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.
__________________ "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
Neil, I would agree that all of these should be considered. A couple of points, however, to distinguish between them. The Federalist Papers, and the Anti-Federalist Papers were both merely op-eds, with all the authority of op-eds. Since some of them were written by Hamilton and Madison, they have more prominence, since they address what members of the Philadelphia Convention discussed behind closed doors and what they meant by various provisions. But, in the end, they are op-eds written by individual members of the Convention, not the Convention as a whole.
To establish a hierarchy of original sources, the proceedings of the debates in the State Conventions are obviously more authoritative than op-eds. It was the State Conventions that were empowered to consider and adopt or reject the Constitution.
In addition, anti-Federalists were the ones asserting that the Federal Government would be allowed to exercise powers other than those enumerated in the Constitution, and for this reason, they opposed ratification. No advocate of the Constitution that I have read, was recommending the Constitution on the basis of the view that the Federal Government would be able to exercise unenumerated powers, implied powers, constructive powers, etc. All of the advocates of ratification stated clearly that the Federal government would not be able to exercise any powers but those enumerated in the Constitution. So, in quoting the period, it is important not only to note what someone said, but what he wanted to do based on that view.
Respectfully,
John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
I fully agree that the sources I have listed are, as you term them, op-eds. Op-eds with the desired purpose and hope of molding public opinion, with the hope of swaying those people that would be involved in those state conventions. With the added hope that those individuals would convert other individuals to those goals, thereby influencing a majority of those individuals and the convention as a whole.
They reflect concerns and issues and were widely read and did have an impact on the conventions, a very real impact, and should be considered along with any historical proceedings presented at the conventions.
One cannot have too much history or sources.
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
I fully agree that the sources I have listed are, as you term them, op-eds. Op-eds with the desired purpose and hope of molding public opinion, with the hope of swaying those people that would be involved in those state conventions. With the added hope that those individuals would convert other individuals to those goals, thereby influencing a majority of those individuals and the convention as a whole.
They reflect concerns and issues and were widely read and did have an impact on the conventions, a very real impact, and should be considered along with any historical proceedings presented at the conventions.
One cannot have too much history or sources.
Sincerely,
Unionblue
Neil, we are in agreement on this. I am also preparing a comment on Amar's bit, which I will post later.
This thread is why I was less prolific in posting over the last few days. I have to admit I am a little surprised that no one else has responded. Do you reckon that the material posted (and my observations on it) is just so conclusive and brilliantly argued as to be unanswerable?
Respectfully,
John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
I am always of the opinion that what you post is brillant and deserves to be answered in the same manner.
My view on why no one else has posted here is because you have not made it clear as to what you hope to accomplish here by posting all of this brillant material.
Either that or everybody else is on vacation!
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
"I have to admit I am a little surprised that no one else has responded. Do you reckon that the material posted (and my observations on it) is just so conclusive and brilliantly argued as to be unanswerable?" I view enumerated powers as historical fact which, as you say, was not even debated at the time. Of course, how much and what should be enumerated is oft debated, but that's a different subject.
Perhaps the lack of response is that there's nothing of substance in opposition to your posts; nothing to spark discussion. I'm just hoping that Tim reads your posts. ;-)
FWIW, I've always referred to this as part of constitutional structure; i.e. the way in which the document was constructed. I believe, and I think the historical record agrees, that the 10th Amend. merely reiterates this constitutional structure.
From Amar: “Thus, the Constitution signaled its decisive break with the Articles' regime of state sovereignty and false federal perpetuity in other ways.” Amar acknowledges that the AoC were not perpetual, the declaration of perpetuity being a goal, an ideal, not a provision. Article VII of the Constitution makes that much clear. As for ending State sovereignty, James Monroe, in the Virginia Convention talked of the “division of sovereignty between the national and state governments” in the new system. States were sovereign over the areas reserved to the States, the Federal government was sovereign over those powers which were its exclusive jurisdiction (e.g. the treaty-making power), and they shared sovereignty in those areas of concurrent jurisdiction. And it seem that Dr. Amar is a little confused on the definition of a confederation, and how it contrasts with a Union under a Constitution. The Founders defined it most commonly in terms of how it interacted with the parts. In a Confederation, in which each constituent part retained its complete sovereignty, the Union operated only on the constituent members. A Union, such as that envisioned by the Constitution would operate, in some instances, directly on the people of the constituent member republics. That was the difference the Founder noted. As far as revocability of the powers delegated by the people of the States, they did not differentiate the Union from a Confederacy in such terms. One notable Preamble word marking the metamorphosis was "Constitution." …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 popoed up more than once) and in Article VII, the Preamble's matching bookend. The preamble addresses the purposes of the Constitution. It was intended to “to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity.” The introduction of the words “this Constitution” is no more significant than the inclusion of the word “liberty” or the word “welfare.” It is the name of the document. 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."
