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I Pledge allegiance to the Confederate Flag
Dixienews.com ^ | December 24, 2001 | Lake E. High, Jr.

Posted on 12/24/2001 4:25:26 AM PST by WhiskeyPapa

I Pledge allegiance to the Confederate Flag, and to the Southern People and the Culture for which it stands

by Lake E. High, Jr.

The Confederate flag is again under attack, as it has always been, and as it always will be. It is under attack because of what it symbolizes. The problem is that to many Southerners have forgotten just what it does symbolize.

The Confederate Nation of 1860 - 1865 was the intellectual, as well as the spiritual, continuation of the United States of America as founded, planned, and formed by Southerners. It was the stated, and often repeated, position of almost all Southerners in the 1860’s that they, and the South, were the heirs of the original political theory embodied in the U. S. Constitution of 1789. In 1860 their attempted to separate from the rest of the states and form their own nation since that was the only way the South could preserve the philosophy and the virtues that had made the United States the magnificent nation it had become.

In both of these contentions, that is, the South was the true repository of the original political theory that made the United States great, and the South was the true home of the people who took the necessary actions to found, make, and preserve the original United States, Southerners have been proven by the passage of time to be correct.

The Southern colonies of Virginia, North and South Carolina and Maryland were where the majority of the original American population resided until the 1700’s despite the fact Massachusetts was settled only 13 years after Virginia and New York was settled 18 years before South Carolina. As the population of the colonies grew, the New England States and the middle Atlantic states, gained population so that by the time of the American Revolutionary War the two general areas of the north and the South were generally equal in size with a small population advantage being shown by Virginia. This slight difference in population by a southern state was to have a profound effect on the development of the United States.

First of all, the New England states managed to start a war with England, which they verbalized as "taxation without representation." In truth the problem from their point of view was the taxes on their trade. Having started the war they then promptly managed to lose it. The British, after conquering the entire north from Maine (then part of Massachusetts) to Boston, to Providence, to New York, to the new nation’s capital, Philadelphia, shifted their military forces to move against the Southern colonies. They secured their foothold in the South by capturing Savannah and Charleston and then proceeded to move inland to subdue the Southern population. They planed to catch the Virginia forces under General Washington in a coordinated attack moving down from the north, which they held, and up from the South that they thought they would also conquer.

The British army that had mastered the north found they could not defeat the Southern people. Once in the backwoods of the South they found themselves to be the beaten Army. The British defeats at Kings Mountain and Cowpens were absolute. Their Pyrrhic victories at Camden and Guilford Courthouse were tantamount to defeat. In both North Carolina and South Carolina they were so weakened they had to retreat from the area of their few "victories" within days. Their defeats at those well-known sites among others, along with their defeat at Yorktown in Virginia, led directly to their surrender.

Having secured the political freedom from England for all the colonists, Southerners then mistakenly sat back and took a smaller role in forming the new American government that operated under an "Articles of Confederation." That first attempt at forming a government fell to the firebrands of New England who has started the war and who still asserted their moral position of leadership despite their poor showing on the field of battle. These Articles of Confederation, the product of the Yankee political mind, gave too much economic self determination to the separate colonies (as the Northern colonies had demanded in an attempt to protect their shipping, trade and manufacturing) and too little power of enforcement to a central government.

After a period of six difficult years, when the Articles of Confederation failed as a form of government, another convention was called and a new form of government was drawn up. This time the convention was under the leadership of Southerners and they brought forth the document we all refer to as the U.S. Constitution. Even northern historians do not try to pretend the Constitution and the ideas embodied therein are anything other than a product of the Southern political mind. (Yankee historians cannot deny it, but they do choose to ignore it so their students grow up ignorant of the fact that the Constitution is Southern.) So, as it turns out, when the new nation found itself in political trouble it was the South which, once again, came to the rescue just as it had when the nation found itself previously in military trouble.

With the slight population advantage it enjoyed over other states, Virginia was able to give to the new nation politicians who are nothing short of demigods. Their names are revered in all areas of the civilized world wherever political theorists converge. Washington, Jefferson, Madison, Randolph, Henry, Taylor and Monroe are just a few, there are many more. These men along with the leading political minds of South Carolina, Rutledge, Heyward, and, most importantly, Pinckney, saw their new nation through its birth and establishment.

