WHAT IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERNMENT?

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jgoodguy

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WHAT IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERNMENT?
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What is our Constitution,--league, pact, or government? Two lectures on the Constitution of the United States concluding a course on the modern state, delivered in the law school of Columbia College, during the winter of 1860 and 1861, to which is appended an address on secession written in the year 1851
by Lieber, Francis, 1800-1872
Yes that Francis Lieber who wrote the Lieber Code. We see a lot of secessionist speeches in that time span. Let's see what Lieber has to say in response to the secessionists.

Having classified the constitutions of modern states, and discussed the characteristic features of the most prominent European fundamental laws, we now approach the question: What is the Constitution of the United States? Do the States form a league? Or is the Constitution a pact, a contract—political partnership of contracting parties? Do we live in a confederacy? and if so, in a confederacy of what degree of unitedness? Or is the Constitution a framework of government for a united country—a political organism of a people, with its own vitality and self-sufficing energy? Do we form a union or an aggregate of partners at pleasure?​

These are momentous questions—not only interesting in an historical or scientific point of view, but important as questions of political life and social existence, of public conscience, of riglit and truth in the higliest spheres of human action and of our civilization. At no time has the very character and essence of our Constitution been so much discussed as in ours. Never before have measures of such importance been so made to depend, in appearance, upon the fundamental character of the documentcalled the Constitution ofthe United States, while never before have those in liigli authority attended less to its genesis, its contents, and its various provisions, in order to jus- tify actions aftecting our entire polity. Never before, either in our own, or in the history of our race, have whole communities seemed to make acts of elementary and national consequence depend upon a single term ; upon the question whether, the Constitution is a mere contract, or whether the word, derived as it is from constituere, must be understood in the sense in which Cicero takes it, when he speaks of constituere rempublicam—that is, organizing the common weal, putting it in order and connecting all the parts in mutual organic dependence upon one another.

I have used the words apparently and seemingly, because it admits of little doubt, if of any, that those among the leaders in the present disturbances who make a world of consequences depend upon the solitary question, Is or is not the Constitution of the United States a contract I argue on a foregone conclusion. Or is there a man living who believes that they would give up their pursuit of disunion, if it would be proved, by evidence ever so fair, substantial, and free from embittering passion, that the Constitution is not a compact, or is not a mere contract ?



 
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wausaubob

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What Francis is saying is does it matter? Is the argument just a distraction from a decision that is actually based on an entirely different justification?
 

wausaubob

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The founders were not gods. They made the constitution, and then immediately added the Bill of Rights. So they knew it was an outline of government.

This is what the left undone.

When the Constitution was approved and ratified, the states picked the Senators. The Senators were not elected directly by the population, but picked by state legislatures.
Also, the states picked electors, in a winner take all method, which made each Presidential election look like a new treaty alliance.
These two methods of governance fit the colonial era, when there were only 13 colonies and travel among the states was difficult.
Not only were these arrangements allowed but the federal government did not insist on preempting the monetary field and insisting on a national currency.
There year was 1787 and the framers could anticipate greater commerce between the states, but it was not a reality in the south.
Not only were these issues not addressed, but no careful consideration was given to how Congress could adjust differences between paid labor states and coerced labor states. They anticipated that such conflicts would arise, but did not give Congress the right to regulate the rights of freedmen.
By 1820 the country was much larger, and the individual power of each state was necessary reduced. Power had shifted to coalitions of factions.
But by 1860 the physical condition of the country had changed drastically. A huge amount of undeveloped territory, occupied by tribal peoples, most of whom knew neither animal husbandry or farming, was available for stealing. There were states on the Pacific coast demanding full economic integration or separation.
But the means of communication had changed. Messages could be sent across the continent in seconds.
A person could travel from Chicago to Washington, DC in a few days, in almost any weather.
The country had a diverse economy, rapidly becoming independent from England.
Most substantial businesses in the northern states were engaged in interstate commerce and needed a better mode of exchange.
The country had become much better at campaigns and ballots.
In addition, there were clear differences between the paid labor states and the coerced labor states, which gave no sign of disappearing anytime soon.
Railroads, currency, slavery, and popular election of the President through proportional allocation of the electors, and the final submission of the individual states to government by the 34 states were issues that warranted substantial constitutional change.
But that was not the method chosen.
Slavery was at risk.
A constitutional convention may have insisted on a plan for gradual abolition as the price of ratification.
And that was a proposition that could not get 3/4ths of the states' approval.
 