Dr. Amar seems to be falling into confusion common to unconditional unionists. He seems to be confusing the Constitution with the Federal government. The Constitution is supreme, and so is the Federal Government, but only within the bounds the people of the States put on it. Within the bounds emplaced on it, Constitution is supreme, because it rests on the will of the people, as expressed in their several State Conventions. If a State law violates the Constitution, then State judges are obliged to overturn it, because the people of that State have said so. But if the Federal Government exceeds its enumerated powers, a Federal judge is obliged to overturn its acts as well, and for the same reason: because the people have said so. If the people of Kansas and Nebraska get together and decide to make Neil the supreme ruler of Kansas, and he decides to remodel Topeka, he is within his bounds. If he says that he wants to remodel Omaha, then the people have the right to say, “You were made supreme, but only within Kansas. Omaha is not within Kansas, therefore, you cannot do this.” If Neil responds that they have declared him supreme, and therefore he gets to say what is the definition of Kansas, and what is Nebraska, the people can rightfully say, “We made you supreme, but only within these boundaries.” Going back to the Constitution, the people very clearly stated that the Federal government was limited to those powers enumerated in Constitution. Within those boundaries, the Federal Government is supreme. When the Federal government operates outside of the limits the people of the States placed on it, it is violating the Constitution, every bit as much as when a State attempts to exercise a power that the people of the States have prohibited to the State governments (e.g. enter into a treaty, pass a bill of attainder, or grant a title of nobility.). But there is an asymmetrical relationship here. Federal powers, to be legitimate, must be specifically delegated. State powers, to be legitimate, must not be forbidden. To draw an analogy, if all potential government powers were represented by a pie, through the agency of the Constitution, the people cut a slice and gave certain powers to the Federal government. They cut a slice, and denied certain powers to the States (e.g. grant titles of nobility), the rest of the pie, they left to the State governments or to themselves. …Yet Article V put New Yorkers on clear notice: If they chose to ratify the Constitution in convention, they would lose their freedom to disregard subsequent constitutional proposals agreed to by conventions 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 non ratifying states. … 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 Articles 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. Unfortunately, Dr. Amar decided not to include a footnote showing us the source for this rather bold assertion. In Massachusetts, on January 16th, Dr. Jarvis said, “He considered the Constitution as an elective democracy, in which the sovereignty still rested in the people.” The merging of sovereignty Amar spoke of was for certain, specified, enumerated powers, not in an unlimited sense. Articles V and VI merely show that, as long as a member State remained in the Union, it would have to abide by the Constitution, and any amendments to it. It says absolutely nothing about whether the people of a State retained the power to recall powers they had delegated to the Federal government. This is a Topeka-Omaha situation. 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. And advocates of ratification were quick to deny the allegation. The Federal government was expressly not a consolidation. On January 17th, 1788, in Massachusetts, Judge Dana retorted, “if the Constitution under consideration was in fact what its opposers had often called it, a consolidation of the states, he should readily agree with that gentleman that the representation of the people was much too small; but this was a charge brought against it without any foundation in truth. So far from it, that it must be apparent to every one, that the federal government springs out of, and can alone be brought into existence by, the state governments. Demolish the latter, and there is an end of the former.” (Elliot’s Debates, vol. II). The influential Federal Farmer warned that when a state populace "shall adopt the proposed constitution, it will be their last and 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." And every time an Anti-Federalist brought up this critique of the Constitution, advocates of ratification refuted it. In the Pennsylvania Convention on December 1, 1787, Mr. Wilson declared, “My position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare. … The plan before us is not a consolidatedgovernment, as I showed on a former day, and may, if necessary, show ****her on some future occasion. On the other hand, if it is meant that the general government will take from the state governments their power in some particulars, it is confessed, and evident, that this will be its operation and effect. (Elliot’s Debates, vol. II). In North Carolina, Mr. MacLaine said, “It has been urged that it has a tendency to a consolidation. On the contrary, it appears that the state legislatures must exist in full force, otherwise the general government cannot exist itself. A consolidated government would never secure the happiness of the people of this country. It would be the interest of the people of the United States to keep the general and individual governments as separate and distinct as possible.” (Elliot’s Debates, vol. IV, pg. 50.) Also in North Carolina, Mr. Davie said, “If