The Concept of a Perpetual Union

jgoodguy

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#1
from
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC

The purpose of this thread is to examine the concept of "Perpetual Union" as it related to secession and the American Civil War. Most of us that run into "Perpetual Union" is via Texas v White in our endless discussion of secession.

4. The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And, when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union."​

Was the Constitution a compact in a voluntary union or once in the only way out is by violence. Maybe the Constitution could have been more explicit, but as history shows, the explicitness of the Articles of Confederation Article XIII that stipulated:" "shall be inviolably observed by every state, and the Union shall be perpetual. . . ." was abridged. Perhaps if enumerated secession specific delegated powers had been included in the Constitution we would have been spared tedious passionate discourse. Than again....

THE American Civil War, whatever else it may have been, was
unquestionably America's most acute constitutional crisis. Viewed from
this perspective, the fundamental issue of the war was the locus of
sovereignty in the political structure that the Constitution of 1787 had
formed. Did this document create a union of sovereign states, each of
which retained the right to secede at its own discretion? Or did it create
a union from which no state, once having joined, could escape except by
an extra-constitutional act of revolution? In a Constitution remarkable
for its ambiguity on many substantive matters, none was more fateful
than its silence on this crucial question. Even the Articles of Con-
federation, which the nationalists despised, were unequivocal in defining
the Union of the states. Their title was "Articles of Confederation and
Perpetual Union," and Article XIII stipulated that their provisions
"shall be inviolably observed by every state, and the Union shall be
perpetual. . . ." Whether the incorporation of these words in the
Constitution of 1787 would have been sufficient to prevent the crisis of
1861-1865 is problematic, but at the very least we would have
been spared the prolix and convoluted debate over the legality of
secession.
Footnotes
1 In addition to the numerous special studies of these constitutional crises, the evolution of the
state-rights and secessionist arguments can be traced in Jesse T. Carpenter, The South as a
Conscious Minority, 1789-1861: A Study in Political Thought (New York, 1930).
2 For background see Paul C. Nagel, One Nation Indivisible: The Union in American Thought,
1776-1861 (New York, 1964) and Alpheus Thomas Mason, "The Nature of Our Federal Union
Reconsidered," Political Science Quarterly, LXV (Dec. 1950), 502-21.​

Links
The South as a conscious minority, 1789-1861 : a study in political Thought
One Nation Indivisible: The Union in American ... - Google Books
The Nature of Our Federal Union Reconsidered - Political Science
 
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jgoodguy

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#2
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC P5

It is easy to look back in time to the bright and shiny path nationalists took to victory and to say that the path to national unity was written in the stars and stone long before the first fire eater took up his fire and the Gray took up rifles, but it appears to be a lot more vague with one gets into the details. While what ifs are not history, there are no do overs and the Nationalists won the important conflicts in the Antebellum and Bellum times in our country's history, it could have gone the other way.

As an aside, worldwide in the 18-19th centuries, the nationalists appeared to be winning. It would be interesting to see if a consolidated country ever went back.

In returning to the old controversy about the nature of the Union, I
am not, of course, exploring one of the neglected problems of American
history. The evolution of the doctrine of state sovereignty, from the
protests against Alexander Hamilton's economic program to the
southern movement for secession, has been thoroughly examined.' The
growth of American nationalism in the nineteenth century has also been
the subject of numerous studies.2 However, one aspect of nationalist
thought-the origin of the concept of a perpetual union and of the
complex argument that supported it-has received surprisingly little
critical analysis and is not, I think, very well understood. Since the
Union's perpetuity was rather firmly established at Appomattox and has
rarely been disputed since, this antebellum topic of debate lacks the
urgency of a still relevant political issue. Nevertheless, it is worth noting
that the unionist case was sufficiently flawed to make it uncertain whether
in 1865 reason and logic were on the side of the victors-indeed,
whether, in the tangled web of claims and counterclaims, they were
indisputably on either side.​
Footnotes
1 In addition to the numerous special studies of these constitutional crises, the evolution of the
state-rights and secessionist arguments can be traced in Jesse T. Carpenter, The South as a
Conscious Minority, 1789-1861: A Study in Political Thought (New York, 1930).
2 For background see Paul C. Nagel, One Nation Indivisible: The Union in American Thought,
1776-1861 (New York, 1964) and Alpheus Thomas Mason, "The Nature of Our Federal Union
Reconsidered," Political Science Quarterly, LXV (Dec. 1950), 502-21.

