Perspective: Die-hard Confederates should be reconstructed

The South's unconditional surrender in 1865 apparently was unacceptable to today's Neo-Confederates.

They'd like to rewrite history, demonizing Abraham Lincoln and the federal government that forced them to remain in the awful United States against their will.

On top of that, now they are opposing the U.S. Navy's plan to bury the crew of the CSS H.L. Hunley under the American flag next year.

The Hunley was the first submarine to sink an enemy vessel. In 1863, it rammed and fatally damaged the Union warship USS Housatonic with a fixed torpedo, but then the manually driven sub sank on its way home, killing its eight-man crew.

It might have been a lucky shot from the Housatonic, leaks caused by the torpedo explosion, an accidental strike by another Union ship, malfunction of its snorkel valves, damage to its steering planes or getting stuck in the mud.

In any case, the Navy found and raised its remains and plans a full-dress military funeral and burial service on April 17, 2004, in Charleston, S.C. The four-mile funeral procession is expected to draw 10,000 to 20,000 people, many in period costume or Confederate battle dress.

But the Sons of Confederate Veterans, generally a moderate group that works diligently to preserve Southern history and heritage, has a radical wing that is salivating with anger.

One Texas Confederate has drawn 1,600 signatures on a petition saying "the flag of their eternal enemy, the United States of America," must not fly over the Hunley crew's funeral.

After all, the search and preservation of the Hunley artifacts, as well as the funeral itself, were paid for by U.S. taxpayers.

Also, the Hunley crew was born under the Stars and Stripes. The Confederacy was never an internationally recognized nation, so the crewmen also died as citizens of the United States.

This whole issue is an insult to all Southerners who fought under the U.S. flag before and since the Civil War.

They are also opposing the placement of a statue of Abraham Lincoln in Richmond, Va., the Confederate capital.

According to an article by Bob Moser and published in the Southern Poverty Law Center's magazine "Intelligence Report," which monitors right-wing and hate groups, the U.S. Historical Society announced it was donating a statue of Lincoln to Richmond.

Lincoln visited that city in April 1865 to begin healing the wounds caused by the war.

The proposed life-sized statue has Lincoln resting on a bench, looking sad, his arm around his 12-year-old son, Tad. The base of the statue has a quote from his second inaugural address.

However, the League of the South and the Sons of Confederate Veterans raised a stink, calling Lincoln a tyrant and war criminal. Neo-Confederates are trying to make Lincoln "a figure few history students would recognize: a racist dictator who trashed the Constitution and turned the USA into an imperialist welfare state," Moser's article says.

White supremacist groups have jumped onto the bandwagon. Their motto is "Taking America back starts with taking Lincoln down."

Actually, if it weren't for the forgiving nature of Lincoln, Richmond would be a smoking hole in the ground and hundreds of Confederate leaders -- including Jefferson Davis -- would be hanging from trees from Fredericksburg, Va., to Atlanta.

Robert E. Lee said, "I surrendered as much to Lincoln's goodness as I did to Grant's armies."

Revisionist history to suit a political agenda is as intellectually abhorrent as whitewashing slavery itself. It's racism under a different flag. While it's not a criminal offense, it is a crime against truth and history.

I'm not talking about re-enactors here. These folks just want to live history. But the Neo-Confederate movement is a disguised attempt to change history.

In the end, the Confederacy was out-fought, out-lasted, eventually out-generaled and totally over-matched. It was a criminal idea to start with, and its success would have changed the course of modern history for the worse.

So I hope that all Neo-Confederates -- 140 years after the fact -- can finally get out of their racist, twisted, angry time machine and join us here in 2003.

WIJG: "Was the ‘supersession’ (your term ;>) of the Articles a power delegated to Congress under the specific written terms of the Articles? (If so, then by what specific clause?) Or was it a ‘power retained by the States?’ Or was ‘supersession’ of the Articles a ‘revolutionary act,’ as you imply by quoting the Declaration of Independence?"

c_r: ... The first words of the new Constitution cite its authority, "We the people." The Framers of the Constitution did not need to find any authorization, sanction, endorsement, or justification from the Articles they proposed to replace.

It appears that you view the ‘supersession’ of the Articles as an act not authorized by that compact. Do you think it would be better characterized as a ‘coup’ (given that the government participated ;>) or a ‘revolution?’ Frankly, I believe ‘the formal withdrawal of the ratifying States from the union formed under the Articles’ is the best and most factually consistent characterization.

;>)

WIJG: "... ‘pigheaded’ ..."

c_r: Bullheaded. I think I am more headstrong than obstinate.

I stand corrected.

I think the definition I posted earlier for "implied power" connotes necessity:
Implied power - a political power that is not enumerated but nonetheless exists because it is needed to carry out an express power.

The definition you provide does indeed connote necessity. Unfortunately, your application of the definition to ‘implied powers’ rather than ‘necessarily implied powers’ is largely inconsistent with historical usage, and thus ‘unnecessarily’ confusing.

;>)

You misunderstand, or misinterpret, my position. I made no argument that "pepetual" "prevented the departure of even a single state." I several times mentioned the concept of "concent" of the other states (which is mentioned in Texas v White.
Let me simplify my position so you can better understand it: A state cannot lawfully leave the Union on its own volition.

