Out With The Old Union, In With The New Union

[wausaubob]

They projected a navy into the Mediterranean and negotiated treaties with the Barbary pirates. The states hung together in the war of 1812, no one quit and submitted to British rule. Then they enacted a national compromise on slavery, the second great compromise, and everyone abided by that compromise for 30 years. No one outside of South Carolina seriously advocated state sovereignty until 1850, at which point the southern states were clearly losing the growth contest and New York was dominant over Virginia.

 

[CW Buff]

"Now, it is apparent that none of the colonies, before the revolution, were, in the most large and general sense, independent or sovereign communities. They were all originally settled under, and subjected to, the British crown. Their powers and authorities were derived from, and limited by, their respective charters. All, or nearly all, of these charters controlled their legislation by prohibiting them from making laws repugnant, or contrary, to those of England. The crown, in many of them, possessed a negative upon their legislation, as well as the exclusive appointment of their superior officers, and a right of revision, by way of appeal, of the judgments of their courts. In their most solemn declarations of rights, they admitted themselves bound, as British subjects, to allegiance to the British crown; and, as such, they claimed to be entitled to all the rights, liberties, and immunities, of free-born British subjects. They denied all power of taxation, except by their own colonial legislatures; but at the same time they admitted themselves bound by acts of the British Parliament for the regulation of external commerce, so as to secure the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. So far as respects foreign states, the colonies were not, in the sense of the law of nations, sovereign states, but mere dependencies of Great Britain. They could make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor, in any other shape, act as sovereigns, in the negotiations usual between independent states. In respect to each other, they stood in the common relation of British subjects; the legislation of neither could be controlled by any other; but there was a common subjection to the British crown. If in any sense they might claim the attributes of sovereignty, it was only in that subordinate sense to which we have alluded, as exercising within a limited extent certain usual powers of sovereignty. The did not even affect a claim a local allegiance.

In the next place, the colonies did not severally act for themselves, and proclaim their own independence. It is true that some of the states had previously formed incipient governments for themselves; but it was done in compliance with the recommendations of Congress.

"Virginia, on the 29th of June, 1776, by a convention of delegates, declared "the govenment of this country, as formerly exercised under the crown of Great Britain, totally dissolved," and proceeded to form a new constitutionof government. New Hampshire also formed a government, in December, 1775, which was manifestly intended to be temporary, "during (as they said) the unhappy and unnatural contest with Great Britain." New Jersey, too, established a frame of government, on the 2d of July, 1776; but it was expressly declared that it should be void upon a reconciliation with Great Britain. And South Carolian, in March, 1776, adopted a constitution of government; but this was, in like manner, "established until an accommodation between Great Britain and America could be obtained." But the declaration of the independence of all the colonies was the united act of all. It was "a declaration by the representatives of the United States of America in Congress assembled;" "by the delegates appointed by the good people of the colonies," as in a prior declaration of rights they were called. It was not an act done by the state governments then organized; nor by persons chosen by them. It was emphatically the act of the whole people of the United Colonies, by the instrumentality of their representatives, chosen for that among other purposes. It was an act not competent to the state governments, or any of them, as organized under their charters, to adopt. Those charters neither contemplated the case, nor provided for it. It was an act of original, inherent sovereignty by the people themselves, resulting from their right to change the form of government, and to institute a new government, whenever necessary for their safety and happiness. So the Declaration of Independence treats it. No state had presumed of itself to form a new government, or to provide for the exigencies of the time, without consulting Congress on the subject; and when they acted, it was in pursuance of the recommendation of Congress. It was, therefore, the achievement of the whole for the benefit of the whole. The people of the United Colonies made the United Colonies free and independent states, and absolved them from allegiance to the British crown. The Declaration of Independence has accordingly always been treated as an act of paramount and sovereign authority, complete and perfect per se, and ipso facto working an entire dissolution of all political connection with, and allegiance to, Great Britain; and this, not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice.

In the debates in the South Carolina legislature, in January, 1788, respecting the propriety of calling a convention of the people to ratify or reject the Constitution, a distinguished statesman used the following language: "This admirable manifesto (i.e. the Declaration of Independence) sufficiently refutes the doctrine of the individual sovereignty and independence of the several states. In that Declaration the several states are not even enumerated; but after reciting, in nervous language, and with convincing arguments, our right to independence, and the tyranny which compelled us to assert it, the Declaration is made in the following words. 'We, therefore, the representatives of the United States &c., do, in the name, &c., of the good people of these colonies, solemnly publish, &c., that these United Colonies are, and of right ought to be, free and independent states.' The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration. The several states are not even mentioned by name in any part, as if it was intended to impress the maxim on America, that our freedom and independence arose from our union, and that without it we could never be free or independent. Let us then consider all attempts to weaken this union, by maintaining that each state is separately and individually independent, as a species of political heresy, whcih can never benefit us, but may bring on us the most serious distresses."

