Posted on 11/13/2004 11:12:00 AM PST by LouAvul
What misinterpretation? The 10th Amendment says:
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.
The 4th article of the "lesson" says with respect to the 10th:
powers not delegated to that government being, by the express letter of the compact, "reserved to the States or to the people respectively"
I'll admit they changed the position of the word "respectively." But that doesn't change the meaning of the phrase. And you can't possibly be arguing about the use of "express" in this sentence.
The 10th apparently has no meaning in your interpretation of it. What constraints are there on the powers of the Federal government in your eyes.
"Each State retains it sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States."
The reason the Constitution was proposed and written was to avoid the failed system of government under the Articles, especially as expressed in Article 2. The new system of government provided the general government the power to coerce the subordinate state governments and individuals.
The key word in the passage from the "lesson" was "express." That terminology and intent were deleted from the Constitution of 1787, and attempts to put them back in were defeated.
The difference amount to a restricted (con)federal government versus a federal government with a limited sphere of influence, and "sovereign, free, and independent" states versus states with limited powers and subordinate to the federal government within its jurisdiction.
I've posted the following to you before. From Alexander Hamilton during the ratification debates.
It has been well observed, that to coerce the States is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single State. This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts or any large State should refuse, and Congress should attempt to compel them, would not they have influence to procure assistance, especially from those States which are in the same situation as themselves? What picture does this present to our view? A complying State at war with a non-complying State; Congress marching the troops of one State into the bosom of another; this State collecting auxiliaries, and forming, perhaps, a majority against its federal head. Here is a nation at war with itself! Can any reasonable man be well disposed towards a Government which makes war and carnage the only means of supporting itself -- a Government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a Government.
Some states felt strongly enough about Lincoln's attempt to coerce states that they seceded.
The great principle now in issue, is the centralization of power, or the keeping it diffused in State sovereignty, as it is by the organic laws, constituting States and forming the General Government.... The great boast of the Democratic party, has been, that it has met and beaten back the party of centralization, since the formation of the Union; and though it has never ordained any principles in regard to the status of the inferior races, it has at all times strictly adhered to the doctrine of making it a purely local matter, and leaving to the States, by the exercise of their reserved powers, to regulate it as a domestic institution ...
Do you tell me it is a necessity to thus subserve the Washington usurpers? In God's name do not tell me it is a necessity to be foresworn, to violate the plainest provisions of the Constitution, to consign a people to a slavish subserviency to the will of one man. You may tell me that it is rather a necessity to give up place, aye, to give uplife itself. Because the punishment of these crimes against law and the people, being impeachment, and lodged with legislative bodies that will not execute it, they are nevertheless offenses and will be so adjudged hereafter, when healthy restraints of law shall be demanded to protect life and property.
My point was not about states waring with other states. It was in regard to the power of a constitutional majority to enforce the rule of law on the minority. Anything else would be anarchy.
So long as a state is a member of the Union under the Constitution, it should abide by the legitimate laws of the Union. If the people of a state wished to withdraw from the Union for any reason, that was their prerogative. The other states shouldn't coerce the state to remain and weren't given that power by the Constitution. Forcing a state to remain in the Union when it wished to leave was tyranny.
If any compact of states did not serve to promote the happiness of some of its members, then perhaps the compact had outlived its usefulness and should have been abandoned or modified until that happiness was again promoted.
Anarchy? It was the Northern states that were disobeying the rule of law with respect to the return of fugitive slaves. There is the root of your anarchy.
Through thick and thin, the Union held together for seventy years until it was no longer in the interest of the South to stay. They left for something better in their opinion, which was their right.
Not according to several decisions of the Supreme Court in the 1860's and 1870's.
"Forcing a state to remain in the Union when it wished to leave was tyranny."
Of the many legal remedies the disaffected southern states might had tried to lawfully leave the Union, I can not think of one they tried, in earnest.