Links
The South as a conscious minority, 1789-1861 : a study in political Thought
One Nation Indivisible: The Union in American ... - Google Books
The Nature of Our Federal Union Reconsidered - Political Science
 

jgoodguy

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#3
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC P6

Several of our members have pointed out that no power of secession or power to coerce States to remain in the Union is in the Constitution's list of delegated powers. The power to suppress secession is in powers implicit in enforcing delegated powers according to the nationals. Their opponents left with a wait a minute here, I do not see any enumerated power to suppress secession. The nationalists simply declared the secession of Civil War as rebellion and used delegated and implicit powers to suppress it. The secessionists of that time aided them by engaging in rebellious activities.

The nationalists needed an organizing idea, a catchy phase, historical narrative or interpretation of history to make their case appealing. The nationalists came up with the paradigm of Perpetual Union. In short the nationalists came up with the idea that the Union is older than the States while the secessionists responded with the States are older than the Union.

A brief look at this divide can be viewed through the Articles of Confederation.

Nationalists liked
XIII.
Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.​
Secessionists liked
II.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Neither side regarded both equally articles important and selectively quoted the parts they liked. .
From the article.
Lacking an explicit clause in the Constitution with which to establish
the Union's perpetuity, the nationalists made their case, first, with a
unique interpretation of the history of the country prior to the
Philadelphia Convention; second, with inferences drawn from certain
passages of the Constitution; and, third, with careful selections from the
speeches and writings of the Founding Fathers. The historical case
begins with the postulate that the Union is older than the states. It
quotes the reference in the Declaration of Independence to "these united
colonies," contends that the Second Continental Congress actually
called the states into being, notes the provision for a perpetual Union in
the Articles of Confederation, and ends with the reminder that the
preamble to the new Constitution gives as one of its purposes the for-
mation of "a more perfect Union." In 1869, when the Supreme Court,
in Texas v. White, finally rejected as untenable the case for a con-
stitutional right of secession, it stressed this historical argument. The
Union, the Court said, "never was a purely artificial and arbitrary
relation." Rather, "It began among the Colonies. ... It was confirmed
and strengthened by the necessities of war, and received definite form,
and character, and sanction from the Articles of Confederation."3
Abraham Lincoln, in his first inaugural address, summarized this part of
the unionist case most succinctly:
[We] find the proposition that, in legal contemplation, the Union is perpetual,
confirmed by the history of the Union itself. The Union is much older than the
Constitution. It was formed in fact, by the Articles of Association in 1774. It
was matured and continued by the Declaration of Independence in 1776. It was
further matured and the faith of all the then thirteen States expressly plighted
and engaged that it should be perpetual, by the Articles of Confederation of
1778. And finally, in 1787, one of the declared objects for ordaining and
establishing the Constitution, was "to form a more perfect union. "4

In the secessionists' interpretation of history, the states are older than
the Union-in fact, they created the Union, but without yielding any
part of their sovereignty. According to South Carolina's secession
convention, the colonies in 1776 had declared "that they are, and of
right ought to be, FREE AND INDEPENDENT STATES."
The
quotation is inaccurate, of course, for it substitutes "they" for "these
united colonies." Similarly, the South Carolina convention ignored the
reference in the Articles of Confederation to a perpetual Union, but it
made the most of Article II: "each State retains its sovereignty, freedom
and independence, and every power, jurisdiction and right which is not
... expressly delegated. ... '5 Both Lincoln and the Supreme Court left
this article unexplained

