Secession , FSL 1850, Breach of Contact and the Compact Theory

jgoodguy

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#1
On a different thread @cash posted about a number of secession documents blaming the dastardly Yankees not returning slaves as forcing the Secessionists to secede.

Continuing the idea.
The Declaration of Causes of Seceding States - Civil War Trust

South Carolina

In the state of New York even the right of transit for a slave has been denied by her tribunals; and the States of Ohio and Iowa have refused to surrender to justice fugitives charged with murder, and with inciting servile insurrection in the State of Virginia. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.

Texas

The States… by solemn legislative enactments, have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article [the Fugitive Slave Clause] of the federal constitution, and laws passed in pursuance thereof; thereby annulling a material provision of the compact, designed by its framers to perpetuate the amity between the members of the confederacy and to secure the rights of the slave-holding States in their domestic institutions-- a provision founded in justice and wisdom, and without the enforcement of which the compact fails to accomplish the object of its creation.
Avalon Project - Confederate States of America : Documents
Mississippi
It has nullified the Fugitive Slave Law in almost every free State in the Union, and has utterly broken the compact which our fathers pledged their faith to maintain.
IMHO I do not understand this. SCOTUS had made personal liberty laws subordinate to the Federal Slave Laws. Prigg v Pennsylvania, Ableman v. Booth. There is Lemmon v. New York with Taney looking to make to make slavery national, by blocking state laws freeing slaves. It appears that in 1860, outside of the election of Abraham Lincoln as president, the slave owners are winning.

In addition the laws were not strictly enforced Prigg was not the only one to openly attack the Personal Liberty Laws. Many of these laws were ignored by officials of the law and judges.
Also Cyclopædia of Political Science, Political Economy, and the Political History of the United States

So what is underlying this?

The Fugitive Slave Act of 1850: Symbolic Gesture or Gesture or Rational Guarantee? Jeffrey Rogers Hummel
Third, these very same scholars, however, virtually dismiss the problem of runaway slaves. The number of runaways -- perhaps a thousand per year -- seems too small relative to a total slave population reaching nearly four million by 1860 to have made much difference. As Peter Geyl (1961, p. 198) asks, "were a few hundred fugitive slaves worth the risk of getting enmeshed in a destructive Civil War?"

... We are thus left with the paradox of slaveholders insisting upon a measure that was simultaneously unnecessary and counter-productive....
Jeffrey Rogers Hummel offers 2 possibilities, one financial and one political. For this thread, I will follow the political.

Ibid
Equally important, we show that the fugitive slave act held important consequences for long-term coalition politics within the nation...We show that the act was part of a continuing and realistic effort by Southerners to maintain a secure home for the peculiar institution within a nation at best indifferent to slavery...Southerners thus faced significant uncertainty about the future in passing the Compromise of 1850: would their northern coalition partners vote to admit a slave state at a future date? Put in coalitional terms, did the Compromise of 1850 signal the reemergence of normal coalitional politics of the past two decades that allowed some pro-southern measures to be passed?
... The willingness of sufficient Northerners to support the fugitive slave act thus provided Southerners with critical information about the future of national politics and hence about the future security of slavery in the nation.
 

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jgoodguy

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#2
Some of the reasons suggest that the Southern States were victims of a breach of contract.
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjAmrL1j5PKAhXJGz4KHdkVDZYQFggvMAI&url=http%3A%2F%2Fwww.civilwar.org%2Feducation%2Fhistory%2Fprimarysources%2Fdeclarationofcauses.html&usg=AFQjCNGCoJ0sFlPIFYnUg0TlejYcs-F6YA&sig2=2OjU_6euqkrqa3bvmOHn2A
The Declaration of Causes of Seceding States - Civil War Trust

South Carolina

We hold...that the mode of its [the federal government] formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

Georgia

Our Constitution wisely gives Congress the power to punish all offenses against the laws of nations. These are sound and just principles which have received the approbation of just men in all countries and all centuries; but they are wholly disregarded by the people of the Northern States, and the Federal Government is impotent to maintain them.
Which sets up the succession theory of Compact where the Union was just a treaty between States that can be withdrawn from at will.

