Out With The Old Union, In With The New Union

[OpnCoronet]

Sorry for taking so long to respond OC.

I believe I have addressed the point of the OP. The Union has existed since 1774, but while it has consisted of one continuous union on a basic level, it has consisted of a number of fundamentally different, specific unions. As I see it the Framers recognized this dual nature of the Union, and therefore referred to the Constitution as a “consolidation of our Union,” while at the same time referring to it as the formation of “a more perfect Union,” meaning a new union. That may not be as neat and clean as some would like, but it's how they saw it. Two unions (actually more than two over that time period, perhaps four) AND one union.

Political science recognizes that states in a confederation remain perfectly sovereign, that sovereignty is legally supreme, and that secession from a traditional confederation is therefore not illegal. These concepts are supported by Vattel’s The Law of Nations, Article II and other aspects of the AoCs, Washington’s statements re: indissoluble Union, statements made in the Constitutional Convention (particularly by Morris on May 30), the Convention’s official letter, Madison’s explanation for dissolving the AoCs by less than unanimous consent (which shares much in common with secessionist compact theory), and the distinction Jackson drew between a league (traditional confederation) and nation (the more perfect Union) in 1832. Add to the list one highly respected constitutional scholar:

“Given the clarity of the Confederation’s foundational premise of state sovereignty, its classic international architecture, and its self-description as a ‘league,’ how could so many Americans in ensuing eras–Lincoln most famously–have denied that individual states were sovereign prior to 1787? Partly by mistakenly reading later history back into an earlier period. The Constitution itself set a trap for the unwary by using old legal words in new legal ways without clear warning. Just as the word ‘Congress’ under the Constitution described a different and more powerful institution than did the word ‘Congress’ under the Articles, so the phrase ‘United States’ in the Constitution meant something different and much stronger than did the same syllables in the earlier document. It is only a happy coincidence that the same thirteen ‘United States’ from the Declaration and the Articles became the first thirteen ‘United States’ in the Constitution. We must remember that when George Washington took office, North Carolina and Rhode Island were not part of the ‘United States’ as the Constitution used the term. Thus the Preamble spoke precisely of its purpose to ‘form’ a new–more perfect–union rather than simply ‘continue’ or ‘improve’ the old union.” – Akhil Reed Amar, America’s Constitution, A Biography, p. 27

Confusion originates from the fact that the Framers had invented the first federation, a union of states that form a nation rather than a league, the key characteristic being that sovereignty is divided between the union itself and the individual member states rather than being entirely held by the member states. The meaning of words like federal, national, state, and congress thereby changed markedly, as far as sovereignty and government power were concerned, just like the Union (continuity version) itself. And because the Framers and federalists were approaching it from a purely practical rather than theoretical standpoint, they didn't even bother coming up with a name for the new system of government/polity. They continued to call it a confederation for many decades, so that word took on a dual meaning as well. Rather than saying 'it's a federation' (a term eventually coined by political scientists, after the experiment had apparently succeeded), people like Madison had to go into a paragraph-long paragraph of this new type of union/confederation/political system. Furthermore, even before the Constitution two very different meanings of the word “compact” also applied, a fact secessionists would later try to take advantage of. The AoCs were a treaty, a compact among sovereign nation-states, but the Constitution represents a social compact, an agreement among individuals to form a political society (nation-state).

In addition, sovereignty is a legal concept. The concept on which western nations based their legitimacy. It doesn’t matter that the states were, as a matter of fact, dependent on each other to win and maintain their “independence.” The way THEY chose to legally define themselves was as 13 sovereign states (nation-states). That was their de jure status, no matter what their de facto condition was. As a matter of political science, then and now, a treaty of confederation does not change their legal status as 13 sovereign nation-states. Not that there are any more confederation; the are preeminently less efficient and effective than federations.

Again, I do not necessarily disagree with your post. But,it does not, I believe, really answer Lincolns argument that, which he draws from the DoI, that the Union that created the AOC was the same Union that created the Constitution.

