If Secession Was Illegal - then How Come...?

The Patriotist ^ | 2003 | Al Benson, Jr.

[capitan_refugio]

out = our
sheesh, it's late.

[lentulusgracchus]

It was Gov. George Clinton.

Thank you for the correction.

There was no necessity in the Constitution for prevention of unilateral secession per se, its interdictions were throughout with the bans upon states...

This is incorrect. Remember that the Constitution was an agreement executed by the Peoples of the States directly, assembled in ratification conventions for the purpose. Thus the powers enumerated in Article I that flowed from the States to the United States are listed one by one, because they are limited delegations of the enumerated powers.

In the Confederation period, the U.S. government was basically Congress and a very limited federal establishment that answered directly to Congress. The ambassador corps, the Army and Navy, the Mint, all answered directly to Congress, which acted as agens in rebus and factotum of the States but was not superior to them. The States very clearly and without effective contradiction possessed all powers of Sovereignty, and they exercised them. The Union literally existed in the Congress -- Congress was the Union, and it prosecuted foreign policy for the States -- but it was States' powers which it wielded.

By delegating the enumerated powers to the Federal Government, the States were basically reaching for an economy of scale in government, and in order to allow these delegations to work properly, they had to recuse themselves from certain activities.

But here is the critical insight: Nobody forbade the States anything. They recused themselves, and they delegated. This was because, even as the States were considering the Constitution, they were still every bit as much the Sovereigns of their own destinies as they had been the day that George III admitted the fact in signing the Treaty of Paris.

What did not happen, is that the States abjured Sovereignty, or gave over the Sovereignty of the People to a new entity. The words do not exist in the Constitution, which is the only relevant document. To the contrary, the Ninth and Tenth Amendments make it abundantly clear that what you claim happened did not happen. The words did not come out of the People's mouths, the words did not flow from their pens. It didn't happen.

The transfers of governmental power listed seriatim in the Constitution happened, one by one. The abrogation of Sovereignty by the People did not happen.

And the People, who are they? 4ConservativeJustices has posted repeatedly, and again vide supra in this thread, the citations for the fact that the People exist in their States -- not their governments, but the States themselves -- that the People have always existed in and as their States, and that the People have never been amalgamated, nor their ultimate, God-given, fear-no-man Sovereignty given over to any other entity.

The People fear God Himself, and nothing less. Not the federal government which, after all, is just a government, nor the Constitution which is the treaty among the Peoples of the States, nor the Union which is our arrangement among ourselves, nor the Supreme Court, who are our henchmen and paid servants.

Your attempt to wave away the Ninth and Tenth Amendments won't wash. You can't repeal an article of the Constitution by edict, even if you're John Marshall -- and he tried.

Besides, you'd have a hard time selling that argument to Justices Rehnquist, Scalia, and Thomas. They've been very active in rehabilitating the Tenth Amendment, and repairing the damage done by Hamiltonian partisans during the New Deal Era in particular, when the Commerce Clause was used to justify federalizing just about every human activity under the sun.

[lentulusgracchus]

Correct me if I am wrong, but did not the US Supreme Court site the Preamble in the Texas vs White (1869) decision, using the phrase "... indestructability of the Union ... "? (I believe the context of that decision was to abbrogate any and all actions of the secessionist Texas government.)

My working opinion of that Supreme Court case is that the Court was operating beyond its scope and pretending to decide matters of Sovereignty that were ultra vires the Court, i.e. above its pay grade, because Sovereignty is the exclusive province of the People -- in this case, the People of Texas. The Supreme Court should have sent that case back to Texas.

There is a difference between the States delegating the decision of questions of law to which the States themselves are party, as provided by Article IV, to the Supreme Court, on the one hand, and transferring to the Supreme Court the power to decide what State Sovereignty consists of and what it doesn't.

Too, there's a difference in the constitutional environment between 1860 and 1869, the main contributor being the (never properly ratified, of course) Fourteenth Amendment. Which is a sore spot in constitutional law all its own.

[Aurelius]

Long years before Herndon had read to Lincoln one of Theodore Parker’s sermons, and after doing so made this shallow revivalistic observation ”I have always noticed that ill-gotten wealth does no man any good. This is as true of nations as of individuals. I believe that all the ill-gotten gain wrenched by us from the negro through his enslavement will eventually be taken from us, and we will be set back where we began. Lincoln thought my prophecy rather direful.” This Hebraic-Puritan idea took root in Lincoln’s mind; and so in his Second Inaugural he developed it into these demoniacal words:

“ The Almighty has His own purposes. ‘Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.’ If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?”

Not Jonathan Edwards in his maddest Calvinism ever uttered words to equal those of Lincoln. They mean that slavery, which the New World did not want, had to pay for it in agony and blood, but the debt had to be paid by those who did not contract the debt. They mean that a just God willed this, and effected his will by a war which cost the country from 750,000 to 1,000,000 lives and 22,000,000,000 of money. If God was now willing the removal of slavery it was through men like Lincoln, who had given the North and the South this war, without any need for it at all, and who within a few weeks of the day of this Inaugural willed that the war should go on, and that the peace proposals of Stephens should come to nothing save upon terms of ignominious capitulation, without any promises or assurances of any sort as to the fate of the South. There are only two ways of interpreting these words of Lincoln: either one interprets them as a Christian and accepts what he said as true and just, because it is taken from the Bible; or else one has retained his reasoning faculties, and abhors them as the incredible outpouring of a mind at last completely fanaticized.

