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

jgoodguy

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#21
Not so fast. Can we consider my prior post for a minute. You originally offered some ideas that are based on compact theory. I presented some points that refute the theory. What in my post do actually disagree with? That SCOTUS had rejected compact theory in favor of a sovereign nation three times before the ACW, the first of which was just 4 years after enactment. That Morris posed a crystal clear question before the Constitutional Convention, and they chose a national government over another compact among the states. That the Convention addressed the issue of sovereignty in the transmittal letter. Have I misinterpreted the historical evidence? I would not presume that’s impossible, but if I have, where exactly did I go wrong? If not, how do you support secession without compact theory?



Isn’t that a distinction without a difference. Congress represents the sovereign people of the US. And in certain cases, as proscribed by the Constitution, the state legislatures, acting collectively, represent the sovereign people of the US? Within your own statement, ‘the States’ is plural, and there lies the key. Also, it’s a representative system, not a direct democracy, so of course the people do not directly govern themselves, they do so via their elected representatives. The Constitution specifies proscribed roles for the people, Congress, and even the states, but in all three cases, they can only act collectively. It doesn’t matter that the Framers gave the states (collectively) a role in the process. In either case, Congress, or the legislatures of the collective states (or ratifying conventions of the collective states), the people represented are still ALL of the people of the US. The process does not allow for 11 out of 33 states to alter the Constitution or the Union. Are either the state legislatures (collectively) or Congress going to act against the wishes of the people of the US?



The secessionists saw what they saw because they were a shrinking minority desperately looking for an out from the agreed upon process: majority rule in accordance with the Constitution. Same for the minority Anti-federalists, lead by Jefferson and Madison, seeking a way to oppose the Alien and Sedition Acts in the 1790s, acts passed by the majority Federalists. Same for the Federalists in New England in 1815, seeking to oppose the War of 1812 and enbargoe, which was crushing commerce. Same for the nullifiers, lead by Calhoun, c1830, who opposed tariffs that they felt were crushing their economy. These are the groups you want to rely on, instead of three SCOTUS decisions, and some pretty clear language in the Constitutional Convention.



Whether 'the United States' refers to states plural or nation singular, the result is the same, ALL of the people of the US, acting collectively in accordance with the Constitution, via their representatives, who they elect. Those representatives may be Congress or, in certain limited cases, the legislatures or special conventions of all of the states. I will certainly agree the people’s conceptual picture of the US changed, from ‘the United States are’ to ‘the United States is’ (a la McPherson, I think). They did after all keep the same terminology: the Union. But a Union of the individual states was replaced by a more perfect Union of the collective states, because the former utterly failed to meet the needs of the country.



I respectfully disagree. Perhaps the line between state powers and national powers changed (it could not be precisely defined in 3 or 4 month, not even by 40 or so of the best political minds in the world. They basically created a grey area that required further definition, the details of such a complex and revolutionary system had to be worked out over time. Perhaps nationalism (the centralization of political authority) became increasingly prominent. But the US was a sovereign nation from the time the Constitution was enacted, a condition clearly pursued by the Constitutional Convention, and confirmed by SCOTUS in 1793, 1816, and 1819, and surmised by Story in 1833. What the ACW decided was that the Union was strong enough in the 1860s to resist a rebellion by 11 states.




Consider this, nation and state are, in general, interchangeable terms. The individual states had established their own individual national governments during the Revolution. Sovereignty resided in the individual people of each individual state. In 1789 they (the people of each state) decided to surrender their independent sovereignty to established a sovereign nation. They (the people of the collective states, aka the United States) then enacted a Constitution that established a national government that would govern them collectively. Doesn't matter if they (or you) thought of themselves as the people of a nation, or the people of the collective states. The country now had a national government too.
Be a great discussion for a different thread. Not here.
 

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jgoodguy

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#22
Continuing on

Everybody seems to agree that there is no tangible evidence supporting the compact theory.
The Constitution Art 3
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--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;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
Appears to give SCOTUS jurisdiction over State disputes.

However the Southerners thought otherwise and so we continue in analyzing their view.
IMHO their views had a healthy dose of special pleading and self interest.


Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p416

The Southerners’ proposition that the federal Union of 1787-89 was perpetual only in the weak sense (i.e., was terminable in the event of breach) was, however, nowhere to be found in the Constitution, which
made no provision for breaches by states
. To be sure, there was the Supremacy Clause. But that spoke to a different problem: the possibility of a clash between a state law and a federal law. It shed no light whatever on how to resolve a clash between the states over a breach of terms of adherence to the federal Union itself. Authority for the existence of this remedy of rescission would therefore have to be found outside the framework of the Constitution.
A couple of points here. IMHO SCOTUS had authority to compel the Northern States to comply with the 1850 FLS and had already had by ruling unconstitutional many freedom laws. If there were continuing problems it appears to me that the existing legal framework would accommodate the Southern States needs.
 

jgoodguy

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#23
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p416
On this subject too, the views of Benjamin are particularly
instructive, as he addressed the question of the perpetual character of the
federal Union very explicitly. He candidly conceded that, in principle,
the federal Union was a perpetual one—though, crucially, in the weak
sense rather than the strong one. “[N]o man pretends,” insisted
Benjamin, “that the generation of to-day is not bound by the compacts of
the fathers.”
40
But he went on to contend that the real issue at hand was
not whether the Union had been envisaged as perpetual in the 1780s. It
had been. The issue was whether, since that time, that Union had been
irredeemably shattered by the failure of the Northern states to abide by
their commitments under the original Constitutional compact. The
compact remained binding, Benjamin maintained, only so long as all
parties continued to adhere to it.
41
That it would be wrong to regard the secession advocates as
enemies of perpetual unions per se is evident from no less authoritative a
source than the Confederate Constitution itself. That document did not
include a provision granting the states a right to secede at will. On the
contrary, it explicitly stated, in the Preamble, the intention of the
Southern states “to form a permanent federal government”
42

permanent, it is safe to conclude, in the weak rather than the strong
sense.
40. Benjamin, Right of Secession,supranote 3, at 104.
41.Ibid.
42.Constitution of the Confederate States of America, Mar. 3, 1861,
in COMMAGER, DOCUMENTS
. supra note 30, at 376.

No real Constitutional or legal support for Benjamin's opinion other than we are angry and want to get out.
 

DanF

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#24
No real Constitutional or legal support for Benjamin's opinion other than we are angry and want to get out.
It is not a coincidence that they wanted out as soon as they lost their long held dominence of the Federal Govt.

Back in 1812 John C. Calhoun predicted that should the slave states lose their hold on the Federal Govt. They would seek dissolution of the Union.

And that is precisely what they did.
 

jgoodguy

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#25
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p416

The Southerners’ proposition that the federal Union of 1787-89 was
perpetual only in the weak sense (i.e., was terminable in the event of
breach) was, however, nowhere to be found in the Constitution, which
made no provision for breaches by states. To be sure, there was the
Supremacy Clause. But that spoke to a different problem: the possibility
of a clash between a state law and a federal law. It shed no light
whatever on how to resolve a clash between the states over a breach of
terms of adherence to the federal Union itself. Authority for the
existence of this remedy of rescission would therefore have to be found
outside the framework of the Constitution.
Speaks to the limits to the Supremacy clause and session. This is echoed in chapter 8 of American constitutional interpretation
Walter F. Murphy, James E. Fleming, Sotirios A. Barber
Foundation Press, Apr 18, 2008 The matter the Supremacy clause and States Rights was still being disputed in the Brown v Board era.
 

ivanj05

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#26
No, the Supremacy Clause does not address conflicts between two states, that is inargueably true. What is also true, however, is that there does exist an explicit Constitutional remedy for a dispute arising between the states. Article Three, Section Two directly and unequivocably assigns the Judicial Branch the power to resolve disputes between two or more states. If the secessionist arguement was that Northern states had somehow breeched the Constitutional compact with their defiance of the FSL, then there existed right then and there a Constitutional mechanism to arbitrate that issue, a mechanism that did not require Soutgern states to abrogate the Constitution in order to employ it.
 

DanF

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#27
The secessionists believed they couldn't prevail by legal means. That is why they resorted to the extra legal means of revolution.
 

jgoodguy

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#28
No, the Supremacy Clause does not address conflicts between two states, that is inargueably true. What is also true, however, is that there does exist an explicit Constitutional remedy for a dispute arising between the states. Article Three, Section Two directly and unequivocably assigns the Judicial Branch the power to resolve disputes between two or more states. If the secessionist arguement was that Northern states had somehow breeched the Constitutional compact with their defiance of the FSL, then there existed right then and there a Constitutional mechanism to arbitrate that issue, a mechanism that did not require Soutgern states to abrogate the Constitution in order to employ it.
The secessionists believed they couldn't prevail by legal means. That is why they resorted to the extra legal means of revolution.

