most of the money expended by the United States. The Treasury Department is the office of the Government who publishes the "regular Statement and Account of the Receipts and Expenditures of all public Money." We also have "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." That is clearly a restriction on all branches of the Government, not just on the Congress.
Article I, Section 10 very clearly contains restrictions on the States, not on the Congress, and that is a part of Article I.
And, given your support of the politically motivated decisions of the Supreme Court on other threads,
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No, they were not politically motivated.
I assume you will remain consistent on this one. With that expectation, I review with you what the Supreme Court has said about where that particular delegated power lays:
Chief Justice Marshall, Supreme Court opinion in Ex parte Bollman and Swartwout, in 4 Cranch (8 U. S.) 95:
It may be worthy of remark, that this act [speaking of the one under which I am proceeding] was passed by the first congress of the United States, sitting under a Constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus....
If at any time, the public safety should require the suspension of the powers vested by this act in the Courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the the legislative will be expressed, this court can only see its duty, and must obey the laws.
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The point Marshall is making is that the decision to suspend the privilege of the writ is a political decision, not a judicial decision.
James G. Randall discusses this:
"It is true that Marshall's opinion in the Bollman case has often been cited as a sanctioning by the Supreme Court of the congressional power of suspension. In that opinion Marshall wrote: 'If . . . [Ellipses in Randall] the public safety should require the suspension . . . [Ellipses in Randall] it is for the legislature to say so.' Taney, as we have seen, cited this passage as a precedent and authority in the Merryman case. But, as the whole context shows, Marshall's meaning was: it is not for the court to say so. The question before the court was not the power of suspending the privilege of the writ, but the provision of the Judiciary Act of 1789 giving courts of the United States the power to issue the writ of habeas corpus. As to the withholding of the writ, Marshall argued that this was a political, not a judicial function. In other words, it was not within the discretion of the court to withhold the writ under the circumstances of the case. It was in this connection that the passage in question occurs, and the whole passage reads as follows:
" 'If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will is expressed, this court can only see its duty, and must obey the laws.'
"It is obvious, therefore, that neither the facts of the Bollman case nor the oft-quoted passage of Marshall's opinion have any bearing upon the controversy as to whether Congress or the President has the suspending power." [James G. Randall, _Constitutional Problems Under Lincoln,_ pp. 133-134]
In Ex Parte Milligan:
Has the President in time of war by his own mere will and judgement of the exigency, the power to bring before the military officers any man or woman in the land, to be there subject to trial and punishment, even to death? If the President has this awful power, whence does he derive it? From the Constitution? He can exercise no authority whatever, but that which the Constitution of the country gives him. Beyond it, he has no more power than any other citizen. Our system knows no authority beyond and above the law.
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You should read this more carefully, because it talks about military tribunals in areas where the courts are operating, not suspending the privilege of the writ of habeas corpus. The privilege of the writ can be suspended without resorting to military tribunals.
And,
The power to make the necessary laws is in Congress; the power to execute in the President . . . But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people . . . nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offenses, either of soldiers or civilians, unless in cases of controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature . . . What we do maintain is that when the nation is involved in war . . . it is within the power of Congress to determine to what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.
-----------------------------------
Once again, this doesn't deal with suspending the privilege of the writ of habeas corpus, so it is irrelevant to the discussion at hand.
And Supreme Court jurist, Justice Story, in "Commentaries on the Constitution of the United States" says:
It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused, in bad times, to the worst of purposes. Hitherto, no suspension of the writ has ever been authorized by congress, since the establishment of the Constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body. --(3 Story, Comm. Const. section 1336)
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The government has two major tools to use when faced with a rebellion: suspension of the privilege of the writ of habeas corpus and calling out the militia. The exigency for use of both of them is the same. So if the power to determine whether the exigency has arisen belongs to a part of the government, then that part of the government also has the power to use the tools provided to combat the rebellion.