Joseph Story- Commentaries on the Constitution

I think Story explains it very well, the states were never completely sovereign to begin with

And that’s why I don’t use Story as a source on the Constitution. As sound as his assertions are regarding that document, he either goofed on the nature of the Union prior to the Constitution, or intentionally overemphasized central authority prior to the Constitution. And it shows. He contradicts himself. Let’s take a look at just one other section from his treatise.

§ 469. The constitution, then, was adopted first "to form a more perfect union." Why this was desirable has been in some measure anticipated in considering the defects of the confederation. When the constitution, however, was before the people for ratification, suggestions were frequently made by those, who were opposed to it, that the country was too extensive for a single national government, and ought to be broken up into several distinct confederacies, or sovereignties; and some even went so far, as to doubt, whether it were not, on the whole, best, that each state should retain a separate, independent, and sovereign political existence.”

How could anti-federalists make the argument “that the country was too extensive for a single national government” if it already had a single national government, and was therefore already a nation? The very statement stresses the fact that the Continental Congress and the Congress of the Confederation were NOT national governments. As Amar tries to point out, the problem here is the development of the Union from ad hoc alliances of first colonies and then states, to a formal league (international confederation) of 13 sovereign states/nations, to a supreme national legislature. We have lived under the latter so long, we forget that the word “congress” originally meant a meeting of governments, like the Congress of Vienna. In fact, we forget that “state” originally meant sovereign state/nation. The meanings of these terms do not change until Americans divided sovereignty between the individual states and the Union itself. And that did not happen until 1787-1789.

“It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible; and was in fact divided, according to the Constitution of the U. States, between the States in their United, and the States in their individual capacities[,] that as the States in their highest sov. char. were comp[et]ent to a surrender of [their] whole sovereignty, and make themselves on[e] consol[idated] state[,] so they [could] surrender a part & retain as they have the other part, forming thus a mixed Govt. with a division of its attributes as marked out in the Constitution.” – Madison, Essay on Sovereignty, 1835 (in response to nullifiers and secessionists saying sovereignty cannot be divided; and obviously in a bit of shorthand).

The Continental Congress says the states were sovereign. Madison indicated that it was the Constitution that made the momentous division of sovereignty. I'll take The Father of the Constitution over Story anyday. And then you can add the Continental Congress, Washington, Morris, the Constitutional Convention, various SCOTUS decisions, and political science in general, from Vattel to Amar.

And how do you suppose Story would explain each state retaining something (“a separate, independent, and sovereign political existence”), as an alternative to the more perfect Union, that he claims they never had?

In the material you quoted, Story acts like the Continental Congress was calling the shots, and then admits that they merely made recommendations to the colonies/states. He bases this authority of Congress on the fact that the colonies/states did not declare independence separately. No kidding, thirteen small colonies vs. the world’s strongest empire? Separately? The whole reason the colonies originally formed the Union was to coordinate their activities. Suddenly, evidence of such demonstrates national sovereignty?

Yes, the Continental Congress acted on behalf of the people of the colonies, but 1) as 13 separate colonies, not 1 nation, and 2) only through their separate governments, which appointed and directed each delegation, just like the US Gov’t appoints and directs ambassadors to the UN (i.e. by mandate, not recommendation). Does that mean the US is not sovereign? And even if the people of the US had acted directly upon the DoI, they declared themselves “Free and Independent States,” not a free and independent state.

Certainly we can see the difference between the DoI and AoCs on one hand, and the Constitution on the other.

“The unanimous Declaration of the thirteen united States of America,...” Could they better communicate the separate nature of the states than by specifying they were 13, not 1. And like we use bold, the Founders used capitalization. Where’s the capital “U” on united?

“Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.” Like Amar says, that’s clearly a treaty, making the Confederation an international entity, not a national one. And I believe every treaty the US made with other nations during that period stressed the fact that the US was an association of 13 states (“The most Christian King and the United States of North America, to wit, New Hampshire, Massachusetts Bay, Rhodes island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia,...” – US-France Treaty of Alliance, 1778). Did any post-Constitution treaty do that?

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” That, combined with the fact that the Constitution is an actual, positive law, is what an act of sovereignty, as Story tries to portray the DoI, actually looks like. SCOTUS recognized this in its first decision involving sovereignty:

“ ‘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.” — Chisholm v. Georgia, 1793

In other words, The AoCs were not a real constitution, and the state governments had not been bound by the AoCs, and the state constitutions did not need to comply with the AoCs. Does the Constitution have to comply with US treaties? It is, of course, the other way around. The AoCs were a treaty, and therefore complied with the treaty making authority delegated by the people of each state to each state government via each state constitution.