SCOTUS had already forced the Northern States to accept the FSL 1850 See my comments on #22.



However the secessionists would claim that SCOTUS judgements were not being enforced.

Declaration of Causes-Georgia
A similar provision of the Constitution requires them to surrender fugitives from labor. This provision and the one last referred to were our main inducements for confederating with the Northern States. Without them it is historically true that we would have rejected the Constitution. In the fourth year of the Republic Congress passed a law to give full vigor and efficiency to this important provision. This act depended to a considerable degree upon the local magistrates in the several States for its efficiency. The non-slave-holding States generally repealed all laws intended to aid the execution of that act, and imposed penalties upon those citizens whose loyalty to the Constitution and their oaths might induce them to discharge their duty. Congress then passed the act of 1850, providing for the complete execution of this duty by Federal officers. This law, which their own bad faith rendered absolutely indispensible for the protection of constitutional rights, was instantly met with ferocious revilings and all conceivable modes of hostility.

The Supreme Court unanimously, and their own local courts with equal unanimity (with the single and temporary exception of the supreme court of Wisconsin), sustained its constitutionality in all of its provisions. Yet it stands to-day a dead letter for all practicable purposes in every non-slave-holding State in the Union. We have their convenants, we have their oaths to keep and observe it, but the unfortunate claimant, even accompanied by a Federal officer with the mandate of the highest judicial authority in his hands, is everywhere met with fraud, with force, and with legislative enactments to elude, to resist, and defeat him. Claimants are murdered with impunity; officers of the law are beaten by frantic mobs instigated by inflammatory appeals from persons holding the highest public employment in these States, and supported by legislation in conflict with the clearest provisions of the Constitution, and even the ordinary principles of humanity. In several of our confederate States a citizen cannot travel the highway with his servant who may voluntarily accompany him, without being declared by law a felon and being subjected to infamous punishments. It is difficult to perceive how we could suffer more by the hostility than by the fraternity of such brethren.
In addition with the election of Lincoln, the makeup of the SCOTUS could change meaning that SCOTUS offers no real protection.

Gov. Joseph Brown's Open Letter
As the President, with the advice and consent of the Senate, appoints the Judges of the Supreme Court of the United States, when vacancies occur, its control of the Executive power will, in a few years, give it the control of the Judicial Department; while the constant increase of abolition sentiment, in the Northern States, now largely in the majority in Congress, together with the admission of other free States, will very soon, give it the power in the Legislative Department. The whole Government will then be in the hands of our enemies. The election of Mr. Lincoln is the first great step in this programme. It is the triumph of the Northern over the Southern section of the Union: of Northern fanaticism over Southern equality and Southern rights. While, therefore, the election of Mr. Lincoln, as a man, is no sufficient cause to justify secession, the triumph of the Northern section of the Union over the Southern section, upon a platform of avowed hostility to our rights, does, in my opinion, afford ample cause to justify the South in withdrawing from a confederacy where her equality, her honor, and the rights of her people, can no longer be protected.
 
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jgoodguy

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#29
The South had a real beef with the North. A lot of the problem was future concerns not current ones. The FSL 1850 seems to be working. Political solutions were possible. The South took another route.

Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution
By Stephen C. Neff p417

Authority for the
existence of this remedy of rescission would therefore have to be found outside the framework of the Constitution.
The justification for this remedy was duly found in natural law, which was an integral part of the mental universe of American lawyers in the early and mid-nineteenth century. It was one of the most
venerable intellectual ornaments of Western civilization, older than Christianity itself. Its basic thesis was that law, in its most fundamental guise, was a set of statements of principles of universal and permanent validity. Its strictures prevailed in all countries and all civilizations and in all times. It was painfully obvious that its tenets were all too frequently violated in practice, but these violations, however frequent, could have no effect on the essential validity of this body of law.
Unwritten law, yet part of the legal universe of the 1860s and frequently abused by those who used it in a self serving manner.

Natural-law thought is therefore in sharp contrast with schools of legal philosophy (most notably the positivist one) which holds law to comprise the expression of the will of a given sovereign, expressed in the form of commands issued to a subject population, and with the prospect of punishment for disobedience of those commands. 43 There were various different theories as to how the contents of natural law were to be discovered. But the one that was most prominent in the eighteenth and nineteenth centuries held natural law to be discoverable through the exercise of human reason.
There is written laws of the sovereign, but if one disagreed with it perhaps one can appeal to natural law.

