Thomas Jefferson, Secession, and States Rights

Andersonh1

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There was a vote.

And that's the thing about secession in 1860, at least when it comes to South Carolina. The state was involved, since the governor called on the legislature to call a special election for a convention, and the people were involved, since they elected representatives to a convention, just as they had when they had considered ratifying the Constitution, and just as they had during the nullification crisis. The state and the people were both integral to that process. So it seems to me to be a clear exercise of 10th amendment reserved powers, with both the state and the people exercising the power.

The only way to get around that is to take the nationalist approach and insist that it had to be all the states or all the people. And there's all sorts of directions we could go there.
 

jgoodguy

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Please point me to the vote involving "the people" of the whole US? Or any interesting outside of the State (that other side of the "or"). Remember it falls to the State or the people. The people was not worded as "the people of the State" and it was contrasted with "the States" hence it can only really apply to "the people" as a whole and not just the States.
Often forgotten fact
 

MattL

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And that's the thing about secession in 1860, at least when it comes to South Carolina. The state was involved, since the governor called on the legislature to call a special election for a convention, and the people were involved, since they elected representatives to a convention, just as they had when they had considered ratifying the Constitution, and just as they had during the nullification crisis. The state and the people were both integral to that process. So it seems to me to be a clear exercise of 10th amendment reserved powers, with both the state and the people exercising the power.

The only way to get around that is to take the nationalist approach and insist that it had to be all the states or all the people. And there's all sorts of directions we could go there.

Where in the 10th amendment does it say the only people that mattered were the people of the State?

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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This was an amendment to the United States Constitution, not a State constitution. Any application of the use of "the people" without specifically identifying a "States people" would apply to "the people" of the United States.
 

The Confederate

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The folks who like to yell about democracy do not want to acknowledge that secession represented the will of the people.

The folks who like to say that democracy is mob rule uses the argument of the majority of a State to justify Unilateral Secession.

And that's the thing about secession in 1860, at least when it comes to South Carolina. The state was involved, since the governor called on the legislature to call a special election for a convention, and the people were involved, since they elected representatives to a convention, just as they had when they had considered ratifying the Constitution, and just as they had during the nullification crisis. The state and the people were both integral to that process. So it seems to me to be a clear exercise of 10th amendment reserved powers, with both the state and the people exercising the power.

The only way to get around that is to take the nationalist approach and insist that it had to be all the states or all the people. And there's all sorts of directions we could go there.

The 10th Amendment refers to the people of the United States, not the people of a State.
 

Andersonh1

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Any application of the use of "the people" without specifically identifying a "States people" would apply to "the people" of the United States.

Do we know that was Congress's intention when they wrote what would become the 10th amendment? In 1790, was there really a concept of "the people collectively of the United States"? Or was it still largely the people of the several states?
 

jgoodguy

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Do we know that was Congress's intention when they wrote what would become the 10th amendment? In 1790, was there really a concept of "the people collectively of the United States"? Or was it still largely the people of the several states?
What does original intent as someone perceives it have to do with anything?
 

Andersonh1

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What does original intent as someone perceives it have to do with anything?

If people are going to assert that "the people" means what they say it means, presumably they can demonstrate that by showing what the people who wrote the law meant it to say. I don't think that's unreasonable.

But as to what it has to do with anything, both sides in the Civil War would have said they were following the language as written. They couldn't both be right. Somewhere there is an answer to just who Congress meant "the people" to be when they wrote those two words into the amendment. Right?
 

jgoodguy

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If people are going to assert that "the people" means what they say it means, presumably they can demonstrate that by showing what the people who wrote the law meant it to say. I don't think that's unreasonable.

But as to what it has to do with anything, both sides in the Civil War would have said they were following the language as written. They couldn't both be right. Somewhere there is an answer to just who Congress meant "the people" to be when they wrote those two words into the amendment. Right?

Do you accept SCOTUS decisions on this or not?

Remember it is not what the convention meant it is what SCOTUS says unless you want to appeal simply to your opinion.
 
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Andersonh1

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Do you accept SCOTUS decisions on this or not?