IMHO and one I will not defend is that the Southern Revolutionaries were in a rush to get out of the union and just picked up the theory of compact on the way to the exits just because they had to have some nice sounding political theory for propaganda purposes.

Using
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff

Future posts will analyze this exit strategy.
 
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#3
...
Which sets up the succession theory of Compact where the Union was just a treaty between States that can be withdrawn from at will.
....
Doesnt the theory require there to be a breach before withdrawal? Therefore it was not "at will', but rather only when and if the Compact had failed to function.

That is my reading of South Carolina's argument -- "the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation." To echo Reagan's famous remark about political parties, SC seems to me to be saying that it didnt leave the Union; the Union left it.
 

ivanj05

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#4
The problem with the "breach of contract" notion is that for the most part. the FSL was enforced. Every Supreme Court case in the 1850's that related to slavery favored slavery, the Dred Scott case in particular. So I would be curious to know exactly in what way the Constitutional bonds had been broken prior to the erstwhile Confederacy doing their darndest to do so at bayonet point.
 

jgoodguy

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#5
Doesnt the theory require there to be a breach before withdrawal? Therefore it was not "at will', but rather only when and if the Compact had failed to function.

That is my reading of South Carolina's argument -- "the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation." To echo Reagan's famous remark about political parties, SC seems to me to be saying that it didnt leave the Union; the Union left it.
I hope to have a full discussion of this. The 'at will' option will be discussed. Everyone would like to resolve a dispute in their favor without a neutral judge.
 

jgoodguy

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#6
The problem with the "breach of contract" notion is that for the most part. the FSL was enforced. Every Supreme Court case in the 1850's that related to slavery favored slavery, the Dred Scott case in particular. So I would be curious to know exactly in what way the Constitutional bonds had been broken prior to the erstwhile Confederacy doing their darndest to do so at bayonet point.
One reason I think we take take the theory of secession a lot more seriously than the folks actually seceding.
 
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#7
The problem with the "breach of contract" notion is that for the most part. the FSL was enforced. Every Supreme Court case in the 1850's that related to slavery favored slavery, the Dred Scott case in particular. So I would be curious to know exactly in what way the Constitutional bonds had been broken prior to the erstwhile Confederacy doing their darndest to do so at bayonet point.
I think that looking at the Supreme court and federal enforcement of FSL misses the point -- the party allegedly guilty of the breach was not federal branches of government, it was States. Cases like Dred Scott ended up in the Supreme court because there was resistance in the free states; look at what the State court of Wisconsin did in the Booth case. In Massachusetts the judge who remanded Anthony Burns to federal custody in accordance with the FSL was removed from office by the State.
 

jgoodguy

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#8
I think that looking at the Supreme court and federal enforcement of FSL misses the point -- the party allegedly guilty of the breach was not federal branches of government, it was States. Cases like Dred Scott ended up in the Supreme court because there was resistance in the free states; look at what the State court of Wisconsin did in the Booth case. In Massachusetts the judge who remanded Anthony Burns to federal custody in accordance with the FSL was removed from office by the State.
The term of interest is comity.

Comity
Definition

The legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect.

In Constitutional law, the Comity Clause refers to Article IV, § 2, Clause 2 of the U.S. Constitution (also known as the Privileges and Immunities Clause), which ensures that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Comity between the States broke down over slavery, with the Northern States courts not recognizing slavery and the Southern States courts not recognizing freedom in an every increasing divide.

A good book on the decline in antebellum comity and an excellent sleep aid.
An Imperfect Union: Slavery, Federalism, and Comity
Jun 12, 2000 by Paul Finkelman

The allegation will be the Northern States effectively broke the Union.
 

jgoodguy

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#9
Cyclopædia of political science, political economy, and of the political history of the United States Vol 3 edited by John Joseph Lalor, published in New York City 1881,1899
P 162
The fugitive slave law and the personal liberty laws together show plainly that the compromise of 1850 (see Compromises, V.) was far worse than labor lost, It gave the south a law to which it had no title ; even Rhett, in the South Carolina secession convention, declared that he had never considered the fugitive slave law constitutional. It thus provoked the passage of the personal liberty laws in the north. Each section, ignoring the other's complaints, exhausted its own patience in calling for a redress which neither was willing to accord first. It is not meant to be understood that secession would never have occurred without the aid of the fugitive slave law and its countervailing statutes; only that secession would have had to search much more diligently for an excuse without them.
IMHO amen.