Thank you for the clarification.

Since you have suggested that secession was unconstitutional, except with the “consent of the States,” permit me a few simple questions:

1) Which clause of the Articles contains the requirement that “[a] state cannot lawfully leave the Union on its own volition?” Please remember the terms of Article II – and remember also that the “consent of the States” loophole contradicts the plain meaning of the term “perpetual.”

2) Which clause of the Constitution contains the requirement that “[a] state cannot lawfully leave the Union on its own volition?” Please consider the omission of all language regarding a supposedly “perpetual” union, your suggestion that the Articles had been ‘superceded’ rather than simply ‘altered,’ and the specific terms of the Tenth Amendment. Remember also that the dubious decision in Texas v. White was not ‘on the books’ until after the war, and so can hardly be considered a restraint upon the secession of the Southern States in 1860-61.

3) Or are you referring to some kind of ‘unwritten law?’ Or any law at all?

WIJG: "In fact, Congress ‘expressly’ authorized only “alterations” to the Articles, not the ‘supersession’ that you claim. And any “alterations” proposed as a result of the Congressional authorization in question would have remained subject to a subsequent ‘veto’ by the State of Rhode Island, under the specific terms of Article XIII."

c_r: I never claimed the Congress authorized the replacement of the Articles, prior to the Convention.

Actually, you claimed that “[t]he people of the states that had not ratified were free to choose their own path, by the consent of the other states.” And in an attempt to suggest that “the other States” – including Rhode Island – had consented to such a ‘supersession’ of the Articles, you claimed that “Rhode Island was a member of the Congress of the Confederation that authorized the Philadelphia Convention,” and “[t]hat [the fact that] Rhode Island did not attend [the constitutional convention], makes no material difference.”

In fact, Rhode Island apparently never offered such approval. But that may no longer be a critical issue, given your admission that the authority for the ‘supersession’ of the Articles appears to have been derived from a source other than the compact, or even the member-States of that compact. ‘Supersession,’ as you describe it, appears to have been a ‘revolutionary’ rather than ‘legal’ act.

I think I have been pretty consistent in my position that the Constitution of 1787 was not an alteration of the Articles of Confederation. It was a replacement. It superceded the Articles. You fail to recognize the obvious.

What I fail to recognize is the concept of a “perpetual” union with supposedly binding legal authority, but no apparent basis in written law. You suggest that unilateral secession somehow violated the terms of the Articles. But when asked to provide a basis for that claim, you cite the “perpetual” union language – which apparently, by your argument, applied only to single States, or small groups of States, but not to larger groups of States, and somehow permitted ‘supersession’ but not ‘secession.’ Or you cite a “consent of the States” requirement that is not even present, and also apparently contradicts the meaning of the term “perpetual.”

You also suggest that unilateral secession somehow violated the terms of the Constitution. You cite Texas v. White, which post-dates the war. The opinion refers to the “perpetual” union language of the ‘superseded’ (rather than ‘altered’ ;>) Articles and a “consent of the States” requirement which appears in neither the Articles nor the Constitution. You also claim an implied power to regulate membership in the constitutional union, even though the power to use military force to prevent secession is nowhere necessarily implied. You even cite the Preamble – apparently preferring the “more perfect union” language to the “domestic tranquility” language.

In a single post (#628) you claim that Congress might somehow have specified a process of secession; that the requirements regarding ‘altering’ the Constitution also apply to secession; that the supposedly ‘indestructible’ and ‘indissoluble’ Union described by Mr. Justice Chase could indeed be ‘dissolved;’ that a simple federal court ruling, without the “consent of the States,’ might have been sufficient to authorize secession; that a seceding State might ‘buy’ its way “out” of the union; and even that a “treaty-like agreement” (which I would have thought might be prohibited by the terms of the Constitution ;>) between the seceding State[s] and “the remainder of the Union” might legitimize secession.

As I noted previously, you’ve been ‘all over the map’ on some issues. Pardon me if I’m somewhat uncertain what it is you are really attempting to argue.

Given some of your recent comments, however, perhaps you are simply suggesting that the government “did not need to find any authorization, sanction, endorsement, or justification from the Articles” or Constitution to prohibit secession (unless the people of some magical number of individual States - apparently specified by some ‘unwritten law’ - should suggest otherwise... ;>).

Can you provide a contemporary (c. 1787-1790) source for your claim that states seceded from the Articles (or seceded from the government under the Articles? or from the Union governed by the Articles?) I don't think anybody viewed the transition in those terms.

It is “implicit” in the records of the ratification debates. A quick example: I have previously posted the following excerpts (in which Mr. Iredell of North Carolina discusses the arguments of his opponents):

Mr. IREDELL. It has been suggested, not only out of doors, but during the course of the debates, that, if we are out of the Union, it will be the fault of other states, and not ours. It is true that, by the Articles of Confederation, the consent of each state was necessary for any alteration. It is also true that the consent of nine states renders the Constitution binding on them... It is suggested, indeed, that, though ten states have adopted this new Constitution, yet, as they had no right to dissolve the old Articles of Confederation, these still subsist, and the old Union remains, of which we are a part...

