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Book Review A Brief Enquiry into the True Nature and Character of our Federal Government by Abel Upshur

Discussion in 'Book & Movie Review Tent' started by Andersonh1, Apr 13, 2018.

  1. Andersonh1

    Andersonh1 Captain

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    This review will be in multiple parts. Abel Upshur's book has come up several times in discussion, and Joseph Story's book is certainly referenced, so even though I've read most of it, I thought it would be useful to go back through "A brief enquiry" once again, because there's a lot of good information in it.

    A Brief Enquiry into the True Nature and Character of our Federal Government: being a review of Judge Story's Commentaries on the Constitution of the United States

    by "A Virginian" Abel Upshur, 1840

    Part 1 - the Introduction and Foundations

    Just to give some background information on the author of this book, Abel Parker Upshur lived from 1790 to 1844. He was from Virginia, and over the course of his life was a lawyer, judge and politician. In addition to Virginia state politics, he was Secretary of the Navy and Secretary of State for President John Tyler. He played a key role in the annexation of Texas, though he did not live to see that state enter the Union, being killed on February 28, 1844 by a gun explosion aboard the USS Princeton. Upshur was an advocate for states' rights and nullification. He was not a historian by profession, but he put his legal, analytical methods to work to write an argument which depends on the facts of history. In the introduction to this book, he states the following:

    My conclusions are drawn from the authentic information of history, and from a train of reasoning, which will occur to every mind, on the facts which history discloses. My object will be answered, if even the few by whom these pages will probably be read shall be induced to re-examine, with a sincere desire after truth, the great principles upon which political parties in our country were once divided, but which there is much reason to fear are no longer respected, even if they be not wholly forgotten.
    Upshur is essentially writing a rebuttal to an earlier treatise on the Constitution written by Joseph Story, an influential lawyer and Supreme Court Justice. Story was a prolific and successful author, and his work was and is highly respected, so Upshur took on a pretty major task in attempting to rebut some of Story's arguments. At 132 pages, this is not a long book, and will not demand hours of your time if you choose to read it.

    Upshur begins the book with a brief discussion of Story's commentaries, and then notes that there had been a general demand for "work presenting a proper analysis and correct views of the Constitution of the United States" and that while there had been a number of such works in the previous 15 years, most were not worth reading. A few were, however, "of a much higher order, and bearing the stamp of talent, learning and research." among which were the works of Chief Justice Kent, and the work under consideration, that of Joseph Story. In other words, commentaries on the Constitution was a crowded field of which only a few were worth reading. Upshur admits the expertise of the authors carries a lot of weight, but he hopes the reason and argument which he employs can be a counterweight. Upshur also notes that the Federalist is the first and best commentary on the Constitution, but that when those essays were written, the Constitution was a theory, and much had developed since it had been put into operation which the authors could not have forseen.

    The Constitution is much better understood at this day than it was at the time of its adoption. This is not true of the great principles of civil and political liberty, which lie at the foundation of that instrument ; but it is emphatically true of some of its provisions, which were considered at the time as comparatively unimportant, or so plain as not to be misunderstood, but which have been shown, by subsequent events, to be pregnant with the greatest difficulties, and to exert the most important influence upon the whole character of the government. Contemporary expositions of the Constitution, therefore, although they should be received as authority in some cases, and may enlighten our judgments in most others, cannot be regarded as safe guides, by the expounder of that instrument at this day. The subject demands our attention now as strongly as it did before the Federalist was written. (p 7)​

    Upshur freely admits Story's expertise, drawn from much practical experience with Constitutional questions as a Supreme Court justice, and praises his reputation for "laborious research" and "calm and temperate thinking", so Upshur is fully aware of the high standard of work which he is challenging. Consequently, he also intends to be "judicious" and to carefully set out his case for the reader.

    Upshur divides his book into three sections, which he describes for the reader:
    - "the charters, constitutional history, and anti-revolutionary jurisprudence of the colonies"
    - "the constitutional history of the states, during the revolution, and the rise, progress, decline and fall of the confederation."
    - "the history of the rise and adoption of the Constitution, and a full exposition of all its provisions, with the reasons on which they were respectively founded, the objections by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government"

    Historical fact will be foundational to Upshur's arguments, though as the examination of history begins, Upshur also expresses some philosophical views about the importance of the colonization of North America. "There is not, within the whole range of history, an event more important, with reference to its effects upon the world at large, than the settlement of the American colonies." - p 8 Upshur goes on to again compliment Story on the facts he brought ot the table, while wishing he had broadened the scope of his work. Upshur bemoans the same thing that we often find today: two people look at the same set of facts and come away with different conclusions.
     