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff P 406

This discussion will briefly outline the legal arguments in favour of the secessionist position. The first section will survey four arguments that could, in theory, have been employed but which, in practice, were used either not at all or only marginally. The second section will survey, in greater detail, the principal argument which was advanced in 1860-61: that secession was a lawful remedy available to the Southern states in the face of material breaches of the Constitutional compact of 1787 by the free states. It will be observed that, in this argument, general considerations of natural law and of the law of nations played a central role.
I will start with the second section.

ibid
III. THE BREACH-OF-COMPACT THEORY AND ITS IMPLICATION
The legal argument that was actually deployed by the Southern leaders in 1860-61 may be characterized as the breach-of-compact theory. Its essence is simple. The federal Union, properly understood, was an ongoing contractual union between sovereign states—states which retained all aspects of their sovereignty after entry into the Union, save those that they had expressly delegated to the federal government. That original Constitutional contract—or compact—like any other contract, retained its legal validity only so long as the parties continued faithfully to adhere to it. Any breach of the compact by parties to it automatically entitled the innocent parties to withdraw from the arrangement.
There are some problems with this. There is no Constitutional textual support and SCTOUS decisions in support are also absent. This theory rested on a certain view of the general character of the Federal Union plus arguments from writings about general natural law. In short it is in the eye of the beholder.

The breach-of-compact argument for secession relied for its credibility on 4 key propositions.
  • Points of law:
    • The federal Union was as a compact between sovereign states, not a single national government
    • A material breach of the covenant/constitution allows the lawful remedy of rescission
    • Assertion that self judgment was needed to determine if the breach existed.
  • Points of fact
    • An actual violation of the Federal Compact by the Northern States.
Northern opposition to the FSL 1850 will be used as the actual violation.


Rescission legal definition of Rescission - Legal Dictionary
legal-dictionary.thefreedictionary.com/Rescission
Rescission
The abrogation of a contract, effective from its inception, thereby restoring the parties to the positions they would have occupied if no contract had ever been formed.
 
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jgoodguy

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#10
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff P 413

A. The compact theory of the federal Union
A. The compact theory of the federal Union
The first and most basic, underlying component of the secessionist case was the thesis that the American federal Union was a Union of sovereign states rather than a single nation-state. This Union was, concededly, the creation of the “people” of the United States, but only in an indirect manner. The American people created the Union not by giving their approval as a single population of individual persons, but rather through the media of the various sovereign states into which they were then divided—and into which they continued to be divided for all purposes save those expressly transferred to the Union government.
In short "We the People of the United States" is not one people of the whole United States but we the people of the individual States. This was fought over during the antebellum period but the one people of the whole United States won out as the majority opinion.

ibid

The compact theory received its first systematic treatment at the hands of Calhoun.26 The federal government, in his words, was “the government of a community of States, and not the government of a
single State or nation.”
...
Calhoun insisted that sovereignty was, by its nature, single and indivisible and that sovereignty remained with the states."
In brief, the The Federal Union was not a sovereign entity but merely a means to fulfill a common purpose. The founders of the Confederacy took this view also. "We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government" The Confederacy existed only to serve as an efficient way for the constituent States to go about their business. A common armed forces was more efficient than 7. A common diplomatic core more efficient than 7 and so on. A treaty organization rather than a sovereign was the objective of the Southerns in the Confederate Constitutional convention.

There is circumstantial evidence of a view of compact theory existed in the writings of Madison and the Kentucky and Virginia Resolutions of 1798. Even the free states appear to have indulged in it when they attempted to nullify the various Fugitive Slave Laws. IMHO there was something there, but not much. However in the end the people of a number of geographic areas with the same boundaries as States were led by their political leaders to war on the assumption of a Compact Theory.
 