footnotes
I Roy P. Basler, Marion Dolores Pratt, and Lloyd A. Dunlap, eds., The Collected Works of
Abraham Lincoln (8 vols., New Brunswick, N.J., 1953), IV, 265. Abraham Lincoln's historical
case for a perpetual Union is amplified and affirmed in Curtis Putnam Nettels, "The Origin of the
Union and of the States," Proceedings of the Massachusetts Historical Society, LXII (1963),
68-83.
5Frank Moore, ed., The Rebellion Record: A Diary of American Events (12 vols., New York,
1861-1868), I, 3-4.​
Links​
The Rebellion Record: A Diary of American Events : Frank Moore
Full text of "The Collected Works Of Abraham Lincoln
Proceedings of the Massachusetts Historical Society "The Origin of the Union and of the States,"

 

jgoodguy

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#5
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC P7-8

The 'revolution' of 1787 AKA Constitutional Convention throws a theoretical monkey wrench into the Perpetual Union debates, because for the Nationalists, the AOC was not perpetual and for the States Righters, it was supposed to be perpetual. The tangible existence of the AOC was terminated suggesting the Union was also terminated. Only by accident was the population, local government units, the names of those units, their areas and the national area the same in the end. It was possible to have an United States with 9 States and a Constitution alone side an United States with 4 States and the Articles of Confederation.

reference
I almost see the The ship of Theseus paradox, also known as Theseus's paradox, is a thought experiment that raises the question of whether an object that has had all of its components replaced remains fundamentally the same object. You have this nation, with all the parts and relationship of the parts replaced and yet the nationalists say but it is the same.

As a matter of logic, however, the long debate over the state of the
Union prior to 1787 was rather pointless, because the action of the
Constitutional Convention made it irrelevant to any convincing case for
or against a perpetual union. When the Confederation Congress agreed
that the states should send delegates to the Philadelphia Convention, it
stipulated that the "sole and express purpose" was to revise the Articles
of Confederation. The revisions, or amendments, were to be submitted
to the state legislatures for ratification, each requiring unanimous
consent. But the delegates ignored their instructions, wrote an entirely
new Constitution, and specified ratification by specially elected state
conventions rather than by the legislatures. Most important, they
abandoned the requirement that ratification be unanimous. Instead,
when nine states had approved, the Constitution would at once become
operative for them, leaving any states that declined to ratify outside and
independent.

By these acts, the Philadelphia Convention made the historical
argument for perpetuity invalid, because the Convention and the
ratifying states destroyed the existing Union. Every state had the option
of not ratifying, and as many as four might have remained independent
(as two did for a time) while the other nine entered a new union.6 The
result of this dismantling of the "perpetual" union created by the
Articles of Confederation is a break in historical continuity. The
preamble to the Constitution, be it noted, does not propose to make the
old Union more perfect but to "form a more perfect Union" -that is, to
create a new and better one.
Footnotes.
6 One might argue that for a time in 1788 two unions existed. The first nine states to ratify
formed a new union, while the other four (New York, Virginia, North Carolina, and Rhode Island)
remained in the old union under the Articles of Confederation.
Jacob E. Cooke, ed., The Federalist (Cleveland, 1961), 298. Italics added.
Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols., New Haoen,
1937), II, 561.
9 Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the
Federal Constitution (5 vols., Philadelphia, 1861), IV, 203.
'0 Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution (2
vols., Madison, Wisc., 1976- ), II, 394.
" Ibid., 86.
12 Ibid., 89.​
 
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#7
I don't think the old boys were naïve but they were idealistic. I think they saw the possibility of dissolution but, for reasons not clear to me, didn't directly address that in the Constitution, more perplexing since the Articles were a failure.

I think the notion of perpetual union is somewhat like that of perpetual motion; eventually, gravity and friction defeat even the best engineering. Nobody can be prescient 200+ years ahead. None of the truly famous "governments" exist today and study of the fall of the Roman empire was a classic pursuit of the CW generation and their children.