That there may have been more or fewer states in the Union after its creation by the DoI would be, to Lincoln, irrelevant, i.e.f the original States proclaimed in the DoI, is the same Union of 50 states of today.

It is entirely possible that the Union that declared its independence in the DoI could have included Canada, if Benedict Arnolds, eta. al., invasions of Canada had been successful. If the Treaty of Paris had returned the Canadian Provinces to England, Lincoln would probably have argued that the Union that signed the treaty was the same Union that authorized the DoI and, formation of both the AOC and Constitution.

 

[CW Buff]

Again, I do not necessarily disagree with your post. But,it does not, I believe, really answer Lincolns argument that, which he draws from the DoI, that the Union that created the AOC was the same Union that created the Constitution.

That there may have been more or fewer states in the Union after its creation by the DoI would be, to Lincoln, irrelevant, i.e.f the original States proclaimed in the DoI, is the same Union of 50 states of today.

It is entirely possible that the Union that declared its independence in the DoI could have included Canada, if Benedict Arnolds, eta. al., invasions of Canada had been successful. If the Treaty of Paris had returned the Canadian Provinces to England, Lincoln would probably have argued that the Union that signed the treaty was the same Union that authorized the DoI and, formation of both the AOC and Constitution.

I do not disagree with the notion it has always been the same Union. I disagree with the notion that anyone is wrong if they call it a different Union. My whole point is that BOTH are true, and one therefore has to be more specific, particularly with respect to the legality of secession, which is the whole point of this discussion. You disagree with my answer, fine, tell me exactly when did it become ILLEGAL to unilaterally withdraw from the Union, and why?

 

[atlantis]

DoI is distinct from the articles of confederation. The DoI does not create a union the AoC does. Article 2 of the AoC states each state retains its sovereignty , freedom and independence, clearly meaning states may withdraw from the union. This sovereign right of states to withdraw from the union did not disappear with the adoption of the current constitution. States are not subordinate units of a unity republic because the USA is not a republic but a union. In a union the sovereign states cede some sovereignty for the common good but they retain the right to regain full sovereignty by withdrawing from the union. Post civil war amendments did not change that.

 

[OpnCoronet]

I do not disagree with the notion it has always been the same Union. I disagree with the notion that anyone is wrong if they call it a different Union. My whole point is that BOTH are true, and one therefore has to be more specific, particularly with respect to the legality of secession, which is the whole point of this discussion. You disagree with my answer, fine, tell me exactly when did it become ILLEGAL to unilaterally withdraw from the Union, and why?

I agree that I am making too broad a point. Many apologists of unilateral secession try to use the idea of different Unions as justifying the legality of unilateral secession.

If one follows the logic of Lincolns position on the prescidence of the Union in relation to its govts, it would seem that unilateral secession became illegal the moment the individual states relinquished some of their sovereign right to be exercised by the federal govt, for the benefit of all the people of all the states.

To Lincoln and other Unionists of the time, argued that the individual states entered the Union by the operation of the Unions Organic Law and by that fact alone, to leave the Union would require the operation of Federal Law also. If that is so, then I think Lincoln, eta. al., would argue that unilateral secession would be illegal under both the Constitution and the AoC.

P.S. As I have noted before, although unilateral secession may have been illegal under both the AoC and Constitution, only the Union of The Constitution had organic powers to protect itself.

 

[Copperhead-mi]

States are not subordinate units of a unity republic because the USA is not a republic but a union. In a union the sovereign states cede some sovereignty for the common good but they retain the right to regain full sovereignty by withdrawing from the union.

Samuel Adams, a Founding Father and Patrick Henry, who declined appointment as a Constitutional Convention delegate, are just two notable statesmen who both disagree with your conclusion based on the wording of the Constitution that was submitted to the states and ratified.

 

[CW Buff]

I agree that I am making too broad a point. Many apologists of unilateral secession try to use the idea of different Unions as justifying the legality of unilateral secession.

If one follows the logic of Lincolns position on the prescidence of the Union in relation to its govts, it would seem that unilateral secession became illegal the moment the individual states relinquished some of their sovereign right to be exercised by the federal govt, for the benefit of all the people of all the states.