In the Opinion of the Court he wrote for the case of Martin v. Mott, dealing with calling out the militia, Justice Story said:
"The power thus confided by Congress to the President, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union." [Martin v. Mott, 25 US 19, 29-30]
As the President is the judge of when the exigency requires the militia, so he is also the judge of when the exigency requires the use of the other tool the Constitution provides the government, suspending the privilege of the writ of habeas corpus.
And of course, the Merryman case:
With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency, or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defence in times of tumult and danger. The Government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the Amendments to the Constitution, in express terms, provides that "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....
If the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the Crown; a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.
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Of course the Merryman case is not a Supreme Court case. And Taney was being disingenuous, since habeas corpus is handled much differently in England than it is in the United States. In England Parliament has no restrictions whatsoever on suspension of the privilege of the writ. So the two situations cannot be compared fairly.
Taney in fact is contradicting himself somewhat. In an earlier Supreme Court case, Taney held:
"After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavouring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, punish as offences and crimes the acts which it before recognized, and was bound to recognize, as lawful. It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere; and it is admitted in the argument, that it was the knowledge of this decision that put an end to the armed opposition to the charter government, and prevented any further efforts to establish by force the proposed constitution. The interference of the President, therefore, by announcing his determination, was as effectual as if the militia had been assembled under his orders. And it should be equally authoritative. For certainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government; or in treating as wrongdoers or insurgents the officers of the government which the President had recognized, and was prepared to support by an armed force. In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. And this principle has been applied by the act of Congress to the sovereign States of the Union. [Luther v. Borden 48 US 1, 43-44]
Sherrill Halbert, US District Court Judge, Northern District, California, appears to agree with Randall: "For example, Judge Taney referred to the statement of Chief Justice Marshall in Ex Parte Bollman and Swartout as authority for his conclusion, but he did not point out that what he was quoting was no more than obiter dictum, and even then, all that Marshall said was that at any time that the public safety required the suspension of the powers vested by the Judiciary Act of 1789 (which gave the United States Courts the authority to issue the writ of habeas corpus), it was for Congress and not for the courts to say so." [Sherrill Halbert, "The Suspension of the Writ of Habeas Corpus by President Lincoln," _The American Journal of Legal History,_ Vol 2, 1958, p. 109] In other words, it is not for the courts to say because it is a political decision.
In discussing Taney's ruling in the Merryman case, Harold M. Hyman wrote, "It is difficult to reconcile Taney's 1861 point that Lincoln enjoyed no discretion to decide when emergency existed adequate to warrant habeas-corpus-writ-privilege suspension with his contrary emphasis in the earlier Dorr Rebellion case. Supporters of the President's policies argued that Taney had been correct in 1849 but not in 1861; that assumption of jurisdiction by any civil court in an appeal from a military arrest was doubtful according to existing standards. Yale law Professor Henry Dutton typified a library-full of similar queries in asking: 'What has a general to do with a bench warrant, and who ever heard of such an officer rendering an account of his conduct to a judge?' " [Harold M. Hyman, _A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution,_ p. 90]
Hyman continued: "It impressed onlookers that Congress, numbering excellent constitutionalists in its ranks, failed to exhibit the same concern about its alleged prerogatives in habeas corpus matters that the Chief Justice had shown, and displayed far greater philosophical resiliency than Bates. Although habeas corpus questions continued to come up frequently for discussion, for two years more Congress permitted the President to go on doing what the Chief Justice had condemned, and then, in 1863, created arrangements to supplement (not replace) those which Lincoln had worked out." [Ibid., pp. 92-93]
Judge Timothy Farrar, who had been a law partner of Daniel Websters, wrote, "Similar to this is the provision relating to the suspension of habeas corpus. The Constitution nowhere confers the privilege of this writ, or expressly authorizes its suspension. But in the ninth section, by limiting the suspension to two special cases, it clearly acknowledges that the privilege may be granted, and also suspended, under the Constitution. It does not say who may do either. This must be ascertained from other parts of the Constitution. The privilege has in fact been conferred by act of Congress, and stands on that foundation only. Is that act irrepealable? The power to grant the writ is given by law to the Judges of the Supreme Court. May that power be revoked by law, transferred to other judges of other courts, or taken away altogether? Who can hinder either? By the practice of the government, all the inferior courts may themselves be repealed and abolished by Congress. What then becomes of habeas corpus?
