Restricted What Is Our Constitution, - League, Pact, Or Government?

[wausaubob]

When did he write that? I think that was the winning argument. In his words secession equals anarchy, and many educated men in the northern states agreed with that assertion.

 

[jgoodguy]

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

Let us dismiss these introductory discussions of that which the Constitution is not, and rather inquire into what it is—into its essential character, its genesis, and its substance. In doing so, I must, howevcr, first remind you of certain truths which we have considered under various aspects, and have found illustrated in different branches of our great topic, the Modern State.
​

Lieber discusses the modern state aka Nationalism and refers to the Nationalist struggles of Germany and Italy. IMHO nationalism heated in the fires of nullification, hammered by the disunionists State Righters and forged by the conflict over slavery was the weapon that won the war for Union.

You will bear in mind, then, that the normal type of modern government is the National Polity, in contradistinction to the ancient city-state, to the medieval feudal system, or the political league—as the Ilanseatic League, to the merely aglomerated monarchy, to the fragmentary monarchy, or the so-called universal monarchy, as it appeared last under Charles the Fifth, or was attempted by Napoleon the First, to the provincial separatism, or to the crowns of many little kingdoms crowded on one head, or the breaking up of one country, mapped out by Nature herself, as a portion of the earth for a united people, into jarring and unmeaning sovereignties, that have not the strength to be sovereign. It is the political organism permeating an entire nation, that answers the modern political necessities, and it alone can perform, as a faithful handmaid, the high demands of our civilization. The highest type, its choicest development, is the organic union of national and local self-government; not indeed national centralism, or a national unity without local vitality. Our age demands countries as the patria both of freedom and of civilization,' and the greatest political blessing vouchsafed to England was her early nationality, together with her early and lasting self-government. By this combination alone she escaped being drawn into the vortex of centralization, which became almost universal on the Continent. Modern patriotism will not be minimized; it will not be restricted to a patch of land carved out by some accidental grant; Lucca(Lucca) or Lippe(Lippe) are not names to inspire it; it will have a portion of the earth with a dignified geographical character, pointing to a noble purpose, and a mission imposed by Him who willed that there should be nations. Is there anything nobler in the range of history than a free nation, conscious of its national dignity and purpose? Is there anything nobler to behold in our own times than the struggle of the Italians for a united Italy, after centuries of longing—an Italy for which the aged Bunsen, the German scholar and high officer of a bureaucratic State, prayed with his dying breath? Is there anything more fervent than the yearning of the Germans for one undivided Germany, at any cost, disregarding all the long-sustained but diminutive sovereignties, knowing that the sovereign source of political right, above all assumed sovereign-ties, is the conscious desire of a great people to be a nation?​

 

[OpnCoronet]

When in school(long ago) I was taught the Constitution was framework for the governing of a Union of States.

The frame work, were a set of precise parameters, within which would be added, as needed, the Organic Law of all the states in the Union, equally.

If one takes the DoI and the Preamble of the Constitution, one, I believe, cannot avoid considering Madison's, et. al., belief that the United States and its gov't were a unique creation, in the history of the world. Which had no real reference to the past, to explain or define its existence(or something like that). If that is the case, and, I tend to think it so, Then we have the reason there is no precise answer to the OP's question, IMO.

 

[jgoodguy]

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

When in school(long ago) I was taught the Constitution was framework for the governing of a Union of States.

The frame work, were a set of precise parameters, within which would be added, as needed, the Organic Law of all the states in the Union, equally.

If one takes the DoI and the Preamble of the Constitution, one, I believe, cannot avoid considering Madison's, et. al., belief that the United States and its gov't were a unique creation, in the history of the world. Which had no real reference to the past, to explain or define its existence(or something like that). If that is the case, and, I tend to think it so, Then we have the reason there is no precise answer to the OP's question, IMO.

The question is in the present tense, "What is" not a backward-looking "What was".
IMHO the 1776 revolutionaries started off with ideals that did not work out. They tried the AOC which did not work out. Then they tried the Constitution and it is working out, changing in reaction to real-world problems.

