Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
My take on Lincoln's second inaugural address is quite different. Lincoln did not seek to place blame ("Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it persish, and war came.").
When Lincoln gave this address, the Civil War was still ongoing. Lee's surrender at Appomattox was still one month away. But the end was in sight. Lincoln was wondering aloud if the war was Divine retribution. (There can be no doubt that slavery was, and is, a thoroughly evil institution.) He noted that ".. both read the same Bible and pray to the same God, and each invokes His aid against the other ... The prayers of both could not be answered. That of neither has been fully answered." Then he added, "Fondly do we hope, fervently do we pray, that this might scourge of war may speedily pass away." He did not say, "May God strike the slave-owners dead" or "God is on our side."
In fact, it is the last paragraph/sentence that provides an insight into Lincoln's fundamental humanity. It was a plea to both sides. It bears repeating:
"With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lastings peace among ourselves and with all nations."
These are not the words of a shallow or demonic man. And these words will live on in history long after people have forgotten the work of hack authors such as Edgar Lee Masters.
Justice Story:
"Thus it fell to Story in his first constitutional decision almost to surpass Marshall in his nationalistic leanings, if that were possible. The hopes of the Jeffersonians were blasted. A case came to the Court involving rival grants of land in Virginia. One grant stemmed from the state and one from the British government before the Revolution. Marshall disqualified himself from hearing the case because of a family relation on the side of the ultimate winner. The Supreme Court, in an opinion by Justice Story, held against the grant of the state of Virginia. Normally this would have ended the litigation, as the state supreme court would be expected to issue court process to carry out the decision. But the Supreme Court of Virginia openly defied the decision and refused to issue the proper legal process upholding it! Remember, this was Virginia, the home of the Jeffersonians and the scat of the opposition to Marshall and the Court.
Back the case went to Washington. Story again delivered the opinion of the Court--an opinion which surely reached the ultimate in the doctrine of federal supremacy over the states. Story held that the Virginia court must follow the mandate of the Supreme Court, and indirectly hinted that if this were not done the Supreme Court would issue legal process against the Virginia justices personally, compelling their acquiescence upon threat of contempt. The possible spectacle of a judge of the highest court of a state being called to account before the United States Supreme Court under pain of possible fine or jail sentence is certainly the acme of federal supremacy over the states. The spectacle never took place. The Supreme Court of Virginia acquiesced.
Story's opinion, one of his longest, was one of his ablest. It is magnificently reasoned, as might be expected from a meticulous scholar, but its very thoroughness makes it a somewhat difficult opinion to read and understand. Less than half of it is printed here.
--Professor Jerre S. Williams, University of Texas, author of Constitutional Analysis in a Nutshell for more info
Martin v. Hunter's Lessee, 1 Wheaton 304; 4 L. Ed. 97 (1816).
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 government 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 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 recognized 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."
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 time, to adopt its own means to effectuate legitimate objects, and to mold 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 third article of the constitution is that which must principally attract our attention. The first section declares, "the judicial power of the United States shall be vested in one Supreme Court, and in such other inferior courts as the Congress may, from time to time, ordain and establish." The second section declares, that "the judicial power shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under the grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects." It then proceeds to declare, that "in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make."
Such is the language of the article creating and defining the judicial power of the United States. It is the voice of the whole American people solemnly declared, in establishing one great department of that government which was, in many respects, national, and in all, supreme. It is a part of the very same instrument which was to act not merely upon individuals, but upon states; and to deprive them altogether of the exercise of some powers of sovereignty, and to restrain and regulate them in the exercise of others.
Let this article be carefully weighed and considered. The language of the article throughout is manifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one supreme court, and in such inferior courts as Congress may, from time to time, ordain and establish. Could Congress have lawfully refused to create a supreme court, or to vest in it the constitutional jurisdiction? "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive, for their services, a compensation which shall not be diminished during their continuance in office." Could Congress create or limit any other tenure of the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions: it must be in the negative. The object of the constitution was to establish three great departments of government; the legislative, the executive and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter it would be impossible to carry into effect some of the express provisions of the constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two states be heard and determined? The judicial power must, therefore, be vested in some court, by Congress; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omitted or declined, is to suppose that, under the sanction of the constitution they might defeat the constitution itself; a construction which would lead to such a result cannot be sound....
If, then, it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction as to all; for the constitution has not singled out any class on which Congress are bound to act in . preference to others ....