"If any desire had existed to restrain the plenary power of Congress over this whole subject, something would have been done very different from this negative provision regarding occasional and temporary suspension. This provision looks to something much less formidable, and much more easily circumvented than the power of Congress. It is in fact designed only as a qualification of the military power in time of war. Nothing can be inferred against this view, from its location in the ninth section, for of the seven clauses in that section, three of them certainly, and perhaps more, have no exclusive reference to the legislative department. The cases of rebellion and invasion, to which alone this suspension is restricted, are cases of internal war; and precisely the cases where the executive and military power is likely to be most active and efficient, if not alone accessible, and of course most likely to be available for a purpose like this, required for the public safety. Indeed, the existence of internal war, whether civil or foreign, necessarily carries with it all the rights of war, which is but another name for martial law, and for the time being, and within the range demanded by the public safety, according to the views of those responsible for its administration, is paramount to all other law, habeas corpus inclusive. And when the Constitution says, as it does subtantially, that in cases of rebellion and invasion, it may be suspended, it means, as it does, by similar phraseology, in some other places, that it is suspended ipso facto, so far forth as the circumstances require, in the opinion of those it has made responsible for the public safety. By law of war, martial law, you may destroy your enemy and all that he has. You may seize his goods, devastate his fields, appropriate his horses and cattle, burn his buildings, confiscate his estate, enslave his family, and kill him, and all his associates and abettors. But if you catch him alive, he may have habeas corpus against you, say your opponents, and be set at liberty by your own magistrates, to exercise again the same belligerent rights against you. If his slave comes into your possession, you must not set him at large or let him go free, but return him to his master, to be used against you for your own destruction. The whole doctrine is too preposterous to be reasoned about." [Timothy Farrar, "Adequacy of the Constitution," _The New Englander,_ Vol 21, Issue 78, January, 1862, pp. 62-63]
In an article in the _West Virginia Law Quarterly and the Bar,_ John H. Hatcher, Member of the Supreme Court of Appeals, Charleston, West Virginia, asserted that the Framers, in talking about habeas corpus, meant for it to apply only to civilian arrests. "The colonists demanded the privilege of habeas corpus as Englishmen, and it was usually accorded them, through in some instances the colonial governors were recalcitrant. 'Now and then' upon complaint by a governor that the Americans were becoming 'a factious and turbulent people, with heads turned by queer political crotchets,' the King's Privy Council would instruct the governors to suspend the writ. That was done in times of peace, was solely for purpsoes of discipline and was without legal justification. Wherefore, those suspensions were resented by the colonists. But the annals show that they acquiesced in violations of the writ in times of war." [John H. Hatcher, "Martial Law and Habeas Corpus," _West Virginia Law Quarterly and The Bar,_ Vol 46, Number 3, April, 1940, p. 190]
"[James] Wilson [in the Constitutional Convention] merely 'doubted whether in any case a suspension could be necessary, as the discretion now exists with judges, in most important cases, to keep in gaol or admit to bail.' Prisoners gaoled and subject to bail at judicial discretion were civil, not military, prisoners. The latter were ordinarily detained in prison camps, not subject to bail at all, and held or released at the discretion of the commanding officer. So it is apparent that Wilson understood the section to apply to civil arrests. This understanding was in no wise strained, because, on occasion, civil officials had been given legislative authority to disregard the writ." [Ibid., pp. 190-191]
"The framers knew that in wartime Congress could not foresee the necessity of most military arrests, and that the imperative need of quick and sometimes secret military action in such cases could not await congressional investigation. Unless it be taken that the framers were unmindful of this knowledge; unless it can be demonstrated that Rutledge, Wilson and Randolph did not speak the understanding of their follows, then the section was designed to be not an exclusive grant of all power over habeas corpus to
Congress, as the Merryman opinion holds, but a specific restriction on congressional power to have the courts suspend the writ; and the section has no bearing on the occasional or local disregard of the writ by a military commander. I submit with deference, that no opinion on this subject is 'unanswerable' which does not answer Rutledge, Wilson and Randolph.
