The People... or the State.

unionblue

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#81
Why do you keep talking about "perpetual" which is not in the Constitution at all and never mentioned until Lincoln.
The Constitution is what it is nothing more and nothing less.
So if "perpetual" is nowhere to be found in the Constitution, the same should apply to the word "secession" or "secede" which is also found nowhere in the Constitution, correct?
 

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Potomac Pride

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#86
Do you realize that you contradicted yourself? First you said state sovereignty is limited to reserved powers (true); then you said it’s unlimited (as it was under the Articles; false).

At any rate, the Framers made it clear, the states could not retain “their inherent sovereignty” under the Constitution:

It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest. . . . It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was encreased by a difference among the several states as to their situation, extent, habits, and particular interests.

The country had tried a system in which the states retained “their inherent sovereignty” (i.e. a confederation), and it had proven to be “obviously impracticable in the federal government of these states.” So, rather than amend the AoCs, or try any “treaty or treaties among the whole or part of the States, as individual Sovereignties” (G. Morris) again, they chose to draft a true constitution (fundamental law), which would, if adopted by “the People of the United States of America,” establish “a national Government . . . consisting of a supreme Legislative, Executive & Judiciary” (Morris’ proposition, submitted to and adopted by the Constitutional Convention May 30, 1787). As separate sovereignties, states can only form treaties. As per John Locke’s social compact theory, establishing a constitution is an agreement among a group of people to create a civil/political society (sovereign state). “A” meaning one, not 13. [The only difference here is that one sovereignty would be limited to delegated powers, while the 13 sovereignties would remain separetely sovereign for all else.] Whether we are talking about separate, independent states, or separate, independent men, “Individuals entering into society, must give up a share of liberty to preserve the rest.” The Constitution does not have to say that the states gave up a portion of their independent sovereignty, because it is the product of a social compact, which naturally entails the formation of one sovereignty, and the Framers chose to notify the country of this fact in their letter, rather than in the Constitution itself.

Separate sovereignties can only form treaties; fundamental laws can only be created via one combined sovereignty. As constitution making was for the states, so it was for the United States. The people who enact a fundamental law constitution are sovereigns of the whole jurisdiction over which said constitution operates.



The 11th Amendment changed the part of Chisholm v. Georgia that specifically dealt with sovereign immunity (the main decision). It did not change the part that proclaimed the national sovereignty of the people of the US (the legal rationale, ratio decidendi, on which the main decision was based). For added proof, the national sovereignty of the people of the US was reiterated in later SCOTUS decisions.

The fact is, having established the Constitution without any provision for state sovereign immunity, the states had no sovereign immunity, unless such was added to the Constitution. Similarly, the Constitution does not provide for the withdrawal of a state from the Union, unless and until such is added to the Constitution. Only the sovereign people of the US, acting via either their legislatures or state ratification conventions, can do that.
I don't think you understood what I was saying in my post. I never said that the states retained unlimited sovereignty. The states have certain inherent powers which are not expressly designated to the federal government and are therefore reserved to the states as specified under the tenth amendment of the Constitution. Therefore, the sovereignty of the states is limited to the reserved powers that exist.
 

CW Buff

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#87
The union of the united states was a federal republic of sovereign states from the outset;...
That’s actually more nationalist than MOHO. :D

IMHO, the US was initially an unofficial (though no less real) alliance of sovereign, independent states. In its first official form, it was a confederation, as per Vattel, meaning the states retained all of their original sovereignty [at first only claimed, and by 1781/1783 actually won and recognized by GB], though they were morally bound by treaty (the AoCs) to a perpetual Union/confederation/league of friendship. It was felt, incorrectly as it would turn out, that fraternity, fidelity, and common cause would forever drive compliance with the AoCs. But with their sovereignty completely intact, the states were legally free to do as they pleased, and all of them failed, in one way or another, to one degree or another, to honor their obligations under the AoCs. What was needed was a union based on a constitution (fundamental law), in which compliance is mandatory; driven by the force of law. This was explained by Madison just before the Constitutional Convention:

“7. A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Cons[ti]tution. Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States. From what cause could so fatal an omission have happened in the Articles of Confederation? From a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals: a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors.” — James Madison, Vices of the [Existing] Political System, April 1787

The Confederation had therefore failed, and on the second day of deliberations (May 30), G. Morris had the Constitutional Convention tackle the question of revise vs. replace the confederation model itself (union by treaty vs. union by constitution). From Madison’s Notes:

Wednesday May 30, 1787


The propositions of Mr. RANDOLPH [The Virginia Plan]
. . . being taken up. He moved on the suggestion of Mr. G. Morris, that the first of his propositions . . . should be postponed, in order to consider the 3 following:

1. that a Union of the States merely federal [a confederation] 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 [again, confederation], would be sufficient.