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  3. Andersonh1

    Andersonh1 Captain

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    Part 2

    The critique begins with Upshur's observation that Story attempts to "impress on the mind of the reader" from the very start that the people of the colonies were "one people", an assertion that Upshur disputes. Upshur faults Story for using the relation of the colonists with the mother country to imply oneness, rather than examining the relations between the colonies themselves. Upshur asserts that if simply being British subjects makes all those who are such into one people,

    "... the people of Jamaica, the British East Indian possessions and the Canadas are, for the very same reason, "one people" at this day. If a common allegiance to a common sovereign, and a common subordination to his jurisdiction, are sufficient to make the people of different countries "one people," it is not perceived (with all deference to Mr. Chief Justice Jay) why the people of Gaul, Britain and Spain might not have been "one people," while Roman provinces, notwithstanding "the patriots" did not say so. - p 13​

    Then Upshur cuts to the heart of the issue. Story must establish the people of the colonies as one people, because his goal is to portray the United States as consolidated.

    The great effort of the author, throughout his entire work, is to establish the doctrine, that the Constitution of the United States is a government of " the people of the United States," as contradistinguished from the people of the several slates ; or, in other words, that it is a consolidated, and not a federative system. His construction of every contested federal power depends mainly upon this distinction ; and hence the necessity of establishing a one-ness among the people of the several colonies, prior to the revolution. ​

    But Upshur is not satisfied with the thin argument that Story has presented.

    In order to constitute " one people," in a political sense, of the inhabitants of different countries, something more is necessary than that they should owe a common allegiance to a common sovereign. Neither is it sufficient that, in some particulars, they are bound alike, by laws which that sovereign may prescribe ; nor does the question depend on geographical relations.
    -------------------
    ... the people of the American colonies were, in no conceivable sense, " one people." They owed, indeed, allegiance to the British king, as the head of each colonial overnment, and as forming a part thereof; but this allegiance was exclusive, in each colony, to its own government, and, consequently, to the king as the head thereof, and was not a common allegiance of the people of the colonies, to a common head.*
    -------------------
    The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, rio common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence ; they had no light to vote in its elections ; no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever ; they were not known as " one people" in any one function of government. Although they were all, alike, dependencies of the British" crown, yet, even in the action of the parent country, in regard to them, they were recognized as separate and distinct. They were established at different times, and each under an authority from, the crown, which applied to itself alone.
    Upshur goes on, using the history of Virginia as an example, to further make his case that the people of the 13 colonies could not be considered "one people". He also sets for a hypothetical, that if one of the colonies had refused to unite with the others in the declaration of independence, what relation would it have with the others?

    Could the other colonies have rightfully compelled it to unite with them in their revolutionary purposes, on the ground that it was part and parcel of the " one people," known as the people of the colonies ? No such right was ever claimed, or dreamed of, and it will scarcely be contended for now, in the face of the known history of the time. Such recusant colony would have stood precisely as did the Canadas, and every other part of the British empire.
    Upshur contends that Story, having made the claim that the people of the 13 colonies were one people, has utterly failed to support that assertion, and that the facts and logic will show that they were not one people. Story expects people to simply accept what he says based on his reputation, Upshur accuses. But Story also contradicts himself, but noting that the colonies, while having a common allegiance, "had no direct political connection with each other." Each was independent of the others, and there was no alliance or confederacy between them. Story disproves his own assertion of oneness by the very language he uses.

    But, Upshur tells his readers, Story's belief that the colonies and then states composed one people pervades his work. The way he phrases the history is full of language that conveys "the people" as one group. Upshur again tackles an assertion by Story, that the first congress was "a general or national government", organized by "the people". Story is quoted as saying "from the moment of the declaration of independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto, &c"

    Needless to say, Upshur disagrees. He goes back to 1765 when a congress met in New York to petition a redress of grievances. Things got worse, and a Congress met in 1774, but while some states sent delegates, others did not, and some only represented part of their state. This congress was "a deliberative and advisory body, and nothing more (p 20)." Upshur offers some extracts from the journal of Congress and from the credentials of that congress to support his assertion.

    All the colonies did not unite in the appointment, neither as colonies nor by any portion of their people acting in their primary assemblies, as has already been shown. The colonies were not independent, and had not even resolved to declare themselves so at any future time. On the contrary, they were extremely desirous to preserve and continue their connexion with the parent country, and congress was charged with the duty of devising such measures as would enable them to do so, without involving a surrender of their rights as British subjects. It is equally clear that the powers, with which congress was clothed, did not flow from, nor constitute "one people," or "nation de facto," and that that body was not "a general or national government," nor a government of any kind whatever. The existence of such government was absolutely inconsistent with the allegiance which the colonies still acknowledged to the British crown.​

    This Congress passed resolutions, not laws. It recommended, but did not command. Any act to establish a government would have been an act of rebellion. The Congress of 1775 still hoped for reconcililation with Great Britain, and it was not until 1776 that independence was declared, and the colonies declared states. And even then, the Congress did not have the authority to do what it did, nor were all the members in complete agreement.

