That’s the best you got, a decision from 1995? When the one I cited is from 1823?
And I noticed you didn’t address at all what James Madison, the father of the constitution said about the Constitution being permanent.
From James Madison to Alexander Hamilton
N. York Sunday Evening [20 July 1788]
My Dear Sir
Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.
James Madison
Nice work, thanks!
If he was looking for Supreme Court pronouncements a little closer to the times in question, maybe he should cite Texas v White. 1869.
Obviously, you can’t dispute the facts, as summarized by Justice Thomas. The nature of the constitutional provisions he discussed have not changed:
”…amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures…”
” Members of Congress to be chosen State by State, rather than in nationwide elections…”
”Even the selection of the President… is accomplished by an electoral college made up of delegates chosen by the various States…”
”…when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where ‘the Votes shall be taken by States, the Representatives from each State having one Vote’…"
Simple facts – not one of which you can dispute. Where’s your “whole body of the people”, my friend? Apparently they’re busy herding unicorns, or assisting Santa’s elves, because they are most assuredly not involved in the functioning of the US Constitution…
And I noticed you didn’t address at all what James Madison, the father of the constitution said about the Constitution being permanent.
And I noticed YOU “didn’t address at all what James Madison, the father of the constitution said”, as quoted in the opinion by Justice Thomas (guess I won’t hold my breath, waiting on that ;>).
As it happens, I just hadn’t got around to it yet, my friend. I love referencing James Madison, but his views obviously changed with time, and may also have depended somewhat on his audience (i.e., the views he expressed in correspondence did not always agree with his own official public statements). In any case, I believe you were referring to the term “for ever” in this phrase:
The Constitution requires an adoption in toto, and for ever.
First, what would Mr. Madison’s “for ever” union look like, if it actually existed? As he observed in his 1799 Report on the Virginia Resolutions, it would NOT have been a union where the Supreme Court was (as you claim) “the final arbiter on what is constitutional or unconstitutional in our system of government". Specifically:
“However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other [federal] departments of the government; not in relation to the rights of the [States as] parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped [federal] powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”
Clearly, Mr. Madison did not view the Supreme Court as “the final arbiter on what is constitutional or unconstitutional in our system of government".
In addition, Mr. Madison clearly did not recognize any union as “perpetual”, even when the union actually made such a claim, in writing. In Federalist No. 43 he notes:
”What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it[?]… In general it may be observed, that although no political relation can subsist between the assenting and dissenting States [i.e., between ratifying and non-ratifying States], yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and above all the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to re-union, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.”
Please note – at the time Mr. Madison made these comments, the States were still parties to the Articles of Confederation and Perpetual Union. Yet Madison himself here states that a self-described “perpetual” union would cease to exist (no longer “subsist”), once the first nine States ratified the Constitution. He restates that conclusion by referring to “obstacles to reunion” – clearly, there can be no “reunion” without there first being disunion. And if a “perpetual” union is not “for ever”, then certainly no such claim can be made for our constitutional union – the Constitution nowhere claims to be “perpetual” (and would likely never have been ratified, had it done so).
Furthermore, the Constitution nowhere prevents three-fourths of the States from terminating the compact entirely, via the described amendatory process. That's simply a fact, my friend.
(But perhaps you were quoting Mr. Madison in support of some kind of mystical “moral” union, which would certainly by in keeping with your equally amorphous “whole body of the people”… ;>)