State Sovereignty Question

cash

Brev. Brig. Gen'l
Joined
Feb 20, 2005
Messages
33,528
Location
Right here.
During the ratification debates, the Antifederalists railed against the Constitution, saying there was no way out of it and that it would lead to the curtailing of individual rights. Is there any record of anyone saying, to the effect, "Don't worry, if it gets bad we can just secede?" Is there any record of anyone contradicting the Antifederalist claim that there was no way out of the Constitution?
 

(Membership has it privileges! To remove this ad: Register NOW!)

cash

Brev. Brig. Gen'l
Joined
Feb 20, 2005
Messages
33,528
Location
Right here.
By the Supremacy Clause, a state cannot claim any part of the Constitution or any U.S. law passed in accordance with the Constitution does not apply to it, nor can it declare any U.S. treaty made in accordance with the Constitution does not apply to it.

So how can a state declare the entire U.S. Constitution, all the U.S. laws passed in accordance with the Constitution, and all the U.S. treaties made in accordance with the Constitution do not apply to it?
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Messages
10,261
I would argue against that. The secessionists figured they were independent with all the attributes of independence including defending their turf. Generations of Southern political theorists had argued the Union was a compact, not a consolidated union.


I am curious though. How did those theorists answer the decisions of the Federal Courts that the Constitution, was Not a compact at all.
 
Joined
May 27, 2011
Messages
16,401
Location
los angeles ca
Until someone points out to me that the constitution doesn’t specifically say that selling drugs is illegal, I will hold that I am completely within my constitutional rights to sell drugs.

Of course such a statement is absurd. Sections of the constitution clearly give both the Federal Government and States the ability to restrict such activities. Just because the Constitution doesn’t specifically forbid me, or a corporation, or a state, from doing something it does not follow that the Constitution allows such an action. The same applies to the notion of complete state sovereignty leading to a right to secession. It’s an absurd argument.

It is of notice that the seceding states, at the time of secession, weren’t appealing to a constitutional right of secession. They were arguing that the constitution was void and they were appealing to a natural right. If they thought that secession was a constitutional right, it follows that they would work within the constitution and the government to accomplish secession.
Actually up to 1913 you could legally sell drugs until the Harrison Act. The US Supreme Court has upheld federal laws against selling drugs over the years.
Leftyhunter
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
I am curious though. How did those theorists answer the decisions of the Federal Courts that the Constitution, was Not a compact at all.
Interesting question.
Several answers IMHO
First the understanding of the day was that it is unconstitutional to leave the Union, but unconstitutional to force States back into the Union. Even Lincoln was unsure how to continue until the attack on fort Sumter. Even after until the Prize Cases were ruled on, there was a question if Lincoln could respond as he did.

There is the idea that once you are out of the Union by whatever means you are no longer subject to the Constitution.

Until Texas v White, while there had been cases regarding Compact Theory, there was none regarding Compact Theory and Secession.

No one did a due diligence and reviewed the legal record for compact law cases or made the connection between secession and compact theory.

Everyone simply deferred to Calhoun that secession was legal.
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
There were several works suggesting nullification and compact theory. If you are looking for a concise attack on the foundations of nationalism via the Constitution, these will disappoint. However, they are important as a source for alternatives that are part of the Southern antebellum experience to the nationalist view.

Thanks to @Andersonh1 for pointing them out to me.

A brief enquiry into the true nature and character of our federal government: being a review of Judge Story's commentaries on the Constitution of the United States, by Abel P. Upshur. 1840

View of the Constitution of the United States: With Selected Writings: St. George Tucker: (1803)

New Views of the Constitution of the United States Taylor, John. (1823).

Disquisition on Government John C Calhoun 1849
 
Last edited:
Joined
Jan 12, 2016
Messages
7,694
Location
South Carolina
There were several works suggesting nullification and compact theory. If you are looking for a concise attack on the foundations of nationalism via the Constitution, these will disappoint. However, they are important as a source for alternatives that are part of the Southern antebellum experience to the nationalist view.

Thanks to @Andersonh1 for pointing them out to me.

A brief enquiry into the true nature and character of our federal government: being a review of Judge Story's commentaries on the Constitution of the United States, by Abel P. Upshur. 1840

View of the Constitution of the United States: With Selected Writings: St. George Tucker: (1803)

New Views of the Constitution of the United States Taylor, John. (1823).

