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

[trice]

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.

Here is the flaw in your illustration: For any State that had ratified the Articles of Confederation and Perpetual Union, there was a court with authority over that State. That court is specified in the Articles themselves, in Article IX. Each and every State in the Confederation and Perpetual Union has bound themselves to abide by the Articles faithfully and thus to abide by the decisions of that court.

 

[Old_Glory]

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?

This is what I stated towards the beginning of this thread. Chase treated the AoC as if they were the Constitution. It's a castle built on sand.

 

[CW Buff]

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.

That was my point, your professors, departments, whatever, thought it was pertinent to the subjects (Constitutional Law, Philosophy of Law), even if you thought it was just an assignment you needed to complete to pass a course.

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.

Exactly. Suggesting he is "impertinent" to our discussion of the US Confederation because he did not specifically speak of it. Vattel didn't have to speak of the sovereignty of the Confederation, he spoke of the sovereignty of all confederations. The Founder's were heavily influenced by Vattel, and the VoCs mimic Vattel's definition of confederations. You yourself are now, vaguely, referring to him, so what does it matter that he did not speak of the US Confederation?

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.

"Deride" is your word, and I'm not upset. I actually find the circles you're traveling quite interesting. First he is immaterial to a discussion of the Confederation because he did not specifically speak of THAT confederation, now you are referring to him (albeit vaguely) as this same discussion continues.

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.

I'm not going any farther down this side street. I know who Locke and Vattel were to the Founders too. Some of Locke's ideas are also reflected in the AoCs. And no two people will completely agree on anything. But unless Locke "disagrees completely" with Vattel on sovereignty within a confederation (the subject we are currently dealing with), the point is immaterial. At any rate, the AoCs mimic Vattel's definition of confederations.

 

[CW Buff]

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.

Note: vague reference to the guy who did not specifically speak of the US Confederation.

“Actual text” of the AoCs? As in “Each state retains its sovereignty, freedom, and independence?”

As far as Vattel/Chpt I, I have no idea what you are referring to, and I’m not going to complete a reading assignment to go look for it. If you really think you have something, then it should be easy for you to post it. But I don't see how it could possibly be more applicable to the issue at hand than Vattel’s definition of confederations.

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.

And they lasted just 7 to 10 years (depending on how you measure it).

Please demonstrate how the AoCs “have been considered as law by the United States Supreme Court.” They are of course referenced in cases to aid in the interpretation of the Constitution. And that is EXACTLY how they are employed in TX v. White. However, the “legal” decision is predicated on the Constitution, an actual law, not the AoCs, a treaty that was abandoned and replaced by the Constitution.

“Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.”

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.

You assume too much. The Hamilton quote I previously submitted indicates that numerous treaties of alliance had been executed in Europe earlier in the 18th century, and they had ALL prompty been broken.

“Except as to the rule of appointment, the United States [meaning the existing Confederation] has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option . . . There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty . . . and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of . . . observance and non-observance, as the interests or passions of the contracting powers dictate . . . In the early part of the present century there was an epidemical rage in Europe for this species of compacts . . . but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith...” – Alexander Hamilton, The Federalist No. 15

Furthermore, let’s stick to the 18th century. Now you’re throwing in the system of international law we have some 200 years after the fact. I “assume” that was “an exaggeration for effect.”

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.

Really? You haven’t provided one piece of evidence yet, including for your current round of assertions, and you’re asking me for MORE? Heck, you haven’t even provided details regarding what you think the AoCs and Confederation were. All we hear is what you think they were not. Where was the sovereignty you say the states lacked? What is such a system called? What period source provides a definition or description of it? What exactly were the AoCs if not a treaty? How do the Confederation and AoCs differ from the more perfect Union and the Constitution? Don’t forget to provide evidence. You’re turn to provide a detailed theory backed by evidence, rather than just taking pot shots at someone else’s.

I’ve posted so much evidence that your current call for more has already been answered. Those violations were noted by Madison in the quote I already posted (his emphasis, not mine).

“Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted?”

 

[CW Buff]

Here is the flaw in your illustration: For any State that had ratified the Articles of Confederation and Perpetual Union, there was a court with authority over that State. That court is specified in the Articles themselves, in Article IX. Each and every State in the Confederation and Perpetual Union has bound themselves to abide by the Articles faithfully and thus to abide by the decisions of that court.