When Richard Henry Lee proposed the DoI in the Continental Congress, “the delegates of several colonies, including Maryland, Pennsylvania, Delaware, New Jersey, and New York, had not been empowered by their home governments to vote for Independence. If the vote was taken immediately, those delegates would necessarily ‘retire’ from Congress, and ‘possibly their colonies might secede from the Union,’ which would hurt the American cause more than a foreign alliance would help it.
. . .
[Congress] decided to give the laggard colonies time to accept Independence, and postponed the question for three weeks, until the first of July. [By June 28,] only Maryland and New York had failed to allow their delegates to vote for Independence. That night Maryland fell into line.” – Pauline Maier, American Scripture, Making the Declaration of Independence, Pauline Maier, pp. 42-44

Delegations could not vote for any major action without express instructions from their colonial governments. Congress postponed the matter for three weeks to give the colonies which, via their governments, had not yet given their delegations instructions to agree to an act of independence, time to obtain such from their colonies. The colonies were calling the shots here. Story put the cart before the horse. Intentionally or not, he made the same faux pas Lincoln did, and many on this forum do. But you can't change the recognized, definitive nature of traditional confederations.

 

[CW Buff]

I would agree it was just fluff, rather like "to death do we part" in a wedding union. . . . Flowery language is often used that is not literal.

You mean “the Union shall be perpetual?” It’s not fluff, it's not flowery language, it just doesn’t mean what most people think it means. If the Founders were saying ‘the Union shall exist forever,’ they were the worst of fortune tellers. Forever is only one of several definitions of perpetual. Here’s the full gambit as per Merriam-Webster:

Definition of perpetual​

1a : continuing forever, everlasting : perpetual motion
b(1) : valid for all time : a perpetual right
(2) : holding something (such as an office) for life or for an unlimited time
2 : occurring continually : indefinitely long-continued : perpetual problems
3 : blooming continuously throughout the season

And the AoCs were a treaty, not a fundamental law. As Vattel says:

“Nations may, in their treaties, insert such clauses and conditions as they think proper. They are at liberty to make them perpetual or temporary, or dependent on certain events.”

So “perpetual” as used in the AoCs actually means ‘not temporary’ / ‘indefinite with respect to time.’ This merely indicates that unilateral secession was against the rules, and that the Confederation could only be properly terminated in accordance with the AoCs amendment provision. But again, the rules were a treaty, which cannot diminish sovereignty, and sovereignty trumped international law. And being a treaty, the AoCs were subject to international law, and as also specified by Vattel, when one party to a treaty violates the treaty, the other party may terminate their own treaty obligations and consider the treaty dissolved. Secession in such circumstances is not only not illegal, but is not even a treaty violation. And this caveat of international law is how 11 states dissolved the Congress of the Confederation, and with it the AoCs and the specific, "perpetual" union they had formally established.

 

[CW Buff]

It sounds quaint, but a union volunterily entered, can and should be able to be volunterily left, short of murdering your spouse or a civil war IMO.

That's up to the members of the Union to collectively decide. The states fought for and won their sovereignty, they could do what they wanted with it. They could establish a Union which which they could voluntarily enter and, via the retention of full sovereignty, they could voluntarily leave. And if that Union failed for the same reason for which they could voluntarily leave, the retention of full sovereignty, they could have decided to form and voluntarily enter a union from which individual states could NOT legally withdraw unilaterally, via the surrender of a portion of their sovereignty. They could have felt that the Union was so important to their individual survival that receiving that level of commitment and obligation FROM the other states was worth making that level of commitment and obligation TO the other states?

The Constitution is a fundamental law enacted directly by the people of the United States, and therefore represents a social compact as per Locke, not a compact among sovereign states that remain fully sovereign (a treaty, as per Vattel). When any group of people execute a social compact, they are performing a sovereign act, and become one sovereign people.

“'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...” – SCOTUS, Chisholm v. Georgia, 1793

In a political society established by social compact, only the sovereign people have an inherent sovereign right/power to alter or abolish the government and society they created. And when more than one person is the sovereign, they must of course act by majority rule. No minority segment of the sovereign people has any right to alter or abolish the fundamental law OR the political state it in turn establishes, unless and except as specifically granted by the sovereign people via their fundamental law. All minority segments of such a society are legally bound to the fundamental law and the will of a majority of the sovereign people. Placing the Union on its own foundation of sovereignty (that of the people of the US) legally binds the states to the Union.

“...by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform.” – Ibid

Sovereignty constitutes supreme control of a political state.

“Sovereignty: the supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived;...” – Legal Dictionary at thefreedictionary,com

A social compact, fundamental law, and sovereignty at the Union level work the same way for the Union as they do for the states.

“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

However, for those who may not understand sovereignty, the Constitution makes it crystal clear:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The unique thing about the Constitution was that the people performing this sovereign act were previously arranged in 13 separately sovereign states (nations), and the national fundamental law represented limited sovereignty as per the principle of limited, enumerated powers. The former means the states were surrendering sovereignty to the people of the US. The latter means they were only surrendering a portion of their previously full sovereignty (the portion associated with the Constitution). They did this because the Confederation, a union in which each state retains full sovereignty (which secures all rights of independent sovereignty to each state), had proven that such was untenable. The state legislatures blew it; they failed to voluntarily comply with the rules when the rules required only voluntary compliance. As a social compact among the people of the states, the creation of the Constittuion works much like the classic, theoretical social compact, in which individuals in a state of nature, where each individual has the right/liberty to apply natural law, gives up that liberty in order to preserve their natural, inalienable rights (life, liberty, and the pursuit of happiness) by forming and entering a political society.