    There was no original grant of powers to that body, except for deliberation and advisement ; there was no constitution, no law, no agreement, to which they could refer, in order to ascertain the extent of their powers. The members did not all act under the same instructions, nor with the same extent of authority. The different states gave different instructions, each according to its own views of right and policy, and without reference to any general scheme to which they were all bound to conform. Congress had in fact no power of government at all, nor had it that character of permanency which is implied in the idea of government. It could not pass an obligatory law, nor devise an obligatory sanction, by virtue of any inherent power in itself. It was, as already remarked, precisely the same body after the declaration of independence as before.​

    Upshur has spent a lot of time laying out facts to contradict both "one people" and "a government" that Story is quoted as saying in his book. And he goes on to pick apart the claim with more facts that support his point that it was the people of the several states individually directing events as they saw fit, not one body of people as a whole. It's clear from the amount of time he spends on this topic that he considers this one of Story's foundational arguments on which so many others are built, so he wants to thoroughly discredit it. Congress had no power to coerce the state governments, and sometimes Congress would do something such as lay an embargo that was not allowed or enforced by the states. Upshur goes through page after page of examples demonstrating that the Congress was not in any real sense a national government.
     
  4. Andersonh1

    Andersonh1 Captain

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    Part 3

    Upshur then moves on to a point where Story appeals to a judicial decision to prove national authority coming "from the people". "There is in this passage a great want of accuracy, and perhaps some want of candor," Upshur contends. Story does not cite the case he quotes, but Upshur believes it to be "the case of Penhallow and others against Doane's administrators. (3 Dallas' Reports, 54.)" and goes on to cite the case that congress had "assumed" powers, and the states agreed due to the necessity of the moment.

    The authority exercised by congress, in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up the commissions and bonds, and returned the latter to congress." This approval and ratification alone rendered, in his opinion, the exercise of this, and other similar powers assumed by congress, legitimate.

    Judge Iredell, in delivering his opinion, goes much more fully into the examination of the powers of the revolutionary government. He thinks that, as the power of peace and war was entrusted to congress, they held, as a necessary incident, the power to establish prize courts ; and that whatever powers they did in fact exercise, were acquiesced in and consented to, and, consequently, legitimated and confirmed. But he leaves no room to doubt as to the source whence this confirmation was derived. After proving that the several colonies were, to all intents and purposes, separate and distinct, and that they did not form " one people" in any sense of the term, he says, " If congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shown, derived from the people of each province, in the first instance." " The authority was not possessed by congress, unless given by all the states." "I conclude, therefore, that every particle of authority, which originally resided either in congress or in any branch of the state governments, was derived from the people who were permanent inhabitants of each province, in the first instance, and afterwards became citizens of each state ; that this authority was conveyed by each body politic separately, and not by all the people in the several provinces or slates jointly."

    No language could be stronger than this, to disaffirm the author's conclusion, that the powers exercised by congress were exercised " by the consent of the people of the United States.'" Certainly, Iredell did not think so. - pp 35-36​

    The next argument that Upshur tackles is that the Declaration of independence made the people of the colonies one people. Upshur quotes a long passage from Story in which Story out and out asserts that the Declaration was an act of all the people, acting as one, and that the state governments could not have done it. Upshur argues that it takes more than two sovereign bodies acting jointly to make their citizens "one people". Upshur in fact states that Story is moving the goalposts here.

    That fact, alone, is necessary to be enquired into ; and until that fact is ascertained, the author's reasoning as to the effect of the declaration of independence, in making them " one people," does not apply. He is obliged, therefore, to abandon the ground previously

    taken, to wit, that the colonies were one people before the declaration of independence. And having abandoned it, he places the colonies, as to this question, upon the footing of any other separate and distinct nations ; and, as to these, it is quite evident that the conclusion which he has drawn, in the case of the colonies, could not be correct, unless it would be equally correct in the case of Spain, Naples and Holland, above supposed.

    The mere fact, then, that the colonies united in the declaration of independence, did not necessarily make them one people. But it may be said that this fact ought, at least, to be received as proof that they considered themselves as one people already. The argument is fair, and I freely let it go for what it is worth.​

    Upshur here spends some time discussing the language of the Declaration of Independence.

