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

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trice

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Vattel on dissolving treaties:
§205. Treaties dissolved by mutual consent.
Finally, as treaties are made by the mutual agreement of the parties, they may also be dissolved by mutual consent, at the free will of the contracting powers. And even though a third party should find himself interested in the preservation of the treaty, and should suffer by its dissolution,—yet, if he had no share in making such treaty, and no direct promise had been made to him, those who have reciprocally made promises to each other, which eventually prove advantageous to that third party, may also reciprocally release each other from them, without consulting him, or without his having a right to oppose them. Two monarchs have bound themselves by a mutual promise to unite their forces for the defence of a neighbouring city: that city derives advantage from their assistance; but she has no right to it; and as soon as the two monarchs think proper mutually to dispense with their engagements, she will be deprived of their aid, but can have no reason to complain on the occasion, since no promise had been made to her.
That seems very similar to Chief Justice Chase saying that "There was no place for reconsideration or revocation, except through revolution or through consent of the States." in Texas v. White. Vattel's work was first published in 1758; Chase's opinion is in 1861.
 

trice

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If the states retain their sovereignty, then they had sovereignty to begin with.
This statement is logically backwards. It is just as valid and logical to say "if the states were not sovereign, they could not retain sovereignty".

In the Declaration of Independence and the Articles of Confederation and Perpetual Union, the states are making a claim to sovereignty that has not yet been proven to be true. Using the words of the Articles as the proof for the claim does not establish that they actually have sovereignty.
 

OpnCoronet

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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.
No, The Constitution,Is, THE Law of the Land(The Union, of all the people of all the States of that Union).

Your history is suspect, the 'states right' Theory, in relation to any existence of interposition or nullification of the Constitution and its laws, was always a disputed claim, whenever and where it was proclaimed, i.ke., it was a figment of the imagination of certain peoples whose opinions did not agree with the express powers of the Constitution, but, found themselves a distinct minority within the general population of the Union.

One might argue the fairness or even the efficacy of Majority rule, under the Constitution, but one cannot reasonably argue that it does not exist, nor that it can be violated(authority of all the people of all the states of the Union) at the whim of any of the constitutent parts of that Union, i.e., a process of law must be adhered to, according to the expressed power and authority of the Constitution.
 
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Old_Glory

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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).
"When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, "

He is using the AoC for that reference which is illogical and unsound legally. The Constitution does not use the words indissoluble or perpetual in the entire document. Chase leads us to believe that it does without any evidence.

The Texas vs White case has little to any relevance to secession's legality or the grand picture of the legality of the War. It's just a ruling that had to be made due to the post war circumstances and that is all.
 
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CW Buff

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Side note: my time has been limited lately. Not sure how many posts I can respond to now, or in the near future (hopefully this weekend), but I will take a shot at a few.

"When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, "

He is using the AoC for that reference which is illogical and unsound legally. The Constitution does not use the words indissoluble or perpetual in the entire document. Chase leads us to believe that it does without any evidence.

The James vs White case has little to any relevance to secesions legality or the grand picture of the legality of the War. It's just a ruling that had to made due to the post war circumstances and that is all
Well, that’s one take on it. Mine is that Chase only offers the AoCs as proof that the more perfect Union is perpetual. If perpetual Union was the goal of the AoCs (as the Articles clearly indicate), and the Constitution is designed "to form a more perfect Union,” then of course the original objective must remain. And certainly there can be no logic that it was otherwise unless the Framers specifically indicated that that goal, important enough to call out in the AoCs, was being jettisoned for some reason. At any rate, treaties may be temporary or perpetual, fundamental laws (“the supreme Law of the Land”) are inherently perpetual. They carry the force of positive law, and can only be altered or abolished by the people who enact them, as whole, the same way those people enact them. Of course, I would agree, Chase could have, and I believe should have, gone into this part in more depth. Lack of such is the problem I have had with TX v. White for some years.
 