The military leadership, as well as the political leadership, of the South saw the nation through its expansion. Under Southern leadership the British were defeated a second time in 1814. Under Southerners, most obviously John Tyler and Andrew Jackson, Florida was added as a state. The defeat of Mexico in 1846, under the Southern leadership of James Polk and numerous Southern military officers, established of the United States as a force to be feared. That was an astonishing accomplishment for so small and so young a nation

Thomas Jefferson, who added the Louisiana Purchase, barely escaped impeachment for his efforts. The north argued continuously against the war with Mexico that added the area from Texas to California just as they had argued against the Louisiana Purchase. One Congressman from Illinois, Abraham Lincoln, was particularly vehement against Texas being made a state. Northerners, having seen Mexico defeated and the United States enlarged all the way to the Pacific Ocean, then objected to the methods and motives of the acquisition of the Washington and Oregon territories in the northwest. Polk, who had added that vast area from Louisiana to California to Colorado to the pacific northwest, served only one term as President due to the constant attacks he sufferer in the Northern press. Left to the people of the north, the French would still control from Minnesota to Louisiana and Mexico would control from Texas to the Pacific while Canada would still include Washington, Oregon Idaho and Montana.

Every square inch of soil that now comprises the continental United States was added under a Southern president, and they did it over the strenuous political objections of the north. The provincial and mercenary Yankee people fought every effort to expand the United States. The expansion of the United States became a regional political disagreement that spread ill feeling north and South. Its accomplishment by Southerners was no small feat. It was accomplished under Southern military leadership and with much Southern blood. (Which is why Tennessee is called "The Volunteer State" and the names of Southerners are almost exclusively the only ones found on memorial tablets and monuments from Texas to California.). The expansion of the original colonies into the continental power it became was completely the results of the Southern mind and Southern leadership.

Having secured the freedom of the United States from England and then having formed and led the successful government into a new political age under a written constitution that is still the envy of the whole world, the South gave the entire military and political leadership that formed the United States into the boundaries it now enjoys. But these magnificent accomplishments were soon to be overshadowed by population shifts and the ensuing results that brings in a representative government. By the early 1820s the north had finally secured just enough additional population that it had achieved enough political clout to start protecting its first love, its money. The unfair and punitive tariffs that were passed in 1828 led to the South’s first half-hearted attempt to form its own separate government with the Nullification movement of 1832. The threat of war that South Carolina held out in 1832 then caused a negotiated modification of those laws to where the South could live with them. For the time being, the political question was settled by compromise.

While those changes pacified the political leaders of the South for the time being, some statesmen could see, even then, that if the North ever became totally dominant politically, the South would be destroyed, not just economically, but philosophically and spiritually as well. Those statesmen, with Calhoun in the lead, then started planting the intellectual seeds that led to the South’s second attempt at political freedom in 1860.

Unfortunately, in the 1840’s Yankee abolitionist introduced the new poison of the "voluntary end" of slavery as a political issue. There were attempts by many Southerners to defuse this situation by offering an economic solution. That is, Southerners offered to end slavery in the South just as England had ended it in the West Indies, by having the slave-holders paid for their losses when the slaves were freed. The abolitionist Yankees would have none of that. Their position was simple, the South could give up it slaves for free and each farmer could absorb the loss personally. There was to be no payment. To the Yankee abolitionists it was either their way or war.

The fact that the abolitionist movement became a dominant presence in the northern part of the United States from the 1840’s on is primarily because a liberal can politicize any subject and enrage any body of people regardless of the level of preexisting good will. (As current liberals have turned the simple good sense argument that one should not litter one’s own environment into the political upheaval of "the ecology movement." The effectiveness of liberal methods can currently be seen in the simple instance that most people believe such nonsense as the chemical cause of "ozone depletion" and "the greenhouse effect" despite any evidence of either. Liberals are absolutely capable, by their strident, activist natures of raising any question to harmful emotional heights.)

Unfortunately, the loss of the War for Southern Independence in 1865 caused the very thing that Southern statesmen had foreseen in the 1830’s; that is, the north became dominant and the cultural, spiritual, and economic base of the South was decimated. The loss of the war was most severely felt in the South, of course, but it has also had political repercussions in the north as well.

Without the South in a position of dominance, the leadership of the United States has gone from Washington, Jefferson, Madison, Monroe, Tyler and Polk to the inept, or leftist, Grant, Harding, Arthur, Harrison and Roosevelt, among others. Plus, the ascendancy of the leftist north to national prominence has also caused the rise of leaders in the South who had to be acceptable to the north. Such spectacularly immoral or totally incompetent Southern politicians as Lyndon Johnson, Jimmy Carter and Bill Clinton are examples of the quality of the men that the South must now produce to garner northern votes. When these modern day jackals are contrasted with the demigods the South produced when unfettered by the northern voter, that in itself should be enough to make all people reject northern philosophy and northern politics and embrace all things Southern.

As the forces of the left have gained ascendancy in the United States, the pressure intensifies to completely obliterate anything that remains between them and complete leftist victory. That means that the traditional enemy of leftists, the South, must be erased in its every form. That is why leftists always demand that even symbols of the South be eradicated.