It is obvious that some, at least, believed that unanimous consent was required under the terms of Article XIII; that the new Constitution was “binding” only between the ratifying States; and that “the old Union” remained, composed of non-ratifying States. That is certainly a description of ‘the secession of the ratifying States from the union formed under the Articles.’

(You may find the following of interest as well, with regard to an issue previously discussed:

Mr. JAMES GALLOWAY. [The delegates in Philadelphia] had given them certain powers... As they have gone out of the line which the states pointed out to them, we, the people, are to take it up and consider it. The gentlemen who framed it have exceeded their powers, and very far. They will be able, perhaps, to give reasons for so doing. If they can show us any reasons, we will, no doubt, take notice of them. But, on the other hand, if our civil and religious liberties are not secured, and proper checks provided, we have the power in our own hands to do with it as we think proper.

The matter of authorization was apparently an issue as well... ;>)

An equation looking for a problem to solve. Your premise is flawed. The establishment of the new constitution by the people was not a process over which the Articles held sway.

I’m sorry: I had assumed that you were arguing that “the establishment of the new constitution by the people” was a lawful act. I did not know that you were appealing to the ‘right of revolution’...

;>)

"In fact, Rhode Island apparently never offered such approval. But that may no longer be a critical issue, given your admission that the authority for the ‘supersession’ of the Articles appears to have been derived from a source other than the compact, or even the member-States of that compact. ‘Supersession,’ as you describe it, appears to have been a ‘revolutionary’ rather than ‘legal’ act."

Allow me, if I may, to give you this excerpt authored by Jack N. Rakove. Rakove is a Professor of History at Stanford University and won the 1997 Pulitzer Prize for his book Original Meanings: Politics and Ideas in the Making of the Constitution. He is also the author of several other volumes on Madison and the development of the Constitution.

"The framers were expected to present the results of the convention's work to the Confederation Congress, which presumably would submit the Constitution to the states for approval. Under the Articles of Confederation, all thirteen legislatures had to accept any amendments; but one of those states, Rhode Island, had not even sent a delegation to Philadelphia. Nor were the framers at all confident that the other twelve states, as net losers of power, would comply with so radical a restructuring of the Union and sanction the Constitution.

"Obviously, the rule of unanimity had to go. But even if the Constitution won approval, how was its supremacy over state constitutions to be confirmed? Now Madison, James Wilson and other nationalists invoked the Massachusetts discovery, which became a guiding rule of American constitutionalism. They asked Congress to suggest that the state legislatures lay the proposed Constitution before special, popularly elected ratification conventions. Approval by these conventions would establish grounds for making the Constitution the supreme and fundamental law of the land. Ratification by the people would create a Constitution superior in authority to the constitutions and laws of the states and would give the federal government a persuasive argument for countermanding state measures that ran contrary to national law. Popular ratification would also convey this benefit within the national government. Each of the three federal branches--particularly the weaker executive and the judiciary--would have a rationale for opposing the "encroachments" of the others, especially Congress's.

"The possibility, however, that a powerful national government would run roughshod over the states alarmed anti-Federalists, who opposed the Constitution. One of the most vociferous, Maryland Attorney General Luther Martin, left the convention early to organize opposition to the new government. In his view, and those of many states' rights advocates since, no national constitution can abridge the immutable sovereignty of the Union's original members--the states. This tension between national supremacy and state sovereignty has been a continuing part of America's constitutional tradition. It dominated constitutional discourse for much of the 19th century, and has been revived periodically in the 20th, and is a preoccupation of the current Supreme Court and many members of Congress."

"It appears that you view the ‘supersession’ of the Articles as an act not authorized by that compact. Do you think it would be better characterized as a ‘coup’ (given that the government participated ;>) or a ‘revolution?’ Frankly, I believe ‘the formal withdrawal of the ratifying States from the union formed under the Articles’ is the best and most factually consistent characterization.

The ratification of the proposed Constitution was an act of the People, rather than the governments of the several states. An alteration of the Articles required the unanimous approval of the legislatures of the states.

The Constitution of 1787 was authorized by a sovereign people; hence, it is supreme to the Articles of Confederation. It was the will of the people to preserve the Union, rather than let it die in chaos. To invoke, as you do, a "requirement" for unanimous consent to the Constitution (else some parties either were expelled, seceded, or withdrew from the Union), based on an Articles process, indicates a fundamental misunderstanding of both history and process.

Your characterization of the transition from government under a framework provided in the Articles, to government under a framework provided in the Constitution, as "formal withdrawal of the ratifying States from the union formed under the Articles" lacks substantiation. Have you provided any documentation to show either "formality" or "withdrawal?" The "union" existed prior to the ratification of Articles in 1777-1781 and after the ratification of the Constitution in 1788-1790.

I know that several authors have termed the development of the Constitution "revolutionary." Prof. Berkin in her recent book has even likened the process to a "bloodless coup." I view the progression of the formation and development of a "national" goverment as a work in progress. Many of those involved in the Declaration were also part of the debate on the Articles. Many of those who served in government under the Articles were involved in the development of the Constitution. And those who debated the necessity of the new Constitution also debated the rationale for a "Bill of Rights." Therein exists a continuity of purpose. That purpose was to "perfect" the union and to guarantee all Americans their fundamental, God-given rights and liberties. Whether or not Rhode Island political situation permitted participated in Constitutional Convention is a matter of little importance. That North Carolina adjourned its first ratification convention without a vote, but with suggestions for amendments, is only fodder for trivia.