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jgoodguy

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What Francis is saying is does it matter? Is the argument just a distraction from a decision that is actually based on entirely different justification?
Only 3 paragraphs in, but he asks the question of would the secessionists change their minds for good evidence.
 

wausaubob

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It became a government when the citizens all benefited from it. By the time the US had won the War of 1812, purchased France's North American rights, acquired Florida, admitted Texas without reservation of rights, and defeated the Mexicans, it was a little bit late for any body of men to say our ancestors had reservations. When the pinch came, to make terms with the Barbary Pirates and pay for Louisiana, and nobody asked for leave to quit, it was a government by estoppel, if nothing else. :angel::nerd::sneaky:
 

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Let's stay on topic, please.

WHAT IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERNMENT?
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One tactic of Secessionists and compact theorists alike is special pleading-an attempt to cite something as an exception to a generally accepted rule, principle, etc. without justifying the exception. Lieber will discuss an example, especially with the common assertion that the Yankees broke the Constitution, therefore, all out into each way.

The difference between the attenuated logic of special pleading, drawn like wire through the draw-plate of technical terms, in order to make out a case, on the one hand, and comprehensive search after truth and loyal adhesion to it when found, becomes more distinct and more important as thesphere of action is more extended or the region of argument higher. It is a rule of fallacy—and fallacy has its rules, too—to seize upon one point, one term, to narrow down the meaning even of this one point, and then keenly to syllogize from that single starting point, irrespective of all other modifying and tributary truths or considerations. Wherever you find it, be at once on your guard—whether the discussion relates to religion, philosophy, to law, politics, or economy, to science, or to interpreting a document, a treaty of nations, or the last will of an individual. The search after truth maybe symbolized by the soaring eagle rising to the regions of light in order to view things from above, and not by the perforating gimlet, which alone would be no useful tool.

You have probably seen, in the papers of this week, a letter written by a former Senator from Louisiana, in which he accepts the nomination for the convention of his State, which is to decide whether his State shall secede from the Union. This gentleman states that, in order to enable the people to vote for or against him understandingly, it is necessary that his views and convictions should be distinctly known. He is for secession, and the course of his argument is this—I state it with punctilious correctness :

The Constitution of the United States is a contract.
Mr. Webster says a contract broken at one end is broken all over.
The Constitution of the United States has been broken.
Therefore, the contract is broken all to pieces, and is at an end.
Therefore, each component part of the former United States stands for itself. (He does not say, where it stood before the adoption of the Constitution, for he speaks of Louisiana.)

Therefore, each portion, thus floating for itself, can do what seems best to itself—become a separate empire, join a new confederacy, or become again (I suppose) a French dependency, or else a starting point for a new government throwing its seine over Mexico.

Now, this argument contains almost as many fallacies as it contains positions, which it will be appropriate briefly to exhibit.

Suppose, for argument's sake, that the Constitution is a contract, the important questions remain, "What sort of contract?—for every lawyer knows full well that there are many different species of contracts,—and. Is it a mere contract? Almost all former publicists of note and weight (not to speak of such as Filmer) have considered, and very many of the present daycontinue to consider, all government to be founded upon an original pact or contract, as I have amply shown you in pre- ceding lectures.' This supposed social contract was formed for the common welfare of all, and every bad law is doubtless an infringement of the contract, but has any publicist mentioned that thereby each contracting memberis authorized to become a fuor-uscito(outlaw, criminal, fugitive), whom I have described to you? On the contrary, all publicists have maintained that the government contract is made in perpetuity. If I am asked, Where is the hisorical proof that this government compact was made in perpetuity? I answer, Nowhere; nor is there a historical proof of the original contract, altogether. Those who founded their theory of the origin of government on a supposed contract, were forced by the inherent nature of society to acknowledge the perpetuity of society, and to make it tally with their original contract. They felt, although they did not formulate, the truth that society is a continuum.

Mr. Webster, we are continually told, has said that a contract broken at one end is broken all over. The great advocate made this statement when he spoke as counsel for his client, lie overstated a certain truth ; he was too great a lawyer not to know that this does not apply to all contracts ; indeed, tliat it is applicable to a small class of contracts only. If this statement, —which represents contracts like Rupert's drops, shivered into countless fragments by the least crack at one end,—is to be ap- plied literally to all contracts and agreements, it is easy to prove, by the same show of logic, that every short-coming of the fulfillment of a promissory oath amounts to perjury, which, nevertheless, the law of no country admits. Everything depends upon what constitutes the breaking of the contract, and upon its nature. Or, wedlock being a contract, in which the wife promises to obey the husband, and the husband to love and honor his wife, is the whole contract irrecoverably broken "all over" by any act of disobedience on the part of the wife, or by the husband's ill-humor toward her ?