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@trice

I will say this, it has been an excellent opportunity for peer review. I have had to think more in depth about these things than ever before. For that I’m grateful. :thumbsup:


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.
However, I still believe you are wrong on the central issue (note: I’m no less confident of this, this tone is only me taking a shot at moderating the language, for my part). Here’s why. You apply your individual parcels of logic, at times sound, in a completely one-sided manner. You are trying to assert that the AoCs were some kind of positive law. Do you believe that a “bunch of rebellious colonies” can make a law any more than they can make a treaty?

In addition, you apply British law (rebellious colonies) to Art. II and American law (sovereign states) to the rest of the AoCs. Let us apply British law to the WHOLE AoCs for a moment. If the states are not sovereign, they can no more agree to surrender a portion of sovereignty (your opinion of the rest of the AoCs) than they can agree to retain sovereignty. And there is no reason why the agreement is not one to retain sovereignty once they secure it any more than it could be one to surrender sovereignty once they secure it. But of course, the Americans proceed under an assumption of sovereignty, as all sovereigns do.* They wrote the AoCs, not the British.* If you want to shoot them down for that, despite the fact they won the revolution, fine, but do it for the WHOLE AoCs, not just the part you disagree with.

In addition, your opinion of 'the rest of the AoCs' as a bargain to surrender a portion of state sovereignty is clearly wrong. The same people (Constitutional Congress) who wrote the rest of the AoCs wrote “Each state shall retains its sovereignty.” Legitimate sovereignty or not, they clearly did not then turnaround and write the rest of the AoCs as an agreement to surrender a portion of that sovereignty. And the manner in the CC wrote the AoCs is exactly the manner in which the states ratified it.

* - As Chase said in TX v. White, there are but two ways to acquire sovereignty, the consent of the preexisting sovereign, or revolution (meaning a successful rebellion). You can’t have a successful rebellion by making it comply with the “lawful sovereign[’s]” law/opinion. The Americans establish their own sovereignty in 1776, illegitimate though it may be prior to 1783, and must of course treat their own sovereignty as fully legitimate. The AoCs are written from THAT perspective.
 
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CW Buff

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@trice

And you still have not addressed the fact that republican governments cannot alter the sovereignty of their states. In any republic, the people are sovereign, and only they can do that. So, how can republican governments surrender their peoples sovereignty to a third party?
 

CW Buff

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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?
I've read it. I just haven't made the mistake of thinking it's applicable. P.S. listing out the whole original title does not mean your interpretation of it is correct.

Vattel is no more contradictory on The Law of Nations than the Continental Congress is on the AoCs. There is ONE section in The Law of Nations that SPECIFICALLY deals with confederations. The other sections do not contradict §10, they are simply not applicable to confederations. Vattel says refraining the exercise of sovereignty contrary to the confederation does not impair the member states' sovereignty. Obviously, in the case of confederations, not exercising sovereignty in a certain manner does not entail not having that sovereignty.
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.
Of course I’m resting my argument on §10, it is THE section of The Law of Nations that applies to confederations. What is the basis of our discussion: the US Confederation. If other sections of The Law of Nations appear to conflict with §10, then clearly they do not apply to confederations. Vattel didn’t build contradictions into The Law of Nations any more than Congress built contradictions into the AoCs.

And Vattel's definition of confederations just happens to correlate exactly with “Each state retains its sovereignty...” For some reason (i.e. to try and make your central point legit) you go rooting around for something else in The Law of Nations. You seem to think these other things contradict §10, and you can apply them and disregard §10. They DON’T contradict, they simply don’t apply to the specific case of confederations.
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.
Your about to see why I required you to post your own supporting documentation rather than sending me on a wild goose chase to try and figure out what you meant.

§11. Of a state that has passed under the dominion of another. But a people that has passed under the dominion of another is no longer a state, and can no longer avail itself directly of the law of nations. Such were the nations and kingdoms which the Romans rendered subject to their empire; the generality even of those whom they honoured with the name of friends and allies no longer formed real states. Within themselves, they were governed by their own laws and magistrates; but without, they were in every thing obliged to follow the orders of Rome; they dared not of themselves either to make war or contract alliances; and could not treat with nations.