3. that a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary.

The motion for postponing was seconded by Mr. Govr. MORRIS and unanimously agreed to.
. . .
Mr. Govr. MORRIS explained the distinction between a federal
[a confederation] and national, supreme, Govt. [a federation, which they were in the very process of inventing]; the former being a mere compact resting on the good faith of the parties [the moral obligations of a treaty]; the latter having a compleat and compulsive operation [the force of law]. He contended that in all Communities there must be one supreme power, and one only.

Morris’s proposal for a supreme, national government was then adopted by the Convention by an overwhelming majority; 6 to 1, with 1 other state divided.

That left the question, what to do about the states? Based on the 18th century understanding of sovereignty, no true constitution (i.e. fundamental law) could be enacted, except via a single source of sovereignty (sovereignty must match the jurisdiction of the law; one law of the land = one sovereignty of the land; separate sovereignties can only form treaties, constitutions can only be enacted by a single sovereign people, as had been done in each state). At the time, there were only two forms of political states as far as sovereignty goes: unitary (consolidated) states (one sovereignty), and confederations (multiple sovereignties). The Framers had to decide which form of government to base their new, more perfect Union upon, and the confederation model was what they sought to replace, so that left unitary/consolidated state. But that was equally unacceptable to a people who distrusted central authority, so they invented a third choice, a union that is unitary/consolidated (Madison would use the term “national”) for certain defined (national) purposes, but confederate/separate (“federal”) for all else (local/state purposes). This is now called a federation (note: they had just invented this form of civil society, so terms were poorly defined, and words like “federal” and “confederacy” would continue to be used to define the post-Constitution/Federalist system, and words like federation had yet to be coined).

This is apparent from two sources in particular. In their official letter, the Framers explained that in order to create the new system (union based on a fundamental law, i.e. now called a federation), the states had to give up a share of their sovereignty:

It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all: Individuals entering into society, must give up a share of liberty to preserve the rest.” — Official Letter of the Federal Convention of 1787, Septemeber 17, 1787

The second part of this sentence is written in the language of John Locke’s social compact theory, the means of nation creation used to establish each of the 13 original, fully sovereign republics via constitutions/fundamental laws. “Republic,” as you probably know, means sovereignty is held by the people. Based on the letter, the states (i.e. the people of the respective states) were clearly giving up a share of their independent sovereignty (leaving only a limited, residual state sovereignty). They did not specify where that sovereignty was going, but clearly, it was going to the Union (the people of the United States, who required one sovereignty in order to enact a constitution, and thereby form a more perfect Union, i.e. a federation, a national republic of state republics). The full/independent sovereignty of the US would henceforth be divided between the states and the Union (the Union is no more complete w/o state sovereignty than vice versa). Madison explained this new system most fully in The Federalist, where he describes it as a blend of federal (confederation) and national (consolidated state):

"But it was not sufficient,'' say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.'' [he then explains why this is not entirely true, which is immaterial to our discussion; I only offer this part to show his use of the terms federal and national, and he then continues with our topic]
. . .
But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal [state] legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. — James Madison, The Federalist No. 39

The bold applies to the more perfect Union (federation). Note: “the local or municipal authorities [are] no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.” This is a corollary; it is reversible. The Union, within its sphere, is also not subject to the states. And as Madison indicates, state sovereignty becomes limited (“residuary”; today called the residual sovereignty of a state in a federation). And as Morris had explained in the Convention, a constitution/fundamental law has a “compleat and compulsive operation” (the force of law) as far as even the states are concerned. In addition, we have the supremacy clause, by which the Constitution and US laws and treaties made in conformance with it are supreme to state laws and constitutions (expressed by Morris, as quoted above, via: “in all Communities there must be one supreme power, and one only”).