there were any seeds in this Constitution which might, one day, produce a consolidation, it would, sir, with me, be an insuperable objection, I am so perfectly convinced that so extensive a country as this can never be managed by one consolidated government.” (Elliot’s Debates, vol. IV). In Virginia, Madison said, “With respect to converting the confederation to a complete consolidation, I think no such consequence will follow from the Constitution, and that, with more attention, we shall see that he is mistaken.” Elliot’s Debates, vol. III) Thus, it would seem that the advocates of the Constitution took great pains to assure others that this was emphatically not a consolidated government. To use Anti-Federalist assertions that it was is a little disingenuous on the part of Dr. Amar because Anti-Federalists, by definition, were opposed to ratification of this Constitution. In response, the Federalists refined their critics' terminology while confirming that the new union would indeed be indivisible. Unfortunately, once again, Dr. Amar denies us the benefit of his sources of this assertion. In fact, the Union under the Constitution was no more indivisible than the Articles of Confederation were perpetual. The Constitution, Federalists stressed, hardly annihilated the states or melted thirteen peoples into one mass for all purposes. … Thus the new Constitution was not wholly national but partly federal, argued the Constitution's supporters, who cleverly called themselves "Federalists" rather that "Nationalists."But restriction of the Federal powers to those enumerated and delegated to it was a key aspect of the Federalist case. The Federalists assured those unconvinced that the Federal Government could not exercise any powers except those specifically delegated to it. But on the fateful question of whether states would continue to be truly sovereign, with rights of unilateral exit, the Federalists agreed that the Anti-Federalists had not exaggerated. The difference of opinion on this question was not over what the document meant, but over whether the impermissibility of future secession was reason to commend or condemn the proposed "more perfect Union." Madison at Philadelphia stressed that one of the essential differences between a "league" and a "Constitution" was that the latter would prevent subunits from unilaterally bolting whenever they became dissatisfied."
Here, Dr. Amar is being a little sloppy. Madison’s notes in his piece entitled “Vices,” shows that the violation of a provision of a treaty or league would free members of it from further obligation to honor it. Madison’s words in May 1787, (so he is referring to the AoC, not the soon-to-be drafted Constitution), “2. As far as the union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of the Confederation by any of the parties to it, absolves the other parties from their respective Obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.” So here, Madison is merely observing that in a “league of sovereign powers,” a breach by one member of one article frees other members of their obligations, and gives them the right to dissolve the Union altogether. This does not say what happens in a Union under a Constitution when one member refuses to comply with its provisions (as in the case Kentucky vs. Dennison), or when the party to whom powers are delegated refuses to respect the limits that the delegators placed on the delegated powers (any number of a series of Federal usurpations complained of). Respectfully, John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
I agree with most of your thoughts on Amar's book. I only read the parts regarding secession, but came away unpersuaded. His lack of authority is notable.
__________________ "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
I tried to raise this before, probably not well, but let me try again.
It seems to me that one implication of your argument is that the States are no more sacrosanct than than the Union. The People, at least in theory, formed the States; the People through the States then formed the Union. Why can not, say, the People of New York City, meet in convention tomorrow and vote to form their own State, or their own Republic, separate from both the State and the Union?
It is no answer, I think, to say that they cannot do so because New York City is a creature of the State of New York -- which is just another way of saying (I think) that the City lacks sovereignty. The issue is not whether the City has sovereignty, but whether the People of the City have sovereignty -- and are the People not always sovereign?
Put yet another way -- for I fear I'm not expressing myself well -- you argue (apologies if I'm misconstruing) that the People never gave up the right, on a state-by-state basis, to reassert their sovereignty to extent of walking away from the federal constitution. But by similar logic, it seems to me, any group of the People -- a town, a county, a region -- would have the same right to walk away from the federal and/or state government. I don't understand why the State is the irreducible unit of sovereignty (or maybe you're not saying that).
If you think about it, the issue is not entirely theoretical, although NYC may not be the best example. It's not so far fetched to imagine at some point the People of the San Francisco-Oakland-Berkeley area voting to establish an independent pacifist-socialist-gay-green republic (or whatever), thereby severing all ties with the hated fascist Red States; or the southern portions of Arizona and California forming the independent republic of Mexifornia. Could they do so?
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