You’re just not listening. “Each state retains its sovereignty, freedom, and independence...” The states were fully sovereign, meaning the Union had none of its own sovereignty. We know what sovereignty is, correct?

The supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.

The “authority” of the Confederation Congress was inferior to the “supreme, absolute, and uncontrollable” authority of the individual states. Legally speaking, each state remained completely independent of any and all outside interference (including Congress). The AoCs were only a treaty, relying on the good faith of the parties, not a fundamental law, with a complete and compulsory operation. This is why the AoCs failed, whereas the Constitution succeeded.

Refer to the Hamilton quote in Post 563. The “decisions of Congress” were no more legally binding upon the sovereign states than its requisitions were (and in fact, the requisitions were also “decisions of Congress,” which often fell on deaf ears). When it comes to law, and systems of law (i.e. governments), sovereignty is EVERYTHING.

“The American States, as well as the American people, have believed a close and firm Union to be essential to their liberty and to their happiness. They have been taught by experience that this Union cannot exist without a government for the whole, and they have been taught by the same experience that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent States. Under the influence of this opinion, and thus instructed by experience, [p381] the American people, in the conventions of their respective States, adopted the present Constitution.” – Virginia v Cohen, 1821

The Confederation was that disappointing experience. It was a government founded upon (and therefore dependent upon) the sovereignty of the individual states (Morris’s government merely federal), rather than one founded upon the sovereignty of the whole people (a national government, dependent upon the sovereignty of the people of the US – that sovereignty being as “supreme, absolute, and uncontrollable” as any other lawful authority on earth, and therefor completely independent of the respective states). It was ineffectual granting the Union powers but not the sovereignty that goes with those powers. The government of such a union is a “mere shadow,” under which “a close and firm Union . . . cannot [even] exist.”

In addition, as I've said, the states were republics. In any republic sovereignty resides with the people, and the government they constitute cannot touch that sovereignty. A republican government cannot legally give any portion of the people’s sovereignty to a third party, anymore than it can grab it for itself. The establishment of a central government created by the governments of 13 sovereign republics cannot possibly entail any surrender of state sovereignty; only the people of the respective states could do that. And that’s what they did, 1787-1790, by adopting the Constitution (a fundamental law/supreme law of the land) via the conventions of their respective states (the people of each state, acting directly, and separately deciding whether to surrender a portion of their formerly full sovereignty, and pooling it with the people of the other states, and becoming part of “We the People of the United States” for the purpose of ordaining and establishing a fundamental law). The establishment of a fundamental law is a sovereign act executed by the people who do so.

 

[CW Buff]

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.

First, thank you for the specific quote.

So do we now agree, the AoCs were a treaty? The "universal" law of nations is deduced from the law of nature (God's law, morality). That's not positive law. And the "special" law of nations is based on the "universal" law of nations. Treaties are compacts among sovereign states that remain perfectly sovereign. They entail a purely moral obligation, not a legal one. There is no system of positive law above those of individual sovereign states.

 

[CW Buff]

This is what I stated towards the beginning of this thread. Chase treated the AoC as if they were the Constitution. It's a castle built on sand.

Please quote the statements via which you feel "Chase treated the AoCs as if they were the Constitution."

All he says about the AoCs is that they gave the Union definite form and character and sanction (true), they solemnly declared the Union to be perpetual (true), and they were found to be inadequate (true).

The problem I have with TX v White is when he says “What can be indissoluble if a perpetual Union, made more perfect, is not?” The key is, what does “more perfect” mean? He fails to provide this vital information. It is the division of sovereignty between the Union and the respective states. It is the refounding of the Union upon the people’s collective sovereignty, rather than upon the individual sovereignty of the states. It is removing the sovereignty associated with federal powers from the respective states and placing it with the people of the US. The establishment of any fundamental law is a sovereign act by the people who do so (Locke’s social compact). That’s what was originally done in the states (however imperfectly, in the midst of the Revolution), and that’s what was subsequently done for the Union. The only difference is that for the Union itself, that sovereignty is partial, while that retained by the states is residual, and of course also partial. It takes the two to provide the US with full sovereignty. And since the only legal transfer of sovereignty is a consensual one, the Union is thereby consolidated and legally indissoluble, except by consent. It can of course be dissolved by force. Consent of the states or revolution.