Obviously, when we take a look at the actual section, this refers to a small, weak sovereign state placing itself under the protection of a large powerful (and existing) sovereign state (as several kingdoms did WRT the Roman Empire). Not only does this not apply to a group of rebel colonies/presumed sovereign states forming a confederation (a union via a treaty in which each state retains its sovereignty, whether legit or presumed), but it does not even apply to those states surrendering a portion of their independent sovereignty to that Union via a fundamental law in order to form a perfect Union.
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).
It doesn’t matter if Vattel, or anyone else, would or would not agree the Americans are sovereign in 1777, or 1781, or ever (except for the British, and then only if they win). It matters that the Americans are behaving as their own sovereigns, and as such, have devised a confederation on the basis of Vattel’s definition. And of course, once the Americans win, THEIR perspective, that they were free, independent, and sovereign as of July 4, 1776, becomes the law (positive law).
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.
So now the states were republics, rather than just rebellious colonies lacking any sovereignty until 1783. If you would have answered my questions, it would have saved you from jumping around all over the place throwing out a confusing array of material that simply does not apply.

And despite the fact you yourself posted evidence that The Law of Nations is based on natural/God’s law (morality), and that Vattel is...
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.
...you still seem to think Vattel is saying treaties are legally binding. That's clearly incorrect. He is of course saying that states are morally bound to comply with their treaties. This is the same thing as Morris saying treaties rely on the good faith of the parties, and lack a complete and compulsive operation.

And as far as "aristocratic republics," let's take a look at the WHOLE section so everyone can judge for themselves:

"§3. Of the several kinds of government. If the body of the nation keeps in its own hands the empire or the right to command, it is a popular government, a democracy; if it entrusts it to a certain number of citizens, to a senate, it establishes an aristocratic republic; finally, if it confides the government to a single person, the state becomes a monarchy."

Seeing how the American "aristocrats" included plain ordinary farmers, and there was no "senate" (by which he means the Roman Senate), I believe the early states would fall somewhere between the first two kinds of gov't.
 

OpnCoronet

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Side note: my time has been limited lately. Not sure how many posts I can respond to now, or in the near future (hopefully this weekend), but I will take a shot at a few.


Well, that’s one take on it. Mine is that Chase only offers the AoCs as proof that the more perfect Union is perpetual. If perpetual Union was the goal of the AoCs (as the Articles clearly indicate), and the Constitution is designed "to form a more perfect Union,” then of course the original objective must remain. And certainly there can be no logic that it was otherwise unless the Framers specifically indicated that that goal, important enough to call out in the AoCs, was being jettisoned for some reason. At any rate, treaties may be temporary or perpetual, fundamental laws (“the supreme Law of the Land”) are inherently perpetual. They carry the force of positive law, and can only be altered or abolished by the people who enact them, as whole, the same way those people enact them. Of course, I would agree, Chase could have, and I believe should have, gone into this part in more depth. Lack of such is the problem I have had with TX v. White for some years.


The government of the Union changed, not the Union itself. Chase ruled that the Permanent Union of the AoC, was the same permanent Union under its new gov't of the Constitution. In other words, if the People of the United States did not want their Union under their new constitution, no longer wanted their Union to be perpetual under its new constitution, then they would have to be as clear in rejecting it under their new gov't, as they had in accepting it under the old, i.e., the perpetual Union under the AoC, was the same perpetual Union under the Constitution.

The Union of the DoI was he same Union of the AoC and the Constitution. A Perpetual Union had only to be proclaimed once, just as its rejection by a future general need only be once, no matter how many gov'ts are formed between the two events.
 
