Confederates advocating secession via the US Constitution

CW Buff

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Madison's opinion is not law. He may have held the preference that the Constitution had to be "adopted in toto and forever", but he was just one American among many, with no more power to enforce his ideas than anyone else had to enforce theirs.

It's just an opinion, nothing more. Others held different opinions, just as valid as Madison's.
Well, as indicated above, its the opinion of the Father of the Constitution, so while his opinion is not law, no, he's not "just one American among many."

And if anything, we have in the ratification debates what would have been for federalists an irresistible opportunity to calm ALL antifederalist concerns that states could withdraw unilaterally at will, if such had been the case. Not one federalist said any such thing. Instead, we get "in toto, and for ever," and:

The Constitution must be the supreme law of the land; otherwise, it would be in the power of any one state to counteract the other states, and withdraw itself from the Union.” — Governor Samuel Johnston, NC ratification convention, July 29, 1788
 

CW Buff

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Connecticut
I disagree. His opinion is just that, otherwise there would be absolutely no Senate equality whatsoever. There would be no checks and balance based on his opinion that state legislatures should appoint them. There are other examples, but Madison was entitled to his opinion and to draw up a plan. But at the end of the day, he was just one of several who had opinions on what the Constitution should look like. His opinion, then, is equal to all who placed input and voted to put the Constitution to ratification.
The Senate is what it is because the nation established via the Constitution is what is now called a federation. The very first. And the House of representatives, being what it is, proves that the more perfect Union is no traditional confederation, no league of sovereign nation-states, founded upon a treaty of confederation.
 

CW Buff

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Connecticut
The terms the States agreed to are the terms spelled out in the text of the Constitution, regardless of what Madison said. I'm not dismissing his knowledge or influence on the creation of the document, I'm just saying that quoting his "in toto and forever" statement as if that sealed the deal or as if because Madison said it it was a legal reality is a fallacy.
There's more to the constitutional compact than the text of the Constitution. The terms are also determined by what the Constitution is, a fundamental law, which imparts a complete and compulsive legal obligation (legally enforceable), rather than a treaty of confederation, which imparts only a moral obligation. "In toto, and for ever" was applicable to the AoCs as well. The difference is sovereignty, which in the former is at least partially surrendered to the whole, and in the latter is entirely retained by the individual parties. Secessionists understood this, which is why their compact theory attempts to misrepresent the Constitution as the latter rather than the former. SCOTUS also understood this:

"'We the people of the United States, do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform." — SCOTUS, Chisholm v. Georgia, 1793

State's who are not free to alter or abolish their own constitutions however they see fit are clearly not fully sovereign, even if they were previously. And they can have no power or authority over the more perfect Union, a product of the Constitution, except that which the sovereign people (the collective states, if you prefer) explicitly grant them. Only the sovereign people have an inherent right to alter or abolish. And that opinion IS law.
 
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CW Buff

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The issue of secession was settled by the Civil War with brutal force by the North and not by the Texas vs. White case. The Civil War demonstrated that might makes right. Before the war, secession was an unsettled issue that was not addressed in the Constitution.
Secessionists would accept nothing short of war to settle the matter. Period. End of fallacy.

As I indicated above, the issue is settled by the form of the Constitution. It is a fundamental law. With that, secessionist compact theory goes where it belongs, down the drain. Is there any doubt as to what a fundamental law is?

However, even in the absence of that, by any reasonable sense of right the issue was settled almost 30 years prior to the ACW. SC threatened secession, and Jackson established official US policy on the matter via his proclamation. Unilateral secession was rebellion, and rebellion meant war. This was no mere opinion, it was an official statement from one of the co-equal branches of the US Gov’t. In the absence of any contradictory/overriding act of Congress, or decision by SCOTUS, or constitutional amendment by the people, Jackson’s proclamation stood as official US policy on unilateral secession. It was foolish and irresponsible to expect any other response to any future attempt to initiate this form of rebellion. But for over 150 years supporters of the Confederacy have tried to shift the onus for the ACW onto the Union. The Union enforced the law, the only way it could be enforced in such a case, by meeting military force with military force. The whole concept of law is meaningless without enforcement. And the lawful force that the Union applied was no more brutal than it had to be to achieve the goal of enforcing the law. This was the course of events chosen and initiated by the Confederates. Furthermore, the secessionists/Confederates did what they did for the sake of their peculiar institution, so, as it turned out, military might, moral right, and the law were all aligned, on the Union side.
 

