Thomas Jefferson, Secession, and States Rights

jgoodguy

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I think there's a good discussion of the issues in this article, and Turley comes to one conclusion that while Lincoln's view would probably prevail in a court (and he clearly favors Lincoln's view), neither side had an overwhelming argument. Prior to the Civil War, both sides had points of history and language in their favor. I've pulled two quotes, but I would encourage anyone to read the entire article to get the full context.

https://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/

But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.

The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.

Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.

---------------------------------


Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.

I noticed that the author of the article somehow missed 80 years of SCOTUS decisions concerning the compact theory.
 

Andersonh1

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I noticed that the author of the article somehow missed 80 years of SCOTUS decisions concerning the compact theory.

"The author", Jonathan Turley, is, quote, "one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University." The constitution is his area of expertise. I think if the court rulings had been relevant, he'd have included them.

http://www.huffingtonpost.com/author/jonathan-turley
Jonathan Turley is one of the nation’s most recognized legal scholars and civil libertarians. In addition to his position as the Shapiro Professor of Public Interest Law at George Washington University, he is a columnist with USA Today and appears regularly in other papers like the Washington Post and the Los Angeles Times. His blog, www.jonathanturley.org, has won a variety of awards and was selected in 2012 as the top legal opinion blog in the world by the ABA Journal. In the Posner study, he was found to one of the top 100 most cited public intellectuals in the United States and the second most cited law professor. Turley also litigates in federal and state courts and has been selected as one of the world’s top litigators in legal surveys, handling some of the most high-profile cases of the last two decades.
 

jgoodguy

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"The author", Jonathan Turley, is, quote, "one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University." The constitution is his area of expertise. I think if the court rulings had been relevant, he'd have included them.

http://www.huffingtonpost.com/author/jonathan-turley
Jonathan Turley is one of the nation’s most recognized legal scholars and civil libertarians. In addition to his position as the Shapiro Professor of Public Interest Law at George Washington University, he is a columnist with USA Today and appears regularly in other papers like the Washington Post and the Los Angeles Times. His blog, www.jonathanturley.org, has won a variety of awards and was selected in 2012 as the top legal opinion blog in the world by the ABA Journal. In the Posner study, he was found to one of the top 100 most cited public intellectuals in the United States and the second most cited law professor. Turley also litigates in federal and state courts and has been selected as one of the world’s top litigators in legal surveys, handling some of the most high-profile cases of the last two decades.
I read the bio then researched the fellow and it looks like shameless self promotion compared to other Constitutional scholars, but be happy to debate the article in a separate thread.
 

unionblue

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"The author", Jonathan Turley, is, quote, "one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University." The constitution is his area of expertise. I think if the court rulings had been relevant, he'd have included them.

http://www.huffingtonpost.com/author/jonathan-turley
Jonathan Turley is one of the nation’s most recognized legal scholars and civil libertarians. In addition to his position as the Shapiro Professor of Public Interest Law at George Washington University, he is a columnist with USA Today and appears regularly in other papers like the Washington Post and the Los Angeles Times. His blog, www.jonathanturley.org, has won a variety of awards and was selected in 2012 as the top legal opinion blog in the world by the ABA Journal. In the Posner study, he was found to one of the top 100 most cited public intellectuals in the United States and the second most cited law professor. Turley also litigates in federal and state courts and has been selected as one of the world’s top litigators in legal surveys, handling some of the most high-profile cases of the last two decades.

Look!

Something shiny!
 

MattL

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Just to offer a counter point of view, the Virginians of 1861 would disagree with your analysis of what their fathers and grandfathers wrote. They quote the Virginia ratification ordinance to justify their repeal of that ratification.

http://www.wvculture.org/history/statehood/ordinanceofsecession.html

AN ORDINANCE

To Repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution:

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the 25th day of June, in the year of our Lord one thousand seven hundred and eight-eight, having declared that the powers granted them under the said Constitution were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States.

Now, therefore, we, the people of Virginia, do declare and ordain that the Ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and seventy-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State, ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid, is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong to a free and independent State. And they do further declare that the said Constitution of the United State of America is no longer binding on any of the citizens of this State.

It all hinges on "therefore". Since the Virginians of 1788 said that the powers granted the Federal government under the Constitution came from the people and could be recalled when that power was harmful to them, and it was now injurious to them, "therefore" they were taking it back. Clearly they did not agree that "the people" is all the people of all the states, or they would not have used it as they did to justify secession.