Remember it is not what the convention meant it is what SCOTUS says unless you want to appeal simply to your opinion.

Did the secessionists accept them? Clearly not. And if the court ruled differently from original intent, yes, I'll disagree with them. It won't have any legal effect, but I'll have the satisfaction of being right. :D
 

jgoodguy

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Did the secessionists accept them? Clearly not. And if the court ruled differently from original intent, yes, I'll disagree with them. It won't have any legal effect, but I'll have the satisfaction of being right. :D
I suppose you have the satisfaction of knowing original intent, too.
 

MattL

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Do we know that was Congress's intention when they wrote what would become the 10th amendment? In 1790, was there really a concept of "the people collectively of the United States"? Or was it still largely the people of the several states?

Well the Preamble does go


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"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." — Preamble to the Constitution
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Again considering they specified States on the other side of the "or" and this was a US constitution and not a State constitution I'm not sure how the context wouldn't be "the people" represented in the constitution.
 
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StephenColbert27

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That is always the rub. One had to pick and chose.
For every Jefferson, there is a Hamilton. For every Madison, there is an Adams. Madison actually contradicts himself on several constitutional issues, going back and forth on issues like loose or strict interpretations of the document itself. The Founders were not a monolith. They disagreed on many things, often fiercely.
My larger point, however would be that staking your position as "I'm right because so and so agreed with me" is a fallacious one. Someone agreeing with you, even if they are a Founding Father, does not make you right. What I find curious is taking Jefferson and saying that he is who we should turn to for Constitutional guidance. What was his role in its writing? The answer is that he had none. He was in Paris during the Convention and Ratification process. If I should want to know the original intent of the Framers, I would turn to someone who was actually involved in the process of the creation of the document. But I digress. I would much rather debate the logic of whether Jefferson was correct or not in his positions. I would argue that he was wrong on a lot of things, including State's Rights. We should not tie ourselves overmuch to the governmental policies of the deceased.
 
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Jim Scott

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Jefferson directly addressed the secession issue multiple times in his writings. Does anyone else on here have the Jefferson volume published by The Library of America? It is titled:

Jefferson: Writings; Autobiography, A SUmmary View of the Rights of British America, Notes on the State of Virginia, Public Papers, Addresses, Messages, and Replicas, Miscellany Letters.
 

Andersonh1

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Whose original intent?

The people who actually wrote the language of the 10th amendment, which was presumably someone in the 1st Congress.

Well the Preamble does go


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"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." — Preamble to the Constitution
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Again considering they specified States on the other side of the "or" and this was a US constitution and not a State constitution I'm not sure how the context wouldn't be "the people" represented in the constitution.

The preamble originally listed the states by individual name, and the Committee on Style wasn't supposed to change the meaning of anything, just the wording.... so I'm not so sure the Preamble hasn't been used in ways that, again, wasn't originally intended. Just a thought. Obviously at this point, after centuries of legal rulings, "We the People" does refer to the people of the United States collectively, but I'm not sure that's what it was supposed to mean when written, unless Governeur Morris was being sneaky.
 

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The people who actually wrote the language of the 10th amendment, which was presumably someone in the 1st Congress.



The preamble originally listed the states by individual name, and the Committee on Style wasn't supposed to change the meaning of anything, just the wording.... so I'm not so sure the Preamble hasn't been used in ways that, again, wasn't originally intended. Just a thought. Obviously at this point, after centuries of legal rulings, "We the People" does refer to the people of the United States collectively, but I'm not sure that's what it was supposed to mean when written, unless Governeur Morris was being sneaky.