PatW

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#11
There is a problem with South Carolina's claim of a breach of contract. South Carolina lacked standing. In order to have standing the state or its citizens would have had to have lost escaped slaves to Free States that refused to enforce the FSL. The problem was that fugitive slaves generally only managed to escape into adjacent states. So the vast majority of fugitive slaves came from Maryland, Kentucky, and Missouri. An slave escaping from South Carolina would have to get through North Carolina, Virginia, and Maryland before getting to the Free State of Pennsylvania. It is doubtful that anyone accomplished this feat. Even if a handful made it, it seems to me that the remedy would have to have been proportionate to the injury. Secession hardly fits the bill. It was merely a pretext.
 

jgoodguy

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#12
There is a problem with South Carolina's claim of a breach of contract. South Carolina lacked standing. In order to have standing the state or its citizens would have had to have lost escaped slaves to Free States that refused to enforce the FSL. The problem was that fugitive slaves generally only managed to escape into adjacent states. So the vast majority of fugitive slaves came from Maryland, Kentucky, and Missouri. An slave escaping from South Carolina would have to get through North Carolina, Virginia, and Maryland before getting to the Free State of Pennsylvania. It is doubtful that anyone accomplished this feat. Even if a handful made it, it seems to me that the remedy would have to have been proportionate to the injury. Secession hardly fits the bill. It was merely a pretext.
Could be assuming SCOTUS would hear a secession case. However would SCOTUS hear a political case at all is not a given. Post war Tesas v White suggest not.
Prewar Taney ruled in Luther v. Borden that the Supreme Court does not rule on Guarantee Clause cases . Secession appears to be such a case.
 

ivanj05

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#13
Could be assuming SCOTUS would hear a secession case. However would SCOTUS hear a political case at all is not a given. Post war Tesas v White suggest not.
Prewar Taney ruled in Luther v. Borden that the Supreme Court does not rule on Guarantee Clause cases . Secession appears to be such a case.
Given the lengths Taney went to in Dred Scott, I'd be willing to bet that he'd ignore what he said in Borden in order to hear a secession case if he had the opportunity.
 

jgoodguy

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#14
Given the lengths Taney went to in Dred Scott, I'd be willing to bet that he'd ignore what he said in Borden in order to hear a secession case if he had the opportunity.
I get that impression too. One day we need to look at the composition of the Taney Court in 60 before secession and figure out if it is doable. Maybe a hypothetical without Fort Sumter also.

In this thread we are going to reach a point where the secessionists assert they don't need SCOTUS.
 

jgoodguy

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#15
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff P 415

B. The remedy of rescission for breach of compact under natural law This second crucial proposition—that the remedy of termination of the compact (i.e., of secession) was available in cases of breach of a compact—lay at the very core of the Southern case for lawful secession. It should be noted that this thesis is not logically entailed by the compact theory as such. It was logically possible to see the Union as a compact of states while holding at the same time that that Union was not terminable for any reason.37 The issue of terminability of the Union is therefore conceptually distinct from the question of the underlying
nature of the Union—a point that was clearly understood by all parties to the debates.
The issue over the terminability of the Union has sometimes been seen as a debate over whether or not the federal Union was, or was intended at its outset to be, a perpetual one.38 That is a misleading way
of putting it, because the word “perpetual” may be understood in either of two quite distinct senses. These could be termed the “strong” and the “weak” senses. Perpetual in the strong sense means that the Union is
indissoluble in any circumstance whatsoever—i.e., that, upon joining the federal Union, a state thereby alienated, irrevocably and in perpetuity, all right and power to withdraw from the Union. Perpetual in the weak sense means that the Union was perpetual in principle, or that it was intended at the outset to be perpetual—but that this aspiration of perpetuity could only be achieved in reality by the continued adherence of the parties to the original arrangements over time.
The US Federal Union is said to be perpetual, but if a State leaves it with the permission of the other States as per Texas v White can it said to be still perpetual? Yes it is. The US Federal Union is perpetual as long as the remaining States adhere to it. The Secessionists took it one step further claiming withdrawal as a lawful remedy for breach of the compact by the other States. The secessionist view was a weak form of perpetual. The alleged breach of compact allows a State to leave without permission.

