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

CW Buff

Sergeant Major
Joined
Dec 22, 2014
Location
Connecticut
Sorry to be so long in replying.

The “hopeful wish or goal” idea is expressed, as you say, in Article II of the Articles of Confederation and Perpetual Union. The 13 rebellious colonies claimed that they were free, independent and sovereign. Claiming it did not make it true. Only victory in the Revolution could make it true.

When the Continental Congress drafted the Articles of Confederation and Perpetual Union and sent them to the States for ratification (1777), the States were not sovereign or independent in the eyes of anyone but themselves. That would make them what is called in modern usage "unrecognized states".

This appears to be true no matter which of the two main schools of thought on statehood (Constitutive or Declarative) you wish to apply. The Declarative Theory was not really around in the Eighteenth Century (really not defined until the Montevideo Convention of 1933), but even that would not exactly apply to the States during the American Revolution. The Constitutive Theory is probably a bit different then (before the Congress of Vienna in 1815 where the big boys got rid of some 300 sovereign "states" by agreement among themselves -- leaving only 39 "recognized states" in the world). Still, there is no way at all that the "United States of America" is a recognized state under the Constitutive Theory in 1777.

In the eyes of International Law, the 13 rebellious colonies are part of the realm of King George III of Britain. As a result, the claimed sovereignty and independence of the Articles of Confederation and Perpetual Union is clearly not a fact when written. In order to make their claim to sovereignty and independence real, the 13 rebellious colonies are binding themselves together in the Articles of Confederation and Perpetual Union. That document defines the bargain they made.

The first indication that the "United States of America" is/are being recognized by another sovereign state would be the military alliance signed with France in February 1778. On the day that was signed, only 3 of the 13 colonies/states had actually ratified the Articles of Confederation and Perpetual Union and only the first of those (Virginia on December 16, 1777) could have been known in Paris. The last colony/state to ratify was Maryland in February 1781 -- three years after the alliance with France is signed. When Maryland wants aid from France against British incursions in 1780, France refuses and the French ambassador tells Maryland to ratify the Articles if they want aid.

The defining moment for US sovereignty and independence, though, is the end of the American Revolution. The peace treaty with Britain gives them definite recognition, independence and sovereignty. It ends the British claim to the colonies. US law claims they were sovereign and independent from July 4, 1776; British law used the 1783 date. The Supreme Court actually waffles in between the two based on geographic location and who occupied what when.

If the British had prevailed and re-established control over the 13 rebellious colonies, International Law would say they never were sovereign, never were independent. Without victory in the Revolution, the bold claims of the Articles of Confederation and Perpetual Union would be seen as useless posturing.

In the Articles of Confederation and Perpetual Union the States do limit their sovereignty and independence. They do it willfully and voluntarily. They do it in exchange for something of value -- the strength to make their goal a reality. Those are the necessary components of the bargain they made.

Those same States then decided they wanted to make the government of their country, the United States of America, stronger. What we call the Constitution was the means of doing that. The adoption of the Constitution as the new rules of government was done in complete accord with the method outlined in the Articles of Confederation and Perpetual Union. (There is a quibble that can be made about the Constitution itself before it is adopted, but once all 13 States ratify the Constitution it is a moot point.) The government of the Articles is actually responsible for running the transition to the government of the Constitution.

It was possible for a State to leave the Union under the Articles of Confederation and Perpetual Union. None of the 13 States attempted to do so. It is possible for a State to leave the Union under the Constitution. It is not possible to leave the Union unilaterally under either agreement.

So, let me see if I have this right. When I contend that the individual states remained fully sovereign as per Art. II of the AoCs (“Each state retains its sovereignty, freedom, and independence...”), your “The 13 rebellious colonies claimed that they were free, independent and sovereign. Claiming it did not make it true. Only victory in the Revolution could make it true” theory pops up and cancels out the sovereignty of the states. And then, suddenly, when you want to contend “In the Articles of Confederation and Perpetual Union the States do limit their sovereignty and independence,” the sovereignty of the states suddenly reappears only to make a hasty exit via a “bargain” that, STILL, “specifically and directly” says “Each state retains its sovereignty, freedom, and independence...”?????

WOW! I have never seen such a self-serving theory applied in such a self-serving manner.

Of course, IF your 'no sovereignty until victory' theory were true, it could not simply erradicate Art. II and leave the remainder of the AoCs untouched. in fact, that theory would nullify EVERYTHING the states did as independent sovereign states 1776-1783. You are saying there were no states, only "13 rebellious colonies," until 1783. However, your theory is of course not valid. NONE of those acts were declared ‘effective if and when we win,' and NONE of them had to be done over after the states officially won the Revolution in 1783. The idea that the Americans dealt with their sovereignty, claimed or otherwise, tentatively, is bazaar to say the least. NO rebels do that. Via the DoI, they declared to the powers of the world that they were assuming an equal place among them, not ‘if and when we win our rebellion,’ but right then and there, on July 4, 1776. The sovereignty they claimed was theirs to do with as they wished, and under the Confederation they decided “Each state retains its sovereignty, freedom, and independence...