We, therefore, now have a coalition of people who want the Southern flag taken down and hidden from public view. This coalition is composed of three main groups. First of all are African-Americans, whose emotional position is totally unmitigated by any knowledge of history. Secondly, there are Yankees who have moved to the South and who, despite their remarkable political failures in their own states, have learned nothing and continue to vote leftist here too. Or either these northern imports have been transferred here to run the newspapers that are owned by the people who live outside the South. And, thirdly, there are leftist Southerners, or Southerners of "politically correct" leaning, who have apparently learned their history from the television and movies and who feel the South is a bad place because it is not egalitarian enough.

But the demands of this coalition of political thinkers need to be put in proper perspective. Before anyone starts to tell someone else how to act and how to think, it is incumbent on him to demonstrate the success of his own ideas and actions. So far the introduction and enforcement of leftist ideas in our world has led to nothing but sorrow and degeneration. The force necessary to make people live under a leftist government has been the direct cause of the murder of over one hundred million people in this century alone. Leftist political theory has enslaved and impoverished billions of people worldwide. Its introduction has weakened even such great nations as England and France and reduced them to the status of third rate nations. Socialism in Scandinavia has reduced it to an economic level even less than that of England. In the United States leftist ideas have turned our country into the increasingly sick society it has become.

So until this coalition of leftist can point to a single successful instance of where their leftist philosophy has improved a country, or a people, rather than to the spectacular political failures the left has precipitated in any place into which its poisonous philosophy has been introduced, they have no right to demand anything of anybody. Leftist, the most spectacular political failures in all of history, have no standing to demand that Southerners accept anything that flows from their false philosophy. And of all people, leftist have the least demand on Southerners, the people who formed, guided, expanded and gave them a great country.

The Confederate flag is a symbol. It stands for the people who had the spirit, the courage, and the intelligence to give the world its greatest governmental entity. As long as the Confederate flag flies there is hope that the terrible scourge leftists have placed on the world will pass. It represents the culture that produced the most wished for, the most just, and the finest political system on earth. And as long as the Confederate flies there is hope that the greatness that was once ours may someday be reestablished.


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To: Who is John Galt?
No amendment was required: as Senator Toombs noted at the time, the Tenth Amendment declared, in writing, that all powers not delegated nor prohibited (including, by definition, secession) by the Constitution were reserved to the people of the States. The written words of the Constitution trump any supposed ‘unwritten law’...

...

377 posted on 1/2/02 5:50 PM Pacific by Who is John Galt?

What on earth are you pushing? That is NOT what the 10th amendment says.

In any case, consider:

(1) if, because of the Tenth Amendment, the states retain all powers not delegated to the federal government, and

(2) if the federal government has not been delegated the power to prohibit the secession of a state, then

(3) it must follow that each state retains the power to prohibit the secession of a state, and Ohio has the power to prohibit the secession of South Carolina.

What's wrong with that idea?

You were quoting Justice Scalia earlier. Consider also:

'The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.''

United States v. Sprague, 282 U.S. 716, 733 (1931).

''The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.''

United States v. Darby, 312 U.S. 100, 124 (1941).

Also, from the ACW moderated newsgroup:

The Constitution is a "compact" ordained by "the People of the United States, and not by the States in their sovereign capactities. Martin v. Hunter's Lessee, 14 U.S. 304, 324-325 (1816); and see also Shively v. Bowlby, 152 U.S. 1, 34 (1894), and Cantwell v. Connecticut, 310 U.S. 296, 307 (1940) (referring to it as the "federal compact").

Madison referred to it as such in the previously mentioned letter to Daniel Webster. Even secessionist leaders of the late war of rebellion admitted that it was a compact, and argued a "breach of compact" as a ground for secession.

Admitting, as one must, that the Constitution is a "compact," this fact has legal ramifications all its own. The terms "compact" and "contract" are synonymous. 3 Story, Commentaries on the Constitution of the United States, § 1390. By its very nature, a compact creates rights as well as obligations. See Green v. Biddle, 21 U.S. 1, 92-93 (1821).

The Constitution speaks to the binding nature of the compact entered into when it prescribes that all executive, legislative, and judicial officers of the federal government and the States "shall be bound by Oath or Affirmation, to support this Constitution . . . ." See Art. VI. It is not simply that they must take an oath, but that they are bound to support the Constitution.

This returns, of course, to the nature of compacts and contracts, and the manner in which they may be rescinded. It is universally accepted that a compact cannot be rescinded without cause, and without making reparation for the loss caused to the other party or parties to the compact which have been expended on their behalf in contemplation of their rights and duties. If the same were not true of governments, we could have no binding relations between people or governments, nor might we expect any regular or permanent rights or duties. The existence of binding obligations and rights is necessary to the very existence of any government. See Kennett v. Chambers, 55 U.S. 38, 50 (1852).