Lincoln the Man
Edgar Lee Masters
pp. 471-472

[FreedomNotSafety]

No offense but add it up. SS/MC 18% (you pay both halves), FED inc tax 25%, state inc tax 5%, local inc tax 1%, sales tax on most everything you spend 5%, gas tax, sin taxes, property taxes. Then lets add up the stealth taxes on utilites. Don't forget the above market rates we pay for utilties in the name of regulation. Add hidden regulatory taxes and code and regulatory costd for employers. OOPS how much of the purchase price of your products is taxes on business (remember businesses only collect taxes they do not pay them). And I almost forgot import fees, duties, and tariffs (Canadian lumber). If Americans only understood the true extent of the governments burden.

[lentulusgracchus]

There is a third interpretation: that the cost of the war having become more than burdensome in lives and treasure, it became a reasonable form of discourse for politicians who'd brought it to pass to talk about its divine inevitability, the Will of Heaven, and punishments from God.

[stand watie]

PLEASE clean up your language. there are women & children present.

otherwise i AGREE.

FRee dixie,sw

[Aurelius]

Yes, I agree. Lincoln, in particular, wanted to shift the blame to God. Early on, already, he suggested that the responsibility lay with Harriet Beecher Stowe; he may not have been completely serious. Last fall I visited Antietam. In the visitor's center they showed a film that had Lincoln saying that if he could have his way the war would end, but that the matter was in God's hands. I don't know if there is an authentic quote to that effect.

[lentulusgracchus]

PLEASE clean up your language.

Sorry? Where?

[justshutupandtakeit]

States were not the sources of the Constitution's powers, that was the American people. No argument is valid based on any other supposition.

States never possessed all the attributes of sovereignty during Confederation. Foreign policy was never a state power. A rudderless national government with no power did not mean any state possessed that power. States came into being with the Nation, the germ of which was the Continental Congress. They very clearly NEVER possessed all the attributes to sovereignty even if some had the pretension of sovereignty. States and Nation were being created concurrently. Many states were without constitutions for years after the War started.

No terminology of the Treaty made sovereign states were there were none. It was signed for the American nation and between the American Nation and the UK. Like the usage of Congress "were" assembled it is a mere archaic grammatical construction without significance.

Who argues that the American people don't exist in geographical units called states? However, the American people is a whole. It is one people which created the Union, not several. States were created along with the Union during the fight against Britain. They are secondary to the creation of the federal government and were dependent upon the larger unit for their survival during the War. One might compare their role and significance to the petty states of the German nation. Our nation became a great nation only by moving away from such a destructive arrangements.

History has, in fact, waved away the 9th and 10th, not I. They were created primarily to mollify the slavers' fears that the national government was coming after their slaves. That is the only "Right" in States' Rights which any of them had any fears of losing. Just as the right to continue to oppress and repress the ex-slave was the only "right" the modern States' Righters were concerned with. There was nothing in those amendment outside of local police powers and health and safety regulations.

Nothing remained in the states' power which affected the Union as a whole which secession clearly did. That is why it could have never been legal without the whole American people taking action to allow it.

[lentulusgracchus]

In the visitor's center they showed a film that had Lincoln saying that if he could have his way the war would end, but that the matter was in God's hands. I don't know if there is an authentic quote to that effect.

I'm sure he's pretty firmly on the record. Take a hard line, then blame God's wrath for the consequences of your own.

He took a hard line with the Southerners from the minute he came into office, and didn't deviate from that hard line as long as Southern resistance was afoot anywhere. "Charity for all" was predicated on total surrender to Lincoln's will, just as Caesar had counseled in his Commentaries 1900 years before.

He just didn't want the blame for the destruction that flowed from his policies. I think he realized that if he took responsibility and credit for what he'd done, like an ancient conqueror, the people of the North would have rejected him, and possibly even his own partisan base, when they realized that what had happened was the direct result of their own policy selections. The voters would have exculpated onto Lincoln.

He anticipated their revulsion at all the missing limbs and fresh graves and their asking "was this really worth it after all?" by making God his goat.

That he got away with it and enjoyed 140 years of unquestioning acceptance of his policies by the consensus, is the damage done by John Wilkes Booth.

[justshutupandtakeit]

Uh, the other folks were about the expansion of FREEDOM not slavery. Big difference. And your religious analogy is apt, slavery practically WAS the religion of the South.

A degenerate social system is second-class. Nothing could change that. Slavers prevented any action on slavery during the founding and period after. Many wished to change it but the solid control by the Southern politicians prevented change necessary to resolve this horror. The war was forced upon the Nation by them not just short-term in Charleston but long-term throughout our early history.