CW Buff

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At the 1787 Constitutional Convention, a proposal was made to grant the federal government the specific power to suppress a delinquent state. James Madison rejected this proposal stating, “A Union of states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as dissolution of all previous compacts by which it might be bound.” The Confederacy believed that state sovereignty is guaranteed in the 10th Amendment of the Constitution, which reserves to the states all rights which have not been specifically delegated to the federal government. Therefore, secession was considered a legal right which could be exercised because the federal government was never delegated the right to coerce the states into submission.
I don’t understand the fascination with trying to twist Madison’s statements to somehow support secession. The one major Founding Father who denied the constitutionality of unilateral secession. Good rule of thumb: if you think you have Madison supporting secession in any way, shape, or form, including non-coercion, you’d do well to just assume you’re wrong.

Your mistake here is two-fold: first you viewed the proposal in terms of the ACW, thereby resulting in a complete misrepresentation of the proposal; second, you focused on only one choice part of Madison’s response. Regarding the proposal, you use the words “specific” and “suppress,” suggesting the proposal was a specific measure to suppress rebellion. As it actually read, the proposal would have given Congress the power “to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.” That’s clearly not a “specific” provision to “suppress” rebellion. It’s a general enforcement provision, directed at any and all failures to comply, large or small. Regarding Madison’s response, his full, complete statement was:

Mr. MADISON, observed that the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively and not individually. - A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed.”

So we see here his real problem with the proposal is that it applies to states (the people of a state collectively) rather than individuals. Certainly, the use of military force for routine enforcement against states could very well look like a declaration of war, and a dissolution of the compact. However, a declaration of war is water under the bridge in the case of rebellion, and rebellion is itself an attempt to illegally dissolve the compact.

In addition, we see that Madison did not “reject” the proposal (“He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed.”). No one had ever attempted to design a national government/ fundamental law over a union of states before. Madison simply wanted to proceed with that and see what it might look like before considering anything as extreme as routine enforcement against the states via the military.

If you want to really understand Madison’s statement, you’d need to read the Convention proceedings at length, unencumbered by bias (try, at least). If you go specifically looking for something, it colors your perspective. This episode occurred very early in the Convention. The proposal comes from the Virginia Plan, which was introduced May 29 (3rd​ day of the Convention). The Convention had only made the decision to frame a supreme national government (draft a fundamental law) rather than revise the AoCs or draft another treaty of confederation on May 30. During that debate, Mason said:

Mr. MASON observed that the present confederation was not only deficient in not providing for coercion & punishment agst. delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it.

That’s dead on with Madison’s statement, which was made just the next day, May 31. These are not so much arguments against using military force against states under ANY circumstances, they are arguments against the whole treaty of confederation approach. The parties to a treaty are fully independent, sovereign nation-states, and they remain such upon executing the treaty, even a treaty of confederation. To sovereign nation-states, treaties are voluntary. The states had proven themselves incapable of complying with a voluntary agreement. And the only way to enforce a treaty is via military force. Consider Mason’s response when Patterson tried to resurrect a treaty of confederation with his NJ Plan in mid June:

It was acknowledged by [Mr. Patterson] that his plan could not be enforced without military coertion. Does he consider the force of this concession. The most jarring elements of Nature; fire & water themselves are not more incompatible that such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case, in which the military force of the State can be properly exerted agst. its Citizens.

Military force is the ONLY available means of enforcing a treaty. You can’t have law enforcement (the force of law) without a real/positive/man-made law. International law is based entirely on natural law (morality). As Morris had stated on May 30, what was needed was a supreme national government (supreme fundamental law), which would provide a complete and compulsive operation (the force of law) upon the states, rather than a treaty, which relies on the good faith of the states (voluntary/moral compliance). His statements were the basis of the 6-1-1 decision to replace rather than revise the AoCs. All of these statements, Madison’s, Mason’s, and Morris’s, are why the Framers switched from a traditional confederation, founded upon a treaty, to one founded upon a fundamental law, that applies the force of law to the whole country. That’s what made it a more perfect Union. And you may also note that, as with Madison, Mason’s concern with the use of the military for routine enforcement upon states (“Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether”) is also water under the bridge in the case of a rebellion, which is an attempt to shake off the Union. In both cases, rebellion institutes the very conditions that the Framers wanted to avoid. The ACW never would have happened if Confederates did not assume moral (positive moral good of slavery) and legal (secessionist compact theory) high ground, as well as misjudge their ability to overthrow the law (moral right, legal right, and might).

The proposal was a throwback to the treaty approach. Again, they had decided against that approach AFTER the proposal was introduced. It's an extreme measure for a system that lacks the force of law. And as Mason clearly demonstrates, opposition to a system in which all violations, large or small, must be enforced by military force against sovereign nation-states does not mean opposition to the use of the military against states with only residual sovereignty in the case of rebellion.