True, IF they had lost, they would revert back to colonies, and in fact would have never been states at all. But, if rebels win, they are sovereign from the moment they declared independence. The interim period belongs to the victor. This year, we celebrated 243 years of independence, on July 4. I don't know about you, but I have no plans to celebrate 236 years of independence on September 3.

In addition, as I said before (I wonder if you even read my posts), even if we accepted your argument, everything the states did would then become effective in 1783, including Art. II.
 

unionblue

Brev. Brig. Gen'l
Member of the Year
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Location
Ocala, FL (as of December, 2015).
How do American 87, welcome to the Forum.

If you’re using those terms the way people at the time did, e.g. Madison, your statement is contradictory. Prior to the Constitution, federal meant all sovereignty was local (a confederation), and national meant all sovereignty was central (a consolidated state). Mix the two, and you get some sovereignty in the states, and some in the Union.

By definition, colonies have no sovereignty, and the Founders knew this. The sticking point was not split sovereignty, it was the violation of constitutional rights (British Constitution); particularly no taxation without representation.

I think the Parliament of Britain hath no more right to put their hands into my pocket, without my consent, than I have to put my hands into yours...” – George Washington to Bryan Fairfax, July 20, 1774

The acts of Parliament are not only repugnant to natural right, but subversive of the laws and constitution of Great Britain itself, . . . Satisfied, then, that the acts of a British Parliament are no longer governed by the principles of justice, that it is trampling on upon the valuable rights of Americans, confirmed to them by charter and constitution...” – George Washington to Bryan Fairfax, August 24, 1774

The colonists rejected the notion that that Parliament held any sovereignty over them, but they recognized that the king was their sovereign. By failing to protect them from attempts by Parliament to establish arbitrary authority over them, in violation of their constitutional rights, and by eventually directly supporting those attempts, the king had violated the loyalty-protection relationship of sovereign-subject. This is why the DoI criticizes the king, not Parliament.

So "sharing sovereignty" was the American proposal, not "a sticking point?"

You’ve misinterpreted Hamilton, he is clearly saying the Constitution will not entirely consolidate the Union (all sovereignty in the Union), but it WILL partially consolidate the Union (some sovereignty in the Union). Without specifying the full vs. partial aspect, the Framers similarly described the Constitution as consolidating the Union:

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,…” – Official Letter of the Federal Convention of 1787, September 17, 1787

Clearly the Framers are saying the Constitution will consolidate the Union. You decide, is it a partial consolidation (split sovereignty) or full consolidation (all sovereignty went to the Union)?

I'm not sure what you mean by "sharing absolute sovereignty," but the states and the Union do not share full sovereignty, if that's what you mean. The full sovereignty of the US (as a whole nation) is split between the two, with each operating under a separate portion or sphere of full sovereignty. Once again, the Framers noted this in their letter; specifically, they noted the difficulty in defining each sphere in complete detail:

"It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was encreased by a difference among the several states as to their situation, extent, habits, and particular interests."

In addition, in The Federalist No. 32 (your source), Hamilton is specifically addressing one part of sovereignty, the authority to raise revenue/tax, which he is explaining is concurrent. Here’s how Madison (Federalist No. 39) explained the division of sovereignty when speaking specifically to the question of sovereignty (aka “authority,” aka “supremacy”; also note spheres of sovereignty):

“…the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

Dictionary.com: residual - "pertaining to or constituting a residue or remainder; remaining; leftover."

As in the sovereignty remaining/leftover after the states gave a portion of their sovereignty to the Union.

Alienate has a specific legal definition:

2: to convey or transfer (something, such as property or a right) usually by a specific act rather than the due course of law

The states wereat least” delegating powers, in fact they were doing much more than that; they were surrendering all claim to those powers, by giving up (alienating) the sovereignty associated with those powers:

“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.” – Official Letter of the Federal Convention of 1787, September 17, 1787

And the Fed is not an “administrative body,” it is a national government, and a supreme one at that:

a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, . . . no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient. . . . a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary. . . . Morris explained the distinction between a federal and national, supreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation. He contended that in all Communities there must be one supreme power, and one only.” The Convention then adopted Morris’s “national, supreme, Govt” proposal, by a vote of 6 to 1, with 1 state divided.

Your theory would mean they then created exactly what they had agreed would not work, and...

It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each....

...it would mean that the Framers drafted a Constitution that represented exactly what they said was “impracticable” in the very cover letter they sent out with that draft Constitution.