It is transparent that the goal of those who believe southern secession in the 1860's was a valid exercise of power, will seek to show other historical actions in a secessionist light. However, the weakness of the secessionist argument is plain to see, and the paucity of documentation is even more revealing.

This is from an essay by Prof. Jeffrey Sikkenga, Ashland University. I don't believe I have read anything else by him, but I thought you would enjoy it, given that our views on a so-called "living constitution" are similar:

Constitutional Interpretation

Even though most Americans know little about the Supreme Court, they generally understand that it is important. After all, the Supreme Court is regarded as the final interpreter of the Constitution. Barring amendment, Supreme Court decisions on the Constitutionality of abortion, flag burning, and gun control are the law of the land -- no matter what Congress, the president, or the states have to say.

However, the Constitution does not explicitly bestow this final authority on the Supreme Court. Rather, Article III gives the Court "the judicial power," which means the power to decide legal cases that come before it.

When the Supreme Court hears a case, the Justices must decide which of the two parties at odds wins. Usually they decide who is victorious based on whether someone has been harmed by a government law or action that is contrary to the Constitution. If a person has been harmed by an unconstitutional law or action, he wins -- because any law or action contrary to the Constitution is void. But how can a Justice determine if a law or action is unconstitutional?

Of course, all Justices begin with the Constitutional text. If a law clearly violates some obvious provision of the Constitution, the law is void. But in some cases, it is not clear whether a law violates the Constitution because it is not clear what the Constitution means. For example, the Fourth Amendment prohibits "unreasonable" searches and seizures while the Fifth Amendment forbids depriving someone of "liberty" without due process of law. "Unreasonable?" "Liberty?" How does a Justice know what these words mean?

The "Living Constitution"

At this point, a Justice must interpret the text. There are two basic approaches to Constitutional interpretation. The first is often referred to as the "living Constitution" approach. It is rooted in the belief that the Constitution has to "keep up with the times," that the text must be interpreted in light of society’s changing values.

Perhaps the best-known advocate of this approach was William Brennan, one of the most famous liberals on the Court in the last 25 years. In one example of his "living Constitution" approach, Justice Brennan went so far as to argue that the death penalty "is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments." He said this even though the death penalty has been around since the Founding and even though, for example, the Fifth Amendment specifically requires a grand jury indictment for any "capital" crime. Despite the historical and textual indications that capital punishment is Constitutional, Justice Brennan claims that our values have progressed so much that we no longer should be guided by outmoded ways of Constitutional thinking. In his view, a Justice should decide based on his "enlightened" understanding of society’s changing values rather than on the plain indications of the text.

Original Intent

Fortunately, a number of Justices are reluctant to substitute their personal opinions for the Constitutional text. These Justices use a second approach to understand the meaning of the Constitution; they look to the "original intent" of the Constitution. The most prominent branch of this approach is often called the "text and tradition" method of interpretation, and is favored by conservative Justices like William Rehnquist and Antonin Scalia. To understand the word "liberty," for example, they say that Justices should examine how the word was used in the Founders’ writings and in the tradition of laws dating back to the Founding.

While this approach has the great benefit of making the Justices defer to well-established legal and Constitutional traditions, it also has some problems. What if, for example, the Founders’ writings seem unclear or contradictory on some issue? How then can a Justice follow their intentions?

More importantly, what if aspects of our legal tradition seem unjust? For example, in 1967 the Supreme Court had to decide whether a Virginia law prohibiting marriage between blacks and whites violated the Constitution. The Justices had to resolve this question: Is it part of our Constitutional "liberty" to marry a person of another race if we so choose? Since the Founders’ written views on this subject are not clear and since there was a long tradition of laws prohibiting such marriages, a "text and tradition" judge would have to conclude that such laws do not violate the original intent of the Framers and therefore are constitutional.

Natural Law

This is where Justice Thomas comes in. He represents a vital but almost forgotten branch of original intent jurisprudence -- the "natural law" approach. He agrees that Justices should give great deference to legal tradition and that they must follow the original intent of the Constitution. Unlike Rehnquist or Scalia, however, he claims that the Framers’ original intent is not so much located in particular writings like The Federalist Papers or in laws dating back to the Founding, but above all in the document that gave birth to our country: the Declaration of Independence.

In his view, "the ’original intention’ of the Constitution" is to fulfill "the ideals of the Declaration of Independence." As we know, the Constitution was originally intended to replace the Articles of Confederation and create "a more perfect Union." For the Founders, "a more perfect Union" meant a Union that more perfectly embraced the principles for which they risked their "Lives," "Fortunes," and "sacred Honor" in the Revolutionary War. As Justice Thomas points out, these principles are the "ideals of the Declaration of Independence." Hence he draws the reasonable conclusion that to understand the original intent of the Constitution, we must first understand the principles of the Declaration.