Looks to me to be wishful thinking. No list of original intents with who had the original intent. Just the apparent idea that somewhere there is a original intent that agrees with you.
 

jgoodguy

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For every Jefferson, there is a Hamilton. For every Madison, there is an Adams. Madison actually contradicts himself on several constitutional issues, going back and forth on issues like loose or strict interpretations of the document itself. The Founders were not a monolith. They disagreed on many things, often fiercely.
My larger point, however would be that staking your position as "I'm right because so and so agreed with me" is a fallacious one. Someone agreeing with you, even if they are a Founding Father, does not make you right. What I find curious is taking Jefferson and saying that he is who we should turn to for Constitutional guidance. What was his role in its writing? The answer is that he had none. He was in Paris during the Convention and Ratification process. If I should want to know the original intent of the Framers, I would turn to someone who was actually involved in the process of the creation of the document. But I digress. I would much rather debate the logic of whether Jefferson was correct or not in his positions. I would argue that he was wrong on a lot of things, including State's Rights. We should not tie ourselves overmuch to the governmental policies of the deceased.

Then there is the issue of if original intent was the original intent of the Founding Fathers.
 

jgoodguy

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Wikipedia contributors, "Original intent," Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=Original_intent&oldid=751524522 (accessed January 25, 2017).
Original intent maintains that in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding.[2][3] As in purposivism, tools such as legislative history are often used.

Problems
Originalist criticisms of original intent
Despite the potential confusion of terms between the original Intent and originalism, other schools of Originalist thought have been as critical of original intent as non-Originalists.[4]
Original intent presumes that there is a single, unified intent behind a text. In the case of the United States Constitution, the Philadelphia Convention was composed of over fifty men, who spent an entire summer compromising and arguing over provisions that were interpreted very differently the moment the Constitution's text became public.[5] It is far from clear, therefore, that those fifty-plus men had – i.e., agreed upon – a single original intent of the text, or whether their purposes in drafting the Constitution were predicated on personal self-interest.[6]
Even if the Convention did have a single, unified intent, it is unclear how it could reliably be determined from two centuries' distance.
Many of the clauses of the Constitution are relative, and thus specifically defy any claim that it is possible to divine a single, indisputable outcome to any specific problem or dispute. Key passages in the Constitution were originally cast as flexible evaluations, such as "due process," a phrase that suggests the definitions, requirements and dimensions of court or other governmental proceedings sufficient in any given context to permit citizens to be deprived of their rights were never intended to be fixed forever.
In the case of US Federal Law, law is made by majority vote in two chambers, and is then signed by the President. 536 people are therefore potentially involved in this process, and not one of them needs to share the same intentions as any other of them in order to play their part in ratifying the bill. They need only vote; their vote will count the same if they share the same intent as their colleagues, if they do not share the intent of their colleagues, and indeed, if they have no particular intention, and are voting solely because their party whip handed them a note saying "be on the Senate floor at 9:36pm and say 'Aye'." Their vote will count even if they are falling-down drunk or if they have not even read the bill under consideration.[7] All of which is to say that giving effect to the intent of the legislature not only presumes that there is a singular intent – no less dubious an assertion where statutes are concerned than where the Constitution is – but, worse yet, the very diversity of these bodies may permit a judge to corrupt his inquiry by finding a floor statement or committee report which suggests an intent that the Judge thinks would be a good result[8].
Original intent falls afoul of formalist theories of law, which explicitly decline interest in how a law is made, an inquiry which is obviously at the core of an original intent inquiry.
Original intent cannot be reconciled against Textualism. Most of those who are originalists in Constitutional matters are also textualists in statutory matters, and textualism rejects the value of the intentions of the legislature in passing a text.[9] If one adopts originalism as an "error-correcting lens which fits over textualism to account for the passage of time," one cannot adopt an originalist theory which is incoherent with the underlying textualism.
 

OpnCoronet

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It seems to me those that were even there made no comments and passed no laws against leaving the US Compact.
It amazes me that all the discussion hinges on whomever one wants to believe and who's opinion one wants to believe.
IMO, there just isn't anything against secession out of all the prognosticators opinions on this thread. :smile coffee:




True enough. But it is equally true that there just isn't anything for secession either. What we have is a historical record of various theories concerning secession, with an action that proved, among those various theories of how a state may secede within the Law, many still extant, Unilateral Secession was not one of them.

The very fact that there were varying opinions on the subject, even by the Framers of the Constitution, themselves, should have been a warning for assuming that any of them were right, not proof that in the absence of unanimity, one opinion was, in fact, as good as any other, in operation, without the sanction of Law.
 
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