It being, then, established that the language of this clause is imperative; the next question is as to the cases to which it shall apply. The answer is found in the constitution itself. The judicial power shall extend to all the cases enumerated in the constitution. As the mode is not limited, it may extend to all such cases, in any form in which judicial power may be exercised. It may, therefore, extend to them in the shape of original or appellate jurisdiction, or both; for there is nothing in the nature of the cases which binds to the exercise of the one in preference to the other.
In what cases, (if any) is this judicial power exclusive, or exclusive at the election of Congress? It will be observed that there are two classes of cases enumerated in the constitution, between which a distinction seems to be drawn. The first class includes cases arising under the constitution, laws, and treaties of the United States; cases affecting ambassadors, other public ministers and consuls, and cases of admiralty and maritime jurisdiction. In this class the expression is, "and that the judicial power shall extend to all cases"; but in the subsequent part of the clause which embraces all the other cases of national cognizance, and forms the second class, the word "all" is dropped seemingly ex industria. Here the judicial authority is to extend to controversies (not to all controversies) to which the United States shall be a party, &c. From this difference of phraseology, perhaps, a difference of constitutional intention may, with propriety, be inferred. It is hardly to be presumed that the variation in the language could have been accidental. It must have been the result of some determinate reason; and it is not very difficult to find a reason sufficient to support the apparent change of intention. In respect to the first class, it may well have been the intention of the framers of the constitution imperatively to extend the judicial power either in an original or appellate form to all cases; and in the latter class to leave it to Congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate....
This leads us to the consideration of the great question as to the nature and extent of the appellate jurisdiction of the United States. We have already seen that appellate jurisdiction is given by the constitution to the Supreme Court in all cases where it has not original jurisdiction; subject, however, to such exceptions and regulations as Congress may prescribe. It is, therefore, capable of embracing every case enumerated in the constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the constitution to the Supreme Court. There can be no doubt that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by Congress under every variety of form, of appellate or original jurisdiction. And as there is nothing in the constitution which restrains or limits this power, it must, therefore, in all other cases, subsist in the utmost latitude of which in its own nature, it is susceptible.
As then, by the terms of the constitution, the appellate jurisdiction is not limited as to the Supreme Court, and as to this court it may be exercised in all other cases than those of which it has original cognizance, what is there to restrain its exercise over state tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, "the judicial power (which includes appellate power) shall extend to all cases," &c.; and "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction." It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible. If the constitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow that the jurisdiction of these courts would, in all the cases enumerated in the constitution, be exclusive of state tribunals. How otherwise could the jurisdiction extend to all cases arising under the constitution, laws and treaties of the United States, or to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the constitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive; and this not only when the casus foederis should arise directly, but when it should arise, incidentally, in cases pending in state courts. This construction would abridge the jurisdiction of such courts far more than has been ever contemplated in any act of Congress. On the other hand, if, as has been contended, a discretion be vested in Congress to establish, or not to establish, inferior courts at their own pleasure, and Congress should not establish such courts, the appellate jurisdiction of the Supreme Court would have nothing to act upon, unless it could act upon cases pending in the state courts. Under such circumstances it must be held that the appellate power would extend to state courts; for the constitution is peremptory that it shall extend to certain enumerated cases, which cases could exist in no other courts. Any other construction, upon this supposition, would involve this strange contradiction, that a discretionary power vested in Congress, and which they might rightfully omit to exercise, would defeat the absolute injunctions of the constitution in relation to the whole appellate power. But it is plain that the framers of the constitution did contemplate x that cases within the judicial cognizance of the United States not ~only might but would arise in the state courts, in the exercise of their 'ordinary jurisdiction. With this view the sixth article declares, that "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the ,constitution, and the laws of the United States which shall be made in obvious that this obligation is imperative upon the state judges in their official, and not merely in their private, capacities. From the very nature ,of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely ac, cording to the laws or constitution of the state, but according to the 'constitution, laws and treaties of the United States--"the supreme law of the land."... It must, therefore, be conceded that the constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals. It was foreseen that in the exercise of their ordinary jurisdiction, state courts would incidentally take cognizance of cases arising under the constitution, the laws and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the state courts, which (as has been already shown) may occur; it must, therefore, extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to state tribunals; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the constitution.
It has been argued that such an appellate jurisdiction over state courts is inconsistent with the genius of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that if the power exists, it will materially impair the sovereignty of the states, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent.