 

[trice]

That was my point, your professors, departments, whatever, thought it was pertinent to the subjects (Constitutional Law, Philosophy of Law), even if you thought it was just an assignment you needed to complete to pass a course.

Where do you get ideas like this? I was taking a course because I wanted to learn about the subject. I did not have enough knowledge to determine what the syllabus for a Philosophy of Law or a Constitutional Law course would be. I studied what was presented, so I read Machiavelli, Hobbes, Locke, Grotius and many others. In the decades since I have read many others. Vattel has his place, although he lost popularity after about 1900; so do many others. I have not said anything at all disrespectful about Vattel, and you keep harping on this as if I had.

Exactly. Suggesting he is "impertinent" to our discussion of the US Confederation because he did not specifically speak of it. Vattel didn't have to speak of the sovereignty of the Confederation, he spoke of the sovereignty of all confederations. The Founder's were heavily influenced by Vattel, and the VoCs mimic Vattel's definition of confederations. You yourself are now, vaguely, referring to him, so what does it matter that he did not speak of the US Confederation?

Again, where do you get ideas like this? I certainly haven't said the things you are laying at my door.

"Deride" is your word, and I'm not upset. I actually find the circles you're traveling quite interesting. First he is immaterial to a discussion of the Confederation because he did not specifically speak of THAT confederation, now you are referring to him (albeit vaguely) as this same discussion continues.

I haven't done any of this. Why are you convinced that I have?

I'm not going any farther down this side street. I know who Locke and Vattel were to the Founders too. Some of Locke's ideas are also reflected in the AoCs. And no two people will completely agree on anything. But unless Locke "disagrees completely" with Vattel on sovereignty within a confederation (the subject we are currently dealing with), the point is immaterial. At any rate, the AoCs mimic Vattel's definition of confederations.

Looking at Vattel's work, it appears that he might very well think that the states that ratified the Articles of Confederation and Perpetual Union were not free, independent and sovereign as you claim. He certainly implies as much, but since he died before the American Revolution as I said, we cannot know for sure what he would have concluded.

 

[Greywolf]

If the states retain their sovereignty, then they had sovereignty to begin with.

 

[trice]

First, thank you for the specific quote.

So do we now agree, the AoCs were a treaty? The "universal" law of nations is deduced from the law of nature (God's law, morality). That's not positive law. And the "special" law of nations is based on the "universal" law of nations. Treaties are compacts among sovereign states that remain perfectly sovereign. They entail a purely moral obligation, not a legal one. There is no system of positive law above those of individual sovereign states.

Vattel writes more as a philosopher than a historian or jurist. The general consensus at the time he wrote was that God's Law/Natural Law and Man's Law were two separate things. Vattel's position was that they were in accord with one another (by which he meant Man's Law was just/lawful where it agreed with Natural Law and unjust/unlawful where it disagreed with Natural Law). Many of the positions and explanations in his work are really not describing what is the case in law at the time of his writing; they are describing what Vattel thinks they ought to be.

This was part of the attraction his writing held for the rebellious colonists/Founding Fathers. They knew, without a doubt, that their rebellion was Treason under British law (something Vattel would recognize, BTW). The ideas of Vattel and others were attractive to them because they provided supporting justification for their acts of rebellion, casting them into a different light where they could claim to be justified (IOW, what they said in the Declaration of Independence).

The Articles of Confederation and Perpetual Union are an agreement between the rebellious colonies to govern themselves in fighting the American Revolution, with the hope they would win and thus make real the claims they had made to freedom, independence and sovereignty. If it is a "treaty" when written, it is a treaty made among a bunch of rebels against their lawful sovereign.

In your argument, the problem with the claims of complete independence and sovereignty for the individual States is that the actual Articles of Confederation and Perpetual Union contain restrictions that Vattel himself says deny sovereign status. See The Law of Nations, Chapter I.

 

[trice]

“Actual text” of the AoCs? As in “Each state retains its sovereignty, freedom, and independence?”