I think the point is we've referenced enough from people like James Madison and Jefferson to call into question their claim. Can you honestly read some of the shared statements here from them and hold the same view, statements already shared, such as:


The Constitution requires an adoption in toto and for ever.” — James Madison

"I partake of the wonder that the men you name should view secession in the light mentioned. The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it." — James Madison to Nicholas Trist, December 23, 1832

and many more.

Do you have counter arguments from secession Virginias that address the issues that such quotes bring?

Certainly many of them believed they could indeed unilaterally secede, that's not the question. The question is were they right to assume so and were they correct in implying the "founding fathers" suggested they could.
 

cash

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Not to be hard headed but to clarify your statement.

As it relates to the first 13 States only. Each state ratified and joined individually and did not have the approval ofnthw other 12. Ia that correctnor not?. Or are you saying they ratified then formed Congress who then pronounced the Union formed and gave their blessing to 13.

Now after the first 13 each new territory had to have congress and the states accept them but not the first states. I seem a bit lost. Thanks

The Constitution didn't come into effect until nine states ratified it, which means that in a way they did provide consent to adding the other states to the Union.
 

MattL

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I think there's a good discussion of the issues in this article, and Turley comes to one conclusion that while Lincoln's view would probably prevail in a court (and he clearly favors Lincoln's view), neither side had an overwhelming argument. Prior to the Civil War, both sides had points of history and language in their favor. I've pulled two quotes, but I would encourage anyone to read the entire article to get the full context.

https://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/

But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.

The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.

Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.

---------------------------------


Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.

Jonathan is provably wrong... at least in part and at least in the way he words things, in the article he says:

----
Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
----

This was not in fact Lincoln's view.

First Inaugural Address of Abraham Lincoln

http://avalon.law.yale.edu/19th_century/lincoln1.asp
----
Descending from these general principles, 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 in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

But 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.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.


----


Turley said Lincoln argued for:
"and once a state enters the Union, it cannot leave the Union"

Lincoln actually said:
"no State upon its own mere motion can lawfully get out of the Union"

These are two massively different concepts. This is secession vs unilateral secession.

Now to defend him against my own claim, reading the full article I'm not sure he meant to word it explicitly removing the extra context or if to him "leave" implied getting out "upon its own mere motion", either way one should look at what Lincoln argued since it would be easy to read what Turley summarized as his argument and assume it's different than what it was.

Lincoln argued that the Union was formed between the States and effectively removing a State from the Union would in fact alter the Union itself. On those grounds a single State does not have the power to alter the union. Again this fully allows for altering the union with consent.

This again is consistent with the quotes we've seen both from Jefferson (who resisted secession that wasn't consensual, but supported the idea when he was consenting to the opposing faction) and Madison who clearly states multiple times that both parties have an equal stake in the matter, to annul or prevent the other from annulling (hence a State does not have the power on it's own protected from the rest).
 

MattL

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The fact that is was never mentioned as illegal, never banned (even after the Civil War), and even to this day is not prevented speaks volumes.

Had it been made illegal at the founding of the nation, we would not be here today as a nation. The Union would have never formed because no one would agree to those terms. Salmon Chase as a Supreme Court justice tried to argue that the phrase "perpetual union" solidified the argument, but his argument actually backfires and proves him wrong due to its elimination from the Constitution.

If the phrase "perpetual union" was the best a Chief Justice of the Supreme Court could do, it shows just how weak the argument is.

You are not accurately representing the argument. This is a backhanded way to challenge an argument, by giving it no context as to why the argument was made. Lincoln worded it best in his inaugural address:

----
Descending from these general principles, 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 in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

But 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.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

----

It's very convincing too. I mean the Constitution says "to form a more perfect Union." Obviously the Union didn't get created with the Constitution by it's own wording.
 

jgoodguy

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Jonathan is provably wrong... at least in part and at least in the way he words things, in the article he says:

----
Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
----

This was not in fact Lincoln's view.

First Inaugural Address of Abraham Lincoln

http://avalon.law.yale.edu/19th_century/lincoln1.asp
----
Descending from these general principles, 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 in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

But 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.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.


----


Turley said Lincoln argued for:
"and once a state enters the Union, it cannot leave the Union"

Lincoln actually said:
"no State upon its own mere motion can lawfully get out of the Union"

These are two massively different concepts. This is secession vs unilateral secession.

