Is Texas v. White ironclad proof of secession's illegality?

Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
During the Philadelphia Convention of 1787, Gouverneur Morris of Pennsylvania outlined “the distinction between a federal and a national supreme government; the former being a mere compact resting on the good faith of the parties, the latter having a complete and compulsive operation.” If the Constitution established a federal government, and it did, then the Constitution did not have a “compulsive operation.”
The nature of our government rests upon… a word game? I can see where the secessionists went so wrong. :D

But this reasoning falls through for so many reasons. First of all, it’s just as accurate to say the Constitution established a national government. That’s because the new system was 1) entirely new: “it is in a manner unprecedented; we cannot find one express example in the experience of the world.” – Madison, VA ratifying convention. As such, a term to apply to it had not been previously devised. And 2) it was a blend of BOTH “federal” AND “national,” as the Framers understood those terms before hand: “...the principal question is whether it be a federal or a consolidated government.... I conceive it is of a mixed nature…” – Madison, VA ratifying convention.

The word games simply don’t matter. What matters is what Morris actually said, and how the Convention acted upon it. Morris was clearly arguing AGAINST a federal system which relies on good faith, and FOR a national system that has a complete and compulsive operation. He said “a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation,” that “no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient,” and therefore “a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary”. And the Convention then adopted Morris’ proposal for a national supreme government. So you see, as far as the Convention was concerned, they were creating “a national supreme government” with “a complete and compulsive operation.” So, the people of the [respective] states, in convention or otherwise, can NOT interpose, or withdraw, or otherwise alter the Constitution or the Union and Gov't it establishes. Only the the people of the [collective] states, the people of the United States, can do that (again, the Constitution is a constitution).

Of course, we didn’t need to go through all that. ALL constitutions have a complete and compulsive operation (it never ceases to amaze how some seem to think a constitution is one thing in the case of the state constitutions, and something fundamentally other in the case of the US Constitution). And if it was ever in doubt, just consider “the supreme Law of the Land.” It doesn’t get any more complete and compulsive than that.

Morris, a nationalist, recognized that the states still held sway when he suggested that the Constitution be voted on by state and that the states, not a consolidated people, had to ratify the document. The Constitution as ratified in 1787 and 1788 is “a mere compact resting on the good faith of the parties.”
What’s with calling out his nationalism? There’s nothing here that's inconsistent with nationalism, or the fact that the Constitution has “a complete and compulsive operation.” Morris recognized the states had to separately ratify the Constitution because the enactment of a constitution is a sovereign act (i.e. the action of one, sovereign people). Again, true of ALL constitutions. And, as you say, the states previously “held sway” (i.e. they were separately and fully sovereign). So the only way to move from a confederation to a federation (the term subsequently devised to identify the system the Framers invented) was for the sovereign people of the separate states to surrender a portion of their sovereignty to the people of the United States. And that was a decision that each separate state had to make for itself, separate from the other states. So naturally, the Constitution had to be ratified “by state” (by the states separately). However ratification is merely consent, not enactment. It was the sovereign people of the US, “We the People of the United States,” who enacted the Constitution (the Constitution is a constitution).
 

Andersonh1

Major
Joined
Jan 12, 2016
Messages
8,099
Location
South Carolina
Even if taken as binding precedent, Texas v. White stands only for the proposition that somewhere in the above described events, there was some procedural flaw making Texas' secession invalid. For instance, Chase could be read as saying that the process of secession taken by Texas failed because it was initiated by "a convention, called without authority" and because it did not receive the ratification of the elected governor and secretary of state.
And yet the same exact form of convention was sufficient for each state to ratify the Constitution.

The right of states to confederate cannot have existed without the right to refuse to confederate. That right was not surrendered upon ratification of the Constitution because nothing was surrendered. Powers were delegated to the general government. NOT national... that very term was rejected over and over at the Constitutional Convention.

