Federal Coercion and National Constitutional Identity 1776-1861

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trice

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Federal Coercion and National Constitutional Identity in the United States 1776-1861 by Pekka Pohjankoski
American Journal of Legal History, Volume 56, Issue 3, 1 September 2016, Pages 326–358, Click https://doi.org/10.1093/ajlh/njw007 for full article.

Abstract

This article examines the development of the federal coercion power of the U.S. government during the period from the Declaration of Independence to the Civil War. Although unhappy with the states’ defiance of federal requisitions, the Founders agreed at the Constitutional Convention that the national government should not have the power to coerce individual states militarily to force them into compliance with federal law. Instead, a federal judiciary was created to uphold the supremacy of the Constitution. As part of the new constitutional makeup, the federal government now had the power to coerce individuals, rendering the coercion of states unnecessary. However, in the pre-Civil War era, federal law was frequently disregarded by certain states. The question hence became whether the federal government could de facto coerce states by coercing individuals. These debates intensified during the South Carolina Nullification Crisis, and culminated on the eve of the Civil War, as the southern states declared their intent to secede from the Union. These multiple instances of state defiance and the eventual use of federal coercive force consolidated the new constitutional arrangement. The emergence of a distinctly national constitutional identity thus paralleled the evolution of the federal power of coercion.
 

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Very much Lincoln['s concerns in his Address to Congress In Special Session, 4 July, 1861. asking whether such a democratic gov't such as the United States, could protect itself, by the laws and powers already provided in the Constitution, without either becoming too strong, resulting in Tyranny or too weak to prevent its descent into Anarchy(he believed it could).
 
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President Davis proved differently by copying the Constitution. Made anarchy moot.
By copying the US Constitution, inserting slavery was protected, proved what differently?

That slavery was the only significant change made by Davis, which led to four years of bloody civil war?

How is that NOT anarchy?
 

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Federal Coercion and National Constitutional Identity in the United States 1776-1861 by Pekka Pohjankoski American Journal of Legal History, Volume 56, Issue 3, 1 September 2016, Pages 326–358, Click https://doi.org/10.1093/ajlh/njw007 for full article.

This paragraph suggests that things evolved over the time from the founding fathers to the Civil War. The complaint of the secessionists that they were faithful to the founding has some justification. Things changed and they did not change with the changes.

This article suggests that the evolution of the federal coercion power parallels the emergence of a distinctly national constitutional identity of the United States.4 The various debates on federal coercion demonstrate that the nature of the new federal government, operating directly on individuals, rendered the distinction between coercing states and coercing individuals gradually redundant. Meanwhile, federal coercion remained a necessary, if implicit, component of the effective functioning of the national government. However, the perception of the federal government as a national actor with powers over the people did not emerge overnight. The mechanisms to secure the enforcement of federal law only became established over time through the incremental use of federal coercion, including during the Civil War. Thus the idea of federal coercive authority evolved in parallel with the perceived nature of the federal government.
 
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trice

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Federal Coercion and National Constitutional Identity in the United States 1776-1861 by Pekka Pohjankoski American Journal of Legal History, Volume 56, Issue 3, 1 September 2016, Pages 326–358, Click https://doi.org/10.1093/ajlh/njw007 for full article.

This paragraph suggests that things evolved over the time from the founding fathers to the Civil War. The complaint of the secessionists that they were faithful to the founding has some justification. Things changed and they did not change with the changes.

This article suggests that the evolution of the federal coercion power parallels the emergence of a distinctly national constitutional identity of the United States.4 The various debates on federal coercion demonstrate that the nature of the new federal government, operating directly on individuals, rendered the distinction between coercing states and coercing individuals gradually redundant. Meanwhile, federal coercion remained a necessary, if implicit, component of the effective functioning of the national government. However, the perception of the federal government as a national actor with powers over the people did not emerge overnight. The mechanisms to secure the enforcement of federal law only became established over time through the incremental use of federal coercion, including during the Civil War. Thus the idea of federal coercive authority evolved in parallel with the perceived nature of the federal government.
There's a bit of "fake news" being spread about concerning "secession" and the views of "the South" over time. Back in 1814, essentially every state south and west of New England thought the Hartford Convention was a prime example of Treason (in 1860 Robert E. Lee would write Virginia statesman felt that way about Hartford) -- and the people of the Hartford Convention never came anywhere near the "right of secession" concept "the South" proclaimed in 1860. President Madison sent an Army officer up to watch (spy on) that Hartford Convention and report on it. So apparently it was outrageous that New England states would think of leaving in 1814, but outrageous that "the North" might object to "the South" leaving in 1860.

I am sure concepts evolved. Heck, the very idea that the States were individually sovereign was not universally accepted in 1788 -- see the quote in my signature.
 