To Lincoln and other Unionists of the time, argued that the individual states entered the Union by the operation of the Unions Organic Law and by that fact alone, to leave the Union would require the operation of Federal Law also. If that is so, then I think Lincoln, eta. al., would argue that unilateral secession would be illegal under both the Constitution and the AoC.

P.S. As I have noted before, although unilateral secession may have been illegal under both the AoC and Constitution, only the Union of The Constitution had organic powers to protect itself.

The states did not relinquish any of their sovereign rights until they enacted the Constitution.

"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..." -- Official Cover Letter of the Constitutional Convention, September 17, 1787

This letter served as the Framers' explanation for drafting a fundamental law rather than amendments to the AoCs. It was the AoCs that had proved that a system that secures all rights of sovereignty to each state was impracticable, because that's how traditional confederations, founded upon a treaty of confederation, work.

There's a reason you're struggling to identify the moment the Union became legally indissoluble based on anything Lincoln said ("If that is so, then I think Lincoln, eta. al., would argue that..."). Because all he said was the Union was older than the states. That notion can suggest only one thing: at the latest, the Union became legally indissoluble upon the DoC. Yet that's clearly not the case, since the Union is only an ad hoc alliance at that point. And as per Article II, and verified by various statements by different Founding Fathers, there was no transfer of sovereignty under the AoCs.

I'm not sure what you mean by "organic" powers. However, the Congress of the Confederation had no "sovereign" powers to protect itself, because it had no sovereign power, period. This is another important distinction between the AoCs and the Constitution. The Constitution deals in sovereign powers, those being legislative, executive, and judicial powers. The AoCs lack those terms, and they also do not confer upon the Congress of the Confederation any authority to make laws. The Congress of the Confederation was a deliberative body, not a legislative one. More than one Framer said that enforcement (meaning law enforcement) was not even possible under a treaty.

Who cares if secessionists claim the more perfect was a whole new, completely different Union (incorrect as that is) to support secession. The whole purpose behind drafting the Constitution was because, as G. Morris said, a treaty of confederation relies upon the good faith of the parties for compliance, while a fundamental law imposes a complete and compulsive operation (the force of positive law) on all of the society thereby created, including the states. A society agrees to enact a fundamental law, and collectively maintains control of that law, but everyone less than a majority of the whole is legally bound to comply with that law. It not only resulted in a substantially different, more perfect Union, it represented the first federation in world history. As far as 'a whole new Union,' it was also the same group of states (and even if it hadn't been, it would still be the same basic group of states) united for the same basic reasons. But it is the former (fundamental law) not the latter (saem states/reasons) that resulted in a legally indissoluble Union. Washington called for an indissoluble Union in 1783, and referred to the US as an indissoluble Union in 1796.

 

[Rebforever]

The states did not relinquish any of their sovereign rights until they enacted the Constitution.

"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..." -- Official Cover Letter of the Constitutional Convention, September 17, 1787

This letter served as the Framers' explanation for drafting a fundamental law rather than amendments to the AoCs. It was the AoCs that had proved that a system that secures all rights of sovereignty to each state was impracticable, because that's how traditional confederations, founded upon a treaty of confederation, work.

There's a reason you're struggling to identify the moment the Union became legally indissoluble based on anything Lincoln said ("If that is so, then I think Lincoln, eta. al., would argue that..."). Because all he said was the Union was older than the states. That notion can suggest only one thing: at the latest, the Union became legally indissoluble upon the DoC. Yet that's clearly not the case, since the Union is only an ad hoc alliance at that point. And as per Article II, and verified by various statements by different Founding Fathers, there was no transfer of sovereignty under the AoCs.

I'm not sure what you mean by "organic" powers. However, the Congress of the Confederation had no "sovereign" powers to protect itself, because it had no sovereign power, period. This is another important distinction between the AoCs and the Constitution. The Constitution deals in sovereign powers, those being legislative, executive, and judicial powers. The AoCs lack those terms, and they also do not confer upon the Congress of the Confederation any authority to make laws. The Congress of the Confederation was a deliberative body, not a legislative one. More than one Framer said that enforcement (meaning law enforcement) was not even possible under a treaty.