J. P. Benjamin lays out the case for. The Constitution makes no provision for breaches by states.

Speech of Hon. J. P. Benjamin, of Louisiana, on the right of secession. Delivered in the Senate of the United States, Dec. 31, 1860

The argument is that the permanent Articles of Confederation were replaced by the Constitution suggesting that both are weak perpetual documents. The nature of the Constitution is a compact. The Constitution is perpetual only as long as States adhere to it. The Constitution has no way to resolve disputes between states. Therefore when a dispute arises the State must attempt to find justice outside of the Constitution.

The justice will be found in natural law discussed in the next section.
 
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#16
.... The Constitution has no way to resolve disputes between states. ....
Except that it does.

Judicial:
"The judicial Power shall "to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States ..."


Legislative:
"The Congress shall have Power ...
To regulate Commerce ... among the several States ...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ...
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" Depending the dispute I can see how one or more of these clauses could come into play.
 

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#17
I'd like to add my two cents, for whatever it worth. IMHO, compact theory, the doctrine of secession, and even the Kentucky and Virginia Resolutions were nothing but political gimmicks. These 'theories' were nothing more than the means for a political minority to complain about what a majority had decided. In Jefferson's and Madison's cases, at least I can identify with what may have actually been unconstitutional laws/acts.

Wikipedia has an interesting, well written article on compact theory, which indicates that SCOTUS rejected it three separate times well before the ACW: in 1793, 1816, and again in 1819 (don't forget the excerpts from the actual opinions in the Reference section). In addition, Judge Story rejected it in his Commentaries on the Constitution of the United States.

But perhaps most importantly, the Constitutional Convention rejected it.

Points of law:
  • The federal Union was as a compact between sovereign states, not a single national government
The language you selected is exactly the same as that used during the Convention. On May 29 (the first day of deliberations, after a couple of days of preliminaries, rule making, etc.), Edmund Randolf presented the Virginia Plan, which began with a resolution to amend the AOCs (my cites are taken from Madison's notes, as presented by TeachingAmericaHistory.com): "1. Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution;namely, "common defence, security of liberty and general welfare." First thing May 30, Gouverneur Morris moved that the Convention consider a set of three resolutions before proceeding any further (my bold highlights): “1. that 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. 2. that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient. 3. that a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary.” Morris “explained the distinction between a federal and national, supreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation. He contended that in all Communities there must be one supreme power, and one only.” A motion was made to consider an alternate resolution that excluded the 'national, supreme' language, which failed, and the Convention adopted Morris’s resolution #3 by a vote of 6 to 1, with 1 divided (eight states present and voting at this stage). Seems pretty clear that they rejected the idea of creating another compact among the states, and chose instead to create a national government.

National government means a sovereign nation. The issue of sovereignty was explained in the letter of transmittal the Convention sent to the Continental Congress, which was forwarded to the state legislatures and widely published together with the Constitution. It states: : “It is obviously impracticable in the foederal 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.” And, “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.” The states gave up a share of their sovereignty to the US (a share defined by the powers conferred to the US Government as per the Constitution). By ratifying the Constitution individually, each state independently made the decision to surrender sovereignty, as only each individual state could do. Concurrently, the American people, in their sovereign capacity, instituted a national government defined by the Constitution ("We the people of the United States . . . do ordain and establish this Constitution for the United States of America"). The reason the states acted independently was because that was the only way they could surrender sovereignty, and had nothing to do with the actual act of adopting the Constitution. What consolidated the Union was national sovereignty, which was now the sole possession of the people of the US. The Union was in fact indivisible ('consolidated') once the Constitution was enacted, as much as any sovereign state or any sovereign nation ever was. Just like only the individual states could have decided to surrender any portion of their sovereignty, only the people of the US can decide to surrender any portion of their sovereignty, including that formerly held by a state. The decision by a state to adopt the Constitution is legally irrevocable and binding unless the sovereign people of the US say otherwise. There is no ongoing agreement; the agreement ended when the Constitution was enacted/adopted, and all that remained was a legally binding responsibility to comply with the Constitution.
 

jgoodguy

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#18
I'd like to add my two cents, for whatever it worth. IMHO, compact theory, the doctrine of secession, and even the Kentucky and Virginia Resolutions were nothing but political gimmicks. These 'theories' were nothing more than the means for a political minority to complain about what a majority had decided. In Jefferson's and Madison's cases, at least I can identify with what may have actually been unconstitutional laws/acts.