It is a mistake that the constitution was not designed to operate upon States, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the constitution does not act upon the states. The language of the constitution is also imperative upon the states as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of President and Vice-President. And in these, as well as some other cases, Congress have a right to revise, amend, or supersede the laws which may be passed by state legislatures. When, therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in some respects, under the control of Congress, and in every case are, under the constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argument that the appellate power over the decisions of state courts is contrary to the genius of our institutions.
The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power.
Nor can such a right be deemed to impair the independence of state -- judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force than for giving it to the acts of the other co-ordinate departments of state sovereignty. The argument urged from the possibility of the abuse of the revising power is equally unsatisfactory. It is always a doubtful course to argue against the use or existence of a power, from the possibility of its abuse. It is still more difficult, by such an argument, to ingraft upon a general power a restriction which is not to be found in the terms in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere--wherever it may be vested it is susceptible of abuse. In all questions of jurisdiction the inferior, or appellate court, must pronounce the final judgment; and common sense, as well as legal reasoning, has conferred it upon the latter....
It is further argued that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own courts; first, because state judges are bound by an oath to support the constitution of the United States, and must be presumed to be men of learning and integrity; and secondly, because Congress must have an unquestionable right to remove all cases within the scope of the judicial power from the state courts to the courts of the United States, at any time before final judgment, though not after final judgment. As to the first reason--admitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States (which we very cheerfully admit), it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own, and given or withheld powers according to the judgment of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The constitution has presumed (whether rightly or wrongly we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, thc regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, why some, at least, of those cases should not have been left to the cognizance of the state courts. In respect to the other enumerated cases--the cases arising under the constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction-reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction.
This is not all. A motive of another kind, perfectly compatible with the most sincere respect for state tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself. If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution. What indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be thc only adequate remedy for such evils....
On the whole, the court are of opinion that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one. Strong as this conclusion stands upon the general language of the constitution, it may still derive support from other sources. It is an historical fact that this exposition of the constitution, extending its appellate power to state courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the state conventions. It is an historical fact that at the time when the judiciary act was submitted to the deliberations of the first Congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that constitution, the same exposition was explicitly declared and admitted by the friends and by the opponents of that system. It is an historical fact that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important states in the Union, and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened state courts, and these judicial decisions of the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken, without delivering over the subject to perpetual and irremediable doubts....
We have not thought it incumbent on us to give any opinion upon the question, whether this court have authority to issue a writ of mandamus to the Court of Appeals to enforce the former judgments, as we do not think it necessarily involved in the decision of this cause. It is the opinion of the whole court that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the 4 same is hereby affirmed.
Walt
This is also from McCullough:
"The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confining their choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end...to have prescribed the means by which the government, should, in all future times, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code...To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory...if we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it..."
From McCullough v. Maryland, quoted in "American Constitutional Law" A.T. Mason, et al. ed. 1983 p. 165
As to Virginia:
"The mischievous consequences of the construction contended for on the part of Virginia, are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every state in the Union. And would this not be the effect? What power of the government could be executed by its own means, in any states disposed to resist its execution by a course of legislation?...each member will possess a veto on the will of the whole...there is certainly nothing in the circumstances under which our constitution was formed; nothing in the history of the times, which justify the opinion that the confidence reposed in the states was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legislative measures of the Union..."
ibid, p. 169-70
Who are you trying to fool?
Walt
Thank you for pointing that out again, although from the context of Marse Robert's letter, Lee seems to have understood "perpetual" in the sense people usually, erroneously, do -- per omnia saecula saeculorum, forever and ever, and so on. The legal meaning relies more on the original Latin sense, which is seen in the title dictator perpetuus which Julius Caesar accepted (conferred on himself) just before Brutus deified him. The Latin sense is the same as that which you describe, of concurrency, open-endedness, and continuation.
I also addressed the issue of threshold versus perpetual consent as they apply to the Constitution in my post #381, above. In that discussion I rely on the definitions laid out by Prof. Elaine Scarry in a 1981 University of Pennsylvania law review article on the Militia, nuclear policy, and the meaning of popular consent within the context of the Constitution.
Scarry's larger theme was that Defense policy generally needs to be rewritten to conform with original intent, rather than with the General Staff's estimate of likely strategic and tactical contingencies surrounding future decisions to release major weapons -- i.e. to commit to their use, but on the way she covered the concept of consent.
That's not all the letter.