"The Merryman opinion attempts to correlate the status of the writ under the Federal Government with that of the writ under the common and the statutory laws of England. This attempt overlooks the fact that such laws were not adopted by the Constitution and could not bind the Federal Government in any manner. The opinion deduces from commentaries on the English government that only Parliament could suspend the writ of habeas corpus in England, and reasons accordingly that only Congress could suspend it in the United States. The opinion overlooks the repeated declarations of the Constitution-makers that our situation was entirely different from that in England and that 'the British government cannot be our model.' A power may not be accredited to Congress because Parliament has it, but only if the Constituiton delegates it. Neither is congressional power expanded by the common law, for ' the United States, as a Federal Government, has no common law.' [US v. Worrall, 2 Dall. 384, 394] Pursuing the unwarranted analogy to the English government, the Merryman opinion charges that if the
President may suspend the writ, then the Constitution has conferred on him more regal and absolute powers than England had entrusted to its Crown. That charge also fails, because at the time our Constitution was formed and prior thereto even to the days of the Conqueror, the right of the Crown, as the supreme military commander, to administer martial law in time of national danger, if necessary, had been consistently recognized." [Ibid., pp. 192-193]
The power to suspend the privilege of the writ of habeas corpus is a power conferred by the Constitution on the United States Government, specifically on the political branches, which are the Executive Branch and the Legislative Branch.
Just went over this thread again for old times sake and enjoyed rereading it very much.
I also wanted to let you know that I found the book, AMERICA'S CONSTITUTION, A Biography, by Akhil Reed Amar, in my local library and am very much enjoying what I have found there.
Thanks again for all the good sites you listed about the Constitution on this thread and for helping me learn a bit more about our nation's Constitution.
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
Just went over this thread again for old times sake and enjoyed rereading it very much.
I also wanted to let you know that I found the book, AMERICA'S CONSTITUTION, A Biography, by Akhil Reed Amar, in my local library and am very much enjoying what I have found there.
Thanks again for all the good sites you listed about the Constitution on this thread and for helping me learn a bit more about our nation's Constitution.
Sincerely,
Unionblue
Neil,
I'm gratified you enjoyed it. I ordered Prof. Amar's book and am awaiting its arrival. On a recent trip I sat next to a professor on the aircraft. I was reading Alfred and Ruth Blumrosen's Slave Nation: How Slavery United the Colonies & Sparked the American Revolution and he was reading Prof. Amar's America's Constitution: A Biography. He highly recommended it, whereas I could not recommend the book I was reading. I have several of Prof. Amar's law review articles and I enjoy his writing very much.
Yes, I am enjoying the book very much, especially the first section entitled, In The Beginning, where the author makes it plain that from the very first, the Constitution made secession impossible, and ALL the states knew this for a fact.
From the book, America's Constitution: A Biography, by Akhil Reed Amar:
"The prominence of the Preamble (of the Constitution) also made it a perfect place to renounce the basic structure of the Articles (of Confederation). Although states would enter the Constitution as true sovereigns, they would not remain so after ratification. The formation of a "more perfect Union" would itself end each state's sovereign status and would prohibit future unilateral secession, in plain contrast to the decidedly less-than-perfect union under the Articles. True, the Preamble did not expressly proclaim that its new, more perfect union would be "perpetual"--and for good reason: Why borrow a word from the Articles of Confederation that did not quite mean what it said in that document, a word that was being thrust aside by the very act of constitution itself? Thus, the Constitution signaled its decisive break with the Articles' regime of state sovereignty and false federal perpetuity in other ways.