LEGAL POSITIVISM vs. NATURAL LAW THEORY
There are two “natural law” theories about two different things: i) a natural law theory of morality, or what’s right and wrong, and ii) a natural law theory of positive law, or what’s legal and illegal. The two theories are independent of each other: it’s perfectly consistent to accept one but reject the other. Legal positivism claims that ii) is false. Legal positivism and the natural law theory of positive law are rival views about what is law and what is its relation to justice/morality.
Thomas Hobbes argues that the law receives its legitimacy from a social contract between the people who are governed and their sovereign. He likens government to a biblical sea monster.Like an anatomical head, the sovereign rules over the body of subjects whose power is beneath it. Like the monster, the government is all-powerful. Yet unlike Austin, he believes there to be limits to political obligation.
 
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#30
Does anyone have any statistics, whatsoever, on how many slaves actually escaped into or through free states between September of 1850 and January, 1861? Or of how many documented instances there were of free state or municipal government authorities in the free states preventing the return of escaped slaves in the same period? As has already been pointed out, the most enslaved states, and all the states that seceded prior to the initiation of active hostilities, were far from any border with a free state. So the alleged failure of certain free states to adequately enforce the FSL seems like an emotional issue that was successfully manipulated by secessionists and their captive press, rather than one of any great genuine economic import to most slaveholders.
 
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OpnCoronet

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#31
The basic problem was that the south could not tolerate forever, the corrosive belief that, over and above their being slaves, the African-American's might actually have rights that even the white man must respect.
While perhaps not actually formulated yet or accepted generally in the North, the logic of their state Constitutions(as well as that of the Union) was clear enough and presented a clear and present danger to any thinking slave owner.
 

DanF

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#32
The basic problem was that the south could not tolerate forever, the corrosive belief that, over and above their being slaves, the African-American's might actually have rights that even the white man must respect.
While perhaps not actually formulated yet or accepted generally in the North, the logic of their state Constitutions(as well as that of the Union) was clear enough and presented a clear and present danger to any thinking slave owner.
Indeed, as , George Mason, himself a slave owner observed,

"that slavery is established in [any slave] State . . . it is impossible to [find such a clause] . . . for no such proof [law] can be produced . . . in any of the slave States." Cong Globe, 31st Cong, I Sess, App (19 August 1850), pp 1583-1584. Goodell,supra, p 571; Rogers, supra, p 106; Spooner, supra, p 280; and Sumner, supra, Barbarism of Slavery, p 140.
 
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#33
Did the compact theory, prior to the secessionist crisis, lead to practical expression in the conduct of affairs?
For instance, with respect to naval affairs, did the 13 supposedly sovereign states build and staff their own warships?
Such warships, under state command, would then conduct joint operations under the commander of the alliance?
When came time to fight the Mexican War, for instance, did any dissenting states assert the right to decline to send troops or pay their share of expenses?
 
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#34
Sovereignty and independence are not unmitigated goods. Sovereigns often, and typically do, make war on each other.
Factions that want to become sovereign usually have to fight to establish their sovereignty. Some regional attempts to establish sovereignty succeed, but many do not prevail.
 
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#35
In other words, did the men modify their actions to conform to the compact theory, so that independence was preserved while fulfilling the national duties? The states in a few instances contested the federal government's power over the states, but did the states assert sovereign rights during the period in which physical distance would have made that practical, to test whether the alliance would accept and ratify those actions?
There were some federalism cases during the Marshall era, but I don't recall a state making its own navy, negotiating its own treaty to buy a port or a settlement from Spain or France?
Jefferson as an executive exercised a sovereign power in financing the Louisiana purchase, but the action ruffled only a few feathers as it looked like a good deal, at the time.
 

civilken

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#36
I believe secession has started as early as the 1800s with South Carolina and the tariffs when they went for notification.
 

OpnCoronet

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#37
The evidence of any breaching of Constitutional Law, is almost nonexistent, as far as the Federal or State gov'ts is sketchy, at best.

Were state gov'ts, up to the FSL of 1850, refusing to honor their commitmit to returning escaped slaves, within their borders?

Was the Federal Gov't Not enforcing its Constitutional obligations to see states honored their obligations to returning escaped slaves.

How may slaves escaped, at all, during the antebellum period? In this regard, Lincoln observed that there were more Free blacks(which he assumed were actually freed slaves) In just Va. than in all the North.
 



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