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To: KrisKrinkle
If one party to a contract can unilaterally breach it at will without fear of penalty I see no point to even having a contract and I don’t see that the terms of the contract, whatever they may be, matter. I doubt society as we know it can exist if we can’t have contracts or compacts or agreements to which the involved parties can be held, which likely involves some sort of possible penalty for breach.

With regard to the Constitutional compact, you must remember that three states specifically reserved the right to reassume their own governance if necessary for their happiness or if they were oppressed. You can't blame them for this safety valve -- they were about to become part of an experimental form of government.

Should the federal government start oppressing the states and the people, resuming a state's own governance was a way out of the mess without having to fight their way out (again). Resuming their own governance was a form of check and balance against a possible overbearing federal government, much like the checks and balances designed in the Constitution to to keep one branch of the government from becoming all powerful.

Similarly, if a group of states gained power and started oppressing other, weaker states, the weaker states had a way out through withdrawing from the compact. I've read that this was a concern expressed at the Virginia ratification convention. They recognized the different interests between Northern and Southern states, and that there were more Northern states than Southern states.

You have to remember too, that the ratifiers voting for the resume governance statements included some of the biggest names in Constitutional history. James Madison (one of the authors of the Federalist Papers and often called the Father of the Constitution) and John Marshall (later Chief Justice of the Supreme Court) were on the five-person committee that wrote the words of the Virginia ratification document, and they voted for it when it passed. Alexander Hamilton and John Jay (the other two authors of the Federalist Papers; Jay being the first Chief Justice of the Supreme Court) voted for New York's resume governance statement.

As far as I know, none of the other states or Congress objected to those reservations to reassume governance. In fact, a majority of the original states either specifically said in their ratification documents that reassuming governance was consistent with the Constitution or proposed what later became the Tenth Amendment, which basically reserved powers to the states respectively, or to the people.

Jefferson Davis brought up the Tenth Amendment argument supporting secession on the floor of the Senate on January 10, 1861:

...the tenth amendment of the Constitution declared that all which had not been delegated was reserved to the States or to the people. Now, I ask where among the delegated grants to the Federal Government do you find any power to coerce a state; where among the provisions of the Constitution do you find any prohibition on the part of a State to withdraw; and if you find neither one nor the other, must not this power be in that great depository, the reserved rights of the States? How was it ever taken out of that source of all power to the Federal Government? It was not delegated to the Federal Government; it was not prohibited to the States; it necessarily remains, then, among the reserved powers of the States.

More on the other parts of your interesting post later as I get time.

227 posted on 02/21/2012 9:48:10 AM PST by rustbucket
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To: rustbucket

“...as I get time.”

I understand that part for sure. I’ve got other things pressing me too.

Your post provided pause for thought (which is good) and I’ll try to get back to you on it when I can, unless I find all the thoughts lead to dead ends. (We might disagree on that.)

I read your second post once, but if I have any comment it won’t be till I’ve read it again which isn’t going to be right now.

Mostly I wanted to let you know that I wasn’t ignoring you.


235 posted on 02/21/2012 10:33:24 PM PST by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: rustbucket

The three states did not assert their individual authority to rescind ratification. Rather, they asserted the right to rescind ratification on the part of all the states, and all the people. Such a right would be exercised by amendment, by legislation, or by court case. The rebels of 1860 had none of that, and reverted to the right of revolution, with requires military victory, which they did not get, due in part to the 40 regiments of southern men who fought against the revolution.


238 posted on 02/22/2012 12:31:14 AM PST by donmeaker (Blunderbuss: A short weapon, ... now superceded in civilized countries by more advanced weaponry.)
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To: rustbucket
With regard to the Constitutional compact, you must remember that three states specifically reserved the right to reassume their own governance if necessary for their happiness or if they were oppressed.