Now to defend him against my own claim, reading the full article I'm not sure he meant to word it explicitly removing the extra context or if to him "leave" implied getting out "upon its own mere motion", either way one should look at what Lincoln argued since it would be easy to read what Turley summarized as his argument and assume it's different than what it was.

Lincoln argued that the Union was formed between the States and effectively removing a State from the Union would in fact alter the Union itself. On those grounds a single State does not have the power to alter the union. Again this fully allows for altering the union with consent.

This again is consistent with the quotes we've seen both from Jefferson (who resisted secession that wasn't consensual, but supported the idea when he was consenting to the opposing faction) and Madison who clearly states multiple times that both parties have an equal stake in the matter, to annul or prevent the other from annulling (hence a State does not have the power on it's own protected from the rest).
Good points, the lack of credible quotes and the lack of credible research like leaving out 80 years of SCOTUS jurisprudence causes me to doubt the article. However any defender is welcome to start a thread on it. I will certainly participate.
 

Old_Glory

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I would appreciate that you note I have evidence and references while your opinions are free of such encumbrances.

Perhaps you missed my reference to Salmon Chase and his ridiculous ruling defending the position. If that's all a Supreme Court justice from the era immediately following the Civil War can find, I think it is the best evidence posted yet.
 

jgoodguy

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Perhaps you missed my reference to Salmon Chase and his ridiculous ruling defending the position. If that's all a Supreme Court justice from the era immediately following the Civil War can find, I think it is the best evidence posted yet.

Here is a link to what you have in evidence.
 

Potomac Pride

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"The author", Jonathan Turley, is, quote, "one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University." The constitution is his area of expertise. I think if the court rulings had been relevant, he'd have included them.

http://www.huffingtonpost.com/author/jonathan-turley
Jonathan Turley is one of the nation’s most recognized legal scholars and civil libertarians. In addition to his position as the Shapiro Professor of Public Interest Law at George Washington University, he is a columnist with USA Today and appears regularly in other papers like the Washington Post and the Los Angeles Times. His blog, www.jonathanturley.org, has won a variety of awards and was selected in 2012 as the top legal opinion blog in the world by the ABA Journal. In the Posner study, he was found to one of the top 100 most cited public intellectuals in the United States and the second most cited law professor. Turley also litigates in federal and state courts and has been selected as one of the world’s top litigators in legal surveys, handling some of the most high-profile cases of the last two decades.

I have seen Jonathan Turley on Fox News before and he is very knowledgeable about the Constitution. Another Constitutional scholar was the late Forrest McDonald who was a University Professor Emeritus and one of the preeminent historians of the Constitution. McDonald considered the issue of state secession before the Civil War to be a gray area. He stated that after the adoption of the Constitution "there were no guidelines, either in theory or in history, as to whether the compact could be dissolved and, if so, on what conditions". However during "the founding era, many a public figure.....declared that the states could interpose their powers between their citizens and the power of the federal government, and talk of secession was not unknown".
 

jgoodguy

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Humorous, but it does not refute my position or evidence. You're just dodging it.

You have no positive evidence. You evidence is someone did not say something when you think they should have. Which is to make an argument from silence that is is to express a conclusion that is based on the absence of statements in historical documents, rather than their presence. Which on the face of it is no evidence.

It is not the dodging I am concerned with, but the jello consistency of your argument which makes it difficult to grasp.
 

jgoodguy

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I have seen Jonathan Turley on Fox News before and he is very knowledgeable about the Constitution. Another Constitutional scholar was the late Forrest McDonald who was a University Professor Emeritus and one of the preeminent historians of the Constitution. McDonald considered the issue of state secession before the Civil War to be a gray area. He stated that after the adoption of the Constitution "there were no guidelines, either in theory or in history, as to whether the compact could be dissolved and, if so, on what conditions". However during "the founding era, many a public figure.....declared that the states could interpose their powers between their citizens and the power of the federal government, and talk of secession was not unknown".

I have made a challenge to debate the work, which is unanswered.
 

Old_Glory

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It is not the dodging I am concerned with, but the jello consistency of your argument which makes it difficult to grasp.

Yet this still does not touch my argument. Chase found no evidence whatsoever except for the phrase "perpetual union" that never existed in the Constitution. This was the best defense the Chief Justice of the Supreme Court could muster for a permanent union argument.

I do not know how to state it any more plainly, Chase made the best case against Secession possible and it falls flat. There is nothing that stated they could and nothing that stated they could not. Anything else is just hot air.

I do not see anything that you have posted that is a better position than Chase's position.
 
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