Posted on 12/24/2001 4:25:26 AM PST by WhiskeyPapa
Well which is it? Either the states are sovereign on everything except what is covered in the Constitution or they aren't.
WP even lies when he tries to insult me. Follow the "reply to" thread and work backwards, and you'll see that when he originally started this lying stuff, he said either I'm lying or I didn't retain my lessons in school very well. With his most recent reply, though, he says he wasn't implying but rather stating flat out that I was lying. He is so intellectually dishonest that its almost funny.
James Madison to Daniel Webster15 Mar. 1833Writings 9:604--5
I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.
It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others.
The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution; it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.
It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally Competent in both; and that, without an annulment of the Constitution itself its supremacy must be submitted to.
The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U.S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the Condition in which they entered into the compact; whereas if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.
WP: You know that's false. The Constitution says that the Constitution, and the laws passed in pursuance, shall be the supreme law of the land. You don't fool anybody who doesn't want to be fooled.
We’ve been over this before (repeatedly). Are you suggesting that Congress may pass a law (prohibiting all political speech, for example) “in pursuance” of one part of the Constitution (the ‘common welfare’ clause) that would somehow free the federal government from all limits imposed by another part of the Constitution (the First Amendment, in this case)? And that such a simple act of Congress would be constitutional and somehow supercede part of the Constitution itself (voiding the First Amendment, in this example, as well as Article V)? You have never responded to this (or any similar) hypothetical, apparently because your ridiculous argument can not pass even the most elementary of tests. (It would seem that you "want to be fooled" by your own asinine claims. ;>) No simple act of Congress can modify or repeal any constitutional amendment – including (no matter how much you may wish it) the Tenth Amendment...
Better luck next time!
;>)
I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy...The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government ... subject to the Revolutionary Rights of the people in extreme cases...
(For the sake of argument, I will accept Mr. Madison’s statement, although it was made a generation after he argued for ratification of the then-new Constitution.) Allow me summarize: Mr. Madison differentiated between secession “at will,” and secession resulting from “from intolerable oppression,” referring to the latter as “revolution,” and noting that the government established by the Constitution was “subject to the Revolutionary Rights of the people in extreme cases.” All well and good. But who, I must ask, determines when the “extreme case” has arisen, and “oppression” has become “intolerable?” Walt’s argument suggests two alternatives. Either the high court, itself a part of the federal government, must determine when federal government “oppression” has become “intollerable,” or (apparently) “the people” of the “-whole-“ nation must make that determination. Both options are laughable: can you picture any five members of the Supreme Court ordering the people to revolt? Is it any easier to picture a national plebiscite authorizing revolution, so long as 50.0000000001% of the "-whole-" people approve it?
Let us refer to Mr. Madison, once again, for the answer:
The...position involved in this branch of the resolution, namely, "that the states are parties to the Constitution," or compact, is, in the judgment of the committee, equally free from objection...It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
James Madison, Report on the Virginia Resolutions, 1800
Clearly, the individual States must decide when “oppression” has become “intolerable.” This position is not inconsistent with Mr. Madison’s earlier declarations in Federalist No. 39 & 40, and it is entirely consistent with his Virginia Resolutions and Mr. Jefferson’s Kentucky Resolutions. And it is consistent with history: only a few States (notably Virginia and Kentucky) objected to the notorious and “palpably” unconstitutional Alien and Sedition Acts.
The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U.S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities... But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact.
Here, again summarizing, we see Mr. Madison refer to the potential “dissolution” of the union into “separate communities:” the latter obviously referring (given the context – “the sovereign people of the several States who were the parties to it”) to the "separate" States. And we find the phrase: “whilst the Constitutional compact remains undissolved.” It would seem that Mr. Madison recognized the right of the States to secede, if the States deemed federal action sufficiently tyrannical to warrant such action...
No, he doesn't refer to dissolution of the union; he refers to dissolution of the Constitutional Compact. Different animals.
And we find the phrase: “whilst the Constitutional compact remains undissolved.” It would seem that Mr. Madison recognized the right of the States to secede, if the States deemed federal action sufficiently tyrannical to warrant such action...
Where does Madison explicitly suggest that a state may dissolve the compact? He had asserted, 30 years prior, that a state may interpose, under certain circumstances, on Constitutional grounds. Whether or not one agrees with that idea, a state dissolving the Compact is far removed from a state declare a law unconstitutional. Quite near the opposite, it seems to me.
And what of the last line in the letter, which you neglected to include?:
It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.