“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

The Constitution therefore created not just another union, but a union that consists of a sovereign nation in which the sovereignty that makes a political state fully independent is divided between the Union itself and the individual states of the Union.

“It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible; and was in fact divided, according to the Constitution of the U. States, between the States in their United, and the States in their individual capacities.” – Madison, Essay on Sovereignty, December 1835

Being legally supreme, absolute, and uncontrollable, the only legal transfer of sovereignty is a consensual one. This is the reason why the decision to enact and adopt the Constitution had to be made 1) by the sovereign people of the states and not their governments, and 2) by each formerly fully sovereign state separately. And any return of that sovereignty by the people of the United States to the people of one or a number of individual states must similarly be consensual. Therefore, legally speaking, a sovereign state is legally indissoluble (except by the sovereign). The AoCs established a Union deemed “perpetual” by treaty, but the Constitution established a Union that was legally indissoluble, just like the sovereign states themselves had been. The Union became perpetual by fundamental law. In 1783, while leaving office as the general of the Continental Army, Washington said:

“There are four things, which I humbly conceive are essential to the well being, I may even venture to say to the existence, of the United States as an independent Power. 1st An indissoluble Union of the States under one federal Head.” – George Washington, Circular Letter to the States, June 8, 1783

And in 1796, in his Farewell Address, he indicated that the Union under the Constitution had in fact become indissoluble.

“The West derives from the East supplies requisite to its growth and comfort, and, what is perhaps of still greater consequence, it must of necessity owe the secure enjoyment of indispensable outlets for its own productions to the weight, influence, and the future maritime strength of the Atlantic side of the Union, directed by an indissoluble community of interest as one nation.” – George Washington, Farewell Address, September 19, 1796

In the Federalist No. 5, John Jay identified the indissoluble union between England and Scotland as an example of what the Americans should create via the Constitution:

“QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the UNION then forming between England and Scotland, which merit our attention. I shall present the public with one or two extracts from it: ‘An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES. We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only EFFECTUAL way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will doubtless, on this occasion, USE THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION.’ ” (all-caps emphasis either hers or his)

And in the Federalist No. 11, Hamilton said:

“Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!”

Placing the Union on its own foundation of sovereignty therefore consolidated the Union by making it perpetual AND indissoluble.

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

Put this all together, and what do you have:

“Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that 'without the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” – SCOTUS, Texas v. White, 1869

 

[archieclement]

Then they failed to create a more perfect Union. Since the whole American experience started with "Governments are instituted among Men, deriving their just powers from the consent of the governed"

If you have to militarily coerce states to remain in the Union, its rather obviously not based any longer on the consent of the governed.

Edit-Added-And I do think the use of "perpetual" is fluff if your taking it as not being based on the perpetual consent of the governed/states. I would say they very well may not have envisioned a government so out of touch or blinded that it would the lose the consent of 11 states, because i do not think personally thats a course they envisioned the federal government ever taking, or ever desired.

 

[CW Buff]

Then they failed to create a more perfect Union. Since the whole American experience started with "Governments are instituted among Men, deriving their just powers from the consent of the governed"

If you have to militarily coerce states to remain in the Union, its rather obviously not based any longer on the consent of the governed.

Edit-Added-And I do think the use of "perpetual" is fluff if your taking it as not being based on the perpetual consent of the governed/states. I would say they very well may not have envisioned a government so out of touch or blinded that it would the lose the consent of 11 states, because i do not think personally thats a course they envisioned the federal government ever taking, or ever desired.

Doesn’t matter what you or I think. They tried your preference, a federal government that operates via perpetual consent / voluntary compliance. It never worked well, and they soon described it as “obviously impracticable.” So they did for the Union what they had already done in their individual states. They created a federal state and government via a fundamental law, which therefore invested that state with sovereignty and made compliance with its government a strict matter of law. And in THEIR opinion, that was “a more perfect Union.”

The more perfect Union and US Government WERE “instituted among Men,” and DID derive “their just powers from the consent of the governed.” In the more perfect Union, “the governed” are the governed as a whole, the sovereign people, just like they are in the states. The governed / the sovereign people determine the public will by majority rule, and everyone else MUST comply with majority decisions, just like in the states. Military coercion against insurrection is how all sovereign states work, including the states. NEITHER the states not the more perfect Union require “the perpetual consent” of political minorities. Your objections amount to a complaint that they made the Union as firm and effective and, yes, voluntary AND involuntary, as the states.

I would agree with the other 23 states, that it was the 11 Confederate states that became blind and out of touch. The endless expansion of slavery, the positive moral good of slavery, happy and content slaves, secessionist compact theory, unilateral secession, seizing federal property, and firing on a US garrison in a US fort. Is that the course the Founders envisioned the country taking? Clearly not. They designed a federal Constitution supreme to the state constitutions, they proposed an indissoluble Union, they refused to even use the words slave or slavery in the Constitution, and they provided “for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;...”