    Their declaration was simply their joint expression of their separate wills; each expressing its own will, and not that of any other ; each bound by its own act, and not responsible for the act of any other. If the colonies had severally declared their independence through their own legislatures, and had afterwards agreed to unite their forces together, to make a common cause of their contest, and to submit their common interests to the management of a common council chosen by themselves, wherein would their situation have been different !​
     
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  5. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    In the 1820-30s there were several nationalist and States Rights type publications. There was a debate over which theory would predominate. It was the nationalist theory won the battle of ideas. The one people is the theory that won out starting with Chisholm v. Georgia SCOTUS decision in 1793 uninterrupted throughout the antebellum period.
     
  6. matthew mckeon

    matthew mckeon Brigadier General Moderator

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    Interesting thread.
     
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  7. Andersonh1

    Andersonh1 Captain

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    Part 4
    Upshur proceeds to criticize Story for ignoring that the colonies "had established separate governments for themselves prior to the declaration of independence". (p 42) Story still believes that Congress is driving the independence process, where Upshur believes it was the colonies driving it. Upshur cites Elliot's debates, and notes that Congress could "recommend" but not exercise control. The discussion turns to sovereignty, with Upshur coming down firmly on the side of the colony/state governments as the sovereign power at the time. "In effect, therefore, many of the colonies had declared their independence prior to the 4th July 1776; they had commenced the revolution and were considered by England as in a state of rebellion." (p 43) The Declaration of Independence, Upshur tells the reader, was an affirmation of what had already been done. Upshur offers more documents from the time period here as evidence, including material from the Journals of the Convention, so he's still appealing to primary and secondary sources.

    Returning to the question of the colonies being separate, he states this bit of political theory important to his arguments:

    The sovereignty over them was in the British crown ; but that sovereignty was not jointly over all, but separately over each, and might have been abandoned as to some, and retained as to others. The declaration of independence broke this connexion. By that act, and not by the subsequent recognition of their independence, the colonies became free states. What then became of the sovereignty of which we speak ? It could not be in abeyance ; the moment it was lost by the British crown it must have vested somewhere else. Doubtless it vested in the states themselves. But, as they were separate and distinct as colonies, the sovereignty over one could not vest, either in whole or in part, in any other. Each took to itself that sovereignty which applied to itself, and for which alone it had contended with the British crown, to wit, the sovereignty over itself. Thus each colony became a free and sovereign state.​

    Upshur uses the language of treaties as another piece of evidence, and maintains that when the United States is referred to as such, or if the states are named, it amounts to the same thing and that foreign governments considered that they were treating with separate sovereignties through a common agent. He brings up the treaty of Paris as part of this argument. This is an argument based on language and semantics, and he does not go much beyond that in this portion of the book. He then accuses Story of being unable to precisely pin down just when the states transferred sovereignty to Congress for the purposes of making them "one people", and then Upshur says that after 1781, the Articles of Confederation leave no doubt where sovereignty lay:

    .... there is no room for doubt on the subject, after the final ratification of the articles of confederation in that year. Those articles declare that 'ieach state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not, by this confederation, expressly delegated to the United States, in congress assembled." The obvious construction of this clause requires that -we should apply these latter words, only to " powers, jurisdiction and rights ;" some of which, as enjoyed by the states under the previous government, were clearly surrendered by the articles of confederation. But their entire sovereignty, their entire freedom, and their entire independence, are reserved, for these are not partible (p 47)
    ------------
    There is much force and meaning in the word " retains," as it occurs in the clause above quoted. Nothing can properly be said to be retained, which was not possessed before. (p 48)
    --------------
    If these views of the subject be not wholly deceptive, our author has hazarded, without due caution, the opinion that the colonies formed " one people," either before or after the declaration of independence ; and that they are not to be regarded as sovereign states, after that event. For myself, I profess my utter inability to perceive, in their condition, any nearer approach to political personality or individuality," than may be found in a mere league or confederation between sovereign and independent states; and a very loose confederation theirs undoubtedly was. (p 48)
    This concludes this portion of Upshur's arguments against Story, and he moves on to the adoption of the Constitution next, which I'll summarize in the next part of this review. For the most part, Upshur makes a convincing case that the colonies should be considered separate political entities during the colonial and revolutionary periods, though I think he could have delved into more cultural evidence if he really wanted to make his case. But then he is answering specific points brought up by Judge Story, so perhaps he's just confining himself to answering those rather than going further afield.
     
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  8. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    We have a congress of representatives of colonies, some representatives from legislatures, some representatives from rebel committee, and &c. Some colonies were occupied, most are disputed. We have this congress that creates States in 1776. So Upshur is not exactly correct. The colonies most assuredly were not sovereign entities. A political entity that can be a committee or occupied colony not much of a political entity. The sovereignty of the AOC members was never tested. The AOC members had no existence outside of continental congresses and exactly what was meant by "each state retains its sovereignty, freedom, and independence," outside of mere political rhetoric is not known.
     