If the Constitution had contained a definite statement of the actual fact; if it had said that to adopt it was to acknowledge the sovereignty of one American people, no part of which could sever its connections from the rest without the consent of the whole, it would probably have been rejected by every State in the Union." - p 79, J. P. Gordy, "Political Parties in the U. S."​
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Messages
10,545
If the Constitution had contained a definite statement of the actual fact; if it had said that to adopt it was to acknowledge the sovereignty of one American people, no part of which could sever its connections from the rest without the consent of the whole, it would probably have been rejected by every State in the Union." - p 79, J. P. Gordy, "Political Parties in the U. S."​
Once again, the Anti-Federalist who argued against adopting the Constitution to their states conventions, saw it clearly enough; but their states ignored them. Either the states ignored their warnings, or did not believe them, in either case, Tx. V. White Stands, because the clear visions of the Constitutions opponents was ignored or not believed.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
The right of states to confederate cannot have existed without the right to refuse to confederate. That right was not surrendered upon ratification of the Constitution because nothing was surrendered. Powers were delegated to the general government. NOT national... that very term was rejected over and over at the Constitutional Convention.
I'm assuming you misspoke, as the right to refuse to confederate is easily supportable, and quite different from the right to unconfederate after confederating. My question in the latter case would be, why should the US Constitution be fundamentally different WRT sovereignty than any other constitution?

If the Constitution had contained a definite statement of the actual fact; if it had said that to adopt it was to acknowledge the sovereignty of one American people, no part of which could sever its connections from the rest without the consent of the whole, it would probably have been rejected by every State in the Union." - p 79, J. P. Gordy, "Political Parties in the U. S."
Sorry, but Gordy is wrong. First of all, he conflicts with Amar, and there is no way Gordy trumps Amar, one of the most prominant (unlike Gordy) constitutional scholars. In addition, Gordy's statement is provably false. Hamilton wrote Madison that NY wanted to make a conditional ratification, and Madison told him the states must ratify the Constitution "in toto, and for ever." So there's one state that was told it could not unilaterally "sever its connections from the rest" upon ratification, and NY ratified (i.e. did NOT reject) anyway. And of course, NY never would have even contemplated making a conditional ratification if all ratifications were inherently conditional (secede whenever you want). In fact, there would have been no reason for any state to drag its feet, or otherwise not simply take the plunge, if it could unplunge at will. And if such had been the case, there would have been no reason to debate the Constitution, or worry about the powers it granted the Fed, and the Federalists could have saved themselves all the trouble of detailed debates by just informing their misguided Anti-federalist counterparts that the states could secede at will. Furthermore, it is the basic nature of republican constitutions that no one can alter said constituion except the sovereign people who establish it. And as constitutions establish the resulting polity and its government, the only way to alter either of those is to alter said constitution, so of course, only the soverein people can alter their constitution, or the polity or government they establish via said constitution.
 

trice

Lt. Colonel
Joined
May 2, 2006
Messages
11,866
I'm assuming you misspoke, as the right to refuse to confederate is easily supportable, and quite different from the right to unconfederate after confederating. My question in the latter case would be, why should the US Constitution be fundamentally different WRT sovereignty than any other constitution?
To begin with, the US Constitution is fundamentally different than any other such agreement made before that time. In the field of International Law, it is regarded as the very first example for a government of this type (what Lassa Oppenheim would refer to as a Federal State in his monumental two-volume International Law: A Treatise, first edition about 1905). Everything flows from that 1787 document.
 
Last edited:

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
To begin with, the US Constitution is fundamentally different than any other such agreement made before that time. In the field of International Law, it is regarded as the very first example for a government of this type (what Lassa Oppenheim would refer to as a Federal State in his monumental two-volume International Law: A Treatise, first edition about 1905). Everything flows from that 1787 document.
I probably should have been more clear; the first part of my post referred specifically to the latter part:

Furthermore, it is the basic nature of republican constitutions that no one can alter said constituion except the sovereign people who establish it. And as constitutions establish the resulting polity and its government, the only way to alter either of those is to alter said constitution, so of course, only the soverein people can alter their constitution, or the polity or government they establish via said constitution.
You'll also see my prior post (#421) indicates the same sentiment you've expressed via Oppenheim: the Framers devised something entirely new and invented the first federation in history. But that doesn't change the point I was making: the enactment of a constitution is a sovereign act, the people who do so retain all sovereign control over that constitution, as well as the polity and gov't it creates, and no one else can legally/constitutionally alter any of these things without their consent. Secessionists seem to believe this is true of the state constitutions but not the US Constitution. I'm looking for THAT explanation.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

trice

Lt. Colonel
Joined
May 2, 2006
Messages
11,866
I probably should have been more clear; the first part of my post referred specifically to the latter part:

You'll also see my prior post (#421) indicates the same sentiment you've expressed via Oppenheim: the Framers devised something entirely new and invented the first federation in history. But that doesn't change the point I was making: the enactment of a constitution is a sovereign act, the people who do so retain all sovereign control over that constitution, as well as the polity and gov't it creates, and no one else can legally/constitutionally alter any of these things without their consent. Secessionists seem to believe this is true of the state constitutions but not the US Constitution. I'm looking for THAT explanation.
Sorry for not reading closely enough. :smile:

In a Federal State, the sovereignty of the component states is defined by the constitution of the Federal State (and, of course, as expressed by the laws subsequently passed under it and the decisions of the judicial system established by the constitution). The Swiss Confederation Constitution of 1848 is also an example of a Federal State government -- but the sovereignty of the individual states in Switzerland is different than those in the United States of America.