According to the Declaration, America’s basic moral and political principles are found in "the laws of Nature and of Nature’s God." Justice Thomas would argue, for example, that a member of the Supreme Court can only discern whether the Constitution’s guarantee of "liberty" overrides laws preventing interracial marriage by understanding the nature of the liberty given to every person by natural law -- what the Declaration calls the "unalienable" right to liberty with which all people, regardless of race, "are endowed by their Creator." He consistently has argued that because our rights come from our nature and not our race, the law should not classify people or forbid actions based on race. (Hence Justice Thomas believes that both anti-interracial marriage laws and affirmative action programs violate the "colorblind" spirit of the Constitution.)

This approach to Constitutional interpretation places a high duty on the Supreme Court Justices -- they must not only be lawyers thoroughly versed in case law, but also students of the natural law (or at least students of the best teachers of the natural law). They must do more than examine legal traditions or writings of the Founders; they must carefully use their God-given reason to comprehend and apply the "self-evident" truths that form the basis of the Constitutional text they are called to interpret.

To many of us, Justice Thomas’ view seems like good common sense -- the Declaration declares our fundamental principles and the Constitution forms a government designed to put those principles into practice. But his approach is ridiculed or denigrated by many of today’s self-appointed guardians of law, including some of America’s most prominent lawyers, judges, and law school professors. They call him "naive" or even "dangerous." Fortunately, though, the natural law approach has held a high place in American jurisprudence. Thomas Jefferson and James Madison agreed, for example, that the best guide to the Constitution is the Declaration of Independence and its philosophy of natural rights. This view was common at the Founding; so common, in fact, that early Supreme Court decisions, like Calder v. Bull (1798), claimed that even laws "not expressly restrained by the Constitution" should be struck down if they violate natural rights. Nor was this view limited to the Founding era. Before and during the Civil War, for example, Abraham Lincoln repeatedly appealed to the legal authority of the Declaration in his fight against slavery.

In the end, let us hope that Justice Thomas will be remembered for leading a revival of America’s tradition of natural law on the Supreme Court on the Supreme Court. This would be a great service to our Republic, for it has the power to restore the Court’s understanding of the original meaning of the Constitution. It is up to us, however, to rise to the challenge he sets for America’s citizens -- to revive in our own hearts and minds a true understanding of the deepest principles of the Constitution and Declaration of Independence. For only then can we ensure that America’s experiment in "government of the people, by the people, and for the people" will be passed on to future generations. Only then can we be sure that we will not forget the principles for which so many have fought and died -- the principles that make us Americans.

In Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, West Publishing Co., 1991 (1357pp) the case of Texas v. White is not in the Table of Cases. The case fails to rise to the status of a footnote.

In Lincoln's Constitution, Daniel Farber, University of Chicago Press, 2003, (240pp), the case of Texas v. White is cited as a footnote on page 87, and the footnote is at page 216. I quote the relevant material here:

We can therefore focus on the narrow question of whether the act of ratification by an individual state is revocable. The text of the constitution does not speak explicitly to this point. Lincoln relied on the language of the Preamble establishing a "more perfect Union." When it considered the legality of secession after the Civil War, the Supreme Court also relied on this language. The Articles of Confederation claimed "to be perpetual," and a more temporary union could hardly be considered more perfect than a permanent one. This argument does have some support in ordinary usage. We would not be likely to say that a new welding method created a "more perfect Union" between two pieces of pipe if it was permanent than the existing method. Furthermore, the "perfect Union" phrase can be traced back to the 1707 union between England and Scotland, which was clearly viewed as permanent.³⁶
[pp. 86-7]
[36] See Texas v. White 74 U.S. 700, 725 (1868)

In American Constitutional Law,, Third Edition, Volume One, Laurence H. Tribe, 2000, (1470pp) the case of Texas v. White is in a footnote of an interesting review of some history of Constitutional law appearing at pp. 862-3.

Early Tenth Amendment jurisprudence
* * *
Hammer and Bailey depended on nothing more than the principle of limited enumerated powers. Collector and Ashton, on the other hand, were grounded in a broad theory of "dual federalism" that held sway during the period from the 1870's to the mid-1930's.¹³ The idea was that "the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres."¹⁴ The federal government, of this theory, could no more intrude in the state's sphere than the states could intrude in the federal government's sphere.¹⁵
Decline of "states' rights" judicial review.
The Supreme Court's jurisprudence in 1937 and immediately thereafter interred both these lines of cases, and in the process undercut both the theory of narrowly enumerated powers and the premise of "dual federalism." As to the application of the Tenth Amendment in Hammer and Bailey, the Court's broad reading of the commerce power essentially sealed the fate of that amendment as an independent source of states' rights; since Hammer and Bailey treated the tenth Amendment as covering only that which was not expressly enumerated, the expansion of the commerce power to encompass a much wider definition of "commerce" and to include that which was impliedly as well as expressly enumerated necessarily entailed the radical reduction of the Tenth Amendment's constraints.¹⁶ Separately, but relatedly, the Court recast the relationship between the federal government and the states, abandoning the idea that the two levels of government occupied independent, inviolable, and fully co-equal spheres.¹⁷ Part and parcel of this development was the Court's effective overruling of Ashton in United States v. Bekins¹⁸ and its explicit overruling of Collector in Graves v. New York.¹⁹ Justice Stone delivered what seemed to be the coupe de grace for the late nineteenth-century reading of the Tenth Amendment in the 1941 case of United States v. Darby: the Tenth Amendment, he wrote for the Court, "states but a truism that all is retained which has not been surrendered."²⁰