Who here, or anywhere, described the Fed as a co-sovereign? The Fed is no more sovereign than the state governments were/are. The Union is a republic, just like each state was a republic (and remains republican). The people of the US hold national sovereignty, just like the people of the respective states hold state sovereignty. However, the sovereign people of the respective states did establish the sovereign people of the US as a “co-sovereign,” by giving the latter a share of their sovereignty.

Regarding the paragraph I bolded, source please? This sounds like the kind of disinformation that comes out of the Tenth Amendment Center.

Both versions refer to the people, not simply the states (as the AoCs had). That suggests a social contract (the making of a fundamental law), not a compact among sovereign states (a treaty). True, but it also eliminates any confusion with the prior system. It was actually Gouveneur Morris who reworded the Preamble, the same Morris who said “no treaty . . . among the . . . States, as individual Sovereignties, would be sufficient. . . . a national, supreme, Govt. . . . ought to be established . . . in all Communities there must be one supreme power, and one only.” And as such, the revision accurately reflects the sovereignty of the people as a whole. At any rate, the notion that the original draft means the people of the respective states remained fully sovereign conflicts with the very fact that the Constitution is a fundamental law ("the supreme Law of the Land"). It is inherent in the establishment of a fundamental law that the people who do so become the collective sovereigns over the territory to which such a law applies. All fundamental law constitutions work this way:

“ ‘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. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner.” – Chisholm v Georgia, 1793

This is basic John Locke/social compact theory, put in action by the Founders, first state-by-state, and then across the whole country. As SCOTUS noted, it works the same for the Constitution as it does for the state constitutions (except the former is supreme to the latter). Ratification means consent. The respective states may have ratified the Constitution, but only the collective states (any 9 to 13 that chose to ratify) could establish the Constitution. And by consenting, as shown above, the people of each state agreed to give up a share of full state sovereignty to the people of the Union ("We the People of the United States").

The sovereignty of the people of the US as a whole over the Constitution is further borne out by Art. V. A compact among sovereign states, which remain fully sovereign, is a treaty. Treaties (like the AoCs) cannot be altered without the consent of ALL of the treaty members (otherwise such would violate the individual sovereignty of the member states, forcing them to agree to a treay that was not, however slightly or significantly, the one originally agreed to). The Constitution can be amended without unanimous consent. That a supermajority of the states was selected (for stability) does not matter, it is still less than unanimous.


I disagree with their description as "administrative bodies," however, the point is trivial. The main point is, as indicated above, the people of the US are the sovereigns of the Constitution, and therefore of the whole US. The people of each state are only sovereign over their respective states, and then only within their residuary sphere.

@CW Buff ,

EXCELLENT post!

Sincerely,
Unionblue
 

CW Buff

Sergeant Major
Joined
Dec 22, 2014
Location
Connecticut
So, @trice, let's review the path by which we have arrived here:

First, I demonstrated the states remained fully sovereign in the Confederation, based on the clear, unmistakable language of Art. II, and other aspects of the AoCs, all of which just happens to be completely consistent with Vattel’s definition of a confederation. I backed that up with Morris, Madison, the Constitutional Convention, Hamilton, and Akhil Reed Amar saying, in no uncertain terms, that the AoCs were a treaty and the individual states were fully sovereign in the Confederation.

You have contested that with one unsubstantiated, critically flawed assertion after another. The first being that the states “specifically and directly” yielded sovereignty via a "bargain" (the AoCs), which we all know “specifically and directly” says “Each state retains its sovereignty, freedom, and independence.” With that theory so easily and clearly refuted, without any acknowledgement of the first error, we got a new theory, 'no sovereignty without victory,' which is not only unsubstantiated and nonsensical, but cannot work unless selectively applied to my assertion on state sovereignty (retained) but not your own assertion on state sovereignty (surrendered).
 

trice

Lt. Colonel
Joined
May 2, 2006
So, let me see if I have this right. When I contend that the individual states remained fully sovereign as per Art. II of the AoCs (“Each state retains its sovereignty, freedom, and independence...”), your “The 13 rebellious colonies claimed that they were free, independent and sovereign. Claiming it did not make it true. Only victory in the Revolution could make it true” theory pops up and cancels out the sovereignty of the states. And then, suddenly, when you want to contend “In the Articles of Confederation and Perpetual Union the States do limit their sovereignty and independence,” the sovereignty of the states suddenly reappears only to make a hasty exit via a “bargain” that, STILL, “specifically and directly” says “Each state retains its sovereignty, freedom, and independence...”?????

WOW! I have never seen such a self-serving theory applied in such a self-serving manner.

Of course, IF your 'no sovereignty until victory' theory were true, it could not simply erradicate Art. II and leave the remainder of the AoCs untouched. in fact, that theory would nullify EVERYTHING the states did as independent sovereign states 1776-1783. You are saying there were no states, only "13 rebellious colonies," until 1783. However, your theory is of course not valid. NONE of those acts were declared ‘effective if and when we win,' and NONE of them had to be done over after the states officially won the Revolution in 1783. The idea that the Americans dealt with their sovereignty, claimed or otherwise, tentatively, is bazaar to say the least. NO rebels do that. Via the DoI, they declared to the powers of the world that they were assuming an equal place among them, not ‘if and when we win our rebellion,’ but right then and there, on July 4, 1776. The sovereignty they claimed was theirs to do with as they wished, and under the Confederation they decided “Each state retains its sovereignty, freedom, and independence...