How we might end up disintegrating is not appropriate for the forum but I do think the notion that anything involving human cooperation is perpetual is naïve. Since I don't think the fathers were naïve (well, mostly not) I think they were more hopeful and maybe felt it best just to not delve into the worst case scenario.

Just my thoughts. Interesting thread.
 
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jgoodguy

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#8
I don't think the old boys were naïve but the were idealistic. I think they saw the possibility of dissolution but, for reasons not clear to me, didn't directly address that in the Constitution, more perplexing since the Articles were a failure.

I think the notion of perpetual union is somewhat like that of perpetual motion" eventually, gravity and friction defeat even the best engineering. Nobody can be prescient 200+ years ahead. None of the truly famous "governments" exist today and study of the fall of the Roman empire was a classic pursuit of the CW generation and their children.

How we might end up disintegrating is not appropriate for the forum but I do think the notion that anything involving human cooperation is perpetual is naïve. Since I don't think the fathers were naïve (well, mostly not) I think they were more hopeful and maybe felt it best just to not delve into the worst case scenario.

Just my thoughts. Interesting thread.
Our nation will end at some point where a force greater than it is defeats it. It likely has exceeded its creators' most fanciful expectations.

As to the purpose of this thread, I like to know the why. If one somehow idealizes sausage, then the making of it is disappointing. If one idealizes the foundation of our country figuring it to be handed down from heaven above, the all too humans messing it up is a disappointment. I enjoy the search into motives, passions, personalities, fate, politics and chance in the creation of my country. I like sausage and have seen it made without diminishing my appetite for it. Likewise I see the humans messing up the ideal and give them the highest honor I can give. It worked.
 

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#9
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC pp 8-9

The secessionists of 1787, like the ones of 1860-61 did not want to appear to be revolutionaries destroying a government. We have a thread on this The Secession of 1786-1788. Instead they wanted to appear to be properly conservative. Madison would concentrate on a reunion as if a disunion did not happen. Some claimed the old confederacy was already dead and being already dead could not be murdered. This was dangerous language and logic. The secessionists of 1860-61 would use similar language and logic.

The discontinuity between between the Articles of Confederation and the Constitution causes a logical problem of the idea that the Union goes back to the First Continental Congress and founding of the US and hence 'before the States".

Prom the reference.
That the old Union would be dissolved was acknowledged occasionally
at the Philadelphia Convention, in the state ratifying conventions, and
during the public debates. James Madison, in one of his contributions to
The Federalist, agreed that if some states refused to ratify, "no political
relation can subsist between the assenting and dissenting States," but he
hoped for "a speedy triumph over the obstacles to re-union."7 In
Philadelphia, Elbridge Gerry of Massachusetts, stressing the disunion
implicit in requiring ratification by only nine states, "urged the in-
decency and pernicious tendency of dissolving ... the solemn
obligations of the articles of confederation." He warned that if nine of
the thirteen states could abolish the old Union, six of the nine might just
as easily abolish the new.8 At the North Carolina ratifying convention,
William Lenoir accused the authors of the Constitution of dissolving the
Union and foresaw the possibility that at some future time "it may be
thought proper, by a few designing persons to destroy [the new Union]
. . .in the same manner that the old system is laid aside."9 In Penn-
sylvania, antifederalist Robert Whitehill objected that "it never was in
the contemplation of any man" that the delegates to Philadelphia "were
authorized to dissolve the present union "10 However, George Clymer,
a Federalist, insisted that the Confederation Congress could not prevent
the states from entering the new Union "separately and independently"
if they wished.11 Indeed, Thomas Fitzsimons believed that the proposed
Constitution "presupposes . . . that no Confederation exists."12