Now, a word on sovereignty: it is the ultimate legal authority to govern, to make, enforce, and adjudicate the laws of a nation/state. “SOVEREIGNTY. The possession of sovereign power; supreme political authority; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived;...” — Black’s Law Dictionary, First Edition

So, sovereignty, being supreme/ ultimate political authority/control, cannot legally be controlled by anyone but the sovereign, and the only legal transfer of sovereignty is a consensual one (otherwise sovereignty would NOT be supreme and ultimate).

As constitutional scholar Akhil Reed Amar says (America's Constitution, A Biography, pp. 34-35), the change in state sovereignty is reflected in Articles V and VII of the Constitution. As per VII, none of the original 13 states could be forced into the more perfect Union, each had to make the decision for themselves, because they were at that time fully sovereign. However, entry involved a partial surrender of sovereignty, so once in, they were subject to Article V, and any amendment of the Constitution by a majority of states (in this case a super majority of three-quarters of the states) is legally binding on the minority. So of course, the states are no longer fully sovereign.

Clearly, entry into the more perfect Union involves a partial surrender of state sovereignty, which goes to the people of the Union. National sovereignty, represented by the Constitution, therefore binds the Union together under the force of law (the Constitution), whereas previously, the Union was held together by the much weaker force of good faith (a treaty; basically a hand shake among sovereign states). This is why the Framers, in their official letter, also said:

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. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensible. — Official Letter of the Federal Convention of 1787, Septemeber 17, 1787

A consolidated union (federation) is much more consolidated than a confederation, though less consolidated than a unitary state. However, a federation is just as indissoluble as a unitary state. When it comes to constitutional states, both are founded on fundamental laws, and as such can only be altered or dissolved by altering or dissolving their constitutions, and we know what the requirements are for that (Article V).
 

CW Buff

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#88
...that was the view of Madison, Jefferson, and even Federalists like Hamilton, who laid out his views on states rights as clearly as one could in the Federalist Papers. Hamilton was far more a unionist than his fellow founders and far less one than Lincoln or virtually all post-War jurists. None of these men understood the union to be a sovereign state;...
But I did not say the Union was, on its own, a sovereign state. I said that “the US was also a post-Westphalian sovereign republic.” Also, as in, in addition to the states. Madison. Hamilton, and all federalists during the ratification process, and even most anti-federalists (like Patrick Henry), understood this would be no confederation, the states would no longer be fully sovereign, the states would now be subject to the sovereign authority of the people of the US, and, when operating within its defined sphere, their agent, the Fed.
...that was the Lincolnian vision that has been passed down to the present day, where most people identify themselves as Americans rather than Virginians or Tennesseans. When the usual suspects declare that the Confederates were traitors, they are almost always trapped in presentist backward thinking where they project the post-Lincoln vision of the states back onto the pre-war republic. I can't overstate how much of an error that is and how radically Lincoln changed the course of the union and the world.
I think the evidence I’ve shown refutes this. Lincoln’s error might be that he may have assigned national qualities to the Union too early, pre-Constitution (I’m not sure, I haven’t studied his descriptions that closely, because I focus on the Founding Era; but I find him dead-on correct as far as post-Constitution goes). In the interim, we have Madison specifically refuting the doctrine of secession 1832-1833, and Johnston’s statement way back in 1788. We have multiple early SCOTUS decisions supporting the premise that the people of the US became the sovereigns of the whole country. What do we have on the other hand? The VA & KY Resolutions, one of the authors of which denied they support such a theory? And everything Calhoun devised was based on those two documents.
I believe this is a misunderstanding of the role of federalism and the concept of fundamental law. That the states granted the general government limited powers in the articles and later the constitution does not mean that they were generally subordinate to it. Sans penumbras and the sorts of voodoo we take for granted today (again, post-Lincoln), the constitution is a strictly limiting document that defines the limited powers of the general government.