Therefore, it is a violation of the Constitution AS A WHOLE, to attempt to withdraw from the binding compact without some just cause. It is in this sense, if in no other, that the right of secession without cause cannot be a right reserved by the States. They have already given up this right by entering into the Constitution and pledging to support it. Since this is the case, it takes no explicit withdrawal of the right to secede without cause to prohibit the exercise of that right. The Constitution is, itself, the ground upon which the right to secede without cause was killed.

[end]

No one who fairly considers the whole record will buy off on this legal secession crap, and no one who willfully misquotes the language of the document will be able to sway any but the most hateful.

Walt

401 posted on 01/03/2002 3:21:56 PM PST by WhiskeyPapa
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To: WhiskeyPapa
You can't dragoon Madison into your false and unsupported interpretation.

Mr. Madison’s words are clear. And given that I quoted Mr. Madison’s words, and not my own, it would appear that Mr. Madison ‘dragooned’ himself into supporting 'his own interpretation.' If you consider that interpretation “false,” your disagreement is with him.

”Neither of them can have a greater right to break off from the bargain, then the other or others have to hold them to it...[a single one] of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created...."

I believe I have addressed these comments previously. Mr. Madison appears to speak of equal rights, not superior rights. And please note: the rights he describes are those of the parties to the compact, not the rights of any entity created by it. In other words, the federal government is not even mentioned here – apart from the following: “by an intolerable abuse of the power created...” And, as we know from Mr. Madison’s Report, the States were to judge regarding the ‘tolerability’ (or lack thereof ;>) of abuse by the federal government. Your argument that only the federal government (via the high court) may determine whether it’s own abusive acts are ‘tolerable’ is literally laughable – and directly contradicted by Mr. Madison and Mr. Jefferson as well.

“The advice nearest to my heart and deepest in my convictions is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise."
-James Madison, Advice to my Country, 1834

Since I have disabused you of the notion that an act of Congress can supercede the Constitution, are you now suggesting that mere “advice” may do so? Or are you only pointing out that Mr. Madison’s views changed as he aged – something noted by many historians? In either case, I will observe that Mr. Madison’s “advice,” expressed over four decades after the Constitution was ratified, is somewhat less relevant than the statements he made prior to and immediately following ratification.

He means you.

Oh – now you’ve hurt my feelings. And I was just getting over Ditto’s statement regarding my constant resort to the words of Thomas Jefferson and James Madison: “Great role models you have --- nothing honorable about them or their cause.”

While I’m moping, perhaps you would you care to discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles of Confederation? No? How about the palpably unconstitutional Alien and Sedition Acts – which were enforced by federal judges? I thought not. What was it, again, that you were saying about "the whole record?" And what were you saying about “cherry picking?

;>)

402 posted on 01/03/2002 4:35:02 PM PST by Who is John Galt?
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To: WhiskeyPapa
What on earth are you pushing? That is NOT what the 10th amendment says.
In any case, consider:
(1) if, because of the Tenth Amendment, the states retain all powers not delegated to the federal government, and
(2) if the federal government has not been delegated the power to prohibit the secession of a state, then
(3) it must follow that each state retains the power to prohibit the secession of a state, and Ohio has the power to prohibit the secession of South Carolina.
What's wrong with that idea?

You do seem to have trouble with the word “reserved,” don’t you? (For someone who quotes so many legal opinions, I would have thought you would have access to a law dictionary. But perhaps such a reference would just restrict your interpretations... ;>) The term describes the action of a party to an agreement, when that party retains something for themselves. Note the language of the Tenth Amendment: “powers” are “reserved,” not delegated, and therefore (as Mr. Madison noted at length in Federalist No. 39) are retained by the States and their people. Finally, it may be news to you, but Ohio never had the independent power to determine the form of government in another State: Ohio could therefore “reserve” no such thing.

'The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.''
United States v. Sprague, 282 U.S. 716, 733 (1931).

What’s your point? I have stated repeatedly that the States reserved the right of secession, and quote ratification documents in support of that argument. And, as we all know, the ratification documents in question predate the Tenth Amendment. Frankly, this quote tends to support my argument (“powers not granted to the United States were reserved”) more than it does yours. Thanks!

''The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.''
United States v. Darby, 312 U.S. 100, 124 (1941).

Thanks again: “all is retained which has not been surrendered!”

Also, from the ACW moderated newsgroup...

Therefore, it is a violation of the Constitution AS A WHOLE, to attempt to withdraw from the binding compact without some just cause. It is in this sense, if in no other, that the right of secession without cause cannot be a right reserved by the States.

Back to the ‘intolerable oppression’ (“just cause”) argument? As Mr. Jefferson and Mr. Madison made abundantly clear, each State as a “party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” The States were to judge regarding “just cause” – and your ‘federal-government-as-sole-judge-of-its-own-abusiveness’ argument is as ludicrous as ever.

They have already given up this right by entering into the Constitution and pledging to support it. Since this is the case, it takes no explicit withdrawal of the right to secede without cause to prohibit the exercise of that right. The Constitution is, itself, the ground upon which the right to secede without cause was killed.