Some Federalists, attempting to escape responsibility for destroying
the old Union, claimed that it already had been destroyed by the failure
of certain states to respect their obligations under the Articles of
Confederation. Madison charged that state violations of the Articles
"had been numerous and notorious." Considering the Union as
'analogous . . . to the conventions among individual states,'" he believed
"that a breach of any one article, by any one party, leaves all the other
parties at liberty to consider the whole convention as dissolved...''13
In the South Carolina legislature, Charles Cotesworth Pinckney argued
that the old compact "had been repeatedly broken by every state
in the Union; and . . . when the parties to a treaty violate it, it is no
longer binding. This was the case with the old Confederation; it was
virtually dissolved. .5 14 James Iredell of North Carolina asserted that
the failure of several states to comply with the requisitions of Congress
meant that the "Articles of Confederation are no longer binding."'5
John Jay contended that no union in fact existed and that none would
exist until the Constitution was ratified. Meanwhile, the states were not
only without money or credit but also "without Union, without
Government. " 16

Arguments such as these might have relieved the Founding Fathers
responsibility for abolishing the old Union; but those who advanced
these arguments were playing a dangerous game, for they were ex-
plaining to posterity how even a perpetual union might be dissolved.
a matter of fact, the secessionists of 1860-1861 used precisely this logic
to justify their action. Oliver Ellsworth of Connecticut, concerned
the consequences, told the delegates at Philadelphia that he "could not
admit the doctrine that a breach of (any of) the federal articles could
dissolve the whole. It would be highly dangerous not to consider the
Confederation as still subsisting. "'7 But in avoiding that trap,
in effect, simply placed the onus of terminating the old Union on his
fellow delegates. Either way, the break in historical continuity un-
dermines the case for a perpetual union based on the country's political
condition before 1787. Hence, the only relevant arguments are those
derived from the language of the Constitution and from the statements
of the Founding Fathers about their intentions.
Footnotes
13 Farrand, Records of the Federal Convention of 1 787, I, 3 14-15.
14 Elliot, Debates in the Several State Conventions, IV, 308.
15 Ibid., 230.
16 John Jay, "An Address to the People of the State of New-York On the Subject of the
Constitution, Agreed upon at Philadelphia," Paul Leicester Ford, ed., Pamphlets on the
Constitution of the United States, Published During Its Discussion by the People, 1787-1788
(Brooklyn, 1888), 83.
17 Farrand, Records of the Federal Convention of 1 787,​
 
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jgoodguy

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#13
The founders were rightly proud of their new nation, but I think it's a bit of a stretch to use terms like perfect or perpetual for any institution created by fallible humans.
"Perpetual Unions" are like "till death do us part". Both can be revisited.
I think the Perpetual Union concept was much later than the founding. Certainly they left it out of the Constitution which almost sounds like wedding vows for a divorced couple remarrying.
 

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#14
from
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC pp9-10

There was a draft resolution never brought up by Charles Pinckney suggesting a perpetual union, but was never heard.
Stampp holds that the preamble of the Constitution is a new government, not an improved Articles of Confederation and is insufficient to make the claim of a perpetual union. Would the founding fathers that recently rebelled to throw off a concentrated government's hold on the colonies turn around and make an perpetual experiment in concentrated power? There is a need for more explicit constitutional previsions to use.

From the article.
When they turned to the Constitution for supporting evidence, the
nationalists were confronted with the problem of ambiguity. At one
point during the Philadelphia Convention, a Committee of Detail had
before it a number of draft resolutions, one of which, written by Charles
Pinckney of South Carolina, contained the provision of the Articles of
Confederation that "the Union shall be perpetual. "18 However, the
subject was never brought before the general body for discussion.
Apparently the Articles, which guaranteed the states their sovereignty
and independence, could speak boldly of perpetuity; but the Founding
Fathers, who endowed the federal government with substantial power,
thought such language too risky. Perhaps they also found it slightly
embarrassing to declare their intention to build a new perpetual union
on the wreckage of the old.