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There's a bit of "fake news" being spread about concerning "secession" and the views of "the South" over time. Back in 1814, essentially every state south and west of New England thought the Hartford Convention was a prime example of Treason (in 1860 Robert E. Lee would write Virginia statesman felt that way about Hartford) -- and the people of the Hartford Convention never came anywhere near the "right of secession" concept "the South" proclaimed in 1860. President Madison sent an Army officer up to watch (spy on) that Hartford Convention and report on it. So apparently it was outrageous that New England states would think of leaving in 1814, but outrageous that "the North" might object to "the South" leaving in 1860.

I am sure concepts evolved. Heck, the very idea that the States were individually sovereign was not universally accepted in 1788 -- see the quote in my signature.
Good points, but if taken literally then why all the court case considering the limits of federal power that show up in SCOTUS. Even the North in Ableman v Booth attempted nullification.
 

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Good points, but if taken literally then why all the court case considering the limits of federal power that show up in SCOTUS. Even the North in Ableman v Booth attempted nullification.
Court cases are the sign of healthy contention and debate over the law. It is the process by which meaning is revealed and understanding evolves.
 
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Court cases are the sign of healthy contention and debate over the law. It is the process by which meaning is revealed and understanding evolves.
One way to look at it, perhaps a Northern centric viewpoint.

There was no hidden meaning in the Constitution no more than a hidden meaning in genetic code. There were just possibilities. Had the North not industrialized, commercialized and urbanized, but remained agrarian like most of the world of the time it is doubtful to me that many any of the great Constitutional controversies would have arisen. That was a change from the world where the Constitution was debated and agreed to. Fundamental changes happened. The South had more people than the North at the time of the signing which was the basis of power under the Constitution as in the House of Representatives and the electoral college. The 3/5 clause turbocharged that. Things changed and those changes brought conflicts and those with the political power prevailed in those conflicts. Taney said the Constitution said one thing in Dred Scott but a war with the victors declaring another thing prevailed over his say.
 

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One way to look at it, perhaps a Northern centric viewpoint.
I can tell you that there is nothing at all "Northern centric" in what I said. It is simply a truism about how a properly functioning system works.

There was no hidden meaning in the Constitution no more than a hidden meaning in genetic code. There were just possibilities. Had the North not industrialized, commercialized and urbanized, but remained agrarian like most of the world of the time it is doubtful to me that many any of the great Constitutional controversies would have arisen. That was a change from the world where the Constitution was debated and agreed to. Fundamental changes happened. The South had more people than the North at the time of the signing which was the basis of power under the Constitution as in the House of Representatives and the electoral college. The 3/5 clause turbocharged that. Things changed and those changes brought conflicts and those with the political power prevailed in those conflicts. Taney said the Constitution said one thing in Dred Scott but a war with the victors declaring another thing prevailed over his say.
There will always be differences between people. It happened in ancient Egypt, it happened in the days of the Greeks and the Romans. Nebuchadnezzar was no stranger to controversy and disagreement, nor Attila the Hun, nor Genghis Khan, nor Alfred the Great. King Solomon had hard decisions to make, as did any other ruler. Sections had disputes, as did individuals. This is simply the way life is: different viewpoints contending for what favors them. Laws and justice are about balancing all the needs and demands from the different viewpoints.

Things always change. People always disagree. Legal systems exist to deal with the resulting contention and debate.
 

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I can tell you that there is nothing at all "Northern centric" in what I said. It is simply a truism about how a properly functioning system works.
As long as we are in agreement that things changed and the powerful dictated the outcome of those changes, not some preconceived notion of correctness or goodness, it seems correct to me. Decisions have to be made and enforced, someone has to make those decisions and someone has to enforce them.
 
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As long as we are in agreement that things changed and the powerful dictated the outcome of those changes, not some preconceived notion of correctness or goodness, it seems correct to me. Decisions have to be made and enforced, someone has to make those decisions and someone has to enforce them.
Sure: change is normal. The people who made the Constitution and the laws more than two centuries ago had no crystal ball to show them all that would follow. They did the best they could with what they had -- and they assumed that those who followed would have to do they best they could with what they had as time went on.
 

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Sure: change is normal. The people who made the Constitution and the laws more than two centuries ago had no crystal ball to show them all that would follow. They did the best they could with what they had -- and they assumed that those who followed would have to do they best they could with what they had as time went on.
Indeed and the Civil War was the result of the North evolving into something different an outlier of the times like England while the South remained more or less frozen in the world of the Constitutional Convention.
 

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The United States that fought and won the Mexican/American war was very different than the country that fended off the British empire.
The country that bought off Spanish and French rights in North America, and smashed the Indians in the north and in the south, was aggressive and nationalistic.
The southerners had no hesitation in using this power to extend and protect slavery. They were creating a national power. And they were using the national power.
It is not shocking that eventually the commercial and industrial interests in the paid labor states would eventually conspire to use that power to promote their interests.
 