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CW Buff

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if the People of the United States did not want their Union under their new constitution, no longer wanted their Union to be perpetual under its new constitution, then they would have to be as clear in rejecting it under their new gov't, as they had in accepting it under the old
If I understand you right, you are indicating agreement with what I stated, as far as...
If perpetual Union was the goal of the AoCs (as the Articles clearly indicate), and the Constitution is designed "to form a more perfect Union,” then of course the original objective must remain. And certainly there can be no logic that it was otherwise unless the Framers specifically indicated that that goal, important enough to call out in the AoCs, was being jettisoned for some reason.
In addition, I would say the Framers communicated exactly the opposite idea in their official letter:

"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..."

And in fact in the Constitution itself.

"...to ourselves and our Posterity..."

However, I don't believe we need "perpetual Union" (in the AoCs), the absence of any statement that perpetuity was being abandoned (Const'l Convention, state ratification debates, etc.), "consolidation of our Union" (official letter), or "our Posterity" or "more perfect" Union to understand the Union established via the Constitution is perpetual. The Constitution is a fundamental law ("supreme Law of the Land"). It carries the force of law upon all Americans, because it was established by the American people as a sovereign whole (only sovereignty can make positive laws). And like all laws, it is inherently perpetual; it remains in force until repealed by the same authority that enacted it, in this case the sovereign "People of the United States of America." A fundamental law is therefore 1) compulsory and, 2) inherently perpetual. The state constitutions, which were also fundamental laws established by the whole, sovereign people of each state, instituted perpetual political states. In this regard, the Constitution is no different than the state constitutions.
The government of the Union changed, not the Union itself.
Here's where we disagree (to a point anyway). A change in government IS a change in the Union. A change in government can be rather insignificant (a state, being a constitutional republic, replaces an existing constitution with a new one, and remains a constitutional republic) or monumental (a confederation founded upon a treaty establishes a fundamental law, thereby becoming a federation). A change in the BASIC FORM of government is a significant change in the polity (in this case the Union).
Chase ruled that the Permanent Union of the AoC, was the same permanent Union under its new gov't of the Constitution.
That's not actually what he ruled. He ruled that the more perfect Union was as perpetual as that which existed under the AoCs. In fact Chase notes the changes in the Union when he traces its history.

"It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And, when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union'."

Certainly you would not say a union of colonies is the same as a union of sovereign states. Nor is an ad-hoc union the same as an official union. Nor is a more perfect union the same as a less perfect union. It began as an ad-hoc union of colonies resisting what they perceived were constitutional violations, it then became a union of declared sovereign states fighting for independence (still ad-hoc). It then took definite, official form under the AoCs as a confederation. And finally, it was reestablished on a completely different basis, a fundamental law, as the first federation in the history of the world. These are substantial, important changes that resulted, as intended, in substantial, important changes to both the Union and its government.

However, even I note these as changes to THE Union. It was the same group of colonies/states (until they began adding states, as any growing nation stealing land from the natives will do). Whether stated or not, the basic goals remained the same ("Justice . . . domestic Tranquility . . . common defence . . . general Welfare . . . the Blessings of Liberty"). There are different aspects to the Union, including both aspects that remained consistent and aspects that changed significantly. This is how the Framers could speak of a continuous Union ("the consolidation of our Union") at the same time they spoke of forming a new Union ("in Order to form a more perfect Union"). However, even if there had been a slight change in the makeup of the Union, this does not amount to creating a WHOLE NEW Union, because elements that are just as vital and important are retained throughout..
The Union of the DoI was he same Union of the AoC and the Constitution. A Perpetual Union had only to be proclaimed once, just as its rejection by a future general need only be once, no matter how many gofficial) or a'ts are formed between the two events.
And here is another substantial, important change. The Union was not perpetual until it was declared as such (actually, it could be considered perpetual as of July 4, 1776; the very first draft of the AoCs was made by Franklin and presented to Congress in late 1775, at which time it was set aside; I believe that draft indicated the Union would continue until the colonies' issues with Britain were resolved, otherwise it would be perpetual; so unofficially, the need for perpetuity went hand-in-hand with any bid for independence).
 