Therefore—the argument goes on—the contract being broken, each contracting party stands for itself. Suppose, then, the original thirteen States were, at any time, sovereign nations, merely leagued together by the Constitution, forming an alli- ance and nothing more, such as Prussia, Austria, Kussia, and Great Britain formed against France, at the beginning of the present century ; and suppose, further, that the Ivupert's drop has been broken by a single crack at the pointed end;—under all these suppositions they might be considered as having fallen to pieces and back into their original supposed miniature na-tionalities. But how can this apply to the State of the Senator to whom I have alluded, and to all those States which the United States as an entirety have formed of the common territory? If the glue of the badly-glued casket has given way, the component parts are what they were before they were pieced together, and Louisiana must be again a territory for sale. But, we are perhaps answered, Louisiana lias become in the meantime a sovereign nation. have ask, how or when? If this argument be adopted, it would stand thus:

Louisiana is a certain territory, whose people depend upon France—a power which has acquired the territory and government from Spain.

For reasons satisfactory to ourselves, the contracting parties of the Constitution break their contract, in order to acquire, as a totality, the territory from France. For, you are aware, that President Jefferson acknowledged that neither he nor any one had the constitutional power of purchasing foreign territory. But the mouth of the Mississippi was believed to be indispensable for the West, whose future greatness had been acknowledged by Washington,' and for the whole country. In England, Jefferson would have gone to Parliament and asked for an act of indemnity, for having broken the law ; our Constitution allows of no ex post facto laws, and all that could be done was to approve by silence ; but certainly the Constitution was broken, and, therefore, broken " all over.”​
If breaking the Constitution was bad, then LA was never a State and the claim of sovereignty is just magic.
Yet—so the Senator's letter says—the Constitution is brokeonce more,—twice, " all over,"—and Louisiana falls back on her original sovereignty, which, nevertheless, has never existed, but has been produced in a mysterious fashion not unlike the procreative commingling of two principles in Hindoo cosmogony, by the genetic embrace of two breaks of the Constitution " all over." The sovereignty is made by the Union, and then antedated to make it onginal., as sometimes commissions in the army are antedated to give the possessor a speedier chance of promotion.



 
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5fish

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It is the following. The Constitution is a ... interstate compact

In the United States of America, an interstate compact is an agreement between two or more states. Article I, Section 10 of the United States Constitution provides that "No State shall, without the Consent of Congress...


In the United States of America, an interstate compact is an agreement between two or more states. Article I, Section 10 of the United States Constitution provides that "No State shall, without the Consent of Congress... enter into any Agreement or Compact with another State." Consent can be obtained in one of three ways. First, there can be a model compact and Congress can grant automatic approval for any state wishing to join it, such as the Driver License Compact. Second, states can submit a compact to Congress prior to entering into the compact. Third, states can agree to a compact then submit it to Congress for approval, which, if it does so, causes it to come into effect. Not all compacts between states require explicit Congressional approval – the Supreme Court ruled in Virginia v. Tennessee that only those agreements which would increase the power of states at the expense of the federal government required it.

Here is a gem of the sovereignty crowd... There were treaties between states before there was our Constitution...

Treaties between the states, ratified under the Articles of Confederation during the period after American independence in 1776
until the current U.S. Constitution was ratified in 1789, are grandfathered and treated as interstate compacts. This includes agreements like the Treaty of Beaufort, which set the boundary between Georgia and South Carolina in 1787, and is still in effect.
 

wausaubob

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Its a compact, with a scheduled fight every four years. Someone decided after one of the fights that they did not need to kiss and make up.
Hence the war.
The God of War decided, no divorce now. Some people seem to fantasize about a second attempt.
 
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5fish

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It's seems our Confederation was a league...

The need for the Constitution grew out of problems with the Articles of Confederation, which established a “firm league of friendship” between the states, and vested most power in a Congress of the Confederation. This power was, however, extremely limited — the central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the states.
 

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To quote Abel Upshur, since I'm reading his book, why can't it be both a compact and a government? What precludes the Constitution from being both at the same time?
 
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wausaubob

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Except the Lieber argues that the entire argument is irrelevant.
As quoted by jgoodguy:
"Those who founded their theory of the origin of government on a supposed contract, were forced by the inherent nature of society to acknowledge the perpetuity of society, and to make it tally with their original contract. They felt, although they did not formulate, the truth that society is a continuum."