Pardon me if I prefer the writings of the Founders to your “newsgroup” analysis. I must inquire: are you sure the author of this ‘gem’ wasn’t referring to the ‘Articles’ rather than the “Constitution?” Tell us, Walt: why won’t you discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles? Hmm?

No one who fairly considers the whole record will buy off on this legal secession crap, and no one who willfully misquotes the language of the document will be able to sway any but the most hateful.

"The whole record?" That reminds me: wouldn't you agree that no one who willfully ignores two of the most important episodes in constitutional history, while simultaneously bellyaching about “cherry picking” and “the whole record,” looks like anything other than a complete and utter hypocrite? Hmm?

Would you care to discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles of Confederation? No? How about the palpably unconstitutional Alien and Sedition Acts – which were enforced by federal judges? I thought not. What was it, again, that you were saying about "the whole record?" And what were you saying about “cherry picking?”

;>)

403 posted on 01/03/2002 4:43:30 PM PST by Who is John Galt?
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To: Huck
Take care of yourself, my friend. May God bless you, and speed your return to these always volatile (and hopefully not too hostile!) discussions...
404 posted on 01/03/2002 6:47:51 PM PST by Who is John Galt?
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To: Who is John Galt?
Back to the ‘intolerable oppression’ (“just cause”) argument? As Mr. Jefferson and Mr. Madison made abundantly clear, each State as a “party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” The States were to judge regarding “just cause” – and your ‘federal-government-as-sole-judge-of-its-own-abusiveness’ argument is as ludicrous as ever.

You quote Madison when he suits you, and discount him when he does not.

Madison made clear that intolerable abuse -would- be a reason to rend the national compact; all the quotes you provide speak to that situation-- they say and imply nothing about legality. Madison thought that legal, unilateral secession was clearly outside the law, as this letter shows.

In March, 1833, he wrote to William Cabell Rives as follows;

"The nullifiers it appears, endeavor to shelter themselves under a distinction between a delegation and a surrender of powers. But if the powers be attributes of sovereignty & nationality & the grant of them be perpetual, as is necessarily implied, where not otherwise expressed, sovereignty & nationality are effectually transferred by it, and the dispute about the name, is but a battle of words. The practical result is not indeed left to argument or inference. The words of the Constitution are explicit that the Constitution & laws of the U. S. shall be supreme over the Constitution and laws of the several States; supreme in their exposition and execution as well as in their authority. Without a supremacy in those respects it would be like a scabbard in the hands of a soldier without a sword in it. The imagination itself is startled at the idea of twenty four independent expounders of a rule that cannot exist, but in a meaning and operation, the same for all."

"Transferred" is also the word used by Chief Justice Jay in 1793, who wrote:

"Here we see the people acting as the 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 themeselves 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."

It wasn;t until the slave holders saw their power to control the national government slipping away that the these positions were challenged.

Anyone who considers the whole record will not accept your skewed, prejudiced and factually incorrect position.

Your attempts to pervert perception of these events always puts me in mind of what Jefferson said:

"We are all Republicans--we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is free to combat it."

March 4, 1801

An appeal to reason will show your posts for the disinformation campaign that they are.

Walt

405 posted on 01/04/2002 1:23:50 AM PST by WhiskeyPapa
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To: Who is John Galt?
While I’m moping, perhaps you would you care to discuss the secession of the ratifying States from the so-called ‘perpetual union’ formed under the Articles of Confederation? No? How about the palpably unconstitutional Alien and Sedition Acts – which were enforced by federal judges? I thought not. What was it, again, that you were saying about "the whole record?" And what were you saying about “cherry picking?”

"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. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in 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 powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empiure--for some purposes sovereign, for some purposes subordinate."

--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821

You've quoted Justice Story on occasion.

From a newsgroup:

"Although the preamble is not a source of power for any department of the Federal Government, 1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.

2 ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?'' 3

Footnotes

1 Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

2 E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States,

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891).

Yes, cherry picking.

Will you condemn Jefferson Davis for saying the same things as Justice Story?

The Confederate Constitution, he [Davis] pointed out to [Governor] Brown, gave Congress the power "to raise and support armies" and to "provide for the common defense." It also contained another clause (likewise copied from the U.S. Constitution) empowering Congress to make all laws "necessary and proper for carrying into execution the foregoing powers." Brown had denied the constitutionality of conscription because the Constitution did not specifically authorize it. This was good Jeffersonian doctrine, sanctified by generations of southern strict constructionists. But in Hamiltonian language, Davis insisted that the "necessary and proper" clause legitimized conscription. No one could doubt the necessity "when our very existence is threatened by armies vastly superior in numbers." Therefore "the true and only test is to enquire whether the law is intended and calculated to carry out the object...if the answer be in the affirmative, the law is constitutional."