 

[5fish]

 

[OpnCoronet]

WHAT IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERNMENT?
Link
Emphasis mine
The question is in the present tense, "What is" not a backward-looking "What was".
IMHO the 1776 revolutionaries started off with ideals that did not work out. They tried the AOC which did not work out. Then they tried the Constitution and it is working out, changing in reaction to real-world problems.

I think is as good a description as any other. But, what significance do you attach, if any, to the fact that there is very little differences in the actual wording of the body of laws contained in the AOC and the Constitution?

The only real difference seems to have been the preambles of the AOC and Constitution. Making the authority to govern the Union of States was vested in all the people of all the states forming the Union. Which, in turn, gave the Federal Gov't the authority and power to compel compliance to the Constitution.

What is wrong with the description of the Union of States as being a confederation, but, the gov't of that Union was Federal?

 

[CW Buff]

If one takes the DoI and the Preamble of the Constitution, one, I believe, cannot avoid considering Madison's, et. al., belief that the United States and its gov't were a unique creation, in the history of the world. Which had no real reference to the past, to explain or define its existence(or something like that). If that is the case, and, I tend to think it so, Then we have the reason there is no precise answer to the OP's question, IMO.

I think Madison was speaking of the type of government, or more accurately, the type of Union. The Federalist No. 39 stands as his full explanation of what his references to a manner of government unprecedented in the world meant. Though the word obviously did not exist at the time, what he was essentially describing was a federation, as opposed to either a confederation (the FEDERAL form) or unitary state (NATIONAL form). These were the only two forms of government relative to sovereignty before the Constitution.

I'd say "What Is Our Constitution" is a different question, although someone like Lieber (and many others at the time) might refer to the Constitution as "a government." League, compact, etc. refer to a treaty among sovereign nations/states. Government refers to a fundamental organic law. The short answer is that the Constitution was what all constitutions were at the time. It is to the nation what the state constitutions were to the states. But, it is also, also specified, supreme to the state constitutions.

 

[jgoodguy]

I think is as good a description as any other. But, what significance do you attach, if any, to the fact that there is very little differences in the actual wording of the body of laws contained in the AOC and the Constitution?

The only real difference seems to have been the preambles of the AOC and Constitution. Making the authority to govern the Union of States was vested in all the people of all the states forming the Union. Which, in turn, gave the Federal Gov't the authority and power to compel compliance to the Constitution.

What is wrong with the description of the Union of States as being a confederation, but, the gov't of that Union was Federal?

Regrettably, I see huge differences in the wording.

 

[OpnCoronet]

I think Madison was speaking of the type of government, or more accurately, the type of Union. The Federalist No. 39 stands as his full explanation of what his references to a manner of government unprecedented in the world meant. Though the word obviously did not exist at the time, what he was essentially describing was a federation, as opposed to either a confederation (the FEDERAL form) or unitary state (NATIONAL form). These were the only two forms of government relative to sovereignty before the Constitution.
I'd say "What Is Our Constitution" is a different question, although someone like Lieber (and many others at the time) might refer to the Constitution as "a government." League, compact, etc. refer to a treaty among sovereign nations/states. Government refers to a fundamental organic law. The short answer is that the Constitution was what all constitutions were at the time. It is to the nation what the state constitutions were to the states. But, it is also, also specified, supreme to the state constitutions.

I agree, that is how the interpretation/description, eventually won out over many others, i.e., I think Madison's view is what we know now, but, it was not nearly as clear, when Madison, et. al., were the Constitution and its gov't, in the Federalist Papers.

 

[OpnCoronet]

Regrettably, I see huge differences in the wording.

I see differences, also, but, how huge is huge?

 

[jgoodguy]

I see differences, also, but, how huge is huge?

Huge Huge IMHO.

 

[OpnCoronet]

Huge Huge IMHO.

Well, that certainly cleared that up.

 

[jgoodguy]

Well, that certainly cleared that up.

I am sick, my wife is sick, my stepdaughter is sick. Her 2 yr old is sick and I am the last man standing to watch him. I am losing .......

 

[CW Buff]

I agree, that is how the interpretation/description, eventually won out over many others, i.e., I think Madison's view is what we know now, but, it was not nearly as clear, when Madison, et. al., were the Constitution and its gov't, in the Federalist Papers.