Eventually those who developed the case for perpetuity claimed that
the equivalent of the wording in the Articles had been incorporated into
the preamble of the Constitution-that is, in its stated aim "to form a
more perfect Union." As Lincoln argued in his first inaugural address,
"if destruction of the Union, by one, or by a part only, of the States, be
lawfully possible, the Union is less perfect than before the Constitution,
having lost the vital element of perpetuity.' 19 The Supreme Court found
the preamble decisive on this point: "It is difficult to convey the idea of
indissoluble unity more clearly than by these words. What can be in-
dissoluble if a perpetual Union, made more perfect, is not?"20 But
Lincoln and the Court, by linking the Articles and the preamble, were
again assuming continuity, and my contention is that there was no
continuity-that the aim announced in the preamble is not to strengthen
the old Union but to form a new, "more perfect Union." Therefore, a
valid case for perpetuity cannot lean on the terms of the Articles but
must demonstrate that it is clearly articulated in the Constitution itself.​

Footnotes.
18 Ibid., II, 134-36; Charles C. Tansill, ed., Documents Illustrative of the Formation of the
Union of the American States (Washington, 1927), 964-66; Max Farrand, The Framing of the
Constitution of the United States (New Haven, 1913), 71-72; [Andrew C. McLaughlin] "Sketch
of Pinckney's Plan for a Constitution, 1787," American Historical Review, IX (July 1904),
735-47.
19 Basler, Pratt, and Dunlap, Collected Works of Abraham Lincoln, IV, 265.
20 Texas v. White, 7 Wall. 700 (1869), a​
 

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#15
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from
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC pp 10-11

IMHO there was a political conflict between the nationalists and the States Righters. The nationalist won the overall conflict before the Civil War and absolutely with Appomattox. There was a back and forth and it was not a certainty that the nationalists won. A perfect Union is in the eye of the beholder. Maybe a ultra nationalist would make the States mere administrative areas, but a States Righter might see a perfect Union held by bonds of patriotism with voluntary association.

The rejection of the veto power in the Virginia Plan, representation of all states in the Senate, States as co-soverigns and the subsequent adoption of the Tenth Amendment, preserved state sovereignty to some indeterminate degree. Issues passionately debated within CWT. Indeterminable in that while the Nationalists won the important SCOTUS cases, political philosophers like Calhoun won hearts of some citizens.

From the article.
Taken alone, the language of the preamble fails to solve the problem
of ambiguity, for the phrase "a more perfect Union" does not
inescapably evoke the idea of a perpetual union. It is more than a
mere metaphysical quibble to question whether, in a political system,
perpetuity is a necessary attribute of perfection. Before 1861, many
thoughtful people in all sections understood a perfect union to be one to
which the citizens of each state belong by their own consent, and they
regarded a union held together by military force as decidedly less than
perfect. In 1814, Joseph Lyman of Massachusetts contended that a
"Union founded upon submission is the Union of slaves.' '21 Years later,
a southern editor opined that the term union "implies voluntary
association" and that "a compulsory compact ... would cease to be a
Union, and would become a despotism."22 As late as 1861, this
alternative concept of perfection still troubled some northern Unionists.​

Apart from the preamble, the body of the Constitution contains its
own ambiguities. Clearly, some delegates to the Philadelphia Convention
wanted to take from the states every vestige of sovereignty and create a
consolidated national government. The Virginia Plan would have denied
the states equal representation in either branch of Congress, endowed
Congress with power to veto the acts of state legislatures, and authorized
federal military coercion of any state that failed to fulfill its duties. A few
delegates would have gone further and either abolished the states or
converted them into mere administrative districts. But these were the
very issues on which the nationalists suffered their most severe defeats.
The rejection of the veto power in the Virginia Plan and the provision
for equal representation of all states in the Senate, together with the
subsequent adoption of the Tenth Amendment, preserved the principle
of state sovereignty to some indeterminate degree. Thus, as Alpheus T.
Mason observes, the nationalists had failed "to stave off what they
thought would vitiate the nationalizing features of the new system."
They had protested that equal representation "would infect the new
government with the same disease that plagued the Articles," for it
''would make the states a constituent part of the national government,"9
thus permeating it with "the very infirmity which the new system was
designed to correct. . 23