 

[archieclement]

Yes coercion is how governments who do not maintain the consent of the people work. It's also why 11 states seceded because the government failed to maintain their consent.

 

[CW Buff]

Yes coercion is how governments who do not maintain the consent of the people work. It's also why 11 states seceded because the government failed to maintain their consent.

You're completely misrepresenting "consent of the governed." Consent of the governed
goes hand-in-hand wi
Majority rule goes hand-in-hand wi. Democracy = consent of the governed collectively, as determined via majority rule. That's how the states operate, and as of the Constitution that's how the Union has operated. Eleven misguided states thought they could dictate law to 23 other states. A state can no more lawfully secede unilaterally from the Union under the Constitution than a city, town, or county can secede from a state. No government can or does maintain the consent of the people as individuals. In fact, such would appropriately be called "no government," i.e. anarchy.

"I consider the source of authority with us to be the nation. Their will, declared through its proper organ, is valid till revoked by their will declared through its proper organ again also." --Thomas Jefferson to G. Washington, 1792.

"Without union of action and effort in all its parts, no nation can be happy or safe." --Thomas Jefferson to J. Sullivan, 1807.

"Where the law of the majority ceases to be acknowledged, there government ends; the law of the strongest takes its place, and life and property are his who can take them." --Thomas Jefferson to Annapolis Citizens, 1809.

"If the measures which have been pursued are approved by the majority, it is the duty of the minority to acquiesce and conform." --Thomas Jefferson to W. Duane, 1811.

"It must be acknowledged that the term "republic" is of very vague application in every language... Were I to assign to this term a precise and definite idea, I would say purely and simply it means a government by its citizens in mass, acting directly and personally according to rules established by the majority; and that every other government is more or less republican in proportion as it has in its composition more or less of this ingredient of direct action of the citizens." --Thomas Jefferson to J. Taylor, 1816.

"The first principle of republicanism is that the lex majoris partis [law by the majority] is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism." --Thomas Jefferson to F. von Humboldt, 1817.

"And where else will [we]... find the origin of just powers, if not in the majority of the society? Will it be in the minority? Or in an individual of that minority?" --Thomas Jefferson to J. Cartwright, 1824.

 

[archieclement]

You're completely misrepresenting "consent of the governed." Consent of the governed
goes hand-in-hand wi
Majority rule goes hand-in-hand wi. Democracy = consent of the governed collectively, as determined via majority rule. That's how the states operate, and as of the Constitution that's how the Union has operated. Eleven misguided states thought they could dictate law to 23 other states. A state can no more lawfully secede unilaterally from the Union under the Constitution than a city, town, or county can secede from a state. No government can or does maintain the consent of the people as individuals. In fact, such would appropriately be called "no government," i.e. anarchy.

"I consider the source of authority with us to be the nation. Their will, declared through its proper organ, is valid till revoked by their will declared through its proper organ again also." --Thomas Jefferson to G. Washington, 1792.

"Without union of action and effort in all its parts, no nation can be happy or safe." --Thomas Jefferson to J. Sullivan, 1807.

"Where the law of the majority ceases to be acknowledged, there government ends; the law of the strongest takes its place, and life and property are his who can take them." --Thomas Jefferson to Annapolis Citizens, 1809.

"If the measures which have been pursued are approved by the majority, it is the duty of the minority to acquiesce and conform." --Thomas Jefferson to W. Duane, 1811.

"It must be acknowledged that the term "republic" is of very vague application in every language... Were I to assign to this term a precise and definite idea, I would say purely and simply it means a government by its citizens in mass, acting directly and personally according to rules established by the majority; and that every other government is more or less republican in proportion as it has in its composition more or less of this ingredient of direct action of the citizens." --Thomas Jefferson to J. Taylor, 1816.

"The first principle of republicanism is that the lex majoris partis [law by the majority] is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism." --Thomas Jefferson to F. von Humboldt, 1817.

"And where else will [we]... find the origin of just powers, if not in the majority of the society? Will it be in the minority? Or in an individual of that minority?" --Thomas Jefferson to J. Cartwright, 1824.

So your arguing the British majority was more important then the colonies?.........again the whole American experience starts with a entirely different view of if the individual colonies don't consent.....

After all in 1776 the population of England was 12.9 million......the US colonies 2.5. England was by far the greater collective. And Lincoln trying to limit slavery in the territories, would be different how from King George III setting policy in the colonies, the Supreme Court had allready determined Congress had no authority to do so. I suppose one could argue Lincoln was elected and George III not...but if your elected by less then 40% of the people, he reflected a majority no more then George III...

When trying to determine the founders motives and philosophy......don't see how one can ignore the rather key concepts our entire revolution was based on, as without those concepts there would have been no later AoC or Constitution.

