Indeed? The "dissolution" of the Articles of Confederation which resulted from the ratification of the Constitution produced a “dissolution” of the union: the delegates to the New York State convention (for one) recognized that fact, and it is impossible to draw any other conclusion from the results. Rhode Island existed as an independent State for the bettter part of two years before belatedly ratifying. Would you suggest that the union remained intact during that period, when the ratifying States were bound by the new Constitution, but the non-ratifying States were not? An interesting concept of ‘union,’ if so...
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.
It may be worth remembering that the States had just seceded from a union formed under a compact (the Articles) that described itself, in writing, as “perpetual.” (And it may be worthy of note that the first compact required the unanimous consent of the parties – the States - before said compact could be modified, which is something the terms of the new Constitution ignored completely.) The new constitutional compact made no explicit claims regarding 'pepetuity,' and many ratification documents indicate that the people of the States were well aware of the potential for a 'less-than-perpetual' union under the new compact, and reserved to themselves, in writing, the right to reassume the powers of government whenever they should so desire.
One other point worth considering: the secession of nine out of thirteen States from the union formed under the Articles was apparently sufficiently traumatic to produce the “dissolution” of that union. The secession of a single State from a union of thirteen (or fifty) would hardly produce the same result.
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.
Nine States, out of thirteen, had previously substituted one compact for another, preserving (as they did) “free Government.” It can hardly be said that the Southern States accomplished any less, given that the Constitution of the Confederate States of America was almost a word-for-word copy of the U.S. Constitution. And the secession of the Southern States in no way required the “dissolution” of the ‘rump’ union remaining in the North, which was (as I previously noted) the practical effect of constitutional ratification.
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?
I believe Mr. Madison noted in The Federalist Papers that the violation of a compact by one party was grounds for the abrogation of the compact by the other parties. But perhaps we should simply refer to Mr. Jefferson’s Kentucky Resolutions, which post-date the ratification of the Constitution, and were written with full knowledge of the Constitution including the Bill of Rights:
Resolved, That the several States composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Mr. Jefferson declares that each State “has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” (Later in the Resolutions, he cites the Tenth Amendment as grounds for State action – Resolved, The it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, 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" - more on this below.) The Southern States ‘judged for themselves,’ and determined that secession was the appropriate “mode and measure of redress.”
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.
And if the compact itself reserves all undelegated and unprohibited rights (including, obviously, secession, which is nowhere “delegated” nor “prohibited” by the U.S. Constitution) to the States and the people of the States, how can the exercise of rights guaranteed by the Constitution itself be described as an effort by the parties to “remove” themselves from its obligations? Mr. Jefferson cited the specific reservation of rights embodied in the Tenth Amendment as justification, and stated specifically that the States shall determine for themselves “as well of infractions as of the mode and measure of redress.”
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?)
Mr. Jefferson apparently believed that the States, as parties to the compact, were free to judge for themselves regarding "necessary and proper" means. Not so the federal government, which was a creature of the compact rather than a party to it. Perhaps we should refer to Mr. Madison’s comments regarding other constitutional clauses which have been ‘inflated’ beyond a “plain” reading of the text, and beyond the Founders intent (pardon the length of the quote – it all appeared applicable):
The other questions presenting themselves are, 1. Whether indications have appeared of a design to expound certain general phrases, copied from the "Articles of Confederation," so as to destroy the effect of the particular enumeration explaining and limiting their meaning; 2. Whether this exposition would, by degrees, consolidate the states into one sovereignty; 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.
1. The general phrases here meant must be those "of providing for the common defence and general welfare."
In the "Articles of Confederation," the phrases are used as follows, in Art. VIII.: "All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to or surveyed for any person, as such land, and the buildings and improvements thereon, shall be estimated, according to such mode as the United States in Congress assembled shall, from time to time, direct and appoint." In the existing Constitution, they make the following part of sect. 8: "The Congress shall have power to lay and collect taxes, duties, imposts, and excises; to pay the debts, and provide for the common defence and general welfare, of the United States."
This similarity in the use of these phrases, in the two great federal charters, might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former they were ever understood to be either a general grant of power, or to authorize the requisition or application of money, by the old Congress, to the common defence and general welfare, except in cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodeled by the present Constitution, it can never be supposed that, when copied into this Constitution, a different meaning ought to be attached to them.
That, notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases, in the Constitution, so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature, in which arguments have, on different occasions, been drawn, with apparent effect, from these phrases, in their indefinite meaning...