It seems to me then, that Madison saw the obligations of a compact as vital, and yet, not necessarily expressed explicitly in the Constitution itself. I wonder what Mr. Madison's ideas were on the nature of and obligations of parties to a compact.
You quoted his Report, which asserts that the states, i.e., the parties, are the final judges of Constitutionality. Let's just accept that as it is, OK? But then you leap to the conclusion that this means a state may "secede". In fact, you say this is "clearly" so. I must be blind. I don't see it! Looking at the Report, we see that Virginia has found a Federal law unconstitutional. They have written some resolutions which spell it out in painstaking detail. And they let us know what they intend to do about it. Did they propose to write their own Constitution? Cease to obey the US Constitution? Quite the opposite! Madison wrote:
The object, being to maintain what the Constitution has ordained, is in itself a laudable object.
As opposed to the Slave states, which sought to remove themselves from it.
The means are expressed in the terms "the necessary and proper measures." A proper object was to be pursued by the means both necessary and proper.
Now what could he mean by "necessary and proper" means? (I can't help finding some humor in the choice of words, given the context, but I digress, except to say surely he intended a strict construction of the phrase?)
To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
And he goes on later...
These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten that, among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government; to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one then to recommend the establishment of a constitution, it must be a proper one now to assist in its interpretation.
They are "assisting in interpretation." A far cry from exiting and re-writing.
The only part of the two concluding resolutions that remains to be noticed, is the repetition, in the first, of that warm affection to the Union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence, or the establishment of our national Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of internal resistance or commotion. By recurring to the facts, they will be able to convince themselves that the representatives of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism, than their own conscientiousness, and the justice of an enlightened public; who will perceive in the resolutions themselves the strongest evidence of attachment both to the Constitution and the Union, since it is only by maintaining the different governments, and the departments within their respective limits, that the blessings of either can be perpetuated.
Union. Fidelity to the Constitution. It seems to me the Report asserts a state's responsibility to interpret the Constitution, to interpose as a last resort (when the Congress has failed), as a means of preserving the Constitution, preserving the Union. Does this mean a state may secede? No. Secession may well have been considered "improper means." Judging by Mr. Madison's great support for Daniel Webster (shall we post Webster's speech, to which Madison referred?), I would say he would have considered "secession" an improper violation of the compact, as opposed to the Virginia Resolution, which was performed in service to the Compact.
The Constitution says that the Constitution, and the laws passed in pursuance, shall be the supreme law of the land.
Walt, I'm impressed.
If, then, the courts are to regard the constitution and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act must govern the case to which they both apply.
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
Marbury v. Madison, 5 US Cranch, (1803).
Laws can be changed by congress, the Constitition only by amendment and approval from the states. The hierarchy here is still with the Constitition being the supreme law of the land, followed by legislative acts. Here Justice Marshall explains why we have a written Constitution,
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited, and that those limits may not he mistaken, or forgotten, the constitution is written.
The legislature cannot pass legislation that expands the powers of government, that can only be achieved by an amendment. If the legislature could simply pass a law granting itself (or even a President) more powers, then we'd have no need for a "written" Constitution.
But don't forget that Marshall also delivers this gem as well,
That the people have an original right to establish for their ... government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
Well, I did leave one word out. The first line actually reads like this,
That the people have an original right to establish for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.
Considering he wrote this in 1803, I wonder what he meant. < /sarcasm >
* Then the Founders were worse than the worst sort of used car salesmen,..........
Partially true. Madison, Hamilton, Washington and others clearly went to Philadelphia with the intent to 'start over' if I can use that phrase. They realized that the independence so hard won as a nation only a few years eariler was in jeopardy under the weak Articles. They knew we needed a more 'perfect' and powerful Union if any of the states were to remain independent. In fact, Washington agreed to assume the Presidency of the convention only under the condition that a new form of government would result. They also understood that if they stated their intent before hand, the petty demogogs in the states would have sabatoged the convention. They did work in secrecy through the summer of 1787 and produced as near a perfect document as has ever been developed by man.
I guess if you consider Lincoln a tyrant, calling calling Washington a 'used car salesmen' is not all that bad. History simply does not agree with you
"No State, without its consent, shall be deprived of its equal suffrage in the Senate." Article V, US Constitution.
Now why do you suppose a state could consent to being denied their equal suffrage in the Senate? Could it be because they had the legal option under the Constitution to SECEDE??
Illinois motto: "State Sovereignty, National Union" Ole Abe was shot too soon. The 39th Congress wiped out half his state's motto. Walt cheers.
You can't make that a true statement based on anything Washington said.
Walt
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.