"Tyranny" can not exist in a republican democracy in which the full range of government exists. The south was never denied her voice nor her representatives in the government.
"Oppression" did not exist either, because oppression requires an unjust or cruel condition. There was nothing unjust about a democratically-conducted election for President, or about the laws that had been passed, or about the conduct of the out-going government.
There was nothing tyrannical about requiring a person, or a state, to abide by the agreements it had made.
"Anarchy? It was the Northern states that were disobeying the rule of law with respect to the return of fugitive slaves. There is the root of your anarchy."
The Fugitive Slave law had been strengthened in 1850 and was being enforced. The south sent legal slave catchers all throughout the country to round up escaped slaves, and in the process enslaved innocent Negro freemen. The law, however misguided, was being enforced; hence, anarchy did not exist.
If there existed oppression in the United States, it was wholly within the institution of chattel slavery.
"Through thick and thin, the Union held together for seventy years until it was no longer in the interest of the South to stay."
In an odd way, you are right on the mark. So long as the south was in control of the government, or at least could control the political agenda, they were happy to reap the benefits of union. I would also correct you statement by saying, it was no longer in the interests of the slave-holding oligarchy to stay. And I would change the number to at least eighty-four years.
There is no doubt the country changed from what it had been. Rulings by a Court doubtless dominated by Republicans of that time or intimidated by Lincoln don't surprise me. The 1860s and 1870s saw some gross mistreatment of the South and the Constitution. Sometime we ought to have a thread on Reconstruction.
Of the many legal remedies the disaffected southern states might had tried to lawfully leave the Union, I can not think of one they tried, in earnest.
The South did what they considered legal. IMO, they had a much better Constitutional foundation for secession than did their opponents did in opposing it, your argument notwithstanding.
"Tyranny" can not exist in a republican democracy in which the full range of government exists.
Maybe oppression is a better word for it, despite you are saying it is not. Tyranny is when the powers of government were concentrated in one man or group of men. Madison said something like that. It certainly became that under Lincoln.
When Lincoln said the country couldn't exist half slave, half free he was attacking the Constitution in effect. Which Lincoln should the South have believed, the Lincoln who made that statement or the Lincoln who promised not to mess with slavery? Certainly his compatriot Radical Republicans were making law-higher-than-the-Constitution statements. They sound like today's liberals who believe the Constitution is a living document subject to twisting to achieve political ends.
There was nothing tyrannical about requiring a person, or a state, to abide by the agreements it had made.
The power to secede at will had never been taken from the states or delegated away by them. Northern states were certainly disobeying the agreement they had made regarding fugitive slaves. If you've followed these threads, you've seen the statement by Daniel Webster about the South not being bound by the Constitutional compact if the North disobeyed the requirement to return fugitive slaves.
The Fugitive Slave law had been strengthened in 1850 and was being enforced.
I think enforcement was spotty and the law was still being resisted. I've posted here from time to time parts of the Massachusetts personal liberty laws which imprisoned or took away licenses to practice law of any attorney who represented a slave owner trying to retrieve his property. There were other similar restrictions in the Massachusetts law. The last slave returned from Massachusetts was in 1854 or 1855. If the Fugitive Slave Law were being enforced there, the date of the last slave returned should have been much later.
The south sent legal slave catchers all throughout the country to round up escaped slaves, and in the process enslaved innocent Negro freemen. The law, however misguided, was being enforced; hence, anarchy did not exist.
You may be correct that some innocent Negro freemen may have been taken. However, some legal slave catchers were killed in the North by mobs. The country was pretty polarized.
In an odd way, you are right on the mark. So long as the south was in control of the government, or at least could control the political agenda, they were happy to reap the benefits of union.
The South could see the hand writing on the wall of what was coming. You've seen the Senate head count by Wigfall. The South left and later formed a more perfect Union (where have I heard that before), a Union closer to the one the Founders created than what the old Union had become.
And I would change the number to at least eighty-four years.
Umm, still having trouble with that new math?