True, IF they had lost, they would revert back to colonies, and in fact would have never been states at all. But, if rebels win, they are sovereign from the moment they declared independence. The interim period belongs to the victor. This year, we celebrated 243 years of independence, on July 4. I don't know about you, but I have no plans to celebrate 236 years of independence on September 3.

In addition, as I said before (I wonder if you even read my posts), even if we accepted your argument, everything the states did would then become effective in 1783, including Art. II.

I am not sure what your problem is here.

The 13 rebellious colonies are in the middle of the American Revolution when they write and agree to the Articles of Confederation and Perpetual Union. They are claiming that they are free sovereign and independent states. No country in the world agrees that they are actually free, sovereign and independent states when they write the Articles of Confederation and Perpetual Union.

The Articles are no different than the Declaration of Independence. Both mean nothing unless the 13 rebellious colonies win the Revolution and their independence. If they lose the war, they are just a bunch of rebels against their lawful sovereign, King George III, subject to any punishment he and his government choose to inflict upon them.

The Articles of Confederation and Perpetual Union are an agreement, a bargain made among those 13 rebellious colonies, done in order to gain that claimed freedom, independence and sovereignty.

No matter what Article II says, it is not yet a reality when the 13 rebellious colonies are claiming it.

In order to make that claim a reality, the 13 rebellious colonies voluntarily limited that sovereignty in the Articles of Confederation and Perpetual Union. This is what you see in Articles III to XIII of the Articles. They did it intentionally to get the strength to win the American Revolution. This is the bargain they made.

When they win the American Revolution, Article II becomes a reality in 1783 -- but all 13 States are already bound by the bargain they have made. Articles III to XIII still apply. They are not completely free, independent and sovereign. They are free, independent and sovereign within the confines of the Articles of Confederation and Perpetual Union.
 

trice

Lt. Colonel
Joined
May 2, 2006
Just to relate all this Articles talk back to the topic, Chief Justice Chase traces the Union back to the Articles of Confederation and Perpetual Union in his opinion on Texas v. White. Chase tells us that perpetual Union is the same Union of the United States of America under the Constitution.
 
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trice

Lt. Colonel
Joined
May 2, 2006
So, @trice, let's review the path by which we have arrived here:

First, I demonstrated the states remained fully sovereign in the Confederation, based on the clear, unmistakable language of Art. II, and other aspects of the AoCs, all of which just happens to be completely consistent with Vattel’s definition of a confederation. I backed that up with Morris, Madison, the Constitutional Convention, Hamilton, and Akhil Reed Amar saying, in no uncertain terms, that the AoCs were a treaty and the individual states were fully sovereign in the Confederation.

You have contested that with one unsubstantiated, critically flawed assertion after another. The first being that the states “specifically and directly” yielded sovereignty via a "bargain" (the AoCs), which we all know “specifically and directly” says “Each state retains its sovereignty, freedom, and independence.” With that theory so easily and clearly refuted, without any acknowledgement of the first error, we got a new theory, 'no sovereignty without victory,' which is not only unsubstantiated and nonsensical, but cannot work unless selectively applied to my assertion on state sovereignty (retained) but not your own assertion on state sovereignty (surrendered).

Please read Articles III through XIII of the Articles of Confederation and Perpetual Union to see all the restrictions the 13 colonies/States put on their own sovereignty. They did this in the same document. You can only maintain your position by ignoring most of the document.
 
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unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Location
Ocala, FL (as of December, 2015).
@trice and @CW Buff ,

Although it wounds me deeply to see two of my favorite posters disagree with one another, I am absolutely thrilled at what information is being presented by the both of you and how much more I am learning!

Just wanted to thank you both for keeping me interested and learning.

Sincerely,
Unionblue
 

Greywolf

First Sergeant
Joined
Jun 17, 2017
@trice and @CW Buff ,

Although it wounds me deeply to see two of my favorite posters disagree with one another, I am absolutely thrilled at what information is being presented by the both of you and how much more I am learning!

Just wanted to thank you both for keeping me interested and learning.

Sincerely,
Unionblue
Truly astounding with the knowledge presented in this thread. 100% agreed.🙂
 

unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Location
Ocala, FL (as of December, 2015).
Truly astounding with the knowledge presented in this thread. 100% agreed.🙂

@Greywolf ,

It is amazing to me too at all the information and references being given on this topic, no matter what side of it you are on. These two gents have my respect and complete awe at the depth of their knowledge on this aspect of history.