OpnCoronet

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If I understand you right, you are indicating agreement with what I stated, as far as...
In addition, I would say the Framers communicated exactly the opposite idea in their official letter:
"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..."
And in fact in the Constitution itself.
"...to ourselves and our Posterity..."
However, I don't believe we need "perpetual Union" (in the AoCs), the absence of any statement that perpetuity was being abandoned (Const'l Convention, state ratification debates, etc.), "consolidation of our Union" (official letter), or "our Posterity" or "more perfect" Union to understand the Union established via the Constitution is perpetual. The Constitution is a fundamental law ("supreme Law of the Land"). It carries the force of law upon all Americans, because it was established by the American people as a sovereign whole (only sovereignty can make positive laws). And like all laws, it is inherently perpetual; it remains in force until repealed by the same authority that enacted it, in this case the sovereign "People of the United States of America." A fundamental law is therefore 1) compulsory and, 2) inherently perpetual. The state constitutions, which were also fundamental laws established by the whole, sovereign people of each state, instituted perpetual political states. In this regard, the Constitution is no different than the state constitutions.
Here's where we disagree (to a point anyway). A change in government IS a change in the Union. A change in government can be rather insignificant (a state, being a constitutional republic, replaces an existing constitution with a new one, and remains a constitutional republic) or monumental (a confederation founded upon a treaty establishes a fundamental law, thereby becoming a federation). A change in the BASIC FORM of government is a significant change in the polity (in this case the Union).
That's not actually what he ruled. He ruled that the more perfect Union was as perpetual as that which existed under the AoCs. In fact Chase notes the changes in the Union when he traces its history.
"It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And, when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union'."
Certainly you would not say a union of colonies is the same as a union of sovereign states. Nor is an ad-hoc union the same as an official union. Nor is a more perfect union the same as a less perfect union. It began as an ad-hoc union of colonies resisting what they perceived were constitutional violations, it then became a union of declared sovereign states fighting for independence (still ad-hoc). It then took definite, official form under the AoCs as a confederation. And finally, it was reestablished on a completely different basis, a fundamental law, as the first federation in the history of the world. These are substantial, important changes that resulted, as intended, in substantial, important changes to both the Union and its government.
However, even I note these as changes to THE Union. It was the same group of colonies/states (until they began adding states, as any growing nation stealing land from the natives will do). Whether stated or not, the basic goals remained the same ("Justice . . . domestic Tranquility . . . common defence . . . general Welfare . . . the Blessings of Liberty"). There are different aspects to the Union, including both aspects that remained consistent and aspects that changed significantly. This is how the Framers could speak of a continuous Union ("the consolidation of our Union") at the same time they spoke of forming a new Union ("in Order to form a more perfect Union"). However, even if there had been a slight change in the makeup of the Union, this does not amount to creating a WHOLE NEW Union, because elements that are just as vital and important are retained throughout..
And here is another substantial, important change. The Union was not perpetual until it was declared as such (actually, it could be considered perpetual as of July 4, 1776; the very first draft of the AoCs was made by Franklin and presented to Congress in late 1775, at which time it was set aside; I believe that draft indicated the Union would continue until the colonies' issues with Britain were resolved, otherwise it would be perpetual; so unofficially, the need for perpetuity went hand-in-hand with any bid for independence).




I agree, in fact, you have cleared up some fine points of argument. I have some quibbles, but, I have to save them for another, more convenient time.
 

CW Buff

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In light of the current discussions about the ability to get out of a treaty unilaterally, I'd like to draw particular attention to this part...
Jeez trice, let me know when you create a whole new thread to discuss a topic that arises in one of our discussions. Its almost like you didn't want me to know.
This is from Lassa Oppenheim's International Law: A Treatise, Volume I, London 1905. I thought it might be of interest to show how International Law was changing around the American Civil War.


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In light of the current discussions about the ability to get out of a treaty unilaterally, I'd like to draw particular attention to this part:"In 1871 the Conference of London attended by the representatives of the Powers which were parties to the Peace of Paris of 1856 solemnly proclaims that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty or modify the stipulations thereof unless with the consent of the contracting Powers by means of an amicable arrangement."