In the US, assuming the original 13 States ever were independently sovereign, they deliberately gave away some of that sovereignty in a bargain to gain other things that had great value to them (the strength (economic/military/etc.) that came from unity. They did that first through the Articles of Confederation and Perpetual Union, which they deliberately decided to strengthen with the Constitution. In doing so, they had committed the States to being less than completely independent and sovereign.

The question for secessionists is simple: how do they get back what they intentionally traded away? The States made a bargain and the theory of a unilateral "right of secession" is that the other partners in the bargain have no say, that the "seceding" State does not have to honor their promises and keep their agreements, that they can default without penalty.
 

BigTex

Corporal
Joined
May 19, 2019
Messages
259
I probably should have been more clear; the first part of my post referred specifically to the latter part:



You'll also see my prior post (#421) indicates the same sentiment you've expressed via Oppenheim: the Framers devised something entirely new and invented the first federation in history. But that doesn't change the point I was making: the enactment of a constitution is a sovereign act, the people who do so retain all sovereign control over that constitution, as well as the polity and gov't it creates, and no one else can legally/constitutionally alter any of these things without their consent. Secessionists seem to believe this is true of the state constitutions but not the US Constitution. I'm looking for THAT explanation.
John Taylor makes a clear argument along those lines, but he certainly wasn't for secession.
 

Greywolf

Sergeant
Joined
Jun 17, 2017
Messages
801
[QUOTE="Andersonh1, post: 2103538, member

If the Constitution had contained a definite statement of the actual fact; if it had said that to adopt it was to acknowledge the sovereignty of one American people, no part of which could sever its connections from the rest without the consent of the whole, it would probably have been rejected by every State in the Union." - p 79, J. P. Gordy, "Political Parties in the U. S."​



Once again, the Anti-Federalist who argued against adopting the Constitution to their states conventions, saw it clearly enough; but their states ignored them. Either the states ignored their warnings, or did not believe them, in either case, Tx. V. White Stands, because the clear visions of the Constitutions opponents was ignored or not believed.
[/QUOTE]
Not exactly. The anti federalists were the reason for the negotiation, which added the bill of rights. Without that it would have never passed. After the bor was added it is evident there were still a few who didnt like the constitution, but other anti federalists lost some of their skepticism, and it worked out. Lastly the t vs w decision came down to the nationalists having people in the right place at the right time. Marshall being a prime example, appointed by Adam's. If Jefferson was able to make that pick you can rest assured it would have been someone more in line with Jefferson. Maybe Roane of Virginia. Later Story, then along comes Lincoln and Nationlist it is. T vs w is in my opinion, merely the result of the politics of the day. Do you really believe that case could go any other way? just because it is, doesnt mean it was right.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
In the US, assuming the original 13 States ever were independently sovereign, they deliberately gave away some of that sovereignty in a bargain to gain other things that had great value to them (the strength (economic/military/etc.) that came from unity. They did that first through the Articles of Confederation and Perpetual Union, which they deliberately decided to strengthen with the Constitution. In doing so, they had committed the States to being less than completely independent and sovereign.
I think the states were definitely fully sovereign, originally (and they remain partially sovereign). Remember, a la the people of the US, you don’t need to directly exercise government powers to be sovereign over those powers.

As evidence that the states were sovereign, I would submit that the states declared independence as “Free and Independent States”, not a free and independent state/union/nation. Their first official union was a confederation. Vattel’s The Law of Nations (the standard at the time on international law, treaties, and, confederations) held that “several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member...” In conformance with this, the AoCs held that “Each state retains its sovereignty, freedom, and independence...” (note: many people incorrectly apply the “which is not . . . expressly delegated to the United States...” part of the article to the “sovereignty, freedom, and independence” part, but this article is a compound sentence, and “which is not . . . expressly delegated to the United States...” only applies to the second part: “every power, jurisdiction, and right”). In addition, during the Constitutional Convention Morris said “...no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient” when he argued against merely amending the AoCs; therefore, under the AoCs, the states were individually sovereign (the AoCs were a treaty, and treaties cannot possibly affect a states sovereignty*). In their official letter, the Convention said “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all...” That’s a reference to the AoCs/Confederation, which they are saying did secure all rights of independent sovereignty to each state. To this day, the inherent nature of a confederation by definition holds that “Since the member states of a confederation retain their sovereignty, they have an implicit right of secession” (Wikipedia).