Footnotes.
2' Samuel Eliot Morison, The Life and Letters of Harrison Gray Otis: Federalist 1765-1848
vols., Boston, 1913), II, 188.
22 New Orleans Bee, Jan. 22, 1861. quoted in Dwight Lowell Dumond, ed., Southern Editorials
on Secession (New York, 1931), 410.
23 Alpheus Thomas Mason, The States Rights Debate: Antifederalism and the Constitution
(Englewood Cliffs, 1964), 46.
24 Farrand, Framing of the Constitution, 190-91.​
 
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#16
This is fine, but without some shared experiences the United States would not a national identity. When the President was an ex-general who fought for the United States in the War of 1812, nullification was not successful.
The Mexican-American War did not have that same effect, because it did not have a national impact and the benefit was to make the addition of Texas permanent and include a new large state with no former relation to the rest of the country.
The words used can be overcome if the shared experience is great enough, and that had a role to play in the assertion of the right of secession.
 
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#18
So Stampp is writing that the structure of the Senate introduced a structure that was inherently a "states rights" structure and kept the issue of state sovereignty alive.
Which was not a crucial problem in 1787 when the country was limited to the Atlantic seaboard and the nationalists from Virginia were dominant.
The human means to limit the divisive elements were effective, until the physical means of binding the states together arrived, with tremendous speed, during 1850-1860.
 

CW Buff

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#19
from
The Concept of a Perpetual Union
Author(s): Kenneth M. Stampp
Source: The Journal of American History, Vol. 65, No. 1 (Jun., 1978), pp. 5-33
Published by: Oxford University Press on behalf of Organization of American Historians
Stable URL: http://www.jstor.org/stable/1888140
Accessed: 28-11-2017 17:35 UTC

The purpose of this thread is to examine the concept of "Perpetual Union" as it related to secession and the American Civil War. Most of us that run into "Perpetual Union" is via Texas v White in our endless discussion of secession.

4. The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And, when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union."
Was the Constitution a compact in a voluntary union or once in the only way out is by violence. Maybe the Constitution could have been more explicit, but as history shows, the explicitness of the Articles of Confederation Article XIII that stipulated:" "shall be inviolably observed by every state, and the Union shall be perpetual. . . ." was abridged. Perhaps if enumerated secession specific delegated powers had been included in the Constitution we would have been spared tedious passionate discourse. Than again....

THE American Civil War, whatever else it may have been, was
unquestionably America's most acute constitutional crisis. Viewed from
this perspective, the fundamental issue of the war was the locus of
sovereignty in the political structure that the Constitution of 1787 had
formed. Did this document create a union of sovereign states, each of
which retained the right to secede at its own discretion? Or did it create
a union from which no state, once having joined, could escape except by
an extra-constitutional act of revolution? In a Constitution remarkable
for its ambiguity on many substantive matters, none was more fateful
than its silence on this crucial question. Even the Articles of Con-
federation, which the nationalists despised, were unequivocal in defining
the Union of the states. Their title was "Articles of Confederation and
Perpetual Union," and Article XIII stipulated that their provisions
"shall be inviolably observed by every state, and the Union shall be
perpetual. . . ." Whether the incorporation of these words in the
Constitution of 1787 would have been sufficient to prevent the crisis of
1861-1865 is problematic, but at the very least we would have
been spared the prolix and convoluted debate over the legality of
secession.
Footnotes
1 In addition to the numerous special studies of these constitutional crises, the evolution of the
state-rights and secessionist arguments can be traced in Jesse T. Carpenter, The South as a
Conscious Minority, 1789-1861: A Study in Political Thought (New York, 1930).
2 For background see Paul C. Nagel, One Nation Indivisible: The Union in American Thought,
1776-1861 (New York, 1964) and Alpheus Thomas Mason, "The Nature of Our Federal Union
Reconsidered," Political Science Quarterly, LXV (Dec. 1950), 502-21.
Links
The South as a conscious minority, 1789-1861 : a study in political Thought
One Nation Indivisible: The Union in American ... - Google Books
The Nature of Our Federal Union Reconsidered - Political Science
Great topic - there have been several interrelated threads lately. I could possibly agree in part with Professor Stampp as far as the unionist argument c1860s. But as much as I like Stampp, I think he is wrong about much of the rest.