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  9. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    Let's take a look at the DOI. Emphasis mine

    When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
    One people, not 13 peoples create the States. IMHO sinks Upshure irretrievably
     
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  10. Andersonh1

    Andersonh1 Captain

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    What is the evidence that the Congress created the states? The Congress simply provided the forum where the colonies could jointly express their declaration that they were now states and no longer dependent colonies. Congress did not make them do this, and I don't see how they could have made them change their status.

    Just to go back to one of Upshur's arguments, suppose Georgia had wanted to remain a colony under the rule of Great Britain and not join the other colonies in declaring independence. Could Congress in 1776 declare them to be a state, or force them to assume that status? How?

    No, the idea that the colonies/states drove the move towards independence, rather than Congress, is sound.

    And from the Declaration of Independence, the source of Congress's power is identified as: by Authority of the good People of these Colonies
     
    Last edited: Apr 16, 2018
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  11. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    The DOI

    Really, now your turn to prove this.

    Actually happened. The rebel representatives in the Contential Congress got States and the loyalists got the shaft. Was there a popular vote in any State for independence?

    In reality, the future State of Georgia's unelected representatives to the Continental Congress got to declare Georgia to be a State. Most of the inhabitants of GA were Creek Indians who did not want independence and paid dearly for the presumption of the white representatives in Congress.

    Upshur gets hoisted by his own petard.
     
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  12. Andersonh1

    Andersonh1 Captain

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    One rhetorical phrase, used to distinguish the people in the colonies from the people in Great Britain, does not counter all the facts. And consider these examples of plural phrasing from the DOI:

    Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

    -------

    The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. (note the wording: "these States", not "this nation")

    ----------

    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners;

    ----------

    For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

    For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

    -----------

    We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States (again, note, not "a free and independent nation", singular), that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
    Taken as a whole, the Declaration of Independence is full of the notion that the colonies/states, while united in their grievances and united against Great Britain, are nevertheless separate entities, who each have the FULL power "to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."
     
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  13. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    Story's view and Upshur et.al's views that were part of a political debate. Upshur et.al lost that debate.
     
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  14. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    One People, the American People created the States, not 13 peoples.
     
  15. Andersonh1

    Andersonh1 Captain

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    That we can agree on.
     
  16. Andersonh1

    Andersonh1 Captain

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    Part 5

    Upshur moves into critiquing Story's history of the adoption of the Constitution. He praises Story's research and "industry" in putting forth facts that help in understanding the Constitution. But he then goes on to note that Story bases many of his arguments on the authority of the supreme court, which Upshur rightly points out is "reiterating his own judicial decisions." In other words, Story is often his own source, which is a "great defect in a work of this sort".

    The reader who, with this book as his guide, undertakes to acquaint himself with the Constitution of the United States, must take the authority of the author as conclusive, in most cases ; or else he will often find himself perplexed to discover the sources from which he derives his information. (p 49)​

    Story owed it to his readers to source his work, Upshur insists.

    Here is where Upshur's attempts to counter Story's "one people" become important, because as I noted earlier, Story goes on to build arguments for the remainder of the book on this premise. It's a case of accept the premise, accept the argument, but if the premise is faulty, the argument that follows will also be faulty. "If this fundamental position [is] wrong," Upshur cautions, "that instrument is not, in many of its provisions, what he represents it to be. The reader, therefore, should settle this question for himself in the outset."

    Upshur tackles the "we the people" language in the preamble, which Upshur states, for a number of reasons, is of no value in settle the "one people" question. He notes that it originally listed all the states by name, and was unanimously adopted in that form at the convention, as noted in Elliot's debates. It "preserves the distinct sovereignty of the states" and discounts consolidation. The committee on style (which could not change the meaning of any passage) revised it to the final "We the people" phrasing. Upshur makes a few assumptions here, with the implication that the convention who voted on the revised wording did not see it as substantially different. The reason for the change in wording, if not meaning, was that it was not known which states would adopt the new Constitution, and it would be "improper" to name parties in the document who had not ratified it. Upshur believes that Story placed far too much importance on the preamble in constructing his arguments.

    Upshur restates his earlier arguments here, that at all times the people of the colonies and then states "jealously preserved" their character as distinct and sovereign states, and that they remained as they formed the "present Constitution". In discussing the need for a convention to reform the government, each delegate reported to both their respective legislatures and to Congress. In Congress's resolution, they explicitly said that the convention had "been appointed by the several states" not by the people. Congress and the states had to agree to any changes, not the people. Upshur appeals to the official language of Congress to help make his case.