So, in terms of one of the discussions previously unfolding on this thread, I believe the states had the power to unilaterally secede from the Union before the Constitution was established. However, the Tenth Amendment does not say, as some have suggested, that the states retained ALL reserved powers (powers not delegated nor prohibited). It says such powers are reserved “to the States respectively, or to the people.” Because the states surrendered a portion of their sovereignty to the people of the US, all reserved powers associated with that sovereignty are retained by the people, not the respective states. Hence, power over the withdrawal of a state or states belongs to the people, not the respective states.

If anyone did not understand that the people of the collective states could only establish the Constitution if the people of the respective states gave them the sovereignty to do so (note: same people, just in a different capacity, respective vs. collective), the Framers informed them: “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest.” To a state, liberty = sovereignty, the liberty to do as they please. As sovereigns, the people of the respective states could do what they wanted with their sovereignty. If they wanted to pool a portion of their sovereignty to create a sovereign union of residually sovereign states, they could do so. And if they did so, it would look EXACTLY like what happened, including, BTW, ratification state by state. In Federalist No. 39 Madison said the Constitution “leaves to the several States a residuary and inviolable sovereignty.” Residual = left over.

So, absolutely, the states deliberately gave away a portion of their full sovereignty. But only via the Constitution, not the AoCs. This is what made the new system “a more perfect Union.



* - as an aside, take a republic for instance. In a republic the people are sovereign, and so only they can consent to a reduction in sovereignty, but it’s their government, which cannot touch their sovereignty, that executes a treaty. Treaties are not legally binding on sovereign states because, although they are a form of contract, there is no authority/sovereignty/government/law supreme/superior to that of an independent sovereign. Contracts made by individuals in a sovereign state are only legally binding because there is a system of law and courts of law above such individuals that protects and enforces contracts. If sovereign states comply with a treaty, they do so via good faith, not the compelling force of man-made law. Vattel’s The Law of Nations was just a book of moral (God’s law) do’s and don’ts. So, if a sovereign state complies with a treaty, it does so merely as a matter of good faith (and is therefore free to not to do so as a matter of bad faith), which is exactly why Morris said NO treaty of confederation could possibly work, and why they needed something that carried the compelling force of law, i.e. a real (fundamental law) constitution. But making any law requires sovereignty, so in order to make the Constitution, the people of the US, as a whole, must be sovereign, and the people of the respective, independently sovereign states, therefore had to give up a portion of their sovereignty so the people of the US could act as a sovereign whole. Hence, as the Framers also said in their official letter, the Constitution consolidated the Union (BUT, only for particular/enumerated purposes, a consolidated union (federation) is more consolidated than a confederation, but less consolidated than unitary (fully consolidated) state).
 

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
Lastly the t vs w decision came down to the nationalists having people in the right place at the right time. Marshall being a prime example, appointed by Adam's. If Jefferson was able to make that pick you can rest assured it would have been someone more in line with Jefferson.
For most of its history, including ALL of the decisions that confirmed national sovereignty, the Marshal Court had a majority of Democratic-Republican (anti-federalist justices) appointed by Jefferson and Madison, and those decisions were at least 6 to 1, and others were 7 to 0. The right people were "in the right place at the right time" because malcontent extremist disunionists were a lunatic fringe, until the slavery debate created the perfect storm of hysteria-trumps-logic-and-reason.

T vs w is in my opinion, merely the result of the politics of the day. Do you really believe that case could go any other way? just because it is, doesnt mean it was right.
Well of course, Dred Scott is proof of that. But the Scott decision was overturned (by the people themselves), and TX v White has stood for 150 years. TX v White could not possibly be upheld that long if it were fallacious. And so, it is not.

 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

trice

Lt. Colonel
Joined
May 2, 2006
Messages
11,866
Once again, the Anti-Federalist who argued against adopting the Constitution to their states conventions, saw it clearly enough; but their states ignored them. Either the states ignored their warnings, or did not believe them, in either case, Tx. V. White Stands, because the clear visions of the Constitutions opponents was ignored or not believed.