I agree with you, a Reconstruction thread would be of interest.
"The South did what they considered legal. IMO, they had a much better Constitutional foundation for secession than did their opponents did in opposing it, your argument notwithstanding."
Also, I think you would agree with me that a "unilateral secession test case" before a Taney Court, dominated by pro-southern justices, would have been an interesting proposition.
"Maybe oppression is a better word for it, despite you are saying it is not. Tyranny is when the powers of government were concentrated in one man or group of men. Madison said something like that. It certainly became that under Lincoln."
Whether or not that was the case (and I would disagree that Lincoln was a tyrant), it is not germane to the secession issue. Seven states had purported to secede before Lincoln assume the office. If "tyranny" caused them to secede, then you need to make the case that the tyranny existed under the Buchanan Administration.
"When Lincoln said the country couldn't exist half slave, half free he was attacking the Constitution in effect. Which Lincoln should the South have believed, the Lincoln who made that statement or the Lincoln who promised not to mess with slavery? Certainly his compatriot Radical Republicans were making law-higher-than-the-Constitution statements. They sound like today's liberals who believe the Constitution is a living document subject to twisting to achieve political ends."
Expressing a political opinion is one of the most cherished of fundamental liberties in the American tradition. It was the south that had attempted to gag discussion of the slavery issue. There is an old military axiom that states, "the threat is greater than the execution." The south reacted, peremptorily, to what its leadership perceived as a threat, rather than to any action.
"If you've followed these threads, you've seen the statement by Daniel Webster about the South not being bound by the Constitutional compact if the North disobeyed the requirement to return fugitive slaves."
The Compromise of 1850 made for strange bedfellows. I believe Webster was simply mistaken. A court system existed and was functioning to deal with any violations of federal law.
"If the Fugitive Slave Law were being enforced there, the date of the last slave returned should have been much later."
The Fugitive Slave law, if not properly enforced in state courts, should have been enforced by the Federal courts. The changes in the law in 1850 gave the supposed slave-holder considerable powers to require repatriation of his "property."
Given there ware approximately 3.5 to 4.0 million slaves in the United States during 1850-1860, I wonder how many actually escaped? Do you know the estimates.
"Umm, still having trouble with that new math?"
I suppose it depends on the datum!
Happy New Year.
Why would the Southern states have agreed to a creature of their creation ruling on their sovereign act? The voice of the people of a sovereign state trumped the Supreme Court in this matter. You may argue that Lincoln and his troops trumped the states, but, if so, please excuse me while I spit.
Seven states had purported to secede before Lincoln assume the office. If "tyranny" caused them to secede, then you need to make the case that the tyranny existed under the Buchanan Administration.
In my view, they could have seceded simply because they didn't like blue northers. Buchanan rightly recognized he legally couldn't do anything about their secession, whatever their reasons.
Expressing a political opinion is one of the most cherished of fundamental liberties in the American tradition.
We completely agree on that. A double hex on any politicians that restrict free speech. Hmm. That includes Lincoln, of course.
The south reacted, peremptorily, to what its leadership perceived as a threat, rather than to any action.
They didn't have to give a reason. I think slavery and agitation by the abolitionists was the main reason, but there were many other factors.
I wonder how many actually escaped? Do you know the estimates.
I saw something in one of the old newspapers once. I don't remember whether it was 1,000 a year or thousands a year.
Happy New Year to you and yours as well.
FYI, a joint resolution of the Texas Legislature passed on Feb. 1, 1861, mentions "tyrannical usurpation" [Source: State Gazette, Austin, Feb. 23, 1861]:
Be it Resolved by the Legislature of the State of Texas, That, in view of the exigencies of the times, we deem it proper to declare:
That when the sovereign States of this Confederacy [the Union] entered into the compact of Union, they delegated to the Union no power to compel, by force of arms, obedience by the States to the Federal authority, but, on the contrary, such power was expressly denied.