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Federal Coercion and National Constitutional Identity in the United States 1776-1861 by Pekka Pohjankoski American Journal of Legal History, Volume 56, Issue 3, 1 September 2016, Pages 326–358, Click https://doi.org/10.1093/ajlh/njw007 for full article.

This paragraph suggests that things evolved over the time from the founding fathers to the Civil War. The complaint of the secessionists that they were faithful to the founding has some justification. Things changed and they did not change with the changes.

This article suggests that the evolution of the federal coercion power parallels the emergence of a distinctly national constitutional identity of the United States.4 The various debates on federal coercion demonstrate that the nature of the new federal government, operating directly on individuals, rendered the distinction between coercing states and coercing individuals gradually redundant. Meanwhile, federal coercion remained a necessary, if implicit, component of the effective functioning of the national government. However, the perception of the federal government as a national actor with powers over the people did not emerge overnight. The mechanisms to secure the enforcement of federal law only became established over time through the incremental use of federal coercion, including during the Civil War. Thus the idea of federal coercive authority evolved in parallel with the perceived nature of the federal government.


Many historians, et. al., through the history of the United States and its Constitution, have commented upon the fact of how short is the Constitution as an Organic Law of a nation. Making the Logically reasonable assumption that it was meant to grown and change, within its set powers, i.e., it was neither logical nor reasonable to assume that the Constitution was, or, was meant to, remain in a state of suspended animation(pristine and pure from its inception and never changing, from tht day to this).

Intelligent secessionists knew it, and proclaimed Revolution; the others ...Well, they proclaimed States Right.
 

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Many historians, et. al., through the history of the United States and its Constitution, have commented upon the fact of how short is the Constitution as an Organic Law of a nation. Making the Logically reasonable assumption that it was meant to grown and change, within its set powers, i.e., it was neither logical nor reasonable to assume that the Constitution was, or, was meant to, remain in a state of suspended animation(pristine and pure from its inception and never changing, from tht day to this).

Intelligent secessionists knew it, and proclaimed Revolution; the others ...Well, they proclaimed States Right.
Secession is therefore not constitutional, but revolutionary; and is only morally competent, like war, upon failure of justice." SCOTUS chief justice Roger Taney, January 1861
 

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Indeed and the Civil War was the result of the North evolving into something different an outlier of the times like England while the South remained more or less frozen in the world of the Constitutional Convention.
I do think it is a little worse than you put it here. I see "the South" as totally out of step with the changes ongoing in the world when it comes to slavery. "The South", on that issue, wanted to "advance into the past", to reverse every change that had come down the pike for almost 100 years on slavery.

It is as if you can hear the old refrain from the Lone Ranger show in the background to every argument they make on the topic: "Return with us now to those thrilling days of yesteryear, when from out of the past come the thundering hoof-beats of ..." This is what Taney's Dred Scott opinion calls for: slavery everywhere, the right to own slaves paramount over everything else. Roll back the Compromise of 1850 and the Missouri Compromise of 1820 and the Northwest Territory acts of the governments of both the Constitution and the Articles. Overthrow all state laws and court decisions that restrict slavery, going back to the days of the American Revolution (Massachusetts in 1781). Whatever "states' rights" may mean, the right to own slaves must be above it, Chief Justice Taneys tells us. According to him and "the South" of that day, nothing must oppose or restrict slavery.

Yet the world had changed. Nation after nation, led by Britain, had ended the slave trade and emancipated slaves. The US was headed in the same direction, but still a laggard; the section we refer to as "the South" adamantly insisted on growing slavery. They were unwilling to hear the voice of "the People" of the nation -- most of "the People" were in "the North" (as in "the rest of the country") and clearly were opposed to expanding slavery (while many actively wanted to end it).

So we come to the national identity question: "the South" wanted to create a new identity in 1860-61, an identity where they were not part of the United States, because remaining part of the United States meant they had to share in power with the rest of "the People" of the United States. They desired slavery more than they wanted to remain in the United States (or at least the people running those states did).

"The South" had a right to have a desire. They can want what they want. The problems come about because of what they decided to actually do.

 
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Secession is therefore not constitutional, but revolutionary; and is only morally competent, like war, upon failure of justice." SCOTUS chief justice Roger Taney, January 1861




Yes, those who proclaimed Revolution, would not have to try to hide their treason behind the claim of Constitutional protection.
 

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I do think it is a little worse than you put it here. I see "the South" as totally out of step with the changes ongoing in the world when it comes to slavery. "The South", on that issue, wanted to "advance into the past", to reverse every change that had come down the pike for almost 100 years on slavery.
Do you have supporting evidence of this? After all, England's emancipation was in the 1830s which is not 100 years earlier. Somerset v Stewart was in 1772 and took decades before it was accepted. Even that tentative toe in the abolition movement was not 100 years earlier. In the US as long as slavery was not competing with free white labor in the territories, slavery was acceptable.
 
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