    Accordingly, delegates were, in point of fact, appointed by the states ; those delegates did, in point of fact, report to congress and the states ; and congress did, in point of fact, approve, and the states did, in point of fact, adopt, ratify and confirm the constitution which they formed. No other agency than that of the states as such, and of congress, which was strictly the representative of the states, is to be discerned in any part of this whole proceeding. ! We may well ask, therefore, from what unknown source our author [Story] derives the idea, that the constitution was formed by " the people of the United States," since the history of the transaction, even as he has himself detailed it, proves that ''the people of the United States" did not appoint delegates to the convention, were not represented in that body, and did not adopt and confirm its act as their own ! (p 55)​

    Upshur asserts that at this time there were no such people as "the people of the United States", and he goes through a number of powers that the states had, and how they voted in Congress under the Articles of Confederation, and notes the lack of a president. The United States at this time was a "league between independent sovereignties" and not a single nation. He discusses citizenship. He discusses the power of states to change the national government, and he asks "what authority was there, superior to the states, which could undo their work?"

    There was, then, no power superior to the power of the states ; and, consequently, there was no power which could alter or abolish the government which they had established. If the Constitution has superseded the articles of confederation, it is because the parties to those articles have agreed that it should be so. If they have not so agreed, there is no such Constitution, and the articles of confederation are still the only political tie among the states. We need not, however, look beyond the attestation of the Constitution itself, for full evidence upon this point. It professes to have been " done by the unanimous consent of the states present, &c," and not in the name or by the authority of " the people of the United States." (p 59)​

    The constitution was obligatory only when "agreed to in congress and confirmed by the states", which Upshur says is in conformity with the Articles of Confederation. Congress approved the Constitution, it was presented to the states, who each individually acted on it, ratifiying it based on its own interests and at different times. Some ratified unconditionally, some insisted on amendments. "The people of the United States," as an aggregate mass, are no where appealed to, for authority and sanction to that instrument." (p 60)

    The distinction between the people of the several states and the people of the United States, as it is to be understood in reference to the present subject, is perfectly plain. I have already explained the terms "a people," when used in a political sense. The distinction of which I speak may be illustrated by a single example. If the Constitution had been made by " the people of the United States," a certain portion of those people would have had authority to adopt it: In the absence of all express provision to the contrary, we may concede that a majority would, prima facie, have had that right. Did that majority, in fact, adopt it? Was it ever ascertained whether a majority of the whole people were in favor of it or not? "Was there any provision, either of law or constitution, by which it was possible to ascertain that fact? It is perfectly well known that there was no such provision ; that no such majority was ever ascertained or even contemplated. (p 60)​

    Upshur tells the reader that he spent a lot of time on the preamble because Story clearly considered it important. Upshur asserts that the claim that the colonists were somehow "one people" has never been proven, all while the claim is used by those "who are anxious to consolidate all the powers of the states in the federal government", so his motivations for writing come through quite clearly here. He accuses Story of taking "one people" as a given, rather than spending the time needed to prove it, and he asserts that the public give the idea credit simply because of how often it is asserted, even in the absence of evidence. Upshur believes the facts counter the notion of "one people" if one is willing to examine them.

    Upshur moves into compact theory next, so I will stop here and pick up with his change of subject next time.
     
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  17. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    It is a political philosophy as is the 'one people' philosophy where it is an interpretation of sparse data where multiple interpretations are possible.

    From a commentary on Constitional commentaries of the antebellum period
    Commentaries on the Constitution, 1790-1860 – Elizabeth Kelley Bauer
    P236
    p0.jpg
    When we look around the world today we see consolidated governments, a lot of which became consolidated either by conquest or civil war. Weak governments however noble do not survive.
     
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  18. jgoodguy

    jgoodguy Brev. Brig. Gen'l Forum Host Retired Moderator

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    One of the problems with antebellum State's righters was when federalism offered a political advantage, they were seduced with little effort.

    Abel Upshur
    Throughout the 1830s, Upshur’s extensive writings won him a national reputation as a strident champion of both slavery and states’ rights. His influential 1840 treatise, A Brief Enquiry into the True Nature and Character of Our Federal Government, rejected a “consolidationist” interpretation of the Constitution, insisting on strict limits to the authority of the federal government.[8] Nevertheless, when his friend and fellow Virginian John Tyler was elected president in 1841 following the death of William Henry Harrison, Upshur leapt at the chance to take hold of federal power.