The original intent was that the states were the primary powers, not the general gov.
True, in the case of the Articles. But that is exactly why they failed, they lacked the “compleat and compulsive operation” of a constitution. And that’s exactly why they were abandoned in favor of the Constitution. Both systems delegate limited powers to a general gov't. But under the AoCs, it was the individual sovereign states that did so. In order to enact the Constitution, the states had to surrender a portion of their sovereignty to the people of the US (as clearly indicated in the Convention’s letter), so the latter could then enact the Constitution (as per Locke, constitution making is a sovereign act of the people who form a civil society, upon which the will of the majority binds any minority on any particular issue/question. And national supremacy soundly refutes any notion that the states remained the primary powers.
Like the general government, the states were also constitutionally limited in the reach of their powers. Their constitutions were not usually as strict as the general gov's, but "the people" serves to indicate that the people also possessed power and that authority was not a bone to be tugged between the general and state governments.
My point is “the people” are “We the People of the United States of America.” No constitution can be legally altered or abolished except by a majority of the people who enact. Which means no one else can alter or abolish the products of said constitution, in this case, the more perfect Union and the Fed. That’s how constitution’s work, be they state constitutions or the US Constitution. We have a supreme law of the land, to which all else must conform, and which no one but the sovereign people of the US can alter or abolish.
"The people" refer to citizens of the several states, not "the people" of the federal union/general government. The union is a union of states, not a union of the people of the states; that's the reason we have the Senate, electoral college, and other anti-democratic measures that serve to protect smaller states from their much more populous neighbors.
That interpretation would make the last four words, which again, were deliberately inserted by Congress as a prior omission, entirely redundant. By the principle of republicanism, the ultimate political authority of the respective states rests with the separate peoples of the respective states. They are therefore already accounted for in the term “the States respectively.” There would have been no reason for Congress to add “, or to the people” if they meant the people of the respective states. “The people” clearly refers to another entity altogether, the sovereign people of the US. Again, we know they are sovereign, because the Framers told everyone the people of the respective states had to give up a portion of their state sovereignty to the people of the US. Congress simply said ‘wait a minute here, what about the sovereignty equation mentioned in the Convention’s letter, your missing the most important political entity of all.’ and this is confirmed by Amar's comments. The reserved power of the people of the US is their sovereign authority over the Constitution, and the more perfect Union and gov't it establishes.
Like Jefferson, Madison was a nullification advocate and believed that nullification was the remedy to all union mischief. Like Jefferson, he argued for cooler heads when New England was murmuring about secession back in the day, but I would like to see documents in which he claimed that his constitution grants the federal government the power to maintain an involuntary union by violence. Madison explicitly rejected the use of federal force against states even in the event that they were violating legitimate powers of the federal government, which would necessarily mean that its edicts opposing secession would be totally empty:
Madison was not a nullifier. He argued against it c1830. The term/concept does not once appear in the VA Resolutions. He promoted interposition, something which he failed to explain in detail, but which might look more like states passing personal liberty laws to interpose their own powers between their citizens and an abuse of power by the Fed, which I would hope we can agree FSL 1850 certainly was. And the extent to which a state might attempt to actually nullify federal law (Wisconsin) was properly dealt with by SCOTUS.

As far as Jefferson, he had at best very little sense when it came to effective political systems. He often bounced ideas off Madison, who had to politely shoot them down. In one extreme case, Jefferson proposed generational sovereignty, where all constitutions, laws, and contracts dissolved every 19 years (he even precisely measured the length of a generation). Madison was a bit less diplomatic than usual when shooting down that one. And of course, good government was in the eye of the beholder. Many of Jefferson’s former comrades criticized what they felt was his embrace of strong federal power when he became president.
"The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."

http://press-pubs.uchicago.edu/founders/documents/a1_8_15s5.html
He goes on to say (as written in his Notes): “He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed. This motion was agreed to nem. Con.”

That was an early stage in the process. The idea was that coercion had to have a basis in law, or it was merely an act of war. War was the only possible basis of coercion under the AoCs (the only way for sovereign nations to enforce their treaties with other sovereign nations is by war). I’ve traced the conversations on this topic all the way through Madison’s Notes. Once most of the rest of the Constitution was largely in place, the Militia Clause was devised, and Madison was on board with that. Whatever exactly he was looking for, it was in place at that later date.
Edit: I believe this may have been the quote referenced wrt Madison's views regarding secession. In an 1830 letter to Nicholas Trist, who was the secretary for Pres. Jackson at the height of the Nullification Crisis and all the Calhoun drama:

"Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure." (emphasis mine)

He goes on at some length; for anyone interested in Madison's characteristically careful thought, may be worth reading the whole thing.