Yes, the actual text of the entire Articles of Confederation and Perpetual Union -- all of it. You keep harping on this (roughly one-third of a single sentence in one Article) as if it somehow makes all the other Articles disappear.

Article II actually says this:

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.​

​

You seem to see this only as "Each state retains its sovereignty, freedom, and independence."

The rest of the Articles, of course, do delegate many powers, jurisdictions and rights -- including some that Vattel himself says are essential to sovereignty. How can the States be independently sovereign if they no longer have important aspects of sovereignty?

As far as Vattel/Chpt I, I have no idea what you are referring to, and I’m not going to complete a reading assignment to go look for it. If you really think you have something, then it should be easy for you to post it. But I don't see how it could possibly be more applicable to the issue at hand than Vattel’s definition of confederations.

Hmm. I gave you a link to a 1797 English translation of Chapter I of Vattel's Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains (in English, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns). It is a short chapter, easily reviewed, and includes the single paragraph you are referring to as justification. It seem you haven't read the section immediately after your isolated piece -- is that correct?

See The Law of Nations, Chapter I. You seem to be resting all of your argument on §10. Of states forming a federal republic. There are only 12 sections in Chapter I. It seems likely that you must have read past §10 to §11. Of a state that has passed under the dominion of another -- but I have seen no indication that you have actually read it.

 

[trice]

Really? You haven’t provided one piece of evidence yet, including for your current round of assertions, and you’re asking me for MORE? Heck, you haven’t even provided details regarding what you think the AoCs and Confederation were. All we hear is what you think they were not. Where was the sovereignty you say the states lacked? What is such a system called? What period source provides a definition or description of it? What exactly were the AoCs if not a treaty? How do the Confederation and AoCs differ from the more perfect Union and the Constitution? Don’t forget to provide evidence. You’re turn to provide a detailed theory backed by evidence, rather than just taking pot shots at someone else’s.

I’ve posted so much evidence that your current call for more has already been answered. Those violations were noted by Madison in the quote I already posted (his emphasis, not mine).

“Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted?”

I am asking because I would like to see examples so that I can respond to them. You seem to be saying that the States continually violated the Articles of Confederation and Perpetual Union. I am unaware of any such examples and would simply like to know what I should be responding to. If you think I am somehow missing something already posted, please post a link so I can review it.

 

[trice]

In addition, as I've said, the states were republics. In any republic sovereignty resides with the people, and the government they constitute cannot touch that sovereignty. A republican government cannot legally give any portion of the people’s sovereignty to a third party, anymore than it can grab it for itself. The establishment of a central government created by the governments of 13 sovereign republics cannot possibly entail any surrender of state sovereignty; only the people of the respective states could do that. And that’s what they did, 1787-1790, by adopting the Constitution (a fundamental law/supreme law of the land) via the conventions of their respective states (the people of each state, acting directly, and separately deciding whether to surrender a portion of their formerly full sovereignty, and pooling it with the people of the other states, and becoming part of “We the People of the United States” for the purpose of ordaining and establishing a fundamental law). The establishment of a fundamental law is a sovereign act executed by the people who do so.

If you want to rely of Vattel, the States are aristocratic republics in his terms. When an aristocratic body makes a treaty (which Vattel calls a contract), Vattel says it binds the state.

Also, as I have said before, the States are claiming that they are free, independent, and sovereign states. Only by winning the American Revolution and securing the 1783 Treaty of Paris can they become free, independent and sovereign -- but when they ratify the Articles of Confederation and Perpetual Union they have made a bargain in order to obtain what they want. That bargain is an obligation agreed to by each and every State; they have no right to walk away from the Articles.

 

[trice]

You assume too much. The Hamilton quote I previously submitted indicates that numerous treaties of alliance had been executed in Europe earlier in the 18th century, and they had ALL prompty been broken.

“Except as to the rule of appointment, the United States [meaning the existing Confederation] has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option . . . There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty . . . and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of . . . observance and non-observance, as the interests or passions of the contracting powers dictate . . . In the early part of the present century there was an epidemical rage in Europe for this species of compacts . . . but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith...” – Alexander Hamilton, The Federalist No. 15

Furthermore, let’s stick to the 18th century. Now you’re throwing in the system of international law we have some 200 years after the fact. I “assume” that was “an exaggeration for effect.”