I'd especially like to focus on the last part.
In light of the current discussions about the ability to get out of a treaty unilaterally, I'd like to draw particular attention to this part:"In 1871 the Conference of London attended by the representatives of the Powers which were parties to the Peace of Paris of 1856 solemnly proclaims that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty or modify the stipulations thereof unless with the consent of the contracting Powers by means of an amicable arrangement."
The difference between should and must really shouldn't be that difficult to grasp (but apparently it must be). As with the AoCs, you fixate on the part of a source you like, and ignore the part that you don't like. So I added the blue-bold (your original black-bold remains) to give the statement its proper context. The part I bolded is the part that indicates we are STILL dealing with something different and substantially LESS than the force of positive law. Note the distinction between this and US law: no one needs to "solemnly proclaim" that it is essential to obey US law.

Let’s consider a period of time that overlaps with the one you used in your thread ("Advancements in International Law, 1856-1874").

The spiritual aspect of treaty-making escaped the United States government, history tells us. The U.S. federal government entered into more than 500 treaties with Indian nations from 1778 to 1871; every one of them was ‘broken, changed or nullified when it served the government’s interests,’ Helen Oliff wrote in ‘Treaties Made, Treaties Broken'.

Let’s also consider something more recent:

On multiple occasions, the United States has joined a valid treaty, helped bring it into legal force, accepted the obligations and the benefits that come with it, and then unarguably and ostentatiously violated the treaty. As detailed in the three cases below, the United States has a history of flatly breaching commitments and, when challenged, having nothing to assert in its defense.” – David A. Koplow, Georgetown University Law Center, Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty, 2013

"Advancements in International Law, 1856-1874?" All of the advancements in international law from beginning to end still have not resulted in anything nearly as effective as the positive law created by sovereignty. International law is about as effective a system as a confederation founded upon a treaty. Maybe that's because treaties are based on international law.
 
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American87

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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​
You will note that Vattel, publishing in 1758, agrees with Oppenheim.​
The Articles of Confederation were dissolved, because the states made no commitment to immediately create a new central government. Each and every state backed out of the Articles, even though the document said the Union was "perpetual." It was then up to the states themselves to decide if they wanted to ratify the new Constitution. States were perfectly free to stay out of the Union if they pleased, which destroys the heart of Chase's argument in Texas v. White.

If a party to a treaty breaks the treaty, then the other parties are absolved of commitment. For example, if Germany and France have a peace treaty, then Germany attacks France, the latter country is absolved from its responsibility to be peaceful. This is what Madison argued happened to the Articles of Confederation: several states broke the agreement, so the entire treaty was dissolved. The fact is, the Articles of Confederation were dissolved despite being "perpetual," and Madison addressed the logic behind it in the Federalsit Papers.

The people of New England met to enact their legal right to secede during the War of 1812.
 

American87

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No, The Constitution,Is, THE Law of the Land(The Union, of all the people of all the States of that Union).

Your history is suspect, the 'states right' Theory, in relation to any existence of interposition or nullification of the Constitution and its laws, was always a disputed claim, whenever and where it was proclaimed, i.ke., it was a figment of the imagination of certain peoples whose opinions did not agree with the express powers of the Constitution, but, found themselves a distinct minority within the general population of the Union.

One might argue the fairness or even the efficacy of Majority rule, under the Constitution, but one cannot reasonably argue that it does not exist, nor that it can be violated(authority of all the people of all the states of the Union) at the whim of any of the constitutent parts of that Union, i.e., a process of law must be adhered to, according to the expressed power and authority of the Constitution.
State Nullification Theory was the accepted standard before the 1850s. States in the South (Virginia), the West (Kentucky), and the North (Massachusetts and Connecticut) all enacted it during the antebullum period. That's just off the top of my head, and the states' resolutions have been quoted in earlier posts. So it is your history that is suspect.
 

WJC

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The Articles of Confederation were dissolved, because the states made no commitment to immediately create a new central government.
Could you explain what you mean by this? As far as I know, the Articles were never "dissolved". The government under the AOC simply ceased to function, replaced by the Government under our Constitution.
 