Distorted- misallocated for optimum production of wealth. If you believe that slavery saved the poor man from further oppression you will apparently believe anything.

The War taught a lot of people lessons about the Black people not just Southerners there is no denying that nor is there any denying that the Northerners were not fighting a war to free the slaves. Those Northerners who did rise to a modern view of humanity such as Hamilton and Jay were the farsighted ones, the leaders. Where were their Southern equivalents? Hamilton's friend, John Laurens, might have been one had he survived. Jefferson had a promising beginning only to disappear in a miasma of hypocrisy.

The South attracted fewer immigrants because the slave system held down wage rates and provided far fewer opportunities for them. That is self-evident. The climate never restricted movement to even worse areas where slavery existed but in them, like in the South, there were no options in industry.

I doubt you need a Brazilian, historian or no, to answer that question. The answer is provided by human nature and is NO.

[4CJ]

The sovereigns of the country are the people, not the states.

Nah. In Martin v. Hunter's Lessee Justice Jay wrote that, '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 policy or principle.'

The states CREATED the federal government, not vice versa. Even Jay acknowleged that the states STILL retained the right to alter their form of government.

Then he writes, '[t]he 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.'

Just as an aside, be sure to read Jay's arguement defining the powers of the co-ordinate branches of the government (look for the expression "shall be vested"). It EXPLICITLY refutes the arguement that the Executive can exercise the Legislative power of suspending the writ of habeas corpus.

Personally, I like the following section from Justice Johnson's decision, 'To me, the constitution appears, in every line of it, to be a contract, which, in legal language, may be denominated tripartite. The parties are the people, the states, and the United States. It is returning in a circle, to contend, that it professes to be the exclusive act of the people, for what have the people done, but to form this compact? That the states are recognised as parties to it, is evident, from various passages, and particularly, that in which the United States guaranty to each state a republican form of government.'

Of course, in McCullough v. Maryland, we have Justice Marshall writing this, 'No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.' Which is most assuredly true, since NO founder would second Morris' motion that would have consolidated the people of each state into on common mass.

And you know that.

[4CJ]

It was intended for "perpetual union," so expressed in the preamble, and ...

The phrase does not exist in the Constitution. It is from the Articles of Confederation and Perpetual Union, which was dissolved by the secession of the parties involved.

[capitan_refugio]

You are arguing with Robert E. Lee, not me. Look at #420 for my take on the issue.

[4CJ]

I have asked often for those believing them significant to point to the legal cases indicating my error. So far, none have been able too.

Try these, there are many more:
Calder v. Bull, 3 U.S. 386 (1798)
Martin v. Hunter's Lessee, 14 U.S. 304 (1816)
Gibbons v. Ogden, 22 U.S. 1 (1824)
Northern Securities Co. v. United States, 193 U.S. 197 (1904)
McCray v. United States, 195 U.S. 27 (1904)
Hammer v. Dagenhart, 247 U.S. 251 (1918)
State of Missouri v. Holland, 252 U.S. 416 (1920)
Bailey v. Drexel Furniture Company, 259 U.S. 20 (1922)
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
United States v. Butler, 297 U.S. 1 (1936)
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)
Carter v. Carter Coal Co., 298 U.S. 238 (1936) Steward Machine Co. v. Collector of Internal Revenue, 301 U.S. 548 (1937)
Helvering v. Davis, 301 U.S. 619 (1937) United States v. Darby, 312 U.S. 100 (1941)
Morgan v. Virginia, 328 U.S. 373 (1946) Maryland v. Wirtz, 392 U.S. 183 (1968)
United Transportation Union v. Long Island Rail Road Co., 455 U.S. 678 (1982)
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1982)
Missouri v. Jenkins, 495 U.S. 33 (1990)
Printz v. United States, 521 U.S. 898 (1997)
Reno v. Condon, 528 U.S. 141 (2000)
(my favorite, see Justice Thomas' dissent) US Term Limits, Inc. v. Thornton, 514 US 779 (1995)

[WhiskeyPapa]

Nah. In Martin v. Hunter's Lessee Justice Jay wrote...

Jay wasn't even on the Court.

Walt

[4CJ]

Sorry. I've seen that misstatement by R. E. Lee trotted out so often it's pathetic. Perpetual in law means open-ended, not "forever", just as was proven by the dissolution of the "perpetual" Articles. Secondly, "perfect", as in "made more perfect" means bettered, not permanent. The Articles could be subverted by a single state unwilling to agree to the petitions of the other states, the Constitution removed that requirement, and added a national taxing authority and national defense which "perfected" the Articles.

Justice Chase's decsion in Texas v. White was destroyed by Justice Grier in his dissent. If Chase's premise is correct (they states never left & were still members of the union), then Chase's conclusion re: the bonds was the reverse of what the premise dictated.

[4CJ]

Jay wasn't even on the Court.

My bad. Justice STORY.

[4CJ]

If they were alive today, Hamilton would be a staunch Democrat and Jefferson would be a Republican.

Bump.