So which treaties is Hamilton talking about as "broken" and how high of a percentage of the actual treaties signed do you think they represent? Do you think the percentage is high enough to justify "all the time"?

For reference, here is a list of treaties signed 1700-1799. It is probably incomplete and I do not present it as the bible. It is a Wikipedia reference, which I usually would avoid, but it was quick to find: https://en.wikipedia.org/wiki/List_of_treaties#1700–1799

 

[trice]

Vattel on the need for nations to faithfully honor treaties:

§163. It is a settled point in natural law, that he who has made a promise to any one, has conferred upon him a real right to require the thing promised,—and consequently, that the breach of a perfect promise is a violation of another person’s right, and as evidently an act of injustice, as it would be to rob a man of his property. The tranquillity, the happiness, the security of the human race, wholly depend on justice,—on the obligation of paying a regard to the rights of others. The respect which others pay to our rights of domain and property constitutes the security of our actual possessions; the faith of promises is our security for things that cannot be delivered or executed upon the spot. There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises. This obligation is then as necessary, as it is natural and indubitable, between nations that live together in a state of nature, and acknowledge no superior upon earth, to maintain order and peace in their society. Nations, therefore, and their conductors, ought inviolably to observe their promises and their treaties. This great truth, though too often neglected in practice, is generally acknowledged by all nations:* the reproach of perfidy is esteemed by sovereigns a most atrocious affront; yet he who does not observe a treaty, is certainly perfidious, since he violates his faith. On the contrary, nothing adds so great a glory to a prince, and to the nation he governs, as the reputation of an inviolable fidelity in the performance of promises. By such honourable conduct, as much or even more than by her valour, the Swiss nation has rendered herself respectable throughout Europe, and is deservedly courted by the greatest monarchs, who intrust their personal safety to a body-guard of her citizens. The parliament of England has more than once thanked the king for his fidelity and zeal in succouring the allies of his crown. This national magnanimity is the source of immortal glory; it presents a firm basis on which nations may build their confidence; and thus it becomes an unfailing source of power and splendor.​

​

§164. The violation of a treaty is an act of injustice.As the engagements of a treaty impose on the one hand a perfect obligation, they produce on the other a perfect right. The breach of a treaty is therefore a violation of the perfect right of the party with whom we have contracted; and this is an act of injustice against him.​

​

So, if the Articles of Confederation and Perpetual Union are a treaty, Vattel would tell you that the 13 States that ratified them are bound to obey them.

 

[trice]

And they lasted just 7 to 10 years (depending on how you measure it).

Please demonstrate how the AoCs “have been considered as law by the United States Supreme Court.” They are of course referenced in cases to aid in the interpretation of the Constitution. And that is EXACTLY how they are employed in TX v. White. However, the “legal” decision is predicated on the Constitution, an actual law, not the AoCs, a treaty that was abandoned and replaced by the Constitution.

“Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.”

The US Supreme Court has always had jurisdiction over the legal matters described in the Constitution. When the Supreme Court was organized (September 1789, IIRR), it took up the jurisdiction. Before that time, the judicial power of the United States had rested in the Congress under the Articles of Confederation and Perpetual Union. That jurisdiction extends back to the beginning of the United States -- which US law dates from July 4, 1776 as the result of a Supreme Court decision. That includes the period of the Articles and goes back to before the Articles were written and submitted to the States. This is simply the way the law works.

Just recently (as such things go in a history spanning over 2 centuries), the Supreme Court made a ruling on a treaty signed during the period of the Articles. This case involved the Oneida tribe, which was suing to get their land back. I think that the case to look at is
Oneida Indian Nation of New York v. County of Oneida (1974). That one involves claims from the Continental Congress Proclamation of 1783, the Nonintercourse Acts (six different acts in 1790, 1793, 1796, 1799, 1802, and 1834 ), the Treaty of Fort Stanwix (1784), the Treaty of Fort Harmar (1789) and the Treaty of Canandaigua (1794). That case is often called Oneida I because it is the first of three Oneida Indian Nation cases that made it to the Supreme Court.