Can't wait to see more!

Sincerely,
Unionblue
 

CW Buff

Sergeant Major
Joined
Dec 22, 2014
Location
Connecticut
I am not sure what your problem is here.

The 13 rebellious colonies are in the middle of the American Revolution when they write and agree to the Articles of Confederation and Perpetual Union. They are claiming that they are free sovereign and independent states. No country in the world agrees that they are actually free, sovereign and independent states when they write the Articles of Confederation and Perpetual Union.

The Articles are no different than the Declaration of Independence. Both mean nothing unless the 13 rebellious colonies win the Revolution and their independence. If they lose the war, they are just a bunch of rebels against their lawful sovereign, King George III, subject to any punishment he and his government choose to inflict upon them.

The Articles of Confederation and Perpetual Union are an agreement, a bargain made among those 13 rebellious colonies, done in order to gain that claimed freedom, independence and sovereignty.

No matter what Article II says, it is not yet a reality when the 13 rebellious colonies are claiming it.

In order to make that claim a reality, the 13 rebellious colonies voluntarily limited that sovereignty in the Articles of Confederation and Perpetual Union. This is what you see in Articles III to XIII of the Articles. They did it intentionally to get the strength to win the American Revolution. This is the bargain they made.

When they win the American Revolution, Article II becomes a reality in 1783 -- but all 13 States are already bound by the bargain they have made. Articles III to XIII still apply. They are not completely free, independent and sovereign. They are free, independent and sovereign within the confines of the Articles of Confederation and Perpetual Union.

The problem is obvious, and entirely yours. No matter what, the “bargain” clearly and unmistakably specifies that “Each state retains its freedom, independence, and sovereignty,…” In a word of the time, no amount of sophistry can change that, no matter how many times it is repeated and tweaked.

Please read Articles III through XIII of the Articles of Confederation and Perpetual Union to see all the restrictions the 13 colonies/States put on their own sovereignty. They did this in the same document. You can only maintain your position by ignoring most of the document.

Please read Vattel (on confederations in general), Morris, Madison, Hamilton, the Const’l Convention’s official letter, and Amar. And then ask yourself, do I know more than all these guys?

I’ve read the whole document, just like you. I just haven’t misinterpreted it. You read the AoCs and, for some reason, you assume Art. II conflicts with the rest of the articles, so you concoct some theory to magically invalidate Art. II while leaving the rest of the AoCs intact. Article II does NOT conflict with the rest of the AoCs. Art. II is the part of the bargain where they agree each state retains full sovereignty. Right there we know the AoCs are treaty. Therefore, the rest of the AoCs are where the states make various promises, including the promise to not exercise their retained, full sovereignty in ways that conflict with the Confederation. It’s ONLY A PROMISE. That’s why it failed.

Treaties have no force of law on sovereign states. This is what made the Confederation palatable to a group of states that had a prior problem with being subject to central sovereignty. Sovereign states know no positive laws above their own. This is what it means to be sovereign. This is also why the Confederation Congress plead with the states to treat their acts as real, positive laws. You don’t make such a request with actual positive laws. The Fed doesn’t make such requests, they don’t have to, their acts ARE laws. Real, positive, laws.

The problem with a confederation is that when self-interest conflicts with a mere promise, self-interest prevails. Sovereign nations break their promises/treaties all the time, especially in those days. This is why Morris said a treaty of confederation relies merely on the good faith of the parties. The Founders had counted on felicity and fidelity, born of their common struggle, to ensure the good faith the AoCs would rely on. The Confederation period, particularly post-Revolution, proved that was pie in the sky thinking. This is exactly why Morris proposed a national supreme government (“national” meaning one founded upon a fundamental law, which carries the force of law, Morris’s “compleat and compulsive operation”). And a fundamental law (“supreme Law of the Land”), like any positive law, is backed by the sovereignty that is REQUIRED to make and apply it. The sovereignty of any law of the land must extend across the whole land, just like the law it creates does. “ ‘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...” (SCOTUS, Chisholm v. Georgia, 1793).

This is what made the Constitution a success, while the AoCs failed. This is what made the new system so much more perfect than the Confederation. And this is what made unilateral secession illegal, rather than just a broken promise, like all the treaty violations the states perpetrated during the Confederation.
 

Dead Parrott

Sergeant
Joined
Jul 30, 2019
Curious about where exactly the breach between the arguments is at this point.

Article II, IN FULL, states "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

That language, in full, suggests that the states will and do intend to delegate some of their sovereignty to the United States.

So it seems the actual language says the states retain sovereignty except for what they pledge to give away to a perpetual union.

So is there any disagreement that the states no longer have full sovereignty, but instead retain only the (considerable) sovereignty they have not given away (and they do give some away)?

Is this agreed?
 

Greywolf

First Sergeant
Joined
Jun 17, 2017
Curious about where exactly the breach between the arguments is at this point.