Not exactly. The anti federalists were the reason for the negotiation, which added the bill of rights. Without that it would have never passed. After the bor was added it is evident there were still a few who didnt like the constitution, but other anti federalists lost some of their skepticism, and it worked out. Lastly the t vs w decision came down to the nationalists having people in the right place at the right time. Marshall being a prime example, appointed by Adam's. If Jefferson was able to make that pick you can rest assured it would have been someone more in line with Jefferson. Maybe Roane of Virginia. Later Story, then along comes Lincoln and Nationlist it is. T vs w is in my opinion, merely the result of the politics of the day. Do you really believe that case could go any other way? just because it is, doesnt mean it was right.
Texas v. White is almost certainly right on the law; there is no real basis in the law to find anything else. Even the dissenters in the case are saying that, at worst, this is a political decision that should more properly be left to Congress (anyone want to claim the Congress of 1869 would have declared Texas had actually left the Union through secession in 1861?). Even Justice Greer, the strongest dissenter, tells us that the Texas side is essentially saying they were legally "insane" when they seceded.

There never was any precedent in the law for the existence of the theoretical, unilateral "right of secession" claimed in 1860-61. The Supreme Court has no basis for deciding that there was one, so Texas v. White is a fairly predictable decision.

If anyone is actually looking for legal precedents for a "right of secession", the first real hints of such an example are found in a treaty signed in Montevideo in the 1930s and the UN Charter in 1945. The first real example of the exercise of such a legal "right of secession" is probably found in the breakup of the USSR in 1991 under the Constitution of 1917 (as amended over the decades).
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Messages
10,545
Once again, the Anti-Federalist who argued against adopting the Constitution to their states conventions, saw it clearly enough; but their states ignored them. Either the states ignored their warnings, or did not believe them, in either case, Tx. V. White Stands, because the clear visions of the Constitutions opponents was ignored or not believed.
Not exactly. The anti federalists were the reason for the negotiation, which added the bill of rights. Without that it would have never passed. After the bor was added it is evident there were still a few who didnt like the constitution, but other anti federalists lost some of their skepticism, and it worked out. Lastly the t vs w decision came down to the nationalists having people in the right place at the right time. Marshall being a prime example, appointed by Adam's. If Jefferson was able to make that pick you can rest assured it would have been someone more in line with Jefferson. Maybe Roane of Virginia. Later Story, then along comes Lincoln and Nationlist it is. T vs w is in my opinion, merely the result of the politics of the day. Do you really believe that case could go any other way? just because it is, doesnt mean it was right.
[/QUOTE]





What negotiations between the Federalists and Anti-Federalists, are you taling about? I am unaware of any such negotiations, please elucidate.

The fact that both sides interpreted the Tenth Amdnd. differently argues that nothing was settled by any such negotiations, even if it occured.
 

trice

Lt. Colonel
Joined
May 2, 2006
Messages
11,866
I think the states were definitely fully sovereign, originally (and they remain partially sovereign). Remember, a la the people of the US, you don’t need to directly exercise government powers to be sovereign over those powers.
Even in the 1780s, not all Americans believed that the States ever were independently sovereign.

Example: "Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses." Charles Cotesworth Pinckney, SC Ratifying Convention, 1788. Pinckney was a veteran of the Revolution, a lawyer educated in London, and a delegate to the Philadelphia Convention actually writing the Constitution in 1787.

As evidence that the states were sovereign, I would submit that the states declared independence as “Free and Independent States”, not a free and independent state/union/nation. Their first official union was a confederation. Vattel’s The Law of Nations (the standard at the time on international law, treaties, and, confederations) held that “several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member...” In conformance with this, the AoCs held that “Each state retains its sovereignty, freedom, and independence...” (note: many people incorrectly apply the “which is not . . . expressly delegated to the United States...” part of the article to the “sovereignty, freedom, and independence” part, but this article is a compound sentence, and “which is not . . . expressly delegated to the United States...” only applies to the second part: “every power, jurisdiction, and right”). In addition, during the Constitutional Convention Morris said “...no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient” when he argued against merely amending the AoCs; therefore, under the AoCs, the states were individually sovereign (the AoCs were a treaty, and treaties cannot possibly affect a states sovereignty*). In their official letter, the Convention said “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all...” That’s a reference to the AoCs/Confederation, which they are saying did secure all rights of independent sovereignty to each state. To this day, the inherent nature of a confederation by definition holds that “Since the member states of a confederation retain their sovereignty, they have an implicit right of secession” (Wikipedia).