    As Tyler’s Secretary of the Navy from 1841 to 1843, Upshur worked to radically expand and modernize American sea power. His major fear was a military collision with Great Britain, which had emancipated its Caribbean slaves in 1833. A British “incursion” on the “southern portion of our country”—perhaps involving black West Indian troops—could “subvert our social systems” and be “disastrous in the extreme.” Along with other proslavery southerners in the Navy and in Congress, Upshur sought to build a much larger and stronger naval force that could combat British power on the open sea, far from America’s vulnerable slave states.[9]

    In 1843 Tyler nominated Upshur to serve as Secretary of State. In the State Department, Upshur proved a vigilant and assertive administrator of proslavery statecraft. Keeping a close eye on threats to slavery in Cuba and Brazil, Upshur’s central focus was the fourth largest slave society in the hemisphere, the independent Republic of Texas. It was Britain’s “general plan,” he wrote the U.S. envoy to Texas, to “abolish domestic slavery throughout the entire continent and islands of America.”[10]

    In order to defeat British abolitionism and save American slavery, Upshur believed, the United States must annex Texas. Upshur devoted the bulk of his efforts in Washington to the diplomacy of annexation, and by the winter of 1844 he was putting the finishing touches on a formal treaty that would join Texas to the United States. The Secretary of State, however, would not live to see the treaty go before Congress.


     
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  19. Andersonh1

    Andersonh1 Captain

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    I'm not sure if this is your point, so correct me if I'm wrong, but this seems like the typical "he defended slavery, so any argument he makes must be discredited on that basis" attack. I honestly think you were on firmer ground with your earlier posts that challenged his presentation of the facts.
     
  20. Andersonh1

    Andersonh1 Captain

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    Part 6 - Compact Theory and the federative nature of the Constitution

    Moving along, Upshur makes the following statement: "he [Story] had treated as a postulatum, very naturally, and indeed necessarily, concludes that the Constitution is not a compact among sovereign states. He contends that it is "not a contract imposing mutual obligations, and contemplating the permanent subsistence of parties having an independent right to construe, control and judge of its obligations." Upshur attacks this statement using a lawyer's grasp of the language and logic. He goes on:

    We all admit that the power and authority of the federal government, within its constitutional sphere, are superior to those of the states, in some instances, and coordinate in others, and that every citizen is under an absolute obligation to render them respect and obedience ; and this simply because his own state, by the act of ratifying the Constitution, /fas commanded him to do so. (p 63)​

    Upshur goes on to state that when the federal government transcends its power, there is no longer a duty to obey it, as affirmed by the courts (he does not cite examples), and he asks the fundamental question: who is to determine whether it has transcended its constitutional obligations? Who is the final judge? Upshur points toward the Supreme Court and other federal courts, but then notes that there are "many cases" outside the court's purview where some other umpire must be found, and he clearly asserts his belief in states' rights.

    It is precisely in this case that the question, who are the parties to the constitution, becomes all important and controlling. If the states are parties as sovereign states, then it follows, as a necessary consequence, that each of them has the right which belongs to every sovereignty, to construe its own contracts and agreements, and to decide upon its own rights and I powers. (p 64)​

    There follows some discussion about whether or not the Constitution is a Compact or not. Upshur again goes into language and semantics to tackle Story's arguments, and it might be easier here for me to just try and summarize.

    Story: if the founders had meant for the Constitution to be a compact, they would have used appropriate language to convey that.
    Upshur: not necessarily, a legal instrument is what it is by what is is and how it operates, not necessarily by what it's called

    Story: the Supremacy Clause trumps all, and "the people of any state cannot, by any form of its own constitution or laws, or other proceedings, repeal, or abrogate or suspend it."
    Upshur: "The people who make a law, can, upon the principles of all our institutions, either "repeal or abrogate or suspend it ;" and if, as he supposes, our constitution was made by "the people of the United States," in the aggregate, then "the people of any state," or of half a state, may repeal, or abrogate, or suspend it, if they happen to be a majority of the whole.

    The proposition is, that our Constitution is not a compact, and the argument is, that it is not a compact, because it is a supreme law. The same idea is substantially reaffirmed, in the next argument by which he proposes to prove the main proposition. The design" (of the Constitution) " is to establish a government. This, of itself, imports legal obligation, permanence, and uncontrollability by any, but the authorities authorized to alter or abolish it."

    Admitting, as I cheerfully do, that all this is strictly true, I am yet unable to perceive how it demonstrates that our Constitution is not a compact. May not a compact between sovereign states, be a government? Is there any such necessary restraint upon, or incident of, sovereign power, that it cannot, in any possible exercise of it, produce such a result ? If there is, then it was incumbent on the author to show it, because, if there is not, his argument is of no force ; and he himself will admit, that the proposition, to say the least of it, is not quite clear enough to be taken as a postulate. His own historical information, if he had drawn on its ample funds, must have furnished him with numerous instances of governments established by compact. He need not, however, have gone beyond our own confederation, which, although a compact among sovereign states, in the strictest sense, was yet treated as a government by the people at home, and recognized as such by all foreign powers. ​

    Story is quoted as accusing those who read the Constitution as a compact as doing so simply so that they can make each state the supreme judge of its own powers and rights. Upshur disputes this, and castigates Story for including such a political argument in a serious examination of the Constitution. Upshur maintains that the ultimate motivation behind those who espouse compact theory is that "those doctrines contain the only principle truly conservative of our Constitution ; that without them there is no effective check upon the federal government, and, of course, that that government can increase its own powers to an indefinite extent", so to Upshur it's a question of maintaining a check on the Federal government. "It is, therefore, because they are lovers of the Constitution and of the union, that they contend strenuously for the rights of the states."