1. A clear, strong case for perpetual Union was made in 1777.
2. There could be no abandonment of that paramount goal during the Constitutional Convention without any discussion of it, let alone without any mention of it whatsoever.
3. On the contrary, it was actually the apparent failure of the AoCs and confederation system that caused the Framers to propose replacing them with something better designed to deliver perpetual Union.
4. The Framers stated that the Constitution served to further consolidate the Union.
5. They also stated its ratification meant giving up a portion of state sovereignty.
6. The Constitution specifies it was for the then present generation, and their posterity (all future generations).
7. The Constitution also specifies it shall be the supreme law of the land, anything in state laws or constitutions to the contrary notwithstanding (here, IMHO, is where SCOTUS should have focused in Texas v. White).
8. If the new locus of sovereignty was somehow hard to follow from all of the above, SCOTUS clarified it in several early decisions: the locus of sovereignty was split between the states and the nation. These super-majority/unanimous SCOTUS decisions should have also been ample evidence that state compact theory was a nonstarter.

Should the Framers have explained that a law (unlike a treaty) is naturally perpetual? A law remains in effect until repealed or altered by the same authority that enacted it (or a greater one, which doesn’t apply in this case). Should they have also explained that a law (unlike a treaty) is legally inviolable, that it carries the force of… law? Perhaps they should have stated what should have been obvious, and carried over that entire line from Article XIII, though it would have seemed foolishly redundant. Of course, hindsight is 20-20.

What was offered in the balance against the above?

1. The Kentucky Resolutions, how do they compare? IMHO not very well at all, considering especially that several states issued statements in opposition to them, and none voiced support for them (except maybe VA). Personally, I think their historical relevance would have been no more than that of the Alien and Sedition Acts they were meant to counter, were it not for their role in the ACW.
2. Calhoun’s Exposition, how does that stack up to the above? Again, not very well, considering, first, it was built on #1, and then, Webster's refutation of nullfication, Madison's refutation of unilateral secession, no other state joined SC, and Jackson nipped it in the bud.

Unfortunately, on this subject, I think Stampp compounds errors more than he uncovers them.
 

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#20
Another case in point:

Some Federalists, attempting to escape responsibility for destroying the old Union, claimed that it already had been destroyed by the failure of certain states to respect their obligations under the Articles of Confederation.”

That’s one way of looking at the antifederalists’ charges that the federalists were destroying the old union. But might the antifederalists be the ones attempting to escape responsibility? Did the federalists destroy the old Union, or was it the antifederalists themselves, who won Round 1 in 1777 and made the AoCs intentionally weak (understandable at the time)? Or perhaps the state legislatures, who routinely violated them. Madison did not make up the bit about violations rendering a treaty null and void. From Vattel’s The Law of Nations, Section 200: “The party, therefore, who is offended or injured in those particulars which constitute the basis of the treaty, is at liberty to choose the alternative of either compelling a faithless ally to fulfil his engagements, or of declaring the treaty dissolved by his violation of it. On such an occasion, prudence and wise policy will point out the line of conduct to be pursued.” It seems ironic to me that the antifederalists felt a deep reverence for the AoCs when the federalists were simply proposing to make official and final what was an ongoing disregard of the AoCs. Where were such protests when the state legislatures were doing piecemeal what the Framers suggested doing wholesale?

And another point:

But the delegates ignored their instructions, wrote an entirely new Constitution, and specified ratification by specially elected state conventions rather than by the legislatures.”

If the people were the ultimate authority, was it the Constitutional Convention’s first duty to obey Congress’s mandate and provide something that they thought would not actually work, or to "ignore" that mandate, and provide something they felt would work, and leave the final decision to the people?
 

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