If you mean New York, Rhode Island and Virginia, as I wrote in post 75:

They don't say that "they (the STATES) reserved the right to “resume” the powers of government". They say that the people (in one case referring to the people of the United States and in another referring to the people of the several states) may resume or reassume the "powers". They're not saying the States can leave the Union. They're saying the people can replace the Federal (or for that matter the State) government.

I know you responded in post 111, and I didn't respond to that. Perhaps I should have but as you wrote, there is that thing about "time".

Similarly, if a group of states gained power and started oppressing other, weaker states, the weaker states had a way out through withdrawing from the compact.

If a group of states gained sufficient power to oppress other, weaker states and did so, I doubt they would have simply allowed the weaker states to simply withdraw, or that the weaker states would have been able to simply do so in the face of opposition given that they were weaker.

As to the words of Jefferson Davis who brought up the Tenth Amendment argument supporting secession on the floor of the Senate on January 10, 1861, per the quote he said "...the tenth amendment of the Constitution declared that all which had not been delegated was reserved to the States or to the people."

The Tenth Amendment actually states: "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 food for further thought:

The powers delegated to the United States by the Constitution are thought of as relatively clear, though disputed by some. In question are the powers "reserved to the States respectively, or to the people." Part of that question is "What is meant by 'powers'?". To answer that I'll turn to Webster's 1828 dictionary:

POWER, n.

11. Command; the right of governing, or actual government; dominion; rule, sway; authority. A large portion of Asia is under the power of the Russian emperor. The power of the British monarch is limited by law. The powers of government are legislative, executive, judicial, and ministerial.

And of course "power" can mean "force" of varying sorts, but I don't think that's what they had in mind. If you disagree with this definition of power it would be helpful for me to know it.

Another part of the question is "What are the powers 'reserved to the States respectively, or to the people'?" The quick answer is "Everything not delegated to the United States by the Constitution, nor prohibited by it to the States" or as Jefferson Davis put it "all which had not been delegated was reserved to the States or to the people."

But is that answer too quick? For it to be true, all that can be listed under "everything" and everything that can be listed under "all" would have to be a power. How about ejecting a State from the Union? Can a State be ejected from the Union? I say "be ejected" to clarify that this doesn't address whether a State can eject itself by secession. So far as I am aware, there is no power by which a State can be ejected from the Union. So far as I know, such a power has not been established or constituted or anything. So far as I know, such a power was "not delegated to the United States by the Constitution, nor prohibited by it to the States" in any enumeration of power in the Constitution, as it could not have been if it was not established or constituted. (The only thing that comes remotely close is admitting new states to the Union that are formed or erected within the Jurisdiction of any other State, and that's not very close at all as it requires the "consent of the Legislatures of the States concerned as well as of the Congress".) So far as I know, given it has not been established or constituted, such a power was not reserved to the people. Ejection of a State from the Union could be in a list of "Everything" or a list of "All", but there is no power to do so that could be "reserved to the States respectively, or to the people", therefore the answer to the question at the beginning of this paragraph is "yes" and Jefferson Davis was wrong in the quote noted above.

Davis continues: "Now, I ask where among the delegated grants to the Federal Government do you find any power to coerce a state where among the provisions of the Constitution do you find any prohibition on the part of a State to withdraw; and if you find neither one nor the other, must not this power be in that great depository, the reserved rights of the States? How was it ever taken out of that source of all power to the Federal Government? " It was not delegated to the Federal Government; it was not prohibited to the States; it necessarily remains, then, among the reserved powers of the States."

I don't see the relevance of any of that. The Constitutional Argument supporting secession is not relevant. The Union predates the Constitution and is not dependent upon it for the Union's existence or it's dissolution.

In any case, I don't see how any of this negates my statement which was:

If one party to a contract can unilaterally breach it at will without fear of penalty I see no point to even having a contract and I don’t see that the terms of the contract, whatever they may be, matter. I doubt society as we know it can exist if we can’t have contracts or compacts or agreements to which the involved parties can be held, which likely involves some sort of possible penalty for breach.

263 posted on 02/26/2012 6:02:33 PM PST by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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