 

[Scott1967]

I do think the use of "perpetual" is fluff if your taking it as not being based on the perpetual consent of the governed/states. I would say they very well may not have envisioned a government so out of touch or blinded

Do you not think it was the South that was out of touch with the rest of the world.

The North wanted progression the South just wanted the status quo.

 

[archieclement]

Do you not think it was the South that was out of touch with the rest of the world.

The North wanted progression the South just wanted the status quo.

But is that not what politicians are supposed to represent, the will of their constituency?

Southern politicians would been no more out of touch with their people then northern ones. What we think with the benefit of hindsight is rather irrelevant to those who were representing their people at the time.

It also depends what is out of touch? Had most the civilized west moved to gradual and compensated emancipation? Certainly........was there a major movement for either in the US 1860? Even in the north?

If the US had been "in touch" with the rest of the world....would thought there would have been far more emphasis on gradual and the compensated part as they in the rest of the world had done. Would think if the US as a whole was "in touch" shouldn't the most abolishionist party got more then 39% of popular vote?

 

[Scott1967]

But is that not what politicians are supposed to represent, the will of their constituency?

Southern politicians would been no more out of touch with their people then northern ones. What we think with the benefit of hindsight is rather irrelevant to those who were representing their people at the time.

It also depends what is out of touch? Had most the civilized west moved to gradual and compensated emancipation? Certainly........was there a major movement for either in the US 1860? Even in the north?

If the US had been "in touch" with the rest of the world....would thought there would have been far more emphasis on gradual and the compensated part as they had done.

Personally I think the politicians in the South were looking after their own interests many owned plantations and the associated industry's that came with it , I'm not saying it was easy for the South to give up their cash cow in fact they didn't need to as Lincoln had already stated they could keep Slavery, But the South certainly did not want Slavery blocked in newer states for fearing the balance in the senate would tip in favour of the anti slavery faction even though it would be democratic in nature.

The average Northerner more than likely didn't give a hoot about the South or Slavery but then again the distribution of power and powerful men in the North consisted entirely of the NE and PA , Most industrialists in the North more than likely viewed the free labour in the South as unfair and with a fair bit of jealousy.

However their may have been those in the North who viewed the South as archaic and an embarrassment on the world stage the US was a growing power and needed to be recognized as that with Slavery still existing within its borders from a moral point of view the US seemed like a backwater nation.

 

[archieclement]

Why would they cut their own throats as their interests were their states interests?

Lincoln was on the ballot in 4 slave states. Polled roughly 1% of pop vote in VA and KY, 2.5% in Maryland, and 10% in Missouri. It's rather hard to make much a case they weren't in fact reflecting their base.

 

[CW Buff]

So your arguing the British majority was more important then the colonies?.........again the whole American experience starts with a entirely different view of if the individual colonies don't consent.....

After all in 1776 the population of England was 12.9 million......the US colonies 2.5. England was by far the greater collective. And Lincoln trying to limit slavery in the territories, would be different how from King George III setting policy in the colonies, the Supreme Court had allready determined Congress had no authority to do so. I suppose one could argue Lincoln was elected and George III not...but if your elected by less then 40% of the people, he reflected a majority no more then George III...

When trying to determine the founders motives and philosophy......don't see how one can ignore the rather key concepts our entire revolution was based on, as without those concepts there would have been no later AoC or Constitution.

Now you’re conflating the MORAL right to revolution for JUST CAUSE with some kind of concept of legal rebellion. Is that what you call trying to determine the Founders philosphy? NO government sanctions rebellion. Is there any US state that ever did so? Please point out which of the Confederate states operated in that manner. Again, the Union, within its sphere of governance, operates just like the states in theirs. The American revolutionaries weren’t crazy enough to legalize rebellion. And although they claimed constitutional violations, they did not appeal to any law, or any lawful authority. The DoI primarily appeals to God, and also the nations of the world, ex-Britain.

The colonies were granted the right to legislate for themselves via their colonial charters (actually, the men who established colonies, having assumed 100% of the financial risk, were granted the right to govern them, as long as they did so in accordance with the English/British constitution; colonists were guaranteed the rights of English/British subjects; Virginia granted colonists a hand in colonial government in 1619, to attract more settlers, and the Crown maintained the arrangement when they took over the colony; in order to compete for settlers, all colonies eventually had to offer self-government). The British constitution held that legislation, and above all taxation, was to proceed by consent/representation. Never did the colonies consent to allow Parliament to legislate for them, except for the regulation of imperial trade. The colonies had their own legislatures AND courts. Just like they were not represented in Parliament, they had no other courts that they had a hand in creating (consent of the governed).

The Confederate states had consented to be governed by the US, and they were equally represented in the US government. Scratch that, over-represented by their own ‘take it or leave it’ insistence in 1787. Neither Lincoln nor Congress violated that most unconstitutional SCOTUS case ever to which you refer. However, they were co-equal branches of government, and Congress could simply exercise their discretion with respect to admitting new states. Sorry, but slavery proponents couldn’t entirely game the system. Presidents had always enforced the FSLs, and Lincoln declared that he would faithfully do so. The Confederates could presume whatever they wanted, but they had no actual constitutional violation to point to. And if they had, they had a SCOTUS that was willing to do almost anything for them, including misrepresent the Constitution, but not, if we are to believe Taney, to the point of considering unilateral secession constitutional.