Who gets to decide? The majority or the minority? Or the side with the most and the biggest guns?
 

wausaubob

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To use the analogy of the married couple, they may argue about whether to sell the farm and move to a different county, but that doesn't mean that they won't share dinner, have marital relations and go to church together on Sunday.
 

jgoodguy

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To quote Abel Upshur, since I'm reading his book, why can't it be both a compact and a government? What precludes the Constitution from being both at the same time?
As proceed we may find the answer but in the meantime.

Let's look at what Lieber says on the contract side.

Suppose, for argument's sake, that the Constitution is a contract, the important questions remain, "What sort of contract?—for every lawyer knows full well that there are many different species of contracts,—and. Is it a mere contract?
There are many species of compacts also. I have seen several writers refer to the Constitution as a compact, but differ wildly on fundamental details. "Le "bon Dieu est dans le détail" or in today's idiom, "The devil is in the details". What is under the hood of the term 'compact'.
 
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jgoodguy

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Except the Lieber argues that the entire argument is irrelevant.
As quoted by jgoodguy:
"Those who founded their theory of the origin of government on a supposed contract, were forced by the inherent nature of society to acknowledge the perpetuity of society, and to make it tally with their original contract. They felt, although they did not formulate, the truth that society is a continuum."

Who gets to decide? The majority or the minority? Or the side with the most and the biggest guns?
The Secessionists did not choose litigation or legislation but lethal violence to decide their cause.
 

wausaubob

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We can attempt to channel Lieber, but the guy is difficult to match. The scope of his education in Germany, and all over Europe, and his experience in the United States, is hard to match today.
Thus, it may be fun to argue with us, but Lieber was a different level entirely, just below Kant.
 
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jgoodguy

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One of the fundamental things to notice about the Nationalist vs States Righters indeed about the Unionists and Secessionists is that the State Righter/Secessionists were digging about in the past to show some ideal of the government that the founding fathers intended, a forerunner to today's legalism of Original Intent/Originalism static constitution of an idealized past. The Nationalist/Unions looked to a dynamic Constitution for changing people. Nowhere is that more evident in the Secessionists view that the Declaration of Independence meant slave State independence and Lincoln's view that the Declaration of Independence meant people independence.

Lieber is the 1860s at the time of the Great Secession in response to the 1860s Secessionists. We see a lot of secessionist advocacy from this time, this is a Unionist response.
 

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WHAT IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERNMENT?
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Emphasis mine

Lieber says that there is no substance, as we have found in our discussions, that secession is a Reserved Right under the 10 amendment. Lieber does not mince words "which will serve as an excuse for my mentioning one so unintelligibly void of meaning. ", "Can there be such a thing as a reserved right of not doing at all what contracting parties agree to do? "

There is, I think, no more substance in that argument, in favor of the lawfulness of secession, which is founded upon the idea of the Constitution being a mere contract, with the additional idea of Reserved Rights—implying, in this case, the reserved right of disregarding the contract and leaving the Constitution. This is the avowed and favorite argument of two most prominent statesmen, which will serve as an excuse for my mentioning one so unintelligibly void of meaning. What contract, even in the commonest spheres of life, can that be, the contracting parties of which reserve the right of not being ruled by it at all? The very idea of a contract, be it of whatever kind, is that of mutual binding for some common purpose, and how this element is expected to agree with an element of reserved right of mutual injury, we cannot sec. Can there be such a thing as a reserved right of not doing at all what contracting parties agree to do? And, let me add, if this theory of reserved right to break up the contract of government at any time be sound, and asserted in the spirit of truth, it logically follows that not only may a State leave the Union whenever it chooses, and do all sorts of things against the other States, but that, on the strength of reserved rights, each State may nullify any portion of the contract, and " re-sume" the power of coining money, of adopting a king, of sending ambassadors to foreign powers, of not considering the laws of the United States as the supreme laws of the land, and yet remain in the Union. There is nothing Whatsoever in the argument on contract and reserved rights that makes it necessary to use secession in the bulk. Nullification was indeed founded upon the assertion of reserved sovereignty applied to a law—a portion of the government. We would thus logically arrive at the following graduation in our public law: Nullification; Partial Secession from, or resumption of the attributes of the general government; Temporary Secession; Permanent Secession. Whether a government would be much of a government, or a government at all, under such circumstances, is a question which the youngest among my hearers are perfectly competent to decide.
 
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