[13] This approach is discussed more fully in Chapters 7 and 8, infra.
[14] Ableman v. Booth, 62 U.S. (21 How.) 506, 516 (1859); see also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Edward S. Corwin, The Commerce Power Versus States Rights 135 (1936).
[15] The Court stated the principle succinctly in Collector, 78 U.S. (11 Wall.) at 124: The federal government "in its appropriate sphere is supreme; but the States whehin the limits of their powers not granted [sic], or, in the the language of the Tenth Amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States."
This notion of reciprocity was central to the Court's implementation of dual federalism. In fact, in Collector the Court treated is prohibition of federal taxation of the salaries of state officials as the corollary of the principle of Dobbins v. Commissioners of Erie County, 41 U.S. (16 Pet.) 435 (1842), that states could not tax the salaries of federal officials.
[16] Hammer was explicitly overruled in Unites States v. Darby, 312 U.S. 100 (1941). Bailey was not overruled -- but, as was noted in § 5-7, supra, the Court's dramatic expansion of the scope of the Commerce Clause meant that limits on the taxing power became largely academic for over six decades; Congress could for a time justify virtually all such measure as regulations of commerce or as ancillary to such regulations See §§ 5-3 to 5-5, supra. Whether United States v. Lopez, 514, U.S. 549 (1995), will make Bailey relevant for the first time in many decades remains to be see.
[17] See Chapters 7 and 8 infra.
[18] 304 U.S. 27 (1938). See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 433 n. 42 (1946) (stating that Ashton, supra note 10, "may be said in effect to have been overruled by United States v. Bekins").
[19] 306 U.S. 466 (1939)
[20] 312 U.S. 100, 124 (1941). Of course, this is a "truism" only to the historically initiated; a grammarian reading the Constitution with the Tenth Amendment deleted, and without sharing the perception that the 1787 Constitution was meant to create a national government of limited powers might be forgiven for assuming instead that art I, § 8, was merely illustrative of the powers delegated to Congress, and that Congress indeed possesses all powers it might deem essential for national well-being, subject only to prohibitions like those of art. I, § 9, and those of the Bill of Rights.

CR: "[T]he "Republic" [Vermont] was never recognized by any official act or by any other country."

4CJ: "But it was recognized by the Congress of the several United States:..."

You then quote from two passages from the Journals of Congress, namely August 7, 1781 and October 17, 1782. I believe, from what you posted, you cut and paste from the text version of the document and did not check it against the image. I have run into that problem before. The text version is flawed, in that it fails to properly show the "strikeouts." It shows "strikeouts" as if they were text. Case in point:

"And it is hereby recommended to the legislature of the said State of Vermont people of the territory aforesaid, or their representative body..." (bold emphasis as in your post to make your point)

In the Journal, the phrase "legislature of the said State of Vermont" is striken and replaced by "people." Your "proof" was not approved by the Congress.

If you had considered the context of the entire passage (pages 836-839 of Volume XXI), and especially the two resolutions on pg 839, you would realize that Congress in no way gave recognition to the "State of Vermont." Let's read what Congress really said:

"Resolved, That it be recommended to the Legislatures of the States of New Hampshire and New York respectively to declare the Inhabitants of the district called Vermont, bounded as aforesaid unamesable to any jurisdiction erected, under their authority and to renounce all territorial {pretensions} claims thereto, but to refer to Congress to determine on what terms this concession shall take effect." (I added two commas for reading clarification which in no way affect the sense of the text. The word in brackets {pretensions} was striken)

The second resolution beginning:

"Resolved, That in case Congress shall recognize the independence of the said people of Vermont ..."

The second resolution addressed an eventuality, not something that was then an actuality.

The August 7th passage consistantly denies recognition of Vermont statehood. It is refered to as a "district" and the phrase "state of Vermont" is striken everywhere it occurred in the draft. In the short history provided in the passage, the rights of New York and New Hampshire are clearly established.

So too, are there problems with your October 17, 1782 quotation. The full text of the resolution reads:

"Resolved, That congress recommend to the Inhabitants of the District call the State of Vermont to desist from all measures which may tend to the disturbance of the peace and tranquillity of the Union, which if not strictly adhered to must inevitably produce the most serious consequences as well to the Union in general as to the good people of the said State.
And in order that an effectual stop may be put to further animosities and disturbances among the State of New York, New Hampshire and Vermont and the people claiming to be Citizens of those States, your Committee recommend the following resolve, viz.
Resolved, That tomorrow week be appointed to take into consideration and finally determine on the report of the Committee of 17th April last relateing to the dispute concerning the Jurisdiction of the said District call the New Hampshire Grants."

Earlier in the Aug 7 passage, you get the sense of what Congress meant by "State of Vermont."