--Battle Cry of Freedom, James McPherson P.433

You've seen this before; I don't recall a single word of condemnation of Davis by you. I don't expect one now. After all, Davis was a slave holder. That gives him a free pass among confederate apologists.

Walt

406 posted on 01/04/2002 1:38:51 AM PST by WhiskeyPapa
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To: Who is John Galt?
The term describes the action of a party to an agreement, when that party retains something for themselves. Note the language of the Tenth Amendment: “powers” are “reserved,” not delegated, and therefore (as Mr. Madison noted at length in Federalist No. 39) are retained by the States and their people.

This is the third time that I know of that you have misrepresented the language of the 10th amendment. It DOES NOT say the "States and their people." It says the states OR the people.

Specifically: "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."

From the moderated ACW newsgroup:

"This does not secure a right of secession. Rather, it precludes it, because it reaffirms that states cannot exercise powers prohibited to them.

Secession amounts to asserting the right to exercise prohibited powers. Therefore, the concept for which the word "secession" stands is clearly forbidden, even though the word itself doesn't appear in the document. How can a state appeal to the Tenth Amendment for support for the notion of legal secession, when that very amendment asserts that it does not give to the states any powers that they are denied elsewhere?

Finally, let me turn briefly to the "Jeffersonian" notion that the Constitution is a compact. If so, who are the parties to the compact? That is not precisely clear. The Preamble suggests that the Constitution is theoretically a compact among the people. The people, however, did not ratify it (but neither did the states, considered as, the term ordinarily meant at the time, "the state governments"). Nevertheless, ratification was by special conventions consisting of delegates chosen by the people of each state severally, and that provides a basis for arguing that the Constitution was a compact among the states. But whether the people were the parties to the compact, or the states were the parties to the compact, was there anything inherent in the nature of a compact to suggest that a party to it was entitled to disregard any of its provisions, or all of its provisions, as it might choose?

And one thing is certainly clear. Whether the people are the parties to the compact, or the states are the parties to the compact, the federal government was not a party to the compact. Therefore, if the federal government can violate the compact, it cannot do so as a party to the compact (because it was not a party). Thus, the argument that a violation of a compact by one party relieves all the other parties to it of their obligations under the compact simply does not apply if the violator is the federal government.

If it be the states are the party to the compact, and if a state is the violator of the compact, what are the implications for other states that have not violated the compact? The Constitution, if a compact involving the states, was not a bilateral agreement. It was a multilateral agreement. Suppose that we decided that Massachusetts had, in some sense, violated the compact by refusing to return a fugitive slave to Virginia. Even if that relieved Virginia of its compact obligation to Massachusetts, did it relieve it of its compact obligation to New York -- or Delaware, or California? The superficial attraction of the "compact" argument disappears when we consider, first, that it is not a principle anywhere enunciated in the Constitution (nowhere does it say that any violation of the Constitution by any of the parties to it, whomever they might be, renders the whole Constitution unenforceable), and second, that it would be extremely difficult to apply in a Union of thirty-three states rather than two."

The record, and common sense shows your argument to be fatally weak. And your habit of continually misrepresenting the languuage of the 10th amendment takes you off the field as a credible player in these discussions.

Walt

407 posted on 01/04/2002 4:26:07 AM PST by WhiskeyPapa
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To: Who is John Galt?
Mr. Madison’s words are clear. And given that I quoted Mr. Madison’s words, and not my own, it would appear that Mr. Madison ‘dragooned’ himself into supporting 'his own interpretation.' If you consider that interpretation “false,” your disagreement is with him.

...."It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by someone who understands the subject."

--James Madison, 12/23/32

I am not in disagreement with Madison; you are.

Walt

408 posted on 01/04/2002 4:30:04 AM PST by WhiskeyPapa
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To: WhiskeyPapa
Two points, Walt:

1. Davis may get a pass depite the fact that he was a slaveholder, not because he was a slaveholder. I have heard no one defend Davis' slaveholding. I have heard people agree with his ideas on the limitations of Federal power, but this is a separate issue from slaveholding. If we are going to denigrate all historical figures that did something wrong, we will be free of all historical figures and we run the risk of throwing the baby out with the bath water. To the day he died, I believe Davis believed in the inherent inferiority of black people (and I condemn him for that), but I still admire his efforts to oppose the Federal usurpation.

2. The issue of the centralization of power in the Confederacy was not an issue for any northerner. This was a debate within the Confederacy. Since Lincoln was claiming to be the government of all who lived in the area of the US as of 1860, the degree of centralization of the Federal government was an issue between all whom Lincoln claimed to rule. More to the point, the "common defense" argument is one thing, but both the US and CS Constitutions task Congress "to raise and support Armies," so Governor Brown was on shaky ground here. Most Federal usurpations before and since The Late Unpleasantness have come from the "necessary and proper" clause of Article I, Section 8, maybe the most abused portion of our Coinstitution. Does Congress really have a legitimate role in dictating how much water goes down the toilet with each flush? Is this really necessary and proper?