One notable Preamble word marking the metamorphosis was "Constitution." Not a "league," however firm; not a "confederacy" or a "confederation"; not a compact among "sovereign" states--all these high-profile and legally freighted words from the Articles were conspicuously absent from the Preamble and every other operative part of the Constitution. The new text proposed a fundamentally different legal framework. Henceforth America would have a written "Constitution" deriving from a continental people, unmistakably styled after earlier state prototypes, like the Massachusetts Constitution of 1780. As these state constitutions, exalted texts in confederate America, had exemplified state-based popular sovereignty under the Articles, so now a new United States Constitution--the new supreme law of the land--would ahape a new continental nation whose sovereign would be a truly continental people. Lest there be any doubt, later parts of the document precisely defined the status of "this Constitution," a self-referential phrase that appeared several more times--most importantly in Articles V and VI (the only places where the phrase popped up more than once) and in Article VII, the Preamble's matching bookend.
Article VI specified how "this Constitution," once ratified, would stack up against current and future state consitutions. For example, what should happen if the people of South Carolina, having adopted "this Constitution" in 1788, reconvened at some later time to amend their state constitution, and in that convention adopted an amendment purporting to repudiate the federal Constitution in whole or in part? In a subsequent lawsuit, which law would a state judge be obliged to follow? If the people of South Carolina were sovereign, the answer would plainly be the state constitution as amended. The sovereign people's right to alter or abolish their government at any time would remain a core attribute of their sovereignty, and their judicial agents--state judges--would be bound to enforce their will and judgments even if their amendment might be alleged by other sovereigns to violate an earlier treaty under international law. Yet the Article VI supremacy clause explicitly compelled even state judges to disregard the attempted amendment--a rule plainly inconsistent with the post-ratification sovereignty of the people of each state: "This Constitution...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Surrounding Article VI and reinforcing its plain meaning, Article VII and V conspicuously contrasted the rules for constitutional ratification withe the rules for subsequent constitutional amendment--a contrast that made it plain that the new Constitution spelled the end of state sovereignty for all states that might choose to join. As of mid-July 1788, ten states had ratified the Constitution, thereby guaranteeing that the document would go into effect in those states under Article VII. New Yorkers had yet to ratify, and Article VII made it clear that the people of that state were a distinct sovereign entity free to vote down the new Constitution and ignore it. Yet Article V put New Yorkers on clear notice: If they chose to ratify the Consitution in convention, they would lose their freedom to disregard subsequent constitutional proposals agreed to by convention of three-fourths of the states, whose ratifications would suffice to make future amendments "valid to all Intents and Purposes, as Part of this Constitution" even in nonratifying states. Nowhere was the Constition's break with the Articles of Confederation and all other purely confederate regimes more dramatic. Simply put, Article VII recognized the sovereign right (or at least the sovereign power) of different states in a flawed confederacy to go their separate ways; but Article V and VI extinguished the right and power of unilateral secession for each state populace that joined the Constitution's new, more perfect union, thereby merging itself into the continental sovereignty of the American people.
Anti-Federalists across the continent got the message and sounded the alarm. In Massachusetts, Samuel Nasson pointed to the Preamble as proof that the Constitution would effect a "perfect consolidation of the whole Union" that would "destroy" the Bay State's status as "a sovereign and independent" entity. The influential Federal Farmer warned that when a state populace "shall adopt the proposed constitution, it will be their lastand supreme act" qua sovereign. New York's Brutus complained that the Constitution would not be "a compact" among states but rather would create a "union of the people of the United States considered" as "one great body politic." Pennsylvania Anti-Federalists put forth a similar reading of the Preamble. Meanwhile, Maryland's Luther Martin advised his audience of the strongly nationalist logic of the Constitution's treason clause, which made allegiance to the United States paramount over the allegiance to a single state in the event of armed conflict between the two.
Patrick Henry, true to form, was the bluntest of all as he led the charge against the Constitution in Virginia. "The fate...of America may depend on this...Have they made a proposal of a compact between the states? If they had, this would be a confederation. It is otherwise most clearly a consolidated, national government. The question turns, sir, on that poor little thing--the expression, WE, the people, instead of the states, of America." If "the states be not the agents of this compact, it must be one great, consolidate, national government, of the people of all the states." This difference, Henry warned, would profoundly limit the rights of future Virginians to act on their own. "Suppose the people of Virginia should wish to alter their government; can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states...This government is not a Virginian, but an American government." Because the American Revolution of 1776--in which he had played no small part--had ultimately made Virginia free and independent, the proposed Consitution was "a resolution as redical as that which separated us from Great Britain."