Lincoln was elected in accordance with the Constitution, the manner determined by a MAJORITY of Americans via their fundamental law, including a majority of the people inf each of the 11 states that presumed to have seceded.

You are misinterpreting the “concepts” the Founders laid out, as well as the basis of those concepts. The Union operates, within its sphere of governance, just like the states do within theirs. Pretend what you want, but one of us is quoting Founders when they try to determine their motives and philosophies. The other is not.

“The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, 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. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.” – Madison, The Federalist No. 39

 

[archieclement]

Now you’re conflating the MORAL right to revolution for JUST CAUSE with some kind of concept of legal rebellion. Is that what you call trying to determine the Founders philosphy? NO government sanctions rebellion. Is there any US state that ever did so? Please point out which of the Confederate states operated in that manner. Again, the Union, within its sphere of governance, operates just like the states in theirs. The American revolutionaries weren’t crazy enough to legalize rebellion. And although they claimed constitutional violations, they did not appeal to any law, or any lawful authority. The DoI primarily appeals to God, and also the nations of the world, ex-Britain.

The colonies were granted the right to legislate for themselves via their colonial charters (actually, the men who established colonies, having assumed 100% of the financial risk, were granted the right to govern them, as long as they did so in accordance with the English/British constitution; colonists were guaranteed the rights of English/British subjects; Virginia granted colonists a hand in colonial government in 1619, to attract more settlers, and the Crown maintained the arrangement when they took over the colony; in order to compete for settlers, all colonies eventually had to offer self-government). The British constitution held that legislation, and above all taxation, was to proceed by consent/representation. Never did the colonies consent to allow Parliament to legislate for them, except for the regulation of imperial trade. The colonies had their own legislatures AND courts. Just like they were not represented in Parliament, they had no other courts that they had a hand in creating (consent of the governed).

The Confederate states had consented to be governed by the US, and they were equally represented in the US government. Scratch that, over-represented by their own ‘take it or leave it’ insistence in 1787. Neither Lincoln nor Congress violated that most unconstitutional SCOTUS case ever to which you refer. However, they were co-equal branches of government, and Congress could simply exercise their discretion with respect to admitting new states. Sorry, but slavery proponents couldn’t entirely game the system. Presidents had always enforced the FSLs, and Lincoln declared that he would faithfully do so. The Confederates could presume whatever they wanted, but they had no actual constitutional violation to point to. And if they had, they had a SCOTUS that was willing to do almost anything for them, including misrepresent the Constitution, but not, if we are to believe Taney, to the point of considering unilateral secession constitutional.

Lincoln was elected in accordance with the Constitution, the manner determined by a MAJORITY of Americans via their fundamental law, including a majority of the people inf each of the 11 states that presumed to have seceded.

You are misinterpreting the “concepts” the Founders laid out, as well as the basis of those concepts. The Union operates, within its sphere of governance, just like the states do within theirs. Pretend what you want, but one of us is quoting Founders when they try to determine their motives and philosophies. The other is not.

“The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, 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. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.” – Madison, The Federalist No. 39

So you seem to think the founders had no beliefs at all, and were just like leafs in the wind blowing whichever way was convenient.

I would agree in the end they flip flopped around trying to have their cake and eat it too. But the beliefs the founders staked their lives on are in the DoI. So I indeed give them more weight. So I will agree to disagree.

By the way what law or lawful authority did the founders appeal to? They didn't, they simply made their own up as well.

 

[CW Buff]

So you seem to think the founders had no beliefs at all, and were just like leafs in the wind blowing whichever way was convenient.

I would agree in the end they flip flopped around trying to have their cake and eat it too. But the beliefs the founders staked their lives on are in the DoI. So I indeed give them more weight. So I will agree to disagree.

By the way what law or lawful authority did the founders appeal to? They didn't, they simply made their own up as well.

Enough with the strawmen already. First you had me “arguing the British majority was more important then the colonies” (nope, never said any such thing). Now you claim that I said they had no beliefs. Where do you get that from, my assertion that their beliefs were not your beliefs? Does saying that mean, in your mind, they had no beliefs? And if you really want to find someone suggesting the Founders were “leafs in the wind blowing whichever way was convenient,” check out the guy who says “in the end they flip flopped around trying to have their cake and eat it too.” I’m not sure who your agreeing with there, but it certainly ain’t me. I’ve seen plenty of strawmen in my day, but this the first time I have seen anyone try to turn their own assertions into strawman accusations against the other party. At any rate, you can always peg a weak argument; its the one that quickly jumps to strawman arguments.