Article II, IN FULL, states "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

That language, in full, suggests that the states will and do intend to delegate some of their sovereignty to the United States.

So it seems the actual language says the states retain sovereignty except for what they pledge to give away to a perpetual union.

So is there any disagreement that the states no longer have full sovereignty, but instead retain only the (considerable) sovereignty they have not given away (and they do give some away)?

Is this agreed?
I see it as the states retain their sovereignty and independence.....pause......then are granting a few powers to the central authority. To me it's a granting of a few powers, not giving up sovereignty. I see that first part of the sentence as the key.
 

trice

Lt. Colonel
Joined
May 2, 2006
The problem is obvious, and entirely yours. No matter what, the “bargain” clearly and unmistakably specifies that “Each state retains its freedom, independence, and sovereignty,…” In a word of the time, no amount of sophistry can change that, no matter how many times it is repeated and tweaked.



Please read Vattel (on confederations in general), Morris, Madison, Hamilton, the Const’l Convention’s official letter, and Amar. And then ask yourself, do I know more than all these guys?

I’ve read the whole document, just like you. I just haven’t misinterpreted it. You read the AoCs and, for some reason, you assume Art. II conflicts with the rest of the articles, so you concoct some theory to magically invalidate Art. II while leaving the rest of the AoCs intact. Article II does NOT conflict with the rest of the AoCs. Art. II is the part of the bargain where they agree each state retains full sovereignty. Right there we know the AoCs are treaty. Therefore, the rest of the AoCs are where the states make various promises, including the promise to not exercise their retained, full sovereignty in ways that conflict with the Confederation. It’s ONLY A PROMISE. That’s why it failed.

Treaties have no force of law on sovereign states. This is what made the Confederation palatable to a group of states that had a prior problem with being subject to central sovereignty. Sovereign states know no positive laws above their own. This is what it means to be sovereign. This is also why the Confederation Congress plead with the states to treat their acts as real, positive laws. You don’t make such a request with actual positive laws. The Fed doesn’t make such requests, they don’t have to, their acts ARE laws. Real, positive, laws.

The problem with a confederation is that when self-interest conflicts with a mere promise, self-interest prevails. Sovereign nations break their promises/treaties all the time, especially in those days. This is why Morris said a treaty of confederation relies merely on the good faith of the parties. The Founders had counted on felicity and fidelity, born of their common struggle, to ensure the good faith the AoCs would rely on. The Confederation period, particularly post-Revolution, proved that was pie in the sky thinking. This is exactly why Morris proposed a national supreme government (“national” meaning one founded upon a fundamental law, which carries the force of law, Morris’s “compleat and compulsive operation”). And a fundamental law (“supreme Law of the Land”), like any positive law, is backed by the sovereignty that is REQUIRED to make and apply it. The sovereignty of any law of the land must extend across the whole land, just like the law it creates does. “ ‘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...” (SCOTUS, Chisholm v. Georgia, 1793).

This is what made the Constitution a success, while the AoCs failed. This is what made the new system so much more perfect than the Confederation. And this is what made unilateral secession illegal, rather than just a broken promise, like all the treaty violations the states perpetrated during the Confederation.

I have read Vattel and all these others. Probably the first time I seriously looked at them was in my Constitutional Law or my Philosophy of Law class, a few decades back. Nothing they say changes what the 13 States actually agreed to do in the Articles of Confederation and Perpetual Union.

In the Articles, the 13 States have agreed to many limitations on their sovereignty. They are clear and obvious, so you are saying you understand this when you say you have read the entire document.

In that document, they swear to inviolably respect the limitations on their sovereignty they have agreed upon. As long as they are members of he Confederation and Perpetual Union, those limitations apply. Clearly Article II is not in complete accord with Articles III to XIII -- but that can mean that Article II is incorrect as easily as that Articles III to XIII are incorrect.

Obviously, if they leave the Confederation and Perpetual Union legally, those conditions probably will not apply -- but no State can leave the Confederation and Perpetual Union without the consent of the others. This is what Chief Justice Chase is telling us in Texas v. White.
 

trice

Lt. Colonel
Joined
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Curious about where exactly the breach between the arguments is at this point.

Article II, IN FULL, states "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

That language, in full, suggests that the states will and do intend to delegate some of their sovereignty to the United States.

So it seems the actual language says the states retain sovereignty except for what they pledge to give away to a perpetual union.

So is there any disagreement that the states no longer have full sovereignty, but instead retain only the (considerable) sovereignty they have not given away (and they do give some away)?

Is this agreed?
I would agree with that.

In Articles III to XIII, the states expressly delegate many of the powers, jurisdictions and rights of free, sovereign and independent states. As long as a State remains part of the Union that is the United States of America, the Union has those powers, jurisdictions and rights and the State does not.

