The constitution is not a suicide pact. Maybe Lincoln did act unconstitutionally to save the union. Maybe he didn’t.
Let’s say, for the sake of argument he did. The question then becomes was he justified in doing so. That leads to the question if secession, as done by the southern rebels in 1860-61 was constitutional. If it was then everything that Lincoln an the northern states did was unconstitutional. If it wasn’t constitutional then I say Lincoln gets a pass because he was suppressing an unconstitutional rebellion.
To determine if secession was constitutional we have to look first at the constitution. The constitution itself is silent on secession. The word appears nowhere in the constitution. In fact the only power delegated involving states is given to the legislature in adding states and changing state boundaries.
Some argue that the 10th Amendment is where the power of secession lies. For that to be true we have to look at who are the parties to the constitution. Is it the states or the people. If the states are a party to the constitution then since they made it they can unmake it. If the people are the party then only they can unmake it.
What does the constitution say about who made it? It is very clear on this in the preamble.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Some claim that the preamble has no force of law. Perhaps true but it is, if you will, the mission statement for what the constitution does and who is doing it.
However, let us see if their is any support for this assertion that the constitution was formed by the people and not the states. Where in the constitution does the power to interpret it reside? In the judicial branch with it’s highest branch being the US Supreme Court. Are there any antebellum US Supreme Court cases that explain who are the parties to the constitution? Yes there is.
Just five years after adoption of the constitution the court said this;
“We the people of the United States, do ordain and establish this Constitution. Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc.” – Chisholm v. Georgia, 1793
Then in 1821 it said this;
“That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. . . . America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all the powers given for these objects, it is supreme.... The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire-for some purposes sovereign, for some purposes subordinate.
“The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 U.S. 264] 1821
Cohen vs Virginia 1821
“The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.” Joseph Story Martin v Hunter 1821
It is crystal clear on who created the constitution. In fact I can find no antebellum cases where the US Supreme Court ever stated that the states made or were a party to the constitution. It is clearly “We the people” that made the constitution, and that is all the people, no sub-set of the people.
Therefore “secession” by the southern rebels was unconstitutional and President Lincoln had a constitutional duty to suppress this insurrection. Making any actions by him that might be unconstitutional a moot point. His overriding constitutional duty was the preservation of America.
“The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.” Joseph Story Martin v Hunter 1821 It is crystal clear on who created the constitution. In fact I can find no antebellum cases where the US Supreme Court ever stated that the states made or were a party to the constitution. It is clearly “We the people” that made the constitution, and that is all the people, no sub-set of the people.
It is apparent that you have not read and/or have not understood the out of context quotation of Justice Story. The quote is from Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
Your contention that the consolidated people of the United States ordained and established the Constitution is reduced to absurdity by the history of the Framing and Ratification, not to mention by putting the Story quote into the context in which Story framed it.
The Constitution was approved at a convention by representatives of eleven (11) states, Rhode Island and New York not present or voting. Moreover, the representatives at the convention had no authorization from anyone to create a constitution or propose to change the form of government.
The Constitution was ratified by eleven (11) states, Rhode Island and North Carolina not ratifying.
A new union was formed by eleven (11) states, Rhode Island and North Carolina not being members.
North Carolina joined about six months after Washington's inauguration, and Rhode Island joined more than a year later.
Each state ratified seperately and membership in the resulting union was limited to the states so ratifying the Constitution.
There was no consolidated vote of the people. The people of each state cast one vote as a state.
It is not possible for the vote of eleven states to express the consolidated will of all thirteen (13) original states.
It is not possible for a consolidated vote of all the people of the thirteen (13) states to decide for all the people of those states, and result in having eleven (11) member states in the union, and two (2) member states out of the union.
It's nonsense.
The major problem is not what Story wrote, but the juvenile interpretation of what Story wrote. A more complete quote returns it to its proper context. "The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle." The people of each state collectively are the political community called the State. They have ever exercised their sovereignty as States. The people organized at States vote to elect delegates to the Electoral College who cast votres on behalf of the people of the State that elected them. Whether the delegates are winner-take-all or proportional is a matter for the State to decide. Ratifications of constitutional amendments are by States. And the Constitution itself proclaimed that, "The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the same." Any nine states. It could have comprised less than half the population, were it the nine least populous states. It did not form a union of all the thirteen states, but only of the nine or more States that ratified. The actual number was eleven.
Martin v. Hunter's Lessee, 14 U.S. 304, 324-327 (1816).
[324] Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar.
The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general go-
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vernment with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remained unaltered and unimpaired except so far as they were granted to the Government of the United States.
These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the Constitution, which declares that
"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."
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The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.
On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms, and where a power is expressly given in general terms, it is not to be restrained to particular cases unless that construction grow out of the context expressly or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.
The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter, and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature from time to
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time to adopt its own means to effectuate legitimate objects and to mould and model the exercise of its powers as its own wisdom and the public interests, should require.
With these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the Constitution so far as regards the great points in controversy.
The introductory sentence eliminates any possibility of the paragraphs the follow to be more than obiter dictum.
Of course, the same Joseph Story wrote in Commentaries on the Constitution, vol. III, Sec. 321, that,
§ 321. The obvious deductions, which may be, and indeed have been, drawn from considering the constitution as a compact between the states, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each state no longer, than suits its pleasure, or its consent continues; that each state has a right to judge for itself in relation to the nature extent, and obligations. Of the instrument, without being at all bound by the interpretation of the federal government, or by that of any other state; and that each retains the power to withdraw from the confederacy and to dissolve the connexion, when such shall be its choice; and may suspend the operations of the federal government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require. These conclusions may not always be avowed; but they flow naturally from the doctrines, which we have under consideration. They go to the extent of reducing the government to a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts.