Hope this helps.

Respectfully,

D J White

409 posted on 01/04/2002 4:49:39 AM PST by D J White
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To: WhiskeyPapa
Sorry, Walt but this cannot go without comment. Jefferson's statement was addressing the inadivisablity of secession not its inadmissability. He was saying "it is a bad idea", not "it is unconstitutional." There is a difference. This is a mistake that unconditional Unionists make.

Respectfully,

D J White

410 posted on 01/04/2002 5:00:47 AM PST by D J White
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To: D J White
I have heard people agree with his ideas on the limitations of Federal power, but this is a separate issue from slaveholding.

But Davis saw federal power extending over the states. If that is a limit, so be it. Didn't you know that? He held the same ideas that Lincoln did.

"The Confederate Constitution, he [Davis] pointed out to [Governor] Brown, gave Congress the power "to raise and support armies" and to "provide for the common defense." It also contained another clause (likewise copied from the U.S. Constitution) empowering Congress to make all laws "necessary and proper for carrying into execution the foregoing powers." Brown had denied the constitutionality of conscription because the Constitution did not specifically authorize it. This was good Jeffersonian doctrine, sanctified by generations of southern strict constructionists. But in Hamiltonian language, Davis insisted that the "necessary and proper" clause legitimized conscription. No one could doubt the necessity "when our very existance is threatened by armies vastly superior in numbers." Therefore "the true and only test is to enquire whether the law is intended and calculated to carry out the object...if the answer be in the affirmative, the law is constitutional."

--Battle Cry of Freedom, James McPherson P.433

Oviously, if the central government may coerce the states in the issue of conscription, the states are not completely sovereign.

Walt

411 posted on 01/04/2002 5:10:19 AM PST by WhiskeyPapa
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To: WhiskeyPapa
What on earth are you pushing? That is NOT what the 10th amendment says. In any case, consider: (1) if, because of the Tenth Amendment, the states retain all powers not delegated to the federal government, and (2) if the federal government has not been delegated the power to prohibit the secession of a state, then (3) it must follow that each state retains the power to prohibit the secession of a state, and Ohio has the power to prohibit the secession of South Carolina. What's wrong with that idea?

Because States didn’t delegate powers to other States. And States did not attempt to force States back into the Union against their will; the Federal government did, thus usurping an undelegated power.

The people of the several States delegated a specified and limited portion of their sovereignty to the newly created Federal government. Over and over in the States ratification conventions, opponents of the new constitution were concerned that the Federal governments would claim powers beyond what the States specifically delegated. Federalists said this was false, that the only powers that the Federal government could legitimately claim were specifically laid out in the Constitution. All others remained with the States.

Just for the sake of argument, if your hypothesis is correct, then there would have been some move to coerce Rhode Island and North Carolina into the Union after Washington’s inaugural. The first thing Washington probably did was call out the militia and march on Raleigh and Providence and forces these ne’er-do-wells to get back in line. Did this happen? If it did, I’m sure you can produce the appropriate documentation. You were quoting Justice Scalia earlier. Consider also: 'The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.'' United States v. Sprague, 282 U.S. 716, 733 (1931).

You really have to stand this quote on its head to get it to support your contention. What this says is exactly what the Tenth Amendment already says: The Federal government has no legitimate right to exercise any power or authority that is not specifically delegated in the Constitution from the people of the States to the Federal government. Anti-Federalists were concerned that someone in the future might try to assume some powers that were not intended to be granted by the original holders of sovereignty, the people of the States. (Now where would the Anti-Federalists get that idea?), so the Federalists assured them that this would never be the case, and to firm up the commitment, they included the IX and X Amendments.

Respectfully,

D J White

412 posted on 01/04/2002 5:15:27 AM PST by D J White
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To: WhiskeyPapa
"Transferred" is also the word used by Chief Justice Jay in 1793...

But the transfer of portions of sovereignty were expressed and limited, not unlimited, nor was it intended to be necessarilly perpetual. Anyone who considers the whole record will not accept your skewed, prejudiced and factually incorrect position.

Your attempts to pervert perception of these events always puts me in mind of what Jefferson said:

"We are all Republicans--we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is free to combat it." March 4, 1801 An appeal to reason will show your posts for the disinformation campaign that they are.

Let me guess, is John Galt "a hate-filled shill for slavers," too?

Respecfully,

D J White

413 posted on 01/04/2002 5:21:53 AM PST by D J White
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To: WhiskeyPapa
Oviously, if the central government may coerce the states in the issue of conscription, the states are not completely sovereign.