That can change. The member States of the Union could change the Articles of Confederation and Perpetual Union using the method outlined in the document itself (IOW, the States could consent to giving some or all of those powers, jurisdictions and rights back to the individual States). Or the States could agree to let one or more States leave the Union through the method outlined in the document itself (the ability to change the Articles of Confederation and Perpetual Union). However, there is no means within the Articles of Confederation and Perpetual Union whereby a State can unilaterally reclaim what they have delegated or leave the Union.

In the end, the Union decides to rewrite the Articles of Confederation and Perpetual Union completely, adopting the Constitution. The Union continues, but the rules change. The restrictions on State sovereignty you see in the Articles of Confederation and Perpetual Union are generally continued and expanded upon in the Constitution.
 

trice

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I see it as the states retain their sovereignty and independence.....pause......then are granting a few powers to the central authority. To me it's a granting of a few powers, not giving up sovereignty. I see that first part of the sentence as the key.

I am sure I agree with something similar, but it probably a much more serious granting of powers than you believe.
 

CW Buff

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I have read Vattel and all these others. Probably the first time I seriously looked at them was in my Constitutional Law or my Philosophy of Law class, a few decades back.

Why would you be reading Vattel in a Constitutional Law or Philosophy of Law class if he is as impertinent on the subject of confederations as you seem to suggest?

If you studied Vattel then you should know the Founders relied heavily on on that work for matters of international law, and the work defines what a confederation is, and that definition is consistent with Art. II, so in fact Art. II is not incorrect and does not conflict with the rest of the AoCs.

Nothing they say changes what the 13 States actually agreed to do in the Articles of Confederation and Perpetual Union.

Of course it does not change what the agreed to. It does confirm that your interpretation of what they agreed to is incorrect. What they actually agreed was that they would retain their full sovereignty, and merely limit their exercise of it, as a matter of a voluntary agreement. They keep it, they just agree not to exercise it in certain ways. Remaining completely sovereign, they can do as they wish, agreement or not. How else is it that they disregarded and violated so much of the AoCs without consequence. It’s a treaty, a voluntary agreement. Do we not realize that sovereign states violate treaties? The problem here is the nature of the agreement, a treaty, which has no force of law, and relies merely on good faith.

In the Articles, the 13 States have agreed to many limitations on their sovereignty. They are clear and obvious, so you are saying you understand this when you say you have read the entire document.

Yes, we agree here. But limiting sovereignty and giving it up are two very different things. You have to understand the agreement is only a treaty, they merely gave their word to each other, and they broke their word multiple times. Meanwhile, your response seems to be ‘Say it isn’t so, sovereign states violate treaties?’ They do. This is why Morris said no treaty among the states as independent sovereignties would do.

In that document, they swear to inviolably respect the limitations on their sovereignty they have agreed upon. As long as they are members of he Confederation and Perpetual Union, those limitations apply. Clearly Article II is not in complete accord with Articles III to XIII -- but that can mean that Article II is incorrect as easily as that Articles III to XIII are incorrect.

And then they violated that inviolable agreement, without consequence. This includes not only the limitations you note, but pledges to do things (rather than not do things), like provide requested requisitions. Heck, at times Congress couldn’t even manage a quorum because not enough states sent delegates. Would you call that inviolable? Would you even call it good faith?.

Obviously, if they leave the Confederation and Perpetual Union legally, those conditions probably will not apply -- but no State can leave the Confederation and Perpetual Union without the consent of the others. This is what Chief Justice Chase is telling us in Texas v. White.
Curious about where exactly the breach between the arguments is at this point.

Dual purpose response. Here is the difference Dead Parrot.

What Chase actually says is unilateral secession would violate the US Constitution. Regardless of his little dissertation on the history of the Union, his decision relies on the Constitution, not the AoCs. However, yes, unilateral secession would have violated the AoCs as well. So what? The states violated multiple provisions of the AoCs without consequence. The difference is the Constitution is a fundamental law, enacted via the combined sovereignty of the people of the US, and therefore providing Morris’s complete and compulsive operation (the force of law), even on the states, while the AoCs were only a treaty, enacted via the separate sovereignties of the individual states, and therefore, as indicated by Morris, relying merely on the good faith of the states, who, being sovereign, can choose to withhold that good faith. That is the difference between the two, and that is is why they had to abandon the latter and replace it with the former. This is what 1787-1790 is all about. If the AoCs had actually been inviolable (as a matter of law), there would be no reason for them to fail and need to be replaced. Both documents place limitations on unilateral state action, but ONLY ONE does so as a matter of positive law.

Consider this illustration (I hate doing these because they are never quite apples to apples). What happens when YOU violate a contract? The other party takes you to court, a state or federal court, authorized by a state constitution or the US Constitution to apply positive laws concerning contracts which the state/federal legislature has passed via that same constituted authority (or perhaps similarly valid common law precedents, which such positive law governments enforce). What such authority was there over sovereign states in the late 18th century? None.