http://press-pubs.uchicago.edu/founders/documents/v1ch7s28.html
Your italic portion is a reference to the moral right to revolution for just cause. Webster also made such a reference in his debates with Haynes. In another letter c1830 he says (and this relates to nullification, which you previously indicated you felt Madison supported):

The provision immediately and ordinarily relied on, is manifestly the Supreme Court of the U S, cloathed as it is, with a Jurisdiction in controversies to which the U.S. shall be a party: "the Court itself being so constituted as to render it independent & impartial in its decisions; (see Federalist. No. 39. p. 241) [another reference to Federalist No. 39] whilst other and ulterior resorts would remain in the Elective process, in the hands of the people themselves the joint constituents of the parties; and in the provision made by the Constitution for amending itself [i.e. the last two refer to the sovereign authority of the people of the US]. All other resorts are extra & ultra Constitutional, corresponding to the Ultima Ratio of Nations renouncing the ordinary relations of peace.

Also note, from the letter you linked: “The Constitution of the U. S. divides the sovereignty; the portions surrendered by the States, composing the Federal sovereignty over specified subjects; the portions retained forming the sovereignty of each over the residuary subjects within its sphere.”

Federal sovereignty resides with the people of the US, residual state sovereignty resides with the people of the respective states. If you understand sovereignty, you know it cannot legally be taken from a sovereign against their will, it must be freely given, as the states did upon ratification of the Constitution.



My apologies in advance: I recently started a new job, and have little time to converse these days. This conversion is very, very interesting (and therefore involved), and I WILL eventually respond to any responses you make.

Thx for the exchange,

Paul
 

jgoodguy

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#89
That interpretation would make the last four words, which again, were deliberately inserted by Congress as a prior omission, entirely redundant. By the principle of republicanism, the ultimate political authority of the respective states rests with the separate peoples of the respective states. They are therefore already accounted for in the term “the States respectively.” There would have been no reason for Congress to add “, or to the people” if they meant the people of the respective states. “The people” clearly refers to another entity altogether, the sovereign people of the US. Again, we know they are sovereign, because the Framers told everyone the people of the respective states had to give up a portion of their state sovereignty to the people of the US. Congress simply said ‘wait a minute here, what about the sovereignty equation mentioned in the Convention’s letter, your missing the most important political entity of all.’ and this is confirmed by Amar's comments. The reserved power of the people of the US is their sovereign authority over the Constitution, and the more perfect Union and gov't it establishes.
Good point, but the current interpretation was not set into stone until the Union Victory.
 

jgoodguy

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#90
Federal sovereignty resides with the people of the US, residual state sovereignty resides with the people of the respective states. If you understand sovereignty, you know it cannot legally be taken from a sovereign against their will, it must be freely given, as the states did upon ratification of the Constitution.
Perhaps I missed something. Even in treaty-based confederacies, the majority may impose their will on members states by military action. Sovereignty can be taken away in whole or in part by military action. Sovereignty can be taken by a majority of the people from the minority. In ratifying the Consitution the sovereignty of the anti-federalists was taken in part by the federalists.
 

CW Buff

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#91
Good point, but the current interpretation was not set into stone until the Union Victory.
What current interpretation? Mine? Of the Tenth? Mine is based on period (Founding Era) evidence, not the ACW or post-ACW evidence. There are a couple reasons why I do that: 1) I reject the idea that anything changed on this matter as a result of the ACW; 2) if it was only decided by war, then it’s not really true, which of course is the point many proponents of that opinion are trying to make. To me, the intention of the Framers on this point is rather clear. Only the fact that most common folks could never hope to really determine the matter for themselves, without some serious studying of the facts (and they did not have the advantage of the internet back in the day), combined with the persistence of that fallacious doctrine of unilateral secession based on the equally fallacious state compact theory (declared wrong via SCOTUS before it was ever devised), and the perfect storm of emotionalism trumps rational thought, could have cast doubt on the issue among common people. Politicians however, had no excuse.
Perhaps I missed something. Even in treaty-based confederacies, the majority may impose their will on members states by military action. Sovereignty can be taken away in whole or in part by military action. Sovereignty can be taken by a majority of the people from the minority. In ratifying the Consitution the sovereignty of the anti-federalists was taken in part by the federalists.
Nah. More than likely I failed to make it clear that I was talking about it as a matter of law.