You really are having trouble with this, aren't you? The States are sovereign, except in those specific and limited areas in which they delegate a portion of their sovereignty to the central government (e.g. the power to declare war, coin money, etc.). The US and CS Constitutions both state that Congress shall have the power to raise and support Armies. Ratifying this document gives the central government control over that specific and limited function. It is NOT a complete and universal surrender of all sovereignty, which is what the IX and X Amendments are about.

Respectfully,

D J White

414 posted on 01/04/2002 5:28:50 AM PST by D J White
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To: WhiskeyPapa
Secession amounts to asserting the right to exercise prohibited powers. Therefore, the concept for which the word "secession" stands is clearly forbidden, even though the word itself doesn't appear in the document. How can a state appeal to the Tenth Amendment for support for the notion of legal secession, when that very amendment asserts that it does not give to the states any powers that they are denied elsewhere?

That's because the Constitution does not delegate any powers to the States. It does codify those powers that the States, by ratifying, agreed to cease to exercise. All sovereignty was in the hands of the people of the States to grant or withhold. That's why the Constitution had to be ratified by conventions of the people “for those States so ratifying the same.”

Respectfully,

D J White

415 posted on 01/04/2002 5:37:10 AM PST by D J White
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To: D J White
Because States didn’t delegate powers to other States.

No, those other states reserve the power to themselves to stop the secession of other states. Why not?

Walt

416 posted on 01/04/2002 5:51:54 AM PST by WhiskeyPapa
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To: D J White
Oviously, if the central government may coerce the states in the issue of conscription, the states are not completely sovereign.

You really are having trouble with this, aren't you? The States are sovereign, except in those specific and limited areas in which they delegate a portion of their sovereignty to the central government (e.g. the power to declare war, coin money, etc.).

Then secession is forbidden out of your own mouth.

Walt

417 posted on 01/04/2002 5:54:02 AM PST by WhiskeyPapa
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To: D J White
Let me guess, is John Galt "a hate-filled shill for slavers," too?

As long as he deliberately misrepresents the words of the 10th amendment, the answer has to be yes.

Walt

418 posted on 01/04/2002 6:01:35 AM PST by WhiskeyPapa
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To: WhiskeyPapa
'From the moderated ACW newsgroup: "This does not secure a right of secession. Rather, it precludes it, because it reaffirms that states cannot exercise powers prohibited to them."'

Justice Stevens, joined by Justices Breyer, Ginsberg, and Souter, and with Justice Kennedy in a separate concurrance,  makes it perfectly clear that the states retain the rights they enjoyed prior to ratification - UNLESS that right was delegated to the newly created federal government: 

The "plan of the convention" as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment, draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819).  

This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "[a]n entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle:

 "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."

As we have frequently noted, "[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985)

U.S. Term Limits, Inc. v. Thornton (93-1456), 514 U.S. 779 (1995). 

Justice Thomas, joined by Chief Justice Rehnquist, and Justices O'Conner and Scalia, has this opinion of Amendment X,

When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, §10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, §8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated. In the words of Justice Black, "[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source." Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion) (footnote omitted).  

In each State, the remainder of the people's powers-- "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt.10--are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it.  

All the justices agree that the states possess the powers not delegated to the federal government, and they all agree that the federal governments powers are limited and enumerated.  So what's the difference of opinion here? 

The state's powers (reserved and not enumerated).  The majority believe that only the powers that the states originally possessed were reserved.  The minority believe that all powers not given to the federal government remain in the hands of the states, irregardless of their pre-existance.

So regarding secession, unless the federal government was granted the power of secession, the power was never transferred.  It's certainly not a delegated power.  So that begs the question, did the power to secede from a government ever exist for the states to exercise?  Considering that the states had just fought a war to secure that right, and then peacefully exercised that right when they seceded from the Articles of Confederation, there cannot be any doubt.

I'd skip relying on opinions from newsgroups, moderated or not. The opinion of the poster is contrary to that of Chief Justice Marshall, Chief Justice Rehnquist, and others.

419 posted on 01/04/2002 6:58:48 AM PST by 4CJ
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To: 4ConservativeJustices
Justice Stevens, joined by Justices Breyer, Ginsberg, and Souter, and with Justice Kennedy in a separate concurrance, makes it perfectly clear that the states retain the rights they enjoyed prior to ratification - UNLESS that right was delegated to the newly created federal government:

Then you must also give credence to Chief Justice Marshall.

"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 approprate, 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 shal 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 Constittutional Law" A.T. Mason, et al. ed. 1983 p. 165

And:

"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. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in 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 powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of 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."

--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821

I don't see how you can quote justices now--and ignore justices from the past;.

I don't ever even quote Texas v. White on the basis that it post ACW. I don't think you should either.

Walt

420 posted on 01/04/2002 7:14:38 AM PST by WhiskeyPapa
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