Please note that the Supreme Court here is actually ruling on the Proclamation of 1783 and the Treaty of Fort Stanwix (1784) -- both of which are actions of the United States took long before the Constitution was written. Very clearly, the US Supreme Court believes the United States of America of 1783-1784 is the same United States of America that exists today, and that the Union of the Articles of Confederation and Perpetual Union is the same Union as that of the Constitution.

I understand that it is considered important to claim that the US somehow dissolved in 1788-89-90 by many. There is absolutely no evidence that it did. If you think that somehow the states "seceded" from the Union of the Articles, please show us the official documents by which they did so.

 

[American87]

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 were “at 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.

The people of each state cannot be sovereign along with the people of all the states combined. The reason we are a federated Republic is because the people of each state are sovereign, and they are united in a federal (federated) government. That is what the original preamble meant, and a couple sources are (https://books.google.com/books?id=KjAvINYwOGYC&pg=PA50#v=onepage&q&f=false p. 49-50) and (https://tenthamendmentcenter.com/2016/06/28/the-original-forgotten-preamble-to-the-constitution/).

This was a later (not original) sticking point between the Colonies and Britain. After exhausting numerous arguments, the colonists proposed a "dual sovereignty" with Parliament, where the king would be sovereign in the colonies with each legislature, and he would also be sovereign in Britain with Parliament. The British, at least the majority party, opposed this idea because sovereignty, by definition, cannot be shared.

This is why Hamilton referred to "rights" of sovereignty, and not sovereignty itself. He could have written that the states shared sovereignty with the federal government-creating a dual sovereign-but he wrote that sovereign "rights" were "delegated" or "alienated." This means sovereignty-true sovereignty- remained with the people of each state, and this has been sustained in at least one court ruling. The people of each state simply delegate, or alienate, certain rights of sovereignty to an administrative body-the federal government. This is what they do with state governments as well. After all, the state governments are not sovereign-the people are. State governments are administrative bodies, and so is the federal government. Sovereignty rests with the people of each state. That is why they had to be the ones to ratify the Constitution, and that is why the original premable referred to them. Of course, when the preamble was changed, the meaning was maintained, but that meaning has been buried by the Northern nationalist propaganda machine. The treason clause of the Constitution reads,

"Treason against the United States, shall consist only in levying war against them"

That is, according to the Constitution, the United States is a federated Republic of seperate states. That's why it says "them" instead of "it." If there was some nationalist meaning behind "United States," it would have shown up in the body or preamble of the Constitution, or in the Federalist Papers. It hasn't. The rest of the Founders and the people clearly disagree with Gouveneur Morris, whose ideas never found flesh in the Constitution, or else they would be expressed through nationalist terms.

That's also why the Chisholm v. Georgia case makes so many references to the states. The people of Massachusettes could not make deals on behalf of the people of Virginia, which is why the opinion on this case mentions how the people bind (their own) states to the constitution. The people of each state had to ratify, because they are sovereign. And as shown, the states delegated or alienated rights of sovereignty. That is the established fact enshrined in the Constitution and in the Federalist Papers. Please show the documenation for the idea that the states delegated all or some "full sovereignty" to the federal government.

 

[American87]

As I have noted several times, there is no unilateral "right of secession" in US law. There is no such unilateral right under the Articles of Confederation and Perpetual Union. There is no such unilateral right under the Constitution. The concept of "unilateral secession" as a legal right did not even exist at the founding. No State has ever legally seceded from the Union.

If you are actually looking for a constitution of a sovereign nation that does allow a "right of secession", I do have one for you. The very first example I know of is the 1917 constitution of the Union of Soviet Socialist Republics, as amended over the decades. This "right of secession" was actually exercised during the breakup of the USSR in 1991. The USSR constitution is not the US constitution.

In your China-US example, any attempt at a unilateral secession is illegal. All you are talking about is rebellion and revolution, which naturally bring the risk of war and destruction in for those who chose such actions.

The Articles of Confederation were unilaterally dissolved, even though it declared the Union to be perpetual. The right of unilateral secession was inherent because the AoC was a treaty. The Constitution is a legal arrangment for a federated Republic, which means the parties composing the federal government-the states-retain their sovereignty, altough they may delegate or alienate certain rights to the federal government to handle-for as long as the states choose.