So, in terms of one of the discussions previously unfolding on this thread, I believe the states had the power to unilaterally secede from the Union before the Constitution was established. However, the Tenth Amendment does not say, as some have suggested, that the states retained ALL reserved powers (powers not delegated nor prohibited). It says such powers are reserved “to the States respectively, or to the people.” Because the states surrendered a portion of their sovereignty to the people of the US, all reserved powers associated with that sovereignty are retained by the people, not the respective states. Hence, power over the withdrawal of a state or states belongs to the people, not the respective states.

If anyone did not understand that the people of the collective states could only establish the Constitution if the people of the respective states gave them the sovereignty to do so (note: same people, just in a different capacity, respective vs. collective), the Framers informed them: “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest.” To a state, liberty = sovereignty, the liberty to do as they please. As sovereigns, the people of the respective states could do what they wanted with their sovereignty. If they wanted to pool a portion of their sovereignty to create a sovereign union of residually sovereign states, they could do so. And if they did so, it would look EXACTLY like what happened, including, BTW, ratification state by state. In Federalist No. 39 Madison said the Constitution “leaves to the several States a residuary and inviolable sovereignty.” Residual = left over.

So, absolutely, the states deliberately gave away a portion of their full sovereignty. But only via the Constitution, not the AoCs. This is what made the new system “a more perfect Union.

* - as an aside, take a republic for instance. In a republic the people are sovereign, and so only they can consent to a reduction in sovereignty, but it’s their government, which cannot touch their sovereignty, that executes a treaty. Treaties are not legally binding on sovereign states because, although they are a form of contract, there is no authority/sovereignty/government/law supreme/superior to that of an independent sovereign. Contracts made by individuals in a sovereign state are only legally binding because there is a system of law and courts of law above such individuals that protects and enforces contracts. If sovereign states comply with a treaty, they do so via good faith, not the compelling force of man-made law. Vattel’s The Law of Nations was just a book of moral (God’s law) do’s and don’ts. So, if a sovereign state complies with a treaty, it does so merely as a matter of good faith (and is therefore free to not to do so as a matter of bad faith), which is exactly why Morris said NO treaty of confederation could possibly work, and why they needed something that carried the compelling force of law, i.e. a real (fundamental law) constitution. But making any law requires sovereignty, so in order to make the Constitution, the people of the US, as a whole, must be sovereign, and the people of the respective, independently sovereign states, therefore had to give up a portion of their sovereignty so the people of the US could act as a sovereign whole. Hence, as the Framers also said in their official letter, the Constitution consolidated the Union (BUT, only for particular/enumerated purposes, a consolidated union (federation) is more consolidated than a confederation, but less consolidated than unitary (fully consolidated) state).
Here's the problem with that argument: in order to become sovereign and independent, the revolting colonies bound themselves into a Union that gave up many parts of State sovereignty to the United States of America in 1776-78. They needed to win the war first to establish that independence and sovereignty. It is unlikely they would have attained independence if they had not united to fight the war. (Note, for example, that when Maryland asked the French for help against the British independently, the French told them to agree to the Articles of Confederation and Perpetual Union before asking again.)

It is undoubted that they became collectively independent in 1783 with the signing of the Treaty of Paris. King George's negotiators probably didn't give a fig about whether they were independently sovereign or not: their agreement was with the United States of America collectively -- between two countries, not fourteen.

In the USA, opinions differed. I would guess and believe that most Americans felt the original States were independently sovereign, but clearly not all of them did. Thus the quote from Pinckney in my signature that has been there for many years.

This may well be a tempest in a teapot point. If the States were ever fully independent and sovereign, they clearly and deliberately gave up some parts of that independence and sovereignty in a bargain to get other things they valued. The question of secession would be how they could reclaim things they no longer had.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

BigTex

Corporal
Joined
May 19, 2019
Messages
259
Could you post that argument, or the crux of it? Thx.
"It has been said that the single word constitution contains innate powers, and implies sovereignty or supremacy in the federal government. Johnson expounds confederacy by the word union, and the constitution expounds itself by the same word. It is an instrument for uniting any nine of specified states, and not for constituting a government for a consolidated nation."

"If we relinquish the rigid federal character of the constitution, and admit that the government may be made national, either by the word constitution, by the mode of appointing its officers, or by the limited powers with which these officers and the state governments are entrusted for its execution, arguments may be drawn from the same sources, to prove that our government is of any kind, which a political party may think necessary for advancing its designs, or gratifying its prepossessions. The doctrine, that limited can create unlimited powers, and even make a nation, is as able to establish a monarchy, as a national government of any other complexion."