    Upshur says that the reader must decide whether he agrees with Story, or the congress which called for the revision of the Articles of Confederation. The Articles were clearly a compact between soverign states, and the convention was to "revise the articles of confederation".... "to render the federal constitution adequate to the exigencies of government". The founders clearly felt a compact could be a government, Upshur asserts, in contrast with Story.

    It is worthy of remark, that of the states, New Hampshire and the author's own state of Massachusetts, expressly call the Constitution a compact, in their acts of ratification; and no other state indicates a different view of it. This tends to prove that public opinion at the time had not drawn the nice distinction which is now insisted on, between a government and a compact; and that those who for eight years had been living under a compact, and forming treaties with foreign powers by virtue of its provisions, had never for a moment imagined that it was not a government.​

    Upshur goes into some more detailed explanations of his belief that the Constitution must be a compact.
    - It must be a compact, because it was made by sovereign states, and being unable to command each other, that is the oly way they could treat with each other
    - the states could only have acted in their sovereign character
    - it cannot be presumed that the parties that created the compact intended to change their character unless expressly stated. "Its sovereignty is the very last thing which a nation is willing
    to surrender ; and nothing short of the clearest proof can warrant us in concluding that it has surrendered it."

    Upshur changes subjects to the nature of the Constitution, which he maintains is a federative and not consolidated government. He gives his evidence from the structure and language of the Constitution. He spends quite a bit of time demonstrating that the House of Representatives is not national, approaching that subject from many different angles. He discusses the federative nature of the executive branch, again examining it from various angles to show the state influence rather than that of the entire population of the United States. I won't go through every argument here, and indeed, some of the things that Upshur cites have since changed, such as direct election of senators when at the time he wrote they were appointed by state legislatures. Upshur discusses the judiciary, and then the power of amendment, and in all cases, takes pains to note that in none of these branches of government are "the people of the United States" involved, but rather the people of the several states.

    It is not the people of the United States in the aggregate, merely acting in their several
    states, who can ratify amendments. Three-fourths of the several states can alone do this. The idea of separate and independent political corporations could not be more distinctly conveyed, by any form of words. (p 77)
    --------------
    If our author [Story], and the politicians of his school, be correct in the idea, that the Constitution was formed by " the people of the United States," and not by the states, as such, this clause relating to amendments presents a singular anomaly in politics. Their idea is, that the state sovereignties were merged, to a certain extent, in that act, and that the government established was emphatically the government of the people of the United States. And yet, those same people can neither alter nor amend that government! In order to perform this essential function, it is necessary to call again into life and action those very state sovereignties which were supposed to be merged and dead, by the very act of creating the instrument which they are required to amend!
    -----------------
    So long, therefore, as the power of amending the Constitution rests exclusively with the states, it is idle to contend that they are less sovereign now than they were before the adoption of that instrument. (p 78)​

    Upshur summarizes:

    The object of the preceding pages has been to show that the Constitution is federative, in the power which framed it ; federative in the power which adopted and ratified it ; federative in the power which sustains and keeps it alive ; federative in the power by which alone it can be altered or amended ; and federative in the structure of all its departments. In what respect, then, can it justly be called a consolidated or national government ? Certainly, the mere fact that, in particular cases, it is authorized to act directly 'on the people^ does not disprove its federative character, since that very sovereignty in the states, which a confederation implies, includes within it the right of the state to subject its own citizens to the action of the common authority of the confederated states, in any form which may seem proper to itself. -Neither is our Constitution to be deemed the less federative, because it was the object of those who formed it to establish " a government," and one effective for all the legitimate purposes of government.
    He again changes topics here, so I will tackle that section of the book next time.
     
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  21. O' Be Joyful

    O' Be Joyful Sergeant Major

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    But Anderson, a reasonable question to ask, as jgg is doing, is what were the motivations and goals that Upshur had in mind when he penned his critique of Story? A purely intellectual exercise in exploring the "true" meaning of the Constitution and Union could of course be seen as a noble pursuit. The ultimate question at this far distance from the period in question is, what did he wish to accomplish if his views were accepted and Story's rejected?

    And thank you for posting and analyzing his writings. I am finding it very interesting.
     
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