Treaty or not, confederation or not, that is nothing but warfare between nations (which is what happened to the ancient Greek confederations, an example from history that the Framers had on their minds). Even if the AoCs had a militia clause, it would just be plain old warfare (a treaty is not a law). A militia clause in a true (fundamental law) constitution, however, is a matter of law, and its application is law enforcement. In addition, revolution is not only warfare unsanctioned by law, it’s illegal. And it’s only morally justified if there is an actual, intolerable abuse of the constituted power/authority. In which case it’s the constituted authority that has violated the law, but the government being the adjudicator of the law, there is no legal way to establish that, and in that case, morality-the moral right to revolution FOR JUST CAUSE-trumps the law, as per as Founding Fathers.

To expand on this per the ACW, the secessionists/Confederates had a court, the highest court in the land, that was bending over backwards to support the pro-slavery agenda, to the point of handing down its worst, most biased decision to date (i.e. so far/2018). Period secessionists, and pro-confederates today, say that “the North” had refused to accept that decision. There is a difference between not accepting a decision, and violating it. Republicans had not violated it, and were not given the chance to demonstrate how they would have opposed it, constitutionally vs, unconstitutionally. There were constitutional means, unless, of course, “the South” had already violated the Constitution by not admitting Kansas as a free state, as that territory clearly wished. Then pro-confederates say there was something “wrong” with the way free state settlement out paced slave state settlement in that territory, as if there was nothing “wrong” with the by-hook-or-crook method the territory was rendered open to slavery in the first place, and the methods by which slavery proponents continued to try and force the issue. On top of all this, we get the equally backwards assertion of a Northern war of aggression. Law enforcement must go to the law breakers in order to enforce the law. That's just common sense.
 

jgoodguy

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#92
What current interpretation? Mine? Of the Tenth? Mine is based on period (Founding Era) evidence, not the ACW or post-ACW evidence. There are a couple reasons why I do that: 1) I reject the idea that anything changed on this matter as a result of the ACW; 2) if it was only decided by war, then it’s not really true, which of course is the point many proponents of that opinion are trying to make. To me, the intention of the Framers on this point is rather clear. Only the fact that most common folks could never hope to really determine the matter for themselves, without some serious studying of the facts (and they did not have the advantage of the internet back in the day), combined with the persistence of that fallacious doctrine of unilateral secession based on the equally fallacious state compact theory (declared wrong via SCOTUS before it was ever devised), and the perfect storm of emotionalism trumps rational thought, could have cast doubt on the issue among common people. Politicians however, had no excuse.
The nationalists won and were able to impose coercion on the States, failing that all other legal arguments and court decisions are in flux. The Founding Fathers were not of one mind. Without the 1860 might of the North, there was no effective way to keep the South from splitting off earlier hence all the compromises. Jackson was famous for staring down the nullifiers of SC but gave in quietly to another set of nullifiers. In the end, it is not litigation or legislative might that kept the nation together, but the sword.
 

jgoodguy

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#93
To expand on this per the ACW, the secessionists/Confederates had a court, the highest court in the land, that was bending over backwards to support the pro-slavery agenda, to the point of handing down its worst, most biased decision to date (i.e. so far/2018). Period secessionists, and pro-confederates today, say that “the North” had refused to accept that decision. There is a difference between not accepting a decision, and violating it. Republicans had not violated it, and were not given the chance to demonstrate how they would have opposed it, constitutionally vs, unconstitutionally. There were constitutional means, unless, of course, “the South” had already violated the Constitution by not admitting Kansas as a free state, as that territory clearly wished. Then pro-confederates say there was something “wrong” with the way free state settlement out paced slave state settlement in that territory, as if there was nothing “wrong” with the by-hook-or-crook method the territory was rendered open to slavery in the first place, and the methods by which slavery proponents continued to try and force the issue. On top of all this, we get the equally backwards assertion of a Northern war of aggression. Law enforcement must go to the law breakers in order to enforce the law. That's just common sense.
The North attempted nullification with Booth v Ableman, failing that simply took all the levers of government. by the ballot box. The South just left.
 