Again, you are not using sources. Where in the Constitution or Federalist Papers or anywhere before Texas v. White does it say secession of any sort is illegal. You're making it up. Unless you have a source pre-dating the Civil War that explicity says secession is illegal you are completely making up your entire argument.

 

[American87]

As noted many times on this boaard, the Constitution does not make secession illegal; only unilateral secession(because it is unilateral, i.e., without the sanction of a Constitutional process, provided in the Constitution itself).

The clearly expressed powers in the Constituion, were delegated by the peoples of all the States to the exclusive use of, and by, the Federal Gov't.

The Constitution(and its laws) is Organic Law(No Higher manmade Law) and thus, is the (Supreme) Law of the Land, state constitutions or laws to the contrary not withstanding.

In American Political Theory, the only Law higher than man's is that of God(if you are religious) or Nature(if you are not religious), in either case, that is found in the DoI Not the Constitution. So, under the Constitution(manmade law) any form of secession must be by some provision of the Constitution itself; Or, as stated in Tx v. White either Revolution(God's or Nature's Law) or consent, from the other peoples of all the states of the Union, all of whom have an equal interest in the maintenance of the Union, and, its Constitution. In other words, whatever rights the States, or its peoples, retain, they cannot override the supremacy of those that were delegated under the Constituion, state constitutions or laws to the contrary not withstanding.

The Constitution is a law, but the sovereign has the power to nullify any and all laws at will, no explanation necessary. The people of each state are sovereign, which means the people of any state can nullify the Constitution. This is why nullification was such a big deal before the Civil War-it was before the big government nationlists took over and enforced their own viewpoints in the country. Of course, their viewpoints are not backed by law, and they hold power by controlling information. At any point, states rightists can take over the media and education systems and revive public support for state nullification.

 

[trice]

The Articles of Confederation were unilaterally dissolved, even though it declared the Union to be perpetual. The right of unilateral secession was inherent because the AoC was a treaty. The Constitution is a legal arrangment for a federated Republic, which means the parties composing the federal government-the states-retain their sovereignty, altough they may delegate or alienate certain rights to the federal government to handle-for as long as the states choose.

Again, you are not using sources. Where in the Constitution or Federalist Papers or anywhere before Texas v. White does it say secession of any sort is illegal. You're making it up. Unless you have a source pre-dating the Civil War that explicity says secession is illegal you are completely making up your entire argument.

There is absolutely no evidence at all to support a claim that the United States of America ever dissolved or that any state ever seceded from it legally. The United States began before the Articles of Confederation and Perpetual Union were written or ratified; the same United States of America still exists today. This is what Chief Justice Chase is telling us in his opinion in Texas v. White, et al -- and that is the same line the United States Supreme Court has consistently held to from the time it was organized until the current day.

Look around at the history of the states: new constitutions come and go all the time. South Carolina is currently operating under its' seventh constitution -- has the State of South Carolina dissolved six times? Virginia is currently operating under its' sixth constitution -- has the State of Virginia dissolved five times?

On secession, you are putting the cart ahead of the horse: please present any evidence you have of a legal unilateral "right of secession" actually existing at any time before "the South" tried it in 1860-61. I have never found any. I have been asking people online to present such evidence since the 1990s and no one has ever presented any verifiable evidence that such a "right" ever existed. If it does not exist, it cannot be retained.

I have no idea where the myth of a "treaty" somehow implying an automatic "right of unilateral secession" comes from; a treaty is a transaction, a contract, in International Law and binds all the contracting parties. (For example, this is how Vattel sees a treaty -- see post #575 in this thread.)

This "right of unilateral secession" is certainly not a part of International Law (even today, when you can find some support for a "right of secession" in legal agreements under the United Nations starting in the 1970s). Some treaties specifically provide ways to exit a treaty (generally expiration dates, time limits for exiting by advance notification, or particular conditions that enable exiting). When there is no specific condition in the particular treaty, the general rule would look like this:

"Treaties however which are apparently intended or expressly concluded for the purpose of setting up an everlasting condition of things and further treaties concluded for a certain period of time only are regularly not notifiable although they can be dissolved by mutual consent of the contracting parties." Lassa Oppenheim, International Law: A Treatise, Volume I, 1905 London edition​

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You will note that Vattel, publishing in 1758, agrees with Oppenheim.​