"Many expressions in the constitution prove that its name did not imply a national government, nor convey any power. Under such a construction, its whole tenour would be absurd, and all its limitations useless. "The president shall, from time to time, give to Congress information as to the state of the union." Why not as to the state of the nation? Because there was no nation, the state of which was subjected to the legislative power of Congress. Thirteen political individuals, being sensible that a mutual interest invited them to unite for special purposes, long acted in concord without any positive compact ; and discerning the mutual benefits resulting from this tacit alliance, at length entered into a written one. This, as a first experiment, having proven defective, was exchanged for another more perfect. To effect its object, the president, as the officer best informed of foreign relations, is required to communicate his knowledge to Congress, concerning the interest delegated to their care ; and not concerning the interests of a consolidated nation, because no such community existed. The individual states are named, both in the title and body of the constitution, as parties to the union, showing that the word constitution was used to describe a union of states, and not a union of individual men ; and this intention is demonstrated by the circumstance, that those states only which should accede to the compact were to be bound by it, because in a constitution formed by individual men composing one nation, a minority cannot reject it, and remain disunited from the majority. "
(bold emphasis mine)
From:
"New Views of the Constitution of the United States "
by John Taylor, of Caroline, Virginia. 1823
Reproduction by Forgotten Books, Classic Reprint Series,
FB &c Ltd.Dalton House, 60 Windsor Avenue, London. SW192RR.
find at ;
www.forgottenbooks.com

Mr. Taylor shews by many proofs throughout, consolidation was not what the Convention of 1787 produced, but rather a federal system of a convention of States, in compact, and not a nation of individual men enacting a government.
The Southern States understood this and acted in a sovereign capacity to withdraw from this union.
 
Last edited:

unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Messages
29,981
Location
Ocala, FL (as of December, 2015).
Last edited:

BigTex

Corporal
Joined
May 19, 2019
Messages
259
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
"It has been said that the single word constitution contains innate powers, and implies sovereignty or supremacy in the federal government. Johnson expounds confederacy by the word union, and the constitution expounds itself by the same word. It is an instrument for uniting any nine of specified states, and not for constituting a government for a consolidated nation."

"If we relinquish the rigid federal character of the constitution, and admit that the government may be made national, either by the word constitution, by the mode of appointing its officers, or by the limited powers with which these officers and the state governments are entrusted for its execution, arguments may be drawn from the same sources, to prove that our government is of any kind, which a political party may think necessary for advancing its designs, or gratifying its prepossessions. The doctrine, that limited can create unlimited powers, and even make a nation, is as able to establish a monarchy, as a national government of any other complexion."

"Many expressions in the constitution prove that its name did not imply a national government, nor convey any power. Under such a construction, its whole tenour would be absurd, and all its limitations useless. "The president shall, from time to time, give to Congress information as to the state of the union." Why not as to the state of the nation? Because there was no nation, the state of which was subjected to the legislative power of Congress. Thirteen political individuals, being sensible that a mutual interest invited them to unite for special purposes, long acted in concord without any positive compact ; and discerning the mutual benefits resulting from this tacit alliance, at length entered into a written one. This, as a first experiment, having proven defective, was exchanged for another more perfect. To effect its object, the president, as the officer best informed of foreign relations, is required to communicate his knowledge to Congress, concerning the interest delegated to their care ; and not concerning the interests of a consolidated nation, because no such community existed. The individual states are named, both in the title and body of the constitution, as parties to the union, showing that the word constitution was used to describe a union of states, and not a union of individual men ; and this intention is demonstrated by the circumstance, that those states only which should accede to the compact were to be bound by it, because in a constitution formed by individual men composing one nation, a minority cannot reject it, and remain disunited from the majority. "
(bold emphasis mine)
From:
"New Views of the Constitution of the United States "
by John Taylor, of Caroline, Virginia. 1823
Reproduction by Forgotten Books, Classic Reprint Series,
FB &c Ltd.Dalton House, 60 Windsor Avenue, London. SW192RR.
find at ;
www.forgottenbooks.com

Mr. Taylor shews by many proofs throughout, consolidation was not what the Convention of 1787 produced, but rather a federal system of a convention of States, in compact, and not a nation of individual men enacting a government.
The Southern States understood this and acted in a sovereign capacity to withdraw from this union.
I don’t see where Taylor’s argument is anything like mine, or where it answers my question. Like all secessionists, it appears Taylor simply assumes the Constitution works differently than the state constitutions. He provides no explanation for why it should be so.