Wikipedia has an interesting, well written article on compact theory, which indicates that SCOTUS rejected it three separate times well before the ACW: in 1793, 1816, and again in 1819 (don't forget the excerpts from the actual opinions in the Reference section). In addition, Judge Story rejected it in his Commentaries on the Constitution of the United States.

But perhaps most importantly, the Constitutional Convention rejected it.



The language you selected is exactly the same as that used during the Convention. On May 29 (the first day of deliberations, after a couple of days of preliminaries, rule making, etc.), Edmund Randolf presented the Virginia Plan, which began with a resolution to amend the AOCs (my cites are taken from Madison's notes, as presented by TeachingAmericaHistory.com): "1. Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution;namely, "common defence, security of liberty and general welfare." First thing May 30, Gouverneur Morris moved that the Convention consider a set of three resolutions before proceeding any further (my bold highlights): “1. that 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. 2. that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient. 3. that a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary.” Morris “explained the distinction between a federal and national, supreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation. He contended that in all Communities there must be one supreme power, and one only.” A motion was made to consider an alternate resolution that excluded the 'national, supreme' language, which failed, and the Convention adopted Morris’s resolution #3 by a vote of 6 to 1, with 1 divided (eight states present and voting at this stage). Seems pretty clear that they rejected the idea of creating another compact among the states, and chose instead to create a national government.

National government means a sovereign nation. The issue of sovereignty was explained in the letter of transmittal the Convention sent to the Continental Congress, which was forwarded to the state legislatures and widely published together with the Constitution. It states: : “It is obviously impracticable in the foederal 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.” And, “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.” The states gave up a share of their sovereignty to the US (a share defined by the powers conferred to the US Government as per the Constitution). By ratifying the Constitution individually, each state independently made the decision to surrender sovereignty, as only each individual state could do. Concurrently, the American people, in their sovereign capacity, instituted a national government defined by the Constitution ("We the people of the United States . . . do ordain and establish this Constitution for the United States of America"). The reason the states acted independently was because that was the only way they could surrender sovereignty, and had nothing to do with the actual act of adopting the Constitution. What consolidated the Union was national sovereignty, which was now the sole possession of the people of the US. The Union was in fact indivisible ('consolidated') once the Constitution was enacted, as much as any sovereign state or any sovereign nation ever was. Just like only the individual states could have decided to surrender any portion of their sovereignty, only the people of the US can decide to surrender any portion of their sovereignty, including that formerly held by a state. The decision by a state to adopt the Constitution is legally irrevocable and binding unless the sovereign people of the US say otherwise. There is no ongoing agreement; the agreement ended when the Constitution was enacted/adopted, and all that remained was a legally binding responsibility to comply with the Constitution.
The formula in the SCOTUS decision Texas v White is that the States or Congress decide who can leave the Union not the sovereign people of the US.

The Secessionists also saw the sovereign people of the US as existing in States not in the Nation at large. A good question is the term United States singular or plural. The constitution itself seems to suggest a plural. Treason against the United States, shall consist only in levying War against them. If it is plural how can it be a singular sovereign.

IMHO the answer is that the sovereignty of the United States grew over the antebellum period by laws and by SCOTUS decisions. However the final decision was made by winning the Civil War.
 
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#19

jgoodguy

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Both. Its a collective noun: http://dictionary.reference.com/help/faq/language/g28.html

http://blog.oxforddictionaries.com/2011/09/agreement-over-collective-nouns/


Sovereignty resides in the collective. This did not grow or change from 1789 to 1860.
Was there unanimity in 1789 on this? Or was the Constitution one big compromise to keep the US from falling into disarray whose interpretation under stress mutated into a nationalist view point. Common enough story in the 19th century as loose groupings of little nations were gathered up into one (Germany , Italy). The evolution of the militia acts suggests that to me. The idea that State militia could be depended on to defend the US seems to be the desired ideal in 1789 but after the Whiskey Rebellion gets revised.
 



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