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#95
An interesting point I've read through. Doing a little research of my own, of the 9,103,000 US citizens in the 11 states which attempted secession, there were a grand total of 145,630 cast a vote for secession. That works out if you round up to 1.6% of the future Confederate population that voted for secession.

In 9 of those 11 states it was 883 votes for secession out of 7 million US citizens, so .0013% of the population said "we want secession".

And in there you had for example Georgia, who's vote had major questions on it's validity (just happening that in pro-secessionist areas the voter turnout became larger than the Presidential election turnout, when overall the voter turnout was much lower). In 1972 the Georgia Historical Society performed a recount of those irregularities and determined the people's vote was actually for staying in the Union. And there are states for example like North Carolina which the peoples vote was against secession but then the Governor removed the people from the vote, took over federal properties and let a secession convention decide. Plots to ensure the people's vote didn't count.

So we all know that from Chisolm V Georgia, in the 1700's, the Supreme Courts first major case said the People directly established a Constitution by which it was their will that the State governments should be bound. Supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia. State Sovereignty didn't exist in the USA any more than the ability to declare a king. The Founding Fathers' Supreme Court made that clear even if people didn't want to listen to it or acknowledge it.

So the Constitution said it's not states or state governments, but people that have sovereignty. State governments however were declaring their states sovereignty when 98% of their people didn't give consent and taking away their abilities to be protected by the US Constitution and represented in the US government. With the President swearing an oath to preserve, protect and defend the Constitution of the United States which is of the people not the states, and not having any power to allow states to declare any freedom from that, or take those protections from the people, what should his response be?
@Lion7Yeoman ,
You should find this thread interesting.
Leftyhunter
 

Joshism

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#96
of the 9,103,000 US citizens in the 11 states which attempted secession, there were a grand total of 145,630 cast a vote for secession. That works out if you round up to 1.6% of the future Confederate population that voted for secession.
What does that number look like when you factor out women & children (who could not vote anywhere) and blacks (who could not vote in most states and who in 1860 were not considered citizens if enslaved)?

We certainly think they deserve a voice today, but in that time and place they did not legally have one.

Also, arguably every vote for Breckinridge was a vote for secession, abeit indirectly.
 

jgoodguy

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#97
What does that number look like when you factor out women & children (who could not vote anywhere) and blacks (who could not vote in most states and who in 1860 were not considered citizens if enslaved)?

We certainly think they deserve a voice today, but in that time and place they did not legally have one.

Also, arguably every vote for Breckinridge was a vote for secession, abeit indirectly.
IMHO the number should be those eligible to vote. The 1860 presidential vote for those States should be a good proxy.
 
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#98
In a Federal Republic, numerical majorities are irrelevant; only federal majorities matter. Moreover, when the People of a State assemble in Convention, there is no higher authority. Accordingly, when the People of a State, in Convention Assembled, solemnly resolve to pursue a course of political independence and self-government, it is their natural, political, and constitutional right to do so. *Edited*
 
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trice

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#99
In a Federal Republic, numerical majorities are irrelevant; only federal majorities matter.
I am unsure what this part means: "federal majorities" would still be "numerical majorities". What am I missing here?

Moreover, when the People of a State assemble in Convention, there is no higher authority.
If so, the authority of a Convention of the People of a State would be restricted solely to matters that concerned that particular State alone. Their authority could not extend to the other States of the Federal Republic.

Accordingly, when the People of a State, in Convention Assembled, solemnly resolve to pursue a course of political independence and self-government, it is their natural, political, and constitutional right to do so. *Edited*
This does not seem to follow. They may decide to "pursue a course of political independence and self-government", but their rights are still restricted by the rights of others. They have no "right" to pursue anything that tramples on others.
 

jgoodguy

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I am unsure what this part means: "federal majorities" would still be "numerical majorities". What am I missing here?


If so, the authority of a Convention of the People of a State would be restricted solely to matters that concerned that particular State alone. Their authority could not extend to the other States of the Federal Republic.



This does not seem to follow. They may decide to "pursue a course of political independence and self-government", but their rights are still restricted by the rights of others. They have no "right" to pursue anything that tramples on others.
That is a good point. Unilateral secession or other "secession" outside of law secession does trample on the rights of the remaining States. All the stuff that the Confederacy seized belong to all the States and the secessionist converted common property to their property.
 



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