However, not to worry. In the ACW, military force was not applied to the states. That’s the skewed, Confederate view point (The War Between The States). The Union correctly saw it as a rebellion (The War Of The Rebellion). Doesn’t matter that the rebels constituted a majority of the people in 11 states. They constituted the people as individuals, because they were not the sovereign people (a majority of the people of the US). When they attempted to take those states out of their proper, constitutional relationship within the Union, they ceased to be the legitimate authority within those states. To the degree possible in a rebellion of such proportions, military force was only applied against the rebels, and only the rebels were punished afterwards. Just as Madison and Mason hoped. Upon the conclusion of the war, loyal unionist elements in those states were not punished. In fact, they were sought out to reconstruct their states.
 

huskerblitz

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The Senate is what it is because the nation established via the Constitution is what is now called a federation. The very first. And the House of representatives, being what it is, proves that the more perfect Union is no traditional confederation, no league of sovereign nation-states, founded upon a treaty of confederation.
Huh? If Madison had his opinion, both houses of Congress would have been decided by proportional representation and if he had his way both houses would have been appointed by state legislatures.

Personally speaking, I am glad he didn't get his way and his opinion proved to be just that, an opinion and not a fact.
 

unionblue

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Huh? If Madison had his opinion, both houses of Congress would have been decided by proportional representation and if he had his way both houses would have been appointed by state legislatures.

Personally speaking, I am glad he didn't get his way and his opinion proved to be just that, an opinion and not a fact.

Too broad a brush.

Obviously, some of Madison's opinion carried great weight, while other parts of it made no impact at all.

The man was there at the creation of the Constitution and, with his fellow delegates, had to create a governing document for a new nation out of thin air, using only words.

Not too shabby, in my own opinion.
 

CW Buff

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Based on your original point on the Senate, I assumed you understood that the nature of a representative government can be divined from its manner of representation. Member states were represented equally in traditional confederations; citizens are represented equally in republics that are also consolidated states.

As I indicated above, it does not matter what the Senate is, because it stands beside the House. As far as the nature of the more perfect Union, you’ve got to deal with the fact that BOTH exist. And that means the more perfect Union is neither a traditional confederation (strictly "federal," as Madison would say, with equal representation of member states) nor a consolidated state (strictly "national," equal representation of citizens, in the case of republics anyway), but an unprecedented blend of the two:

it is in a manner unprecedented; we cannot find one express example in the experience of the world. It stands by itself. In some respects it is a government of a federal nature; in others, it is of a consolidated nature.” – Madison, VA ratifying convention

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL.” – Madison, The Federalist No. 39

If Madison had his opinion, both houses of Congress would have been decided by proportional representation and if he had his way both houses would have been appointed by state legislatures.

Personally speaking, I am glad he didn't get his way and his opinion proved to be just that, an opinion and not a fact.
Please, demonstrate how that has anything to do with the subject at hand, the nature of the more perfect Union, traditional confederation vs federation.

Madison’s only concern with equal representation of the states in the Senate was that such violated a core republican principle (political equality, one man – one vote). And the reason that he did not get his way was that small states, fearful that large states would dominate them in Congress, refused to give up equal representation in at least one branch of Congress. It has nothing to do with the nature of the more perfect Union. If Madison had gotten his way, it would still have been a federation, a blend of traditional confederation and consolidated state, because the critical factor is sovereignty, which under the Constitution is divided between the respective states and the Union itself.

But I do agree with you. I’m glad he did not get his way with Senate representation. I love the fact that the Constitution represented something entirely new and unique. That Americans, dissatisfied with 1) the shortcomings of the traditional confederation, and unwilling to form themselves into 2) one consolidate mass, opted for #3, something completely new, falling between and consisting of a blend of 1 and 2, a new invention tailored to their own particular needs. It shows that, far from being provincial bumpkins, American statesmen were as knowledgeable as any in the world when it came to political science.

And Madison was among the most knowlegeable of American statesmen, so again, no, not "mere" opinion. I'd say many supporters of the Confederacy understand this based on how often they try to pervert his statements to support secession.
 

huskerblitz

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Too broad a brush.

Obviously, some of Madison's opinion carried great weight, while other parts of it made no impact at all.

The man was there at the creation of the Constitution and, with his fellow delegates, had to create a governing document for a new nation out of thin air, using only words.