"That it appears to them [Gov. Clinton of New York and Joel Bigelow] from the said letter and deposition, that disturbance have arisen in a certain District called the New Hampshire Grants claiming to be an Independent Sovereign State {under the denomination} by the stile of the State of Vermont which {State} District, together with the States of New Hampshire and New York, have voluntarily submitted their claims to the decision of Congress ..." (Sticken words in brackets {}).

Twice Vermont is termed a "District," (once by striking the word "State"), and the term "State" only in reference to what the people of Vermont claim to call themselves.

It is abundantly clear from the context of your own citations that the United States did NOT recognize Vermont as an independent State or Republic. They termed the area to be a "District" with conflicting claims of jurisdiction in need of resolution.

Even though the people living in the Vermont area maintained a largely autonomous existance (the same could be said for many inhabitants of the frontier), to call the Vermont experience as "secession" is a stretch. The root causes of the Vermont disturbances suggest other answers.

I’m sorry to see you once again mired in pseudo-historical mysticism – particularly with regard to something so simple, and so fundamental. The Constitution was not “authorized by a sovereign people:” no such single “sovereign people” existed. It was “authorized” by the “sovereign people” of each of the individual, ratifying States. As Mr. Madison noted at the time:

“That [ratification] will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”

James Madison, Federalist No. 39

Or, as Mr. Chief Justice Marshall put it:

”No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.”

McCulloch v. Maryland, 1819

(“No political dreamer” – except our own capitan_refugio, that is! ;>) And as Mr. Justice Thomas noted more recently (in your favorite dissenting opinion ;>):

”[I]t would make no sense to speak of… the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”

U.S. Term Limits v. Thornton, 1995

Recognize reality – “[t]he Constitution of 1787” was NOT “authorized by a sovereign people,” and in fact “does not recognize any mechanism for action by the undifferentiated people of the Nation,” including the establishment of the Constitution. If you are going to appeal to the ‘the people,’ you will have to do so on a State-by-State basis (which, of course, will undermine your argument, rather than support it! ;>)…

To invoke, as you do, a "requirement" for unanimous consent to the Constitution (else some parties either were expelled, seceded, or withdrew from the Union), based on an Articles process, indicates a fundamental misunderstanding of both history and process.

And you, my friend, apparently have “a fundamental misunderstanding of both history” and law. Unanimous consent was a ‘legal’ requirement, binding upon the members of the “political” union formed under the Articles – unless those members individually retained a superior ‘legal’ right. To avoid applying the requirements of Articles II & XIII to the formation of the constitutional union, you claim that the Articles were ‘superseded,’ not ‘altered,’ that laws applicable to even a single, simple change in the political ‘contract’ governing the union were not applicable when that contract was changed in its entirety. Alternatively, you claim the union was not “political,” but rather a “state of mind” (although I have no idea why “the consent of the States” would be required to change a “state of mind,” nor can I conceive how a “state of mind” could be legally binding). Finally, you apparently resort to the ‘right of revolution,’ claiming the constitutional union was “authorized by a sovereign people,” even though no such single “sovereign people” even existed.

Frankly, I suspect your mental gymnastics result from your wild attempts to avoid any conclusion which might suggest that the individual States - and their people - possessed sovereign rights. To recognize that the ratifying States individually possessed a right to withdraw from a supposedly “perpetual” union, might require that you recognize the right of secession. To avoid that conclusion, you suggest that the right to ‘supersede’ the Articles was an unwritten and undefined ‘group right’ of “consenting States,” or a ‘group right’ of a non-existent single “sovereign people.”

The truth was apparently not so complicated:

”It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed…”

James Madison, Federalist No. 43

Of course, if “the compact [is] void,” so also is any requirement for “perpetual” union. And if “the federal pact” was ‘dissolved,’ so was the “political” union it governed. In other words, Mr. Justice Chase’s opinion in Texas v. White was revisionist hogwash. No wonder you prefer your “state of mind” argument…

Do you not consider a convention of States, and a proposal to adopt a new governing compact (by means of a process that violates the terms of the existing compact ;>), to be “formal?” What of the ratification documents of the individual States (particularly those reserving the right of secession ;>) – were they ‘informal?’

As for “withdrawal,” I refer you to Mr. Madison’s comments above. If an individual State, as a party to a compact creating a “political” union, considers itself ‘absolved’ of its responsibilities thereunder, and the compact “void” as to itself and its relationship to the other parties - it has, in simple terms, seceded. The concurrence of eight additional seceding States in the prearranged formation of a new union, with a new government, is merely ‘icing on the cake.’

You seem to employ circular logic to suggest that no secession occurred: claiming that a single “union existed” both before and “after the ratification of the Constitution,” you suggest that no “withdrawal” occurred, because a single “union existed” both before and “after the ratification of the Constitution.” In fact, your claim flies in the face of documented historical fact, including the terms of the compacts, the Federalist Papers, and the records of the constitutional conventions (many excerpts from which I have quoted here ;>).

Whether or not Rhode Island political situation permitted participated in Constitutional Convention is a matter of little importance. That North Carolina adjourned its first ratification convention without a vote, but with suggestions for amendments, is only fodder for trivia.

