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To: BroJoeK; manc
BroJoeK:

Your bank contract/war analogy fails.

The Articles of Confederation government which preceded the current regime provided that it could not be amended without unanimous agreement of all 13 states. The Constitutional Convention of 1787 produced a proposed constitution which by its terms and, quite contrary to the limitations imposed by the Articles of Confederation, did NOT require unanimity. In fact, Rhode Island rejected the new constitution on March 24, 1788 and did not ratify it until May 29, 1790 and North Carolina did not ratify it until November 21, 1789. Nonetheless, by a vote of the Congress of the Articles of Confederation (not authorized to do so), the "new government" took effect on March 4, 1789. That would seem to be a breach of the original contract---The Articles of Confederation. no? If not, why not?

Secondly, if there was a "contract" among the states, it would have to be the Constitution itself which, by the time of Fort Sumter had been in effect for about 72 years. It does not make provision for restraining any state from leaving, forcing any state to remain, or whatever. Therefore, the resolutions of the 11 Confederate States, acting individually, to secede from the Union was no breach of contract. Henceforth, what had previously been referenced as "these" United States suddenly became "the" United States as though it was only a single entity.

Third, since you nonetheless like the contract analogy, suppose that you were to join a reputedly fine and respectable gentlemen's club and mutually agreed that membership was "for life at least." Ten years after you join, at a meeting when only a few miscreants attend but enough to form a quorum, the members have apparently decided that one qualification for membership is sleeping with one another's wives after monthly parties at the club to be conducted thereafter. Everyone shows up with wives in tow for the first scheduled monthly party (billed on;y as a party) and each is told to drop a set of house keys in a basket one set for each couple's home. Whomever's keys you draw blindfolded is the lady whom you will be paying your amorous attentions to that evening until the next sunrise.

Some couples are morally horrified by such proposed behavior. Some wives but not their husbands seem interested in trying out the experiment. Some of the gentlemen but NOT their wives object. Some members and their wives (the men who attended the meeting and their wives) are looking forward to some variety (however adulterous). You and your wife are among the moral folks who are horrified. You promptly announce that your personal membership is at an end. The club members favoring the party scheme remind you that membership, by mutual agreement of all, is "for life at least.

Can you morally resign and walk away? Or do you just reach into the basket for tonight's set of keys and wave your wife goodbye for the evening as she departs unwillingly with another member? I think resignation is allowable. Don't you? No matter what the terms of membership.

There is a better argument for forcing continued membership in that gentlemen's club (not a valid one to be sure) than there is for forcing the 11 Confederate states to remain in the Union at gunpoint.

Oh, and where was what you call a crime (secession) defined? From English common law to our own day, criminal law is to be strictly and not expansively construed or are we giving up that freedom to punish the departing states?

263 posted on 09/15/2012 6:42:20 PM PDT by BlackElk (Dean of Discipline/Tomas de Torquemada Gentleman's Society: Roast 'em!)
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To: BlackElk; rockrr; donmeaker
BlackElk: "Your bank contract/war analogy fails."

Sorry, FRiend, but my bank contract analogy (post #173) is precisely correct, and your Gentleman's Club analogy ludicrous beyond any point of further discussion -- so I'm not going there.

BlackElk: "The Articles of Confederation government which preceded the current regime provided that it could not be amended without unanimous agreement of all 13 states."

By your own time line, the new Constitution of 1787 was rigorously debated, then unanimously approved in just over two years.
At no point during those years (through 1790) did any state commit what we would call "unfriendly acts" against other states: there were no seizures of US property, no threats against US officials, no battles fought with US forces, no states' military sent to other states.
So the old Articles died a quiet and natural death.

Starting in November 1860, everything was different.
As secessionists called for state conventions, they simultaneously began committing many acts, large and small, of rebellion, insurrection and war against the United States.
These included seizures by armed force of dozens of Federal forts, armories, arsenals, barracks, customs houses, ships and mints.
They also included threats against, detaining of and firing on, Federal officials -- though none on either side were killed in battle until after the Confederacy formally declared war on the United States, May 6, 1861.

All these secessionist acts had Union voters riled up and calling for war as early as January, 1861, but out-going Democrat President Buchanan refused to lead, ordering instead that the Federal forces take no actions to provoke secessionists violence.
Even incoming President Lincoln announced in his First Inaugural (March 4, 1861): there could be no war unless secessionists started it.

But even before Lincoln's took office, Confederate Jefferson Davis ordered military preparations to begin war, by raising another 100,000 Confederate troops and assaulting Federal Fort Sumter.

Again, to make a long story short: secession by itself did not cause war in 1861.
War was caused by numerous increasingly violent acts of secessionists' rebellion, insurrection and war, even before the Confederacy formally declared war on the United States, May 6, 1861.

BlackElk: "Secondly, if there was a "contract" among the states, it would have to be the Constitution itself which, by the time of Fort Sumter had been in effect for about 72 years.
It does not make provision for restraining any state from leaving, forcing any state to remain, or whatever.
Therefore, the resolutions of the 11 Confederate States, acting individually, to secede from the Union was no breach of contract."

The new Constitution makes no specific provisions for "disunion" or "secession", but our Founders' Original Intent was expressed clearly and consistently.
Disunion was only authorized by mutual consent or "usurpations" and "oppression" having that same effect -- in Madison's formulation.

In legal terms: absent mutual consent, there had to be a "material" breach of contract to justify secession.
But in November 1860, just days after Lincoln's election, when South Carolina called for its secession convention, there was no "breach of contract", material or otherwise.
This alone makes those secession declarations unconstitutional.

BlackElk: "Oh, and where was what you call a crime (secession) defined?"

I'll say it again: secession alone was not the "crime" which started the Civil War.
Secessionists' numerous acts of rebellion and formal declaration of war on the United States started it.

That's why my bank contract analogy (post #173) fits these circumstances precisely.

265 posted on 09/16/2012 5:09:30 AM PDT by BroJoeK (a little historical perspective....)
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