Kenneth Stampp seems to have a similar opinion, that there was a comprehensive states' rights argument beginning in 1798, and no nationalist equivalent until the Nullification Crisis. But I see it quite different. The nationalist case was made beginning 1787. From the Convention debates, to the Federalist Papers, to Chisholm v. Georgia, opposition to the VA & KY Resolutions, more SCOTUS decisions c1815-c1825 (from a Court with a majority of justices appointed by Jefferson/Madison/Monroe, and were talking 6-1 and 7-0 decisions here). Not only does it pre-date states' rights theories, but it is much more voluminous, and often official. And what we have in the balance are theories that were only ever created, adopted, and promoted by disaffected political minorities, who often held the opposite position, by deeds if not words, when they were in the majority (state compact theory was devised by Democratic-Republicans in 1798, who were denouncing states' rights as treason in 1815, Federalists played exactly the opposite role; MS was denouncing secession in 1850, and practicing it in 1861).

It would have been strange in deed, if the original states' righters, the anti-federalists, had argued that the Constitution represented a central government that was far too strong, and claimed that states could leave it at will, or take or leave its laws. IMHO, there is ample evidence that state compact theory, and every doctrine based on it, were refuted before they were ever devised. The only confusion was created by 60 years of persistence intersecting with a perfect storm of emotion-trumps-reason.

 

[jgoodguy]

Kenneth Stampp seems to have a similar opinion, that there was a comprehensive states' rights argument beginning in 1798, and no nationalist equivalent until the Nullification Crisis. But I see it quite different. The nationalist case was made beginning 1787. From the Convention debates, to the Federalist Papers, to Chisholm v. Georgia, opposition to the VA & KY Resolutions, more SCOTUS decisions c1815-c1825 (from a Court with a majority of justices appointed by Jefferson/Madison/Monroe, and were talking 6-1 and 7-0 decisions here). Not only does it pre-date states' rights theories, but it is much more voluminous, and often official. And what we have in the balance are theories that were only ever created, adopted, and promoted by disaffected political minorities, who often held the opposite position, by deeds if not words, when they were in the majority (state compact theory was devised by Democratic-Republicans in 1798, who were denouncing states' rights as treason in 1815, Federalists played exactly the opposite role; MS was denouncing secession in 1850, and practicing it in 1861).

It would have been strange in deed, if the original states' righters, the anti-federalists, had argued that the Constitution represented a central government that was far too strong, and claimed that states could leave it at will, or take or leave its laws. IMHO, there is ample evidence that state compact theory, and every doctrine based on it, were refuted before they were ever devised. The only confusion was created by 60 years of persistence intersecting with a perfect storm of emotion-trumps-reason.

IMHO Kenneth Stampp is referring to nationalism, where men are willing to live and die for a national ideology as opposed one of 2 national ideologies held by the elites.

 

[OpnCoronet]

IMHO, there is ample evidence that state compact theory, and every doctrine based on it, were refuted before they were ever devised. The only confusion was created by 60 years of persistence intersecting with a perfect storm of emotion-trumps-reason.

Certainly the Federalists claimed they had refuted State Compact theories, but, many anti-federalists were convinced that thee people were being sold a bill of goods, by Federalist propaganda.

IMO, when one is trying to present arguments against accepted traditions and accepted wisdoms concerning colonial/states rights, then one has to create arguments to change the public minds. So, naturally, the new dogma, would, of necessity, require more voluminous arguments than the accepted norms.

Historically, as I have noted before, the Supreme Court, under Marshall, remained a Federalist Bastion, long after the Federalist Party lost power in national politics.

 

[CW Buff]

Certainly the Federalists claimed they had refuted State Compact theories, but, many anti-federalists were convinced that thee people were being sold a bill of goods, by Federalist propaganda.

I agree with much of what you say, but keep in mind the flip side. Both sides had their beliefs, as far as statism vs. federalism. Both sides to a degree distrusted each other. Both sides had their say. The people chose federalism 1787-1790.

IMO, when one is trying to present arguments against accepted traditions and accepted wisdoms concerning colonial/states rights, then one has to create arguments to change the public minds. So, naturally, the new dogma, would, of necessity, require more voluminous arguments than the accepted norms.