Once you have discarded the idea of a “political” union, I’m sure all political and legal matters are “of little importance,” and “only fodder for trivia”…

;>)

Actually, the “secessionist argument” is hardly as ‘weak’ as you might wish. Quite the contrary, in fact:

”The Constitution’s silence on [the matter of State secession] contributed to the intensity of the debate over secession, for it allowed Southerners to plausibly maintain that secession was a legal right of each state under the Constitution... Indeed, the proponents of secession had a strong constitutional argument, probably a stronger argument than the nationalists advanced.”

That, my friend, is the recently-expressed opinion of Dr. William E. Gienapp, Professor of History at the ‘hotbed of secessionism’ more commonly known as Harvard University (and author of The Political System and the Coming of the Civil War - and also The Origins of the Republican Party, 1852-1865 ;>). Pardon me if I agree with the good professor: “the proponents of secession had... a stronger argument than the nationalists advanced.”

As for any “paucity of documentation” – I don’t recall that you ever documented your claim that “[t]he Union… is a state of mind.” Did I miss something? And what about your claim that Article XIII somehow applied to ‘alterations,’ but not to ‘supersessions?’ It has been your posts that have been long on opinion, and short on “documentation”…

(Of course, there is your Post #1,892 – what was it you were saying about lengthy posts? ;>)

To: nolu chan
In the case of Vermont, I think it is fair to say that it was a foreign country! In 1777, residents of what is now Vermont, created the Independent Republic of New Connecticut. They entered into the Union in 1791.
1,448 posted on 10/25/2003 2:01 AM CDT by capitan_refugio
[ Post Reply | Private Reply | To 1443 | View Replies | Report Abuse ]

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For 14 years the Republic of Vermont was a totally separate country which had a postal system, coined money, naturalized citizens from other countries, had a system of laws and legislation and conducted trade and correspondence with foreign governments (including the United States) .

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New York continued to press claims and in March of 1777 a meeting in Windsor produced a Declaration of Independence for a new republic and the name "Vermont" was adopted. The new country guaranteed freedom of religion (although until 1793 included only "those who profess the Protestant religion"), universal manhood suffrage (any man who had reached the age of majority could vote - not just property owners) and in effect abolished slavery.

In the meantime Ethan Allen had led an ill-fated invasion of Montreal and wound up in an English prison until 1778.

In June, 1778, sixteen New Hampshire towns decided to join Vermont. Congress took a dim view of this and in early 1779 the towns were returned to New Hampshire.

All in all, the Republic of Vermont was not held in great favor by Congress and about this time Ethan and Ira Allen began negotiations with England for recognition or perhaps rejoining the British Empire. These were the so-called Haldimand Negotiations.

In February of 1781 some thirty New Hampshire towns joined Vermont and the new republic laid claims to everything in New York east of the Hudson River and north of the line from Massachusetts' northern border. All this chaos led New Hampshire and New York to decide to pull some of their soldiers out of the war so they could come home to deal with upstart Vermont. Congress could not afford to let that happen and offered admission if Vermont would give up its territorial claims on New York and New Hampshire. The Republic of Vermont complied in February of 1782, but Congress did not abide by its part of the bargain, partially because southern states did not want more northern states in the union and with the end of the Revolution, Vermont's position as a barrier against the British was not vital. So, Vermont went back to negotiating with England.

In 1790, Vermont had a population of 85,000; Ethan Allen died (President Ezra Stiles of Yale University note in his diary: "Feb. 13, Gen'l Ethan Allen of Vermont died and went to hell this day." and Vermont Governor Moses Robinson met with George Washington in Bennington to discuss the possibility of Vermont joining the United States.

Agreeing to pay New York $30,000 reparations for the land that had been 'taken', on March 4, 1791, Vermont became the first state to join the original thirteen.

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LINK

Republic of Vermont Copper Coins

By Robert W. Hoge, Former Curator, ANA Money Museum

The ANA Museum holds a major collection of the interesting and elusive copper coins of the 18th century Republic of Vermont. This is due in large part to the generous gifts of Mr. Sanborn Partridge, Museum benefactor and serious student of early Vermont issues. Nearly all of the recorded die varieties are present, with the exception of a few of the late, aberrant mulings. Many of the Museum's examples are in an outstanding state of preservation for this series (condition census specimens).

In the 1770s, the sparsely populated, remote region of the Green Mountains--a frontier area contested by the British colonies of New Hampshire and New York--constituted itself as an independent country. In 1785 it began to issue its own coinage, in advance of any of the thirteen newly-independent neighboring American states or their confederation government. The concept was public-spirited and ambitious, but beset by severe manufacturing and economic difficulties almost from the outset.

Popular with collectors, the Vermont coinage has also been a favorite for researchers who have endeavored to sort out and attribute the sequences of issues and die varieties. We know that on June 15, 1785, the Vermont legislature granted an exclusive two-year concession for coining copper to one Reuben Harmon, Jr., of the village of Rupert, in Bennington County. Harmon later negociated a further contract with the state, to extend for eight years from July 1, 1787. By subcontractual agreement, he shared this production work with hardware manufacturer Capt. Thomas Machin, of Newburgh, New York. Through meticulous identification of the planchets, dies and device and letter punches used in the coinage, the products of the two mints of Harmon and Machin and their order of striking have been largely recognized.

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