Consider Morris's compare and contrast one more time:

"...a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, . . . no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient. . . . [instead] a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary. . . . MORRIS explained the distinction between a federal and national, supreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation."

I see it as the states retain their sovereignty and independence.....pause......then are granting a few powers to the central authority. To me it's a granting of a few powers, not giving up sovereignty. I see that first part of the sentence as the key.

Absolutely, it's a compound sentence. It merely saves one from having to repeat the first few words. Break it into it's separate parts and you have two sentences.

Each state retains its sovereignty, freedom, and independence.
And,
Each state retains every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

The double ", and" indicates a compound sentence, and the second one indicates the actual break. To apply the opposite meaning, it would have to read:

Each state retains all sovereignty, freedom, independence, Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.


In closing, do not the multiple, reputable primary sources I have provided throughout this thread not confirm that the AoCs were a treaty and the individual states remained fully sovereign within the Confederation, and that the critical element the Constitution provided was the force of law established via the collective sovereignty of the people of the US?
 

trice

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Joined
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Why would you be reading Vattel in a Constitutional Law or Philosophy of Law class if he is as impertinent on the subject of confederations as you seem to suggest?

I am not sure what your point is. I was not in control of the syllabus of the courses: the professors were and if you wanted to pass the course (which I did), you read the assignments and partcipated in the classes. Professor Manwaring in particular was a well-regarded constitutional law man and took deep dives in many directions; the Philosophy of Law class was just the standard requirement and the syllabus there was probably more department-level committee choices than the professor's individual selections.

I doubt I have ever said that Vattel was "impertinent". I think the only thing I said to you about him was roughly that he died before the American Revolution and so never said anything at all about the sovereignty of the 13 rebellious American colonies.

If you studied Vattel then you should know the Founders relied heavily on on that work for matters of international law, and the work defines what a confederation is, and that definition is consistent with Art. II, so in fact Art. II is not incorrect and does not conflict with the rest of the AoCs.

I have no idea at all why you seem to think I am trying to deride Vattel. It seems to me that I have never said any of the things about Vattel you seem to be upset about.

I know that the the Founding Fathers were at least a little familiar with Vattel (among many others) and, if you go look in the On Sovereignty thread you will see me saying so. Vattel is a source; there were many sources. They were also other sources they were familiar with, such as John Locke, who disagrees completely with Vattel on sovereignty.
 

trice

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Joined
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Of course it does not change what the agreed to. It does confirm that your interpretation of what they agreed to is incorrect. What they actually agreed was that they would retain their full sovereignty, and merely limit their exercise of it, as a matter of a voluntary agreement. They keep it, they just agree not to exercise it in certain ways. Remaining completely sovereign, they can do as they wish, agreement or not. How else is it that they disregarded and violated so much of the AoCs without consequence. It’s a treaty, a voluntary agreement. Do we not realize that sovereign states violate treaties? The problem here is the nature of the agreement, a treaty, which has no force of law, and relies merely on good faith.



Yes, we agree here. But limiting sovereignty and giving it up are two very different things. You have to understand the agreement is only a treaty, they merely gave their word to each other, and they broke their word multiple times. Meanwhile, your response seems to be ‘Say it isn’t so, sovereign states violate treaties?’ They do. This is why Morris said no treaty among the states as independent sovereignties would do.

Interestingly enough, reading Vattel's work and looking at the actual text of the Articles of Confederation and Perpetual Union, one can easily think that Vattel himself might say the individual rebellious colonies/States are not completely sovereign, independent, or free precisely because they have given up the things you say are unimportant. See The Law of Nations, Chapter I.

I do not think, BTW, that the Articles of Confederation and Perpetual Union are "only a treaty". They are regarded as the first constitution of the United States of America and have been considered as law by the United States Supreme Court ever since it was founded. The Supreme Court still rules on matters that concern the Articles of Confederation and Perpetual Union from time to time, the most recent about 20 years ago, IIRR. Chief Justice Chase's reference to them in the Texas v. White case is just one example of the Supreme Court including the Articles of Confederation and Perpetual Union in their decisions.

As to violating treaties: Yes, nations break/violate/renounce treaties sometimes ("all the time" is an exaggeration for effect, I assume). When they do, there are consequences. The consequences may include war and destruction. Today, the consequences may include legal action because there are now International Courts who can decide the matter and may, indeed, enforce the treaty.

When you are speaking of the Articles of Confederation and Perpetual Union, please list a few examples of states violating the agreement. I do not recall any that were not resolved within the Confederation and Perpetual Union.
 
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trice

Lt. Colonel
Joined
May 2, 2006
Just because we have been talking so much about Vattel, I thought I would post this chart I found in an article I was looking at. Vattel would see the Articles of Confederation and Perpetual Union as being part of the Law of Nations - Special - Conventional section.

1567105407935.png
 
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