That is the more mature and considered opinion of Joseph Story.
You may wish to rethink your support for the early Joseph Story who stated in Martin v. Hunter's Lessee, that the Constitution was a compact. Oh my, just look at what flows from such finding, according to Story.
And it was the Great Expounder, Daniel Webster, who said in The Constitution Is Not a Compact, 1861, p. 8:
If a league between sovereign powers have no limitation as to the time of duration, and contain nothingmaking it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If, in the opinion of either party, it be violated, such party may say he will no longer fulfil its obligations on his part, but will consider te whole league or compact at an end, although it might be one of its stipulations that it should be perpetual.
Farrand's Records — In a Committee of the Whole House. Wednesday May 30, 1787.
It was then moved by Mr Randolph and seconded by Mr G Morris to substitute the following resolution in the place of the first resolution Resolved that an union of the States, merely foederal, will not accomplish the objects proposed by the articles of confederation, namely "common defence, security of liberty, and general welfare.
It was moved by Mr Butler seconded by Mr Randolph to postpone the consideration of the said resolution in order to take up the following resolution submitted by Mr Randolph namely
Resolved that a national government ought to be established consisting of a supreme legislative, judiciary and executive.
It was moved by Mr Read seconded by Mr C. C. Pinckney to postpone the consideration of the last resolution in order to take up the following
Resolved That in order to carry into execution the design of the States in forming this convention and to accomplish the objects proposed by the confederation "a more effective government consisting of a Legislative, Judiciary, and Executive ought to be established"
On the question to postpone, in order to take up the last resolution, the question was lost.
On motion to agree to the said resolution moved by Mr Butler it passed in the affirmative [ayes -- 6; noes -- 1; divided 1.]2 -- and the resolution, as agreed to, is as follows.
[Note 2: 2 Vote 2, Detail of Ayes and Noes, see below note 6.]
Resolved that it is the opinion of this Committee that a
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national government ought to be established consisting of a supreme Legislative, Judiciary, and Executive
Yea verily, the considered and approved a national, as opposed to a federal government.
Farrand's Records — May 30th, 1st resolution from Mr. Randol.
Mr. R. wishes to have that resol. dissented to. The resol. postponed to take up the following:
1st. That a union of the States merely foederal will not accomplish the object proposed by the articles of confederation, namely, "common defence, security of liberty, and general welfare". Mr. C. Pinkney wishes to know whether the establishment of this Resolution is intended as a ground for a consolidation of the several States into one.
Mr. Randol has nothing further in contemplation than what the propositions he has submitted yesterday has expressed.
2. Resolved that no treaty or treaties between the whole or a less number of the States in their sovereign capacities will accomplish their common defence, liberty or welfare.
3. Resolved therefore that a national governmen ought to be established consisting of a supreme legislature, judiciary and executive.
Mr. Whythe presumes from the silence of the house that they gentn. are prepared to pass on the resolution and proposes its being put.
Mr. Butler — does not think the house prepared, that he is not. Wishes Mr. Randolph to shew that the existence of the States cannot be preserved by any other mode than a national government.
Gen. Pinkney — Thinks agreeing to the resolve is declaring that the convention does not act under the authority of the recommendation of Congress.
The first resolution postponed to take up the 3d. viz -- Resolved that a national government ought to be established consisting of a supreme legislature, judiciary and executive.
1787, 21 Febry. Resolution of Congress.
Resolved that in the opinion of Congress it is expedient
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that on the 2d Monday of May next a convention of delegates who shall have been appointed by the several States to be held at Philada. for the sole and expres purpose of revising the articles of confederation, and reporting to Congress and the several legislatures, such alterations and provisions therein as shall when agreed to in Congress, and confirmed by the grates, render the foederal constitution, adequate to the exigencies of government and the preservation of the union."
Mr. Randolph explains the intention of the 3d Resolution. Repeats the substance of his yesterdays observations. It is only meant to give the national government a power to defend and protect itself. To take therefore from the respective legislatures or States, no more sovereignty than is competent to this end.
Mr. Dickinson. Under obligations to the gentlemen who brought forward the systems laid before the house yesterday. Yet differs from the mode of proceeding to which the resolutions or propositions before the Committee lead. Would propose a more simple mode. All agree that the confederation is defective all agree that it ought to be amended. We are a nation altho' consisting of parts or States--we are also confederated, and he hopes we shall always remain confederated. The enquiry should be—
1. What are the legislative powers which we should vest in Congress. 2. What judiciary powers.
3 What executive powers.
We may resolve therefore, in order to let us into the business. That the confederation is defective; and then proceed to the definition of such powers as may be thought adequate to the objects for which it was instituted.
And they voted on a national form of government,
The Records of the Federal Convention of 1787 [Farrand's Records, Volume 2] JOURNAL Monday August 6. 1787.
Page 176 The House met agreeably to adjournment.
The honorable John Francis Mercer Esq, One of the Deputies from the State of Maryland, attended and took his seat.
The honorable Mr Rutledge, from the Committee to whom were referred the Proceedings of the Convention for the purpose of reporting a Constitution for the establishment of a national Government conformable to these Proceedings, informed the House that the Committee were prepared to report— The report was then delivered in at the Secretary's table, and being read once throughout and copies thereof given to the members-- It was moved and seconded to adjourn till wednesday morning
which passed in the negative. [Ayes--3; noes--5.]
The house then adjourned till to-morrow morning at 11 o'Clock A. M
Back in the day, they sure had a way with words. It passed in the negative. That is pre-Trek talk for it's dead Jim.
A national form of government was considered and rejected.
You do get credit for knowing buzz phrases though.