And we have yet to see what specific statement(s) by the Founders you feel support your own assertions, like the one that consent of the governed means ongoing consent of everyone. That makes the very concept of law meaningless. Free government does not mean you are free to accept or disregard the law. And the law is, as always, determined by a majority in any free government. Forcing the states to comply with an actual, force of law, law is the very reason the AoCs were replaced by the Constitution.

Proposed by Gouverneur Morris: “...a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & genl. Welfare. . . . 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. . . . Mr. Govr. 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.” – Madison’s Notes on the Federal Convention of 1787, May 30, 1787

By the way, I did not say the Founders appealed to a law or lawful authority. I said they didn't, they appealed to God and other nations.

 

[archieclement]

Enough with the strawmen already. First you had me “arguing the British majority was more important then the colonies” (nope, never said any such thing). Now you claim that I said they had no beliefs. Where do you get that from, my assertion that their beliefs were not your beliefs? Does saying that mean, in your mind, they had no beliefs? And if you really want to find someone suggesting the Founders were “leafs in the wind blowing whichever way was convenient,” check out the guy who says “in the end they flip flopped around trying to have their cake and eat it too.” I’m not sure who your agreeing with there, but it certainly ain’t me. I’ve seen plenty of strawmen in my day, but this the first time I have seen anyone try to turn their own assertions into strawman accusations against the other party. At any rate, you can always peg a weak argument; its the one that quickly jumps to strawman arguments.

And we have yet to see what specific statement(s) by the Founders you feel support your own assertions, like the one that consent of the governed means ongoing consent of everyone. That makes the very concept of law meaningless. Free government does not mean you are free to accept or disregard the law. And the law is, as always, determined by a majority in any free government. Forcing the states to comply with an actual, force of law, law is the very reason the AoCs were replaced by the Constitution.

Proposed by Gouverneur Morris: “...a Union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & genl. Welfare. . . . 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. . . . Mr. Govr. 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.” – Madison’s Notes on the Federal Convention of 1787, May 30, 1787

By the way, I did not say the Founders appealed to a law or lawful authority. I said they didn't, they appealed to God and other nations.

And I agreed to disagree......coercion remains coercion in the end, regardless of the country doing it. It's not any better or worse then Great Britain, when another country tries to rule by coercion.
It seems to hinge on whether successful or not......which.means the only real guiding principle its based on is simply military might makes right.

 

[unionblue]

@CW Buff and @BuckeyeWarrior ,

I have very much enjoyed your debates and posts throughout this thread. All of them I thought were well written and, above all, well researched and sourced.

Thank you both very much for the opportunity to learn and to ponder all that you contributed to this thread.

Sincerely,
Unionblue

 

[CW Buff]

And I agreed to disagree......coercion remains coercion in the end, regardless of the country doing it. It's not any better or worse then Great Britain, when another country tries to rule by coercion.
It seems to hinge on whether successful or not......which.means the only real guiding principle its based on is simply military might makes right.

If you want to agree to disagree, type “I agreed to disagree,” and then hit POST. As long as you keep tagging on a little additional disagreement to that, I can certainly respond to such.

Not sure how anyone expects to debate the legality of unilateral secession with ZERO evidence. It’s like ALL rebellions are justified if the rebels say so.

ALL governments coerce, it’s called law and order. And all governments apply military coercion against combinations too powerful. Including the state governments. Still not seeing the states that operate by minority or unanimous consent, or make compliance with their laws optional.

Whether a rebellion is successful or not determines whether it is a revolution or a failed rebellion, not whether the rebels had a legal or moral point. NO WHERE did I suggest otherwise. Your using tired, old arguments that don’t even apply to this specific discussion. Whether the rebels had a legal argument is determined by the law. Certainly there can be SOME disagreement on interpretation, but you really need to demonstrate you are interpreting primary evidence, as opposed to making it all up.

As can be seen via all the evidence posted, the Founders created a sovereign nation when they designed the more perfect Union, a legally indissoluble Union, founded upon a fundamental law that does not include a provision for unilateral secession. Only the sovereign people, operating via majority rule, have an inherent, unspecified right to alter/abolish. The Founders broke the law in 1776, they knew they were breaking the law, they didn’t presume some hidden, secret constitutional provision for legal separation, they appealed to God and foreign nations to judge their intentions and motivations. it’s better than Great Britain because the US Govt did not violate the Constitution, and did not commit an intolerable abuse, and unilateral secession violates the very nature of fundamental law, not to mention the Founders demonstrable intent.

“My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification.” – Madison to Hamilton, July 20, 1788

 

[archieclement]

Well if you think all governments coerce, it's indeed coercion, so we are in agreement coercion is indeed coercion.

And we will remain in disagreement as to if that's what they meant by the consent of the governed, involuntary consent through military occupation of entire states.

As far as just or moral, indeed historically it is set by might makes right, one seldom finds victors who upon winning declaring themselves unjust and immoral. As far as morality it's also why it's always changing, it's not fixed. Things considered moral in different periods are not the same, as society, values, philosophy, and religion change the definitions throughout time.