Who cares if secessionists claim the more perfect was a whole new, completely different Union (incorrect as that is) to support secession. The whole purpose behind drafting the Constitution was because, as G. Morris said, a treaty of confederation relies upon the good faith of the parties for compliance, while a fundamental law imposes a complete and compulsive operation (the force of positive law) on all of the society thereby created, including the states. A society agrees to enact a fundamental law, and collectively maintains control of that law, but everyone less than a majority of the whole is legally bound to comply with that law. It not only resulted in a substantially different, more perfect Union, it represented the first federation in world history. As far as 'a whole new Union,' it was also the same group of states (and even if it hadn't been, it would still be the same basic group of states) united for the same basic reasons. But it is the former (fundamental law) not the latter (saem states/reasons) that resulted in a legally indissoluble Union. Washington called for an indissoluble Union in 1783, and referred to the US as an indissoluble Union in 1796.

I agree the Union is perpetual. But NOT the Constitution. The Constitution can be changed anytime. You ignore what I thought we had agreed on one time in this same thread.

 

[uaskme]

It was a bit late by 1860 to argue about secession. By that time Virginia and the other Chesapeake states, through the federal government, had built a navy, paid subsidies in the Mediterranean, purchased French and Spanish rights in North America, survived a war with Great Britain, admitted numerous additional states and won an expansionist war against Mexico. It would have been a neat trick for the southern tier of states to receive all these benefits of federal action and then declare they had their fingers crossed behind their backs for 73 years.

It was a bit late by1860 to argue about secession because the 7 Lower Southern States Seceded. They formed their Independent Government, collected their Taxes and Direct Traded with Europe. The question of could you or should you was replaced by what happens if you do. Which the Lower already Did.

 

[CW Buff]

I agree the Union is perpetual. But NOT the Constitution. The Constitution can be changed anytime. You ignore what I thought we had agreed on one time in this same thread.

I don't know what you mean re: what "we had agreed to at one time." You made a statement, and I responded to it. There was no agreement. The following statement was part of what I said (Post #99):

...a fundamental law, like any law, is inherently perpetual, and can only be repealed by the same body of people who enacted it. The Constitution, and the Union and gov't it in turn establishes, are therefore perpetual.

So, what I said was that the Constitution, the more perfect Union, and the Fed are ALL perpetual. Not only did I not agree to what you say I did, I said the opposite.

As I didn't use the word perpetual in the post you replied to (Post #126), I'm guessing the word you're taking issue with is "indissoluble." Washington, for one, indicated the Confederation was not indissoluble, but the more perfect Union is. From the standpoint of the individual states, the more perfect Union is legally indissoluble because it is founded upon a fundamental law rather than a treaty. The whole reason for switching from the latter to the former is because a fundamental law imposes a complete and compulsive operation on the states, whereas a treaty of confederation relies on the good faith of each state for compliance. No one knew better than Washington the limitation of a union that depended on good faith compliance by the states. The term applies to the individual states, not the sovereign people of the US. The latter can of course alter or abolish at will.

 

[OpnCoronet]

The states did not relinquish any of their sovereign rights until they enacted the Constitution.

"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..." -- Official Cover Letter of the Constitutional Convention, September 17, 1787

This letter served as the Framers' explanation for drafting a fundamental law rather than amendments to the AoCs. It was the AoCs that had proved that a system that secures all rights of sovereignty to each state was impracticable, because that's how traditional confederations, founded upon a treaty of confederation, work.

There's a reason you're struggling to identify the moment the Union became legally indissoluble based on anything Lincoln said ("If that is so, then I think Lincoln, eta. al., would argue that..."). Because all he said was the Union was older than the states. That notion can suggest only one thing: at the latest, the Union became legally indissoluble upon the DoC. Yet that's clearly not the case, since the Union is only an ad hoc alliance at that point. And as per Article II, and verified by various statements by different Founding Fathers, there was no transfer of sovereignty under the AoCs.