Now, whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some, or every measure only in which there might be an application of money, as suggested by the caution of others,--the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follows these general phrases in the Constitution; for it is evident that there is not a single power whatever which may not have some reference to the common defence or the general welfare [or be deemed by the government to be “necessary and proper”]; nor a power of any magnitude which, in its exercise, does not involve, or admit, an application of money. The government, therefore, which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and, consequently, the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power over the "general welfare," by referring it to cases where the general welfare is beyond the reach of the separate provisions by the individual states, and leaving to these their jurisdiction in cases to which their separate provisions may be competent; for, as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare, which might, by any possibility, be provided for by the general authority. This qualifying construction, therefore, would have little, if any, tendency to circumscribe the power claimed under the latitude of the term "general welfare." The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defence and general welfare. In both is subjoined to this authority an enumeration of the eases to which their powers shall extend. Money cannot be applied to the general welfare, otherwise than by an application of it to some particular measure, conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it. If it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by, the clause in the Constitution which declares that "no money shall be drawn from the treasury but inconsequence of appropriations made by law." An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction.
2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the states into one sovereignty, is a question concerning which the committee can perceive little room for difference of opinion. To consolidate the states into one sovereignty, nothing more can be wanted than to supersede their respective sovereignties, in the cases reserved to them, by extending the sovereignty of the United States to all cases of the "general welfare" [or anything deemed “necessary and proper]---that is to say, to all cases whatever.
3. That the obvious tendency, and inevitable result, of a consolidation of the states into one sovereignty, would be to transform the republican system of the United States into a monarchy, is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of discussion relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested.
In other words, the “common defense and general welfare” clause does not constitute a federal ‘license to kill’ – and neither does the phrase “necessary and proper.” “(W)hat could he mean by ‘necessary and proper’ means?” With regard to the federal government, apparently nothing beyond the powers ‘plainly’ delegated to the federal government by the Constitution, and clearly “enumerated” therein. And the Constitution nowhere ‘plainly’ delegates authority to the general government to prevent secession, nor does it ‘enumerate’ any prohibition of secession with regard to the States.
They are "assisting in interpretation." A far cry from exiting and re-writing.
Your statement assumes that the Constitution prohibits secession, rather than reserving that right to the people of the States and their respective State governments. An interesting assumption, given the language of the Tenth Amendment.
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.
What were you saying about the “dissolution of the union” versus the “dissolution of the Constitutional Compact?” You seem to be confusing the two with regards to ‘preservation.’ Many public servants take an oath to ‘preserve, protect, and defend the Constitution:’ they do not swear to preserve the “union.” And, if the Constitution itself reserves the right of secession to the States and their people (as the Tenth Amendment suggests, and as many 19th century secessionists claimed), to ‘preserve’ the union by force could very well be considered a violation of the Constitution itself...
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.
You are certainly free to reach your own conclusions. The fact remains: the Constitution nowhere ‘plainly’ prohibits secession – but it does quite ‘plainly’ reserve all powers “not delegated...nor prohibited” to the States and their people. As for Mr. Webster, I will leave you with the following:
”Opposition to [the federal military draft] bills in the House of Representatives was led by none other than Daniel Webster, who argued that any federal draft under the army clause impermissibly evaded the constitutional limitations on federal use of the militia. The plan was an illegitimate attempt to raise ‘a standing army out of the militia by draft’...Webster closed with an invocation of the libertarian localism of the Virginia and Kentucky Resolutions, and a quotation of the ‘Right of Revolution’ clause of the New Hampshire Constitution:
“‘It will be the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State Governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people...[My constituents and I] live under a constitution which teaches us that ‘the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.’ “
I am reminded of the extensive debate in The Federalist Papers, in which even the most ardent federalists apparently admitted the right of the States to oppose federal tyranny with armed force. Tell us: would you consider combat between State militia and federal troops over the issue of ‘intolerable oppression’ to be "an improper violation of the compact?" And would such military action be more or less “improper” than peaceful secession? And, finally, do you think the Founders would agree with your conclusions?
Thank you for your time...
Nothing 'improper' about it, but it isn't 'legal' and isn’t supported by the Constitution. It's called a rebellion, and the Founders would have approved in the case of oppression but they would not try to worm some lame Johnny Cochran legalism around it. It was rebellion and that is an honorable course if there is an honorable cause. The South did not have an honorable cause.
Now tell us: exactly what 'intolerable oppression' the Federal government imposed on the south in 1860 that justified rebellion? Seems to me that the Feds did everything but kiss their ass. The arrogant slave holding aristocrats couldn't be appeased regardless of what the Federal government did short of dictating slavery nation-wide. That, after all, is what the radical south slavocracy wanted --- slavery from sea to shining sea. Great role models you have --- nothing honorable about them or their cause.
I wish I had more of it. In fact, I wish we could sit face to face, hoisting a few frothy mugs, with all the necessary books at our disposal, where we could debate this ad infinitum. Unfortunately, time is something I don't have to spare on this, as my recent posting habits should demonstrate. I wonder how many men with ample leisure time to spare spend it on so worthy a cause? One can only guess.
In the meantime, you serve your country well by bringing ideas to the table for vigorous debate. I am extremely busy at work, and occupied at home, and so will probably not be able to really get into this debate. Perhaps some other time. You should know I am intellectually inclined to continue, and am constituionally (pun-intended) not inclined to withdraw, but withdraw I must. Be well.