Not too shabby, in my own opinion.
Seems you want to pick and choose as to which of his opinions carried weight and which did not. The fact remains that his opinion was but of one who created the founding documents of this country. Remember, he also did not feel a Bill of Rights was needed. I'm certainly glad he failed on that point as well.

Oh, and to the 'thin air' point...not quite...their ideas are long demonstrated to be those of Enlightenment thinkers, they did not conjure up the ideas on their own. But they do get credit for combining these ideas into a workable government system.
 

unionblue

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Seems you want to pick and choose as to which of his opinions carried weight and which did not. The fact remains that his opinion was but of one who created the founding documents of this country. Remember, he also did not feel a Bill of Rights was needed. I'm certainly glad he failed on that point as well.

Oh, and to the 'thin air' point...not quite...their ideas are long demonstrated to be those of Enlightenment thinkers, they did not conjure up the ideas on their own. But they do get credit for combining these ideas into a workable government system.

I only wish to make sure Madison is not considered some sort of drive-by delegate when it comes to the creation of the Constitution.

As for out of thin air, I still marvel at the document they created, something unique in all the world. Just can't get over living here under their creation.
 

Unforgiven

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The supremacy clause grants the United States Constitution with supreme authority over all state judges, all state legislatures, and all state constitutions,: 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.

Despite the prating of many, the Tenth Amendment does not provide Secession with a detour around this clause or a path directly through it. To be successful, Secession had to remove this clause but certainly could not do it alone. Secession invited Rebellion, Insurrection, and Domestic Violence along for the journey for when their particular skill sets were needed. Of course, the Constitution already had appropriate methods of suppression for each of them and poor Secession met the same fate.
 
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Andersonh1

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There is a lot of misunderstanding of just what the Supremacy Clause actually means. It does not mean unlimited Federal power over the States. The fact that the supremacy clause expressly confines that supremacy "to laws made pursuant to the Constitution" has in fact escaped the observation of many, despite what the author of this quote hoped.

https://avalon.law.yale.edu/18th_century/fed33.asp
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.​
Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.​
 

unionblue

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There is a lot of misunderstanding of just what the Supremacy Clause actually means. It does not mean unlimited Federal power over the States. The fact that the supremacy clause expressly confines that supremacy "to laws made pursuant to the Constitution" has in fact escaped the observation of many, despite what the author of this quote hoped.

https://avalon.law.yale.edu/18th_century/fed33.asp
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.​
Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.​

Nowhere in the above do I see a permit to have states rebel/secede against the United States.
 

Andersonh1

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Nowhere in the above do I see a permit to have states rebel/secede against the United States.

What you do not see is the Federal government given the power to prevent States from leaving the United States.

https://avalon.law.yale.edu/18th_century/fed45.asp
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.​
 

unionblue

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BuckeyeWarrior

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Then you're seeing a mirage. Everything the Federal government can do is clearly spelled out, and forcing States to remain in the Union against their will is not there.
For your position to be correct we have to belief that the framers of the constitution wanted states to be able to leave the Union, but didn’t provide a procedure to do so. The same framers that did include a procedure to add states.

It’s been awhile since I’ve read the notes on the constitutional convention but I’m almost certain there wasn’t even a discussion of putting such a procedure in place. In fact I don’t believe they even discussed states leaving the Union.

And the words of the father of the constitution puts to rest any doubt that the Union was intended to be perpetual.

“The constitution must be adopted in toto and forever.” James Madison

Edit: additional thought-you agree that the whole reason the constitutional convention was called is that many of the founding fathers were afraid the Union wouldn’t last under the articles of confederation because the central government was so weak?
So these framers, who’s fear was that the Union wounds survive, created a constitution that allowed states to just leave for any reason? Do you see how that doesn't make sense?
 
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Andersonh1

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For your position to be correct we have to belief that the framers of the constitution wanted states to be able to leave the Union, but didn’t provide a procedure to do so. The same framers that did include a procedure to add states.

No, they didn't want States to leave the Union, so I see no reason to expect them to provide an explicit procedure for doing so. They also recognized that they had no authority to bind States to the new government against their will. They recognized the sovereignty of the States when they submitted the proposed government to the Congress, the representatives of the States. Show me Madison's dictatorial powers where his "in toto and forever" is more legally binding on the States than the language of the Constitution, which includes no such stipulation.
 

unionblue

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Then you're seeing a mirage. Everything the Federal government can do is clearly spelled out, and forcing States to remain in the Union against their will is not there.

@Andersonh1 ,

I call your mirage and counter with the ghost you are haunted by.

The ghost is history and the Civil War is recorded in it's pages on the concept the federal government cannot force States to remain in the Union.

Sincerely,
Unionblue
 
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