To be continued...
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
Continued from the book, America's Constitution: A Biography, by Akhil Reed Amar:
"Even more striking than what the Constitution's friends said is what they did NOT say. No leading Federalist ever publicly sought to win over states' rightists by conceding that a state could unilaterally nullify or secede in the event it later became dissatisfied. The Federalists' silence here was deafening, given how reassuring to states' rightists such a response would have been in all the places where Philadelphia proposal hung precariously in the balance. Responding to the fears voiced by Anti-Federalist "men of little faith," Federalists stressed many specific protections, including bicameralism, separation of powers, enumerated powers, refinements in representation, the amendment process, and the states' status as building blocks in the national government. But never did Federalists float the right of an individual state to secede or nullify. Never did they say, "Give the new plan a try, and if you don't like it, your state may always leave."
Alongside what various people said and did not say in constitutional debates, we must attend to what the American people themselves did and did not do in the act of constitution itself. No state conventions, in its ratfication instrument, purported to reserve the right of its state popllace to unilateral secession. Notably, Virginia's convention spoke of the right the people of the United States, not the people of Virginia, to reassume power through future acts of popular sovereignty. Nor did any state convention impose any condition on its act of ratification.
The secession question arose most dramatically in the New York ratification convention, where Anti_Federalists held a strong majority when discussion began. At one point, Federalist Alexander Hamilton despairingly described "our chance of success here" as "infinitely slender." After extensive debate, and upon receiving word that New Hampshire and Virginia had recently ratified the Constitution as the decisive ninth and tenth states--thus ensuring that the Constitution would go into effect in these ten states--Anti-Federalist leaders proposed a compromise under which the convention would ratify the Constitution "upon condition" that the new Congress make way for certain constitutional amendments. With the ultimate prospects for New York ratification still in grave doubt, the offer tantalized Hamilton and his allies, but in the end the refused to take the bait. Instead, the Federalists insisted on replacing the words "upon condition" with language expressing the convention's "full confidence" that Congress would take up the suggested amendments--a factual expectation rather that a binding legal condition. The convention then beat back a proposal from Anti-Federalist John Lansing that "there should be reserved to the state of New York a right to withdraw herself from the Union after a certain number of years, unless the amendments proposed" were taken up. In this sharply focused debate, no one supposed that the Constitution already contained a general right of state secession. Had such a right been thought to exist, Lansing's proposal would have limited it (to "a certain number of years" and a small set of triggers) and thus states' rightists should have opposed Lansing, while continentalists should have favored him.
In actual fact, the exact opposite occurred. At the risk of alienating swing voters and losing on the ultimate ratification vote, New York's Federalists rose up to oppose the Lansing compromise. In doing so, they made clear to all observers--both in New York itself and in the many other places across the continent where men were following the New York contest with interest--that the Constitution did not permit unilateral state secession. In a letter to Hamilton, Madison had emphasized that "the Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States" (including Madison's own Virginia). Hamilton read the letter aloud to the Convention and then added his own words. The "terms of the constitution import a perpetual compact between the different states...The [Article VI] oath to be taken stands in the way" of any subsequent right of unilateral secession. According to the contemporaneous account published in New York's Daily Advertiser, both Hamilton and his fellow delegate John Jay insisted that "a reservation of a right to withdraw...was inconsistent with the Constitution, and was no ratification."
Now here seems to be documented proof that ALL the states knew when they ratified the Constitution, they knew they could not secede. That the idea that the States did NOT know they were joining to form a more perfect union and gave up the idea that they could leave by secession is simply not supportable with the evidence provided. It would take an act of rebellion, NOT a supposed quasi-legal device that existed nowhere in the Constitution.
At least, that's how I read it.
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
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