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trice

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The Articles of Confederation were dissolved, because the states made no commitment to immediately create a new central government. Each and every state backed out of the Articles, even though the document said the Union was "perpetual." It was then up to the states themselves to decide if they wanted to ratify the new Constitution. States were perfectly free to stay out of the Union if they pleased, which destroys the heart of Chase's argument in Texas v. White.

If a party to a treaty breaks the treaty, then the other parties are absolved of commitment. For example, if Germany and France have a peace treaty, then Germany attacks France, the latter country is absolved from its responsibility to be peaceful. This is what Madison argued happened to the Articles of Confederation: several states broke the agreement, so the entire treaty was dissolved. The fact is, the Articles of Confederation were dissolved despite being "perpetual," and Madison addressed the logic behind it in the Federalsit Papers.
The Articles of Confederation and Perpetual Union were never "dissolved". If you think they were, please present the document or agreement that dissolved them. I know of none.

No party to the Articles of Confederation and Perpetual Union ever "broke" it and none of the parties were ever "absolved of commitment" by such an event. If you think that such an event actually occurred, please describe it for us and present specific references so we can see what you mean. I know of none.

The truth is that the adoption of the Constitution is an example of completely legal due process under Article XIII of the Articles of Confederation and Perpetual Union. Once all 13 States have confirmed the adoption of the Constitution, there is absolutely no doubt about this.

ARTICLE XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterward confirmed by the legislatures of every state.
The people of New England met to enact their legal right to secede during the War of 1812.
Not true.

The Hartford Convention was called for by the Governor of Massachusetts. The stated purpose was to discuss potential amendments to the US Constitution and how to get the Federal government to provide additional protection to New England against the British in the War of 1812.

Only the legislatures of Massachusetts, Rhode Island and Connecticut sent authorized delegates. Vermont's legislature unanimously refused to send any. New Hampshire's legislature was not in session and the Governor refused to call them back, so no delegates were sent. Anyone present from New Hampshire or Vermont was not representing those states.

The Hartford Convention met in secret and kept no record of deliberations. At the end, the convention generated a final report which proposed five constitutional amendments:
  1. Prohibiting any trade embargo lasting over 60 days;
  2. Requiring a 2/3rds majority for declaration of offensive war, admission of a new state, or interdiction of foreign commerce;
  3. Removing the 3/5ths representation for slaves advantage of the South;
  4. Limiting future presidents to one term;
  5. Requiring each president to be from a different state than his predecessor.
What part of that do you see as enacting "their legal right to secede"?
 

OpnCoronet

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State Nullification Theory was the accepted standard before the 1850s. States in the South (Virginia), the West (Kentucky), and the North (Massachusetts and Connecticut) all enacted it during the antebullum period. That's just off the top of my head, and the states' resolutions have been quoted in earlier posts. So it is your history that is suspect.


You are wrong on all counts. State Nullification before 1830 was an interesting theory, that nobody was able to convincingly relate to the Constitution. You might want to read a little history on the Nullification Crisis of 1830 in SC, John Calhoun had some interesting things to say about it, as state law, as did President Andrew Jackson, as Federal Law.

States could and can pass all the resolutions and laws they want, but, they are mmoot if they conflict with any expressed power contained in the Constitution, state constitutions or laws to the contrary not withstanding.

Trice, has noted your error concering Massacusetts and the Hartford Convention, in ref. to the theory of Nullification
 

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Could you explain what you mean by this? As far as I know, the Articles were never "dissolved". The government under the AOC simply ceased to function, replaced by the Government under our Constitution.
When the states transitioned from the AoC to the Constitution, it was not a seamless motion. The states that were party to the AoC were absolved from their commitments, and they were asked to ratify the Constitution, or not.