Disquisition on Government John C Calhoun 1849
I reviewed Abel Upshur's book here: https://civilwartalk.com/threads/a-...overnment-by-abel-upshur.144858/#post-1791600

I haven't read most of the others yet, but I certainly need to.
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
I reviewed Abel Upshur's book here: https://civilwartalk.com/threads/a-...overnment-by-abel-upshur.144858/#post-1791600

I haven't read most of the others yet, but I certainly need to.
I believe you introduced me to Taylor, John AKA John Taylor of Caroline also.

IMHO the key is not if they were accurate regarding the Constitution, but how they influenced Southerners. One can pound the pulpit preaching the Constitution/SCOTUS says or one can look at what inspired men. The Great Why has to be seen.

I've been looking at the economics that drove the South into the sectionalism they ended up in. One can compare the South to the North and England and say how backward industrial wise they were or one can compare them to the Western US or much of the world and see how alike they were. One can say they were wrong to specialize in slave-grown cotton (icky icky) or one can say that they exploited competitive advantage as rational economic actors.
 
Joined
Jan 9, 2010
Messages
5,800
Location
Texas
By the Supremacy Clause, a state cannot claim any part of the Constitution or any U.S. law passed in accordance with the Constitution does not apply to it, nor can it declare any U.S. treaty made in accordance with the Constitution does not apply to it.

So how can a state declare the entire U.S. Constitution, all the U.S. laws passed in accordance with the Constitution, and all the U.S. treaties made in accordance with the Constitution do not apply to it?
Seems many folk forget that bit of information when they think, and claim the 10th Amendment gives the States the power to secede.

Kevin Dally
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
Seems many folk forget that bit of information when they think, and claim the 10th Amendment gives the States the power to secede.

Kevin Dally
The power of magical thinking. OTOH If a power of secession exists and an amendment supersedes the rest of the Constitution that conflict with it, then poof by the magic of reserved powers poof we have seceded via the tenth. That is why I have 3 forks of the 10th to argue. Delegated powers to the Federal government, prohibited powers to the States and where in the heck is that power of secession at the time powers were being divided up at the Constitutional Convention. If they claim that it did not have to be, then rhetorically attack with imaginary powers.
 
Joined
Jan 12, 2016
Messages
7,694
Location
South Carolina
The Great Why has to be seen.
Agreed. That is what interests me, and it's clear that there were decades of political theory and belief undergirding secession. They didn't just manufacture it overnight, and they genuinely believed they were on solid legal, Constitutional and historical grounds. It's fascinating ground to explore.
 
Joined
Jan 9, 2010
Messages
5,800
Location
Texas
Agreed. That is what interests me, and it's clear that there were decades of political theory and belief undergirding secession. They didn't just manufacture it overnight, and they genuinely believed they were on solid legal, Constitutional and historical grounds. It's fascinating ground to explore.
Explore, yes, but to put into action was folly.

Kevin Dally
 

jgoodguy

Brev. Brig. Gen'l
Retired Moderator
Joined
Aug 17, 2011
Messages
35,552
Location
Birmingham, Alabama
Agreed. That is what interests me, and it's clear that there were decades of political theory and belief undergirding secession. They didn't just manufacture it overnight, and they genuinely believed they were on solid legal, Constitutional and historical grounds. It's fascinating ground to explore.
I think when you look at it closely it will on natural law, concurrent minority, and similar grounds. The Union had more men, guns, and lawyers.(I am serious, part of the war was adapting law to it and the Union was excellent) It is still a fascinating ground to explore for a world view, history and motivations
Explore, yes, but to put into action was folly.

Kevin Dally
No, it was not, it was a reasonable gamble. In early 1861 it was a war hero with 35 years of government experience vs a nobody whose main appeal was that he had not done anything to make anyone angry.
 
Joined
Jan 9, 2010
Messages
5,800
Location
Texas
I think when you look at it closely it will on natural law, concurrent minority, and similar grounds. The Union had more men, guns, and lawyers.(I am serious, part of the war was adapting law to it and the Union was excellent) It is still a fascinating ground to explore for a world view, history and motivations
No, it was not, it was a reasonable gamble. In early 1861 it was a war hero with 35 years of government experience vs a nobody whose main appeal was that he had not done anything to make anyone angry.
They gambled poorly.