"The framers of our Constitution never exhausted so much labor, wisdom and forebearance in its formation, and surrounded it with so many guards and securities, if it was to be broken by every member of the Confederacy at will. It was intended for 'perpetual union' so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession."
Robert E. Lee, January 23, 1861
It's pathetic to try and pervert Lee's clear meaning.
Walt
The people created the federal government through special conventions called for the purpose. The framers -made--sure-- NOT to use the state legislatures so there would be no question as to the basis of sovereignty.
The -Union- of the states predates the Constitution, and even the outbreak of the Revolutinary War, as Chief Justice Jay said in 1793.
Walt
Less than 4 months before Lincoln uttered these words, Sherman, with Lincoln's full approval, began his march through Georgia. A cruel and cowardly war on civilians. This demonstrates the total disconnect between Lincoln's high-sounding words (usually borrowed from someone else) and his actions.
You're a better thinker and reader than to make an amatuerish statement such as this. Both Grant and Lincoln had reservations about Sherman's plan for invasion. Grant's reservations were military; Lincoln's were political. At that time, Sherman was pretty much on his own. There was no daily communication with the government. Furthermore, Shermans lines of communications and resupply, back to Atlanta, and into the North, were menaced by Nathan Bedford Forrest's cavalry. Sherman's army of over 100,000 men was twice as large as Johnston's. Yet, during the campaign, Sherman engaged Johnston, and later Hood, at least 13 times. By the time Sherman began his Carolinas campaign, his force was effectively below 60,000.
Lincoln had no direct control over the battlefield and could only authorize, in conjuction with his staff and General Grant, the most basic "plans." As you know, any war plan, is only as good as the paper on which it is written. Sherman, not Lincoln, had strategic and tactical control of the campaign. Sherman had vowed to "make the South howl" and so he did. Part of the strategy was to destroy the South's ablity to conduct war, hence shortening the conflict. In fact, the Southerners reacted with a scortched earth policy of their own to deny Shermans army of subsistance. A substantial amount of damage to the South was at the hands of Southerners.
Everybody knows that atrocities occurred on the less-controlled fringes of a from that was often 50 miles or more wide. That has happened to virtually every army in every conflict. To say that Lincoln approved a "cruel and cowardly war on civilians" is simply hyperbole.
I don't think so.
Walt
Only one propblem with that statement, otherwise commonly know as FACTS.
The 4 new England states of Massachusetts, New Plymouth, Connecticut, and New Haven formed the "The United Colonies of New England" (aka New England Confederacy) in 1643 which EXCLUDED Rhode Island et al. It was deemed "perpetaul", but was dissolved in 1684. It specifiically rejected membership by any other state/plantatation, 'provided no other Jurisdiction shall hereafter be taken in as a distinct head or member of this Confederation.' It was NOT a union of all the existing states.
The Articles of Association EXCLUDED Georgia. It was NOT a union of all the existing states.
When the 9th state ratified the Constitution, 4 states were external to that new union. It was NOT a union of all the existing states.
That's the facts, jack.
Only one propblem with that statement, otherwise commonly know as FACTS.
However -you- interpret the issues of the late 18th century, the Chief Justice of the Supreme Court interpreted them another way.
The people considered themselves as one people and managed their affairs accordingly.
Walt
Wrong. The people of the states did not consider themselves to be one people. Their representatives in the federal convention REFUSED to merge the states into one common mass of people. The state conventions ratified SEPARATELY, with some states joining YEARS after the first state to ratifiy. If we were "one people", then it would have required a single ratification. The pontifications of Hamilton, Jay, Story, Marshall, Lincoln et al could not do what the convention and the states repeatedly REFUSED to do.
Good point. The Constitution requires only that nine States ratify it, in order to become operative. Fortunately, as Madison was discussing with others, all 13 eventually ratified, sidestepping a major constitutional crisis in which nine states would thenceforth be bound to one another by the Constitution, and the other four would continue to be bound to one another and to the nine by the "perpetual" Articles of Confederation, with a completely different (because truly federal) form of government that had no Executive or Judiciary.
Now that would have been interesting to contemplate, and supposedly Madison did lose a little sleep thinking about the possibility.
But as you say, from the moment the ninth State ratified, the Constitution came into force......without the other four States, who were still outside it, and under the Articles.
No dreamer would ever say such a thing. When the people act, they act in their states, but the actions do not then become the acts of the states, do they?
Shall I quote McCullough to you?
Walt
Enough loyal Union men came forward to preserve the Union. Their opinion mattered. Yours does not.
Walt
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