Agree. Of course, the fact that the Framers had devised an entirely new form of union/government, also meant it required voluminous discussion. There's several distinct reasons why the Framers wanted the matter decided via fair, balanced, and open discussion. There's only so much posturing and bloviating (a term we've recently seen appear on the Forum, and which I kinda like) you can do when your sitting in the same room/hall with the other guys before a body of people you are trying to appeal to.

Historically, as I have noted before, the Supreme Court, under Marshall, remained a Federalist Bastion, long after the Federalist Party lost power in national politics.

Here's where we diverge, a bit. The Marshall Court does have that reputation, but did it pull some kind of fast one? That would seem extremely hard to do, considering that by the time it began making the decisions I'm talking about, it contained five Dem-Reps to two Feds. And the decisions were 6-1 and 7-0. Chief justices just do not have that much power over the Court. Think of how many decisions involve such a large majority. It seems much more likely to me that the principles the Court reinforced c1815-c1825 were genuine elements of 1787-1790.

 

[jgoodguy]

IMHO

The Federalist win simply because they pursue federalism consistently while the compact theorists are conditional, conflicted and get seduced by federalism whenever they have power. Compact theory becomes the ideology of losers embraced only by those out of power and fearful. From the late 1820s onward, that is Southern slave owners.

Marshall's decision endures because it is useful.

Nationalism endures because it is more useful than any alternatives.

Many paths forward are possible until the end of the Civil War. Only nationalism survives.

 

[jgoodguy]

WHAT IS OUR CONSTITUTION, -LEAGUE, PACT, OR GOVERNMENT?
Link
Emphasis mine
More on the glories of nationalism. Nationalism replaces the chaos of what came before.

We have discussed that great period in the history of our race which I have called the period of nationalization, when countries, national governments, national languages, and national literature arose from the frittered state of the feudal system, and have seen that many peoples of our cis-Caucasian race have suffered even despotism to take a wide sweep, provided they saw that national cohesion and a political country would be its effect.​

The national polity is not only the normal type of our period of civilization: it is also characteristic of it. For, if we can call the Jewish theocracy, in a purely political point of view, a national government composed of tribal elements, it was exceptional in antiquity, and did not endure. After the national reigns of David and Solomon, Israel seceded from Judah, and civil war, disgrace, ruin, servitude, and paganism covered the land, while Isaiah threatened and Jeremiah wept.
​

Nationalism and centralization of government is the historical imperative. It is God's will.

When, recently, we treated of the internal and administrative organization of the different governments,you will remember that it was stated that the growth of general governments is various and scarcely ever of a uniform character in each single case. Gradual agglomeration and union, conquest, and a certain uniformity imposed by the conqueror, successive and slow systematizing, social assimilation, or a great revolution with a sudden and entire reorganization according to some distinct plan (as was the case with France in her revolution of the last century), evolution and revolution, force, freedom, and accident, are the different processes or forms of changes we meet with in history. These processes influence more or less the form of internal organization, but do not by any means necessarily constitute its lawful foundation. Tlie national type is the type imposed upon our race, as the great problem to be solved and its great blessing to be obtained. It is sovereign to all else. It is the will of our Maker—the Maker of history.​

 

[OpnCoronet]

Here's where we diverge, a bit. The Marshall Court does have that reputation, but did it pull some kind of fast one? That would seem extremely hard to do, considering that by the time it began making the decisions I'm talking about, it contained five Dem-Reps to two Feds. And the decisions were 6-1 and 7-0. Chief justices just do not have that much power over the Court. Think of how many decisions involve such a large majority. It seems much more likely to me that the principles the Court reinforced c1815-c1825 were genuine elements of 1787-1790.

It always seemed to me, that the colonial leaders of the Revolution, were, of necessity, more concerned over the unity of the colonies/states, than the philosophical foundations of what that unity would mean, after the Revolution. I think, 'Unity' was the priority, to the leaders, in the aggregate, of the Revolutionary leaders and framers of its national gov'ts.

In any case though, as far as the courts, I have often wondered if the deal worked out between the Marshall Court and Congress concerning 'Judicial Oversight' was Political or Judicial, in nature?