As far as his “many proofs,” the only proofs I see are against his own implied assertions. For instance, your highlighted statement:
because in a constitution formed by individual men composing one nation, a minority cannot reject it, and remain disunited from the majority.
contains two red herrings. First, who ever said the people of the US were one nation BEFORE the Constitution? Chase, in TX v. White? Not that I can see. Of course Taylor wasn’t responding to Chase, but ‘the people of the US were not one nation before the Constitution’ and ‘the Union is older than the states’ are two simple, completely compatible facts. As I said, the act of establishing a constitution IS the sovereign act. Sovereignty, constitution, and nation are all created simultaneously. All real constitutions (fundamental laws) work this way. It doesn’t matter if the people come from Locke’s state of nature, or from a colony that has declared its independence, or from 13 preexisting nations. It works the same for the US in this regard as it did for the individual states. But to secessionists, including as far as I can see Taylor (at least from the quoted material), voila, the Constitution is magically a whole different animal.

The Constitution is different from the original state constitutions in only one way, the sovereignty it imparts is limited (because the powers the Constitution delegates are limited). This brings us to the second red herring. Even AFTER it was enacted, the Constitution did not create a consolidated nation. A nation yes, but not a “consolidated” nation. I know of no federalist/nationalist, 1787-1861, or since for that matter, who said the Constitution created a “consolidated” nation (meaning a unitary state, at least as far as that term was dealt with by Madison vs. Henry in the VA ratifying convention). When sovereignty is split between the Union and the member states, that’s a federation. Neither sovereign party, the collective states/Union nor the individual states, has the whole sovereignty. Only together can they make a sovereign nation.

However, because each party has partial sovereignty, and they together constitute a fully sovereign nation, the Constitution does create a consolidated Union. And we know this is so, because that is exactly how the Framers described it:

In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.” – Federal Convention of 1787 to the Confederation Congress, September 17, 1787

But a consolidated union (federation) is not a consolidated (unitary) state.
 

CW Buff

First Sergeant
Joined
Dec 22, 2014
Messages
1,555
Location
Connecticut
Even in the 1780s, not all Americans believed that the States ever were independently sovereign.

Example: "Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses." Charles Cotesworth Pinckney, SC Ratifying Convention, 1788. Pinckney was a veteran of the Revolution, a lawyer educated in London, and a delegate to the Philadelphia Convention actually writing the Constitution in 1787.
What one guy thought doesn’t matter. The Philly Convention, which you offer as a credential for CCP, referred to the Confederation as a system that had secured “all rights of independent sovereignty to each” state.

If you think it was otherwise, than please define the system they had before the Constitution; where exactly was sovereignty in that system? Let's have an alternative to discuss, rather than a mere denial that they separately sovereign.

As an aside, I think you’ll also find Pickney made that statement in the SC legislature, in January, during a debate over whether or not to call the state ratifying convention, rather than during/in the convention itself (held in May).
Here's the problem with that argument: in order to become sovereign and independent, the revolting colonies bound themselves into a Union that gave up many parts of State sovereignty to the United States of America in 1776-78. They needed to win the war first to establish that independence and sovereignty. It is unlikely they would have attained independence if they had not united to fight the war. (Note, for example, that when Maryland asked the French for help against the British independently, the French told them to agree to the Articles of Confederation and Perpetual Union before asking again.)
None of that matters. The colonies declared, fought for, and won sovereignty. They could place it wherever they wanted. At the time, they had two choices; there were two types of political systems, as far as sovereignty goes: a confederation (a union of separately sovereign states) or a consolidated state (one sovereignty). And of course, they chose a confederation, and they did not alter that until 1788-1790. You (and CCP) seem to be conflating the legal status which they chose for themselves (separately sovereign) for the reality of their situation (they could not have won that sovereignty, or maintained it, except via the Union). But they were under no obligation to choose a poltical system that reflected the reality of their situation. In fact, there was no established system that fit their reality. One of the two previously established systems would have to be tried and fail before they would invent an entirely new one that did reflect that reality.
It is undoubted that they became collectively independent in 1783 with the signing of the Treaty of Paris. King George's negotiators probably didn't give a fig about whether they were independently sovereign or not: their agreement was with the United States of America collectively -- between two countries, not fourteen.
And one of those "countries" was a confederation, which is why the treaty, though between Britain and the US, also names each state:

His Brittanic Majesty acknowledges the said United States, viz. [namely], New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.

And there’s that language again, “free sovereign and Independent States,” plural, not singular. This lkanguage, of course, would have been chosen by the US diplomats, not the British. The Americans weren't going to let the Brits choose how to refer to the US.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!
Top