That the employment, therefore, of force by the Federal Government to compel any State of this Union to perform its obligations under the Federal Compact, or to compel a State against the will of its people to remain a member of this Confederacy, is a violation of the Constitution, a dangerous usurpation of power, destructive of the right of free government, and fatal to the existence of the Union itself, which, formed of equal and independent sovereignties, cannot be as between conquering States and subjugated provinces.
That should (as we have serious reason to apprehend may be, in the present condition of the Union,) the Federal Government attempt to coerce any of our sister States of the South, by force of arms, into subjugation by Federal rule, we assure each such States of the sympathy of our people, and that we shall make common cause with them in resisting, by all means and in the last extremity, such unconstitutional violence and tyrannical usurpation of power.
Then, am I to understand you are accusing the Buchanan Administration of tyranny?
And it must then include all of the southern politicians and representative who supported the gag rules and censorship of abolitionist speech and printed materials, that were routinely disrupted throughout the south and on the floor of Congress.
Freedom is a double edged sword.
... we will maintain, peaceably if we can, but forcibly if we must, the freedom of speech, the freedom of the press, the freedom of the person from arbitrary and unlawful arrest, and the freedom of the ballot box, from the aggression and violence of every person and authority whatsoever.
... we will resist by force any attempt to abridge the elective franchise, whether by introduction of illegal votes, under military authority, or by the attempt by Federal Officers to intimidate the citizen by threats of oppression.
The text of the Texas resolution says "... should ... the Federal Government attempt to coerce any of our sister States of the South, by force of arms, into subjugation by Federal rule ..."
As you know, Buchanan was upset over Anderson's move to Fort Sumter in December 1860, a move that was in violation of the informal truce Buchanan had with the South Carolinians. Buchanan then attempted to reinforce Fort Sumter with the Star of the West in January rather than withdraw Anderson's forces. He found that the South Carolinians meant business, and he didn't try that again. Unlike his successor, Buchanan must have decided that he really didn't want to provoke war.
Your quotation from the Texas legislature was dated February 1, the day the Legislature voted to secede, pending approval by the voters, which came February 23. Texas had seceded before Lincoln ever became President. If their basis for secession was "usurpation of power," then it cannot be laid upon anything the Lincoln Administration had done - because they were not yet in office until March 4.
The Texas Legislature didn't vote to secede. The Convention elected by the people voted to secede, then submitted the question to the voters of the state. The Legislature gave its assent to and approved of the Convention.
There is no question, however, that Lincoln usurped power once he got into office, so maybe the Texas Legislature just had good foresight. I wonder who the chair of the Miss Cleo Committee was?
Correct. From the Texas Handbook Online:
"Besides, Governor Houston and the legislature had asked for such a referendum, and a popular vote would end all doubt, as the legislature saw the matter, about the legality of secession. Just after 11:00 A.M. on February 1, with Houston in attendance, the convention met to take a final vote on the ordinance of secession."
The State Gazette also says, "The election will be ordered, unofficially, by the Chief Justice of each county or district, or in case of his failure or refusal to act forthwith, then by any one or more of the County Commissioners, or in case of the failure or refusal of the latter to act forthwith, then by a committee of five citizens of such county or district."
Houston drug his feet throughout all this. Initially he said that it was up to the people, that neither the Governor or the Legislature could call a convention of the people. The State Gazette, which was anti-Houston, speculated that the Governor thought the expense of the convention would prevent it from being held. Once it was obvious the convention was indeed going to be held, then, according to the State Gazette, Houston "denounced the convention movement as treasonable and revolutionary, and issued his proclamation for an extra session of the Legislature." ".. the Governor in his speech on the 22nd ult. [December] insisted there was no authority either in the Legislature or in the people to call a regular and lawful convention. It is plain that this miserable piece of sophistry was intended to bind in chains the sovereignty of Texas so as to prevent any resistance to the Black Republican Lincoln. Under it there are no means by which the sovereign voice of Texas could be expressed."
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