It was deemed sufficient for 9 states to ratify the Constitution for it to take effect. So when the first 9 ratified, the Constitution became active, and the other 4 states were out of the Union. It was up to these states to decide if they would join or not. If they chose not to, they would just be normal states outside of any union. Thus, the AoC were "dissolved," because it was not necessary for the states to join the new, Constitutional government.
 
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American87

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You are wrong on all counts. State Nullification before 1830 was an interesting theory, that nobody was able to convincingly relate to the Constitution. You might want to read a little history on the Nullification Crisis of 1830 in SC, John Calhoun had some interesting things to say about it, as state law, as did President Andrew Jackson, as Federal Law.

States could and can pass all the resolutions and laws they want, but, they are mmoot if they conflict with any expressed power contained in the Constitution, state constitutions or laws to the contrary not withstanding.

Trice, has noted your error concering Massacusetts and the Hartford Convention, in ref. to the theory of Nullification
Can you post some sources? This is 85% wrong. You're correct to say that state actions couldn't conflict with certain federal actions. The states delegated certain rights to the federal government, thereby relinquishing, for as long as they deemed it, the power to exercise those rights. For example, the states gave the federal government the power to make treaties. Therefore, it was and is illegal for states to make their own seperate treaties with other countries. But Nullification does not refer to these delegated rights. It refers to the ability to secede and nullify federal actions that are unconstitutional. For example, when the Adams Administration passed laws that ordered journalists to be censored and arrested, the states of Kentucky and Virginia declared these laws unconstitutional, because they were in violation of the 1st Amendment.
 

American87

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The Articles of Confederation and Perpetual Union were never "dissolved". If you think they were, please present the document or agreement that dissolved them. I know of none.

No party to the Articles of Confederation and Perpetual Union ever "broke" it and none of the parties were ever "absolved of commitment" by such an event. If you think that such an event actually occurred, please describe it for us and present specific references so we can see what you mean. I know of none.

The truth is that the adoption of the Constitution is an example of completely legal due process under Article XIII of the Articles of Confederation and Perpetual Union. Once all 13 States have confirmed the adoption of the Constitution, there is absolutely no doubt about this.

ARTICLE XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterward confirmed by the legislatures of every state.


Not true.

The Hartford Convention was called for by the Governor of Massachusetts. The stated purpose was to discuss potential amendments to the US Constitution and how to get the Federal government to provide additional protection to New England against the British in the War of 1812.

Only the legislatures of Massachusetts, Rhode Island and Connecticut sent authorized delegates. Vermont's legislature unanimously refused to send any. New Hampshire's legislature was not in session and the Governor refused to call them back, so no delegates were sent. Anyone present from New Hampshire or Vermont was not representing those states.

The Hartford Convention met in secret and kept no record of deliberations. At the end, the convention generated a final report which proposed five constitutional amendments:
  1. Prohibiting any trade embargo lasting over 60 days;
  2. Requiring a 2/3rds majority for declaration of offensive war, admission of a new state, or interdiction of foreign commerce;
  3. Removing the 3/5ths representation for slaves advantage of the South;
  4. Limiting future presidents to one term;
  5. Requiring each president to be from a different state than his predecessor.
What part of that do you see as enacting "their legal right to secede"?
When the states transitioned from the AoC to the Constitution, it was not a seamless motion. The states that were party to the AoC were absolved from their commitments, and they were asked to ratify the Constitution, or not.

It was deemed sufficient for 9 states to ratify the Constitution for it to take effect. So when the first 9 ratified, the Constitution became active, and the other 4 states were out of the Union. It was up to these states to decide if they would join or not. If they chose not to, they would just be normal states outside of any union. Thus, the AoC were "dissolved," because it was not necessary for the states to join the new, Constitutional government.

This is common knoweldge, but a source is (https://www.history.com/this-day-in-history/u-s-constitution-ratified)

Your account of Hartford Convention delegates is mostly true, except you leave out that two New Hampshire counties and one Vermont county each sent a delegate.

I said the delegates met to discuss their lawful right to secede, not that they did secede. They discussed secession, but decided against it. Just go to the same source you pulled your information from and search the keyword, "secession."
 
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