Kevin Dally
 
Joined
Dec 16, 2018
Messages
284
Interesting question.
Several answers IMHO
First the understanding of the day was that it is unconstitutional to leave the Union, but unconstitutional to force States back into the Union. Even Lincoln was unsure how to continue until the attack on fort Sumter. Even after until the Prize Cases were ruled on, there was a question if Lincoln could respond as he did.

There is the idea that once you are out of the Union by whatever means you are no longer subject to the Constitution.

Until Texas v White, while there had been cases regarding Compact Theory, there was none regarding Compact Theory and Secession.

No one did a due diligence and reviewed the legal record for compact law cases or made the connection between secession and compact theory.

Everyone simply deferred to Calhoun that secession was legal.
There is much more to this than the opinions of some over the years before the CW..
There are those, based on reality, that say the U S was created TWICE by secession. I do not agree. I think the U S was created by one act of Revolution, and one period of secession.
Nobody looking at how the U S was actually formed can say the last act of creation was not secession. (well, it can be said, but not without suspending reality).
The first act was Revolution and the establishment of the U S under the Articles of Confederation. The second act was the secession of 9 states from the AoC and the establishment of The United States under the Constitution...which was illegal under the AoC. Specifically, the AoC required consent of all states for any change of government. The Constitution required only 9 states to ratify it for it to began operating as the basic law of those 9 states. The other 4 states were still bound by the AoC. In effect, there were now two countries. I am fairly certain that had there been any body of legal "experts", at the time, to weigh in on the matter, most would have declared that the Constitution had no legal standing. The convention that proposed the Constitution had no legal standing, and had not included all states.
The Constitution did go forward, with 11 states voting in the first Federal election. Were these states in rebellion? Or, were Rhode Island and North Carolina the traitors ?
Certainly the legal details of how the U S was formed under the Constitution became forgotten, especially by the founders as they got older. They preferred to pat themselves on the back. I feel certain that had the debate over accepting the Constitution been sectional in 1787-88, the U S would have split then, and without war. And, most likely, the states would have rejoined each other under mutually acceptable conditions later.
 
Joined
Jun 17, 2017
Messages
662
I think when you look at it closely it will on natural law, concurrent minority, and similar grounds. The Union had more men, guns, and lawyers.(I am serious, part of the war was adapting law to it and the Union was excellent) It is still a fascinating ground to explore for a world view, history and motivations
No, it was not, it was a reasonable gamble. In early 1861 it was a war hero with 35 years of government experience vs a nobody whose main appeal was that he had not done anything to make anyone angry.
I would say he was pretty slick for a nobody!
 

cash

Brev. Brig. Gen'l
Joined
Feb 20, 2005
Messages
33,528
Location
Right here.
There is much more to this than the opinions of some over the years before the CW..
There are those, based on reality, that say the U S was created TWICE by secession. I do not agree. I think the U S was created by one act of Revolution, and one period of secession.
Nobody looking at how the U S was actually formed can say the last act of creation was not secession. (well, it can be said, but not without suspending reality).
The first act was Revolution and the establishment of the U S under the Articles of Confederation. The second act was the secession of 9 states from the AoC and the establishment of The United States under the Constitution...which was illegal under the AoC. Specifically, the AoC required consent of all states for any change of government. The Constitution required only 9 states to ratify it for it to began operating as the basic law of those 9 states. The other 4 states were still bound by the AoC. In effect, there were now two countries. I am fairly certain that had there been any body of legal "experts", at the time, to weigh in on the matter, most would have declared that the Constitution had no legal standing. The convention that proposed the Constitution had no legal standing, and had not included all states.
The Constitution did go forward, with 11 states voting in the first Federal election. Were these states in rebellion? Or, were Rhode Island and North Carolina the traitors ?
Certainly the legal details of how the U S was formed under the Constitution became forgotten, especially by the founders as they got older. They preferred to pat themselves on the back. I feel certain that had the debate over accepting the Constitution been sectional in 1787-88, the U S would have split then, and without war. And, most likely, the states would have rejoined each other under mutually acceptable conditions later.
The U.S. was created by two acts of revolution. The first was from Britain. The second was a revolution to overturn the Articles of Confederation. Otherwise there was no legal way they could make the changes they made.
 
Joined
Dec 16, 2018
Messages
284
The U.S. was created by two acts of revolution. The first was from Britain. The second was a revolution to overturn the Articles of Confederation. Otherwise there was no legal way they could make the changes they made.
In what way could the Articles of Confederation not be changed legally?
 



(Membership has it privileges! To remove this ad: Register NOW!)
Top