I'm not sure what you mean by "organic" powers. However, the Congress of the Confederation had no "sovereign" powers to protect itself, because it had no sovereign power, period. This is another important distinction between the AoCs and the Constitution. The Constitution deals in sovereign powers, those being legislative, executive, and judicial powers. The AoCs lack those terms, and they also do not confer upon the Congress of the Confederation any authority to make laws. The Congress of the Confederation was a deliberative body, not a legislative one. More than one Framer said that enforcement (meaning law enforcement) was not even possible under a treaty.

Who cares if secessionists claim the more perfect was a whole new, completely different Union (incorrect as that is) to support secession. The whole purpose behind drafting the Constitution was because, as G. Morris said, a treaty of confederation relies upon the good faith of the parties for compliance, while a fundamental law imposes a complete and compulsive operation (the force of positive law) on all of the society thereby created, including the states. A society agrees to enact a fundamental law, and collectively maintains control of that law, but everyone less than a majority of the whole is legally bound to comply with that law. It not only resulted in a substantially different, more perfect Union, it represented the first federation in world history. As far as 'a whole new Union,' it was also the same group of states (and even if it hadn't been, it would still be the same basic group of states) united for the same basic reasons. But it is the former (fundamental law) not the latter (saem states/reasons) that resulted in a legally indissoluble Union. Washington called for an indissoluble Union in 1783, and referred to the US as an indissoluble Union in 1796.

The states did not relinquish any of their sovereign rights until they enacted the Constitution.

"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..." -- Official Cover Letter of the Constitutional Convention, September 17, 1787

This letter served as the Framers' explanation for drafting a fundamental law rather than amendments to the AoCs. It was the AoCs that had proved that a system that secures all rights of sovereignty to each state was impracticable, because that's how traditional confederations, founded upon a treaty of confederation, work.

There's a reason you're struggling to identify the moment the Union became legally indissoluble based on anything Lincoln said ("If that is so, then I think Lincoln, eta. al., would argue that..."). Because all he said was the Union was older than the states. That notion can suggest only one thing: at the latest, the Union became legally indissoluble upon the DoC. Yet that's clearly not the case, since the Union is only an ad hoc alliance at that point. And as per Article II, and verified by various statements by different Founding Fathers, there was no transfer of sovereignty under the AoCs.

I'm not sure what you mean by "organic" powers. However, the Congress of the Confederation had no "sovereign" powers to protect itself, because it had no sovereign power, period. This is another important distinction between the AoCs and the Constitution. The Constitution deals in sovereign powers, those being legislative, executive, and judicial powers. The AoCs lack those terms, and they also do not confer upon the Congress of the Confederation any authority to make laws. The Congress of the Confederation was a deliberative body, not a legislative one. More than one Framer said that enforcement (meaning law enforcement) was not even possible under a treaty.

Who cares if secessionists claim the more perfect was a whole new, completely different Union (incorrect as that is) to support secession. The whole purpose behind drafting the Constitution was because, as G. Morris said, a treaty of confederation relies upon the good faith of the parties for compliance, while a fundamental law imposes a complete and compulsive operation (the force of positive law) on all of the society thereby created, including the states. A society agrees to enact a fundamental law, and collectively maintains control of that law, but everyone less than a majority of the whole is legally bound to comply with that law. It not only resulted in a substantially different, more perfect Union, it represented the first federation in world history. As far as 'a whole new Union,' it was also the same group of states (and even if it hadn't been, it would still be the same basic group of states) united for the same basic reasons. But it is the former (fundamental law) not the latter (saem states/reasons) that resulted in a legally indissoluble Union. Washington called for an indissoluble Union in 1783, and referred to the US as an indissoluble Union in 1796.

Your points against the deficiencies of the AOC are to be well taken. But do not really argue against Lincolns basic premise of the precedence of the Union to its ovts. To Lincoln , et. al., argument was that the South accepted govt by Constituton by a process prescirbed by the govt of the AOC and to leave legally, it would have to leave by a legal process of the Constituton.