Posted on 04/24/2002 9:33:49 AM PDT by wasp69
RICHMOND - It's only a two-hour drive from the White House on Pennsylvania Avenue to the White House here on Clay Street.
It took four years and more than 600,000 lives to make that same journey during the second American Revolution, now officially known as the US Civil War.
It's odd that this nation's bloodiest war, a war between brothers, stretched from 1861 until 1865 when the capital of the COnfederate States of America in Richmond is only 100 miles south from the capital of the United States of America in Washington.
Thousands of Americans annually visit Civil War battlefields, museums and monuments.
Enthusiasts study in passionate detail the leaders, military strategy and battles of the Civil War.
My fascination with the Civil War has less to do with military engagements than with the motivations of up to 1.5 million Southern men and boys wiling to die to tear the nation in two in defense of slavery, an utterly indefedsible institution.
Had the conflict, also known as the War of the Southern Planters, been fought only by Southern slave owners, it would have been over in weeks rather than years.
As it was, brilliant and charismatic Confederate Generals such as Robert E. Lee and Stonewall Jackson led armies of poor, non-slave-owning Southerners into battle and came dangerously close to winning the war.
My mother's and father's ancestors were Southerners who fought for the Confederacy. I'm pleased that their side lost.
As a young man I fought for passage of civil rights laws that would eliminate the vestiges of slavery and the continued denial of equal rights to black Americans. What, I wondered, could my Confederate ancestors have been thinking?
I did not find the answer during my tour of the White House of the Confederacy or in the next-door Museum of the Confederacy.
A curator at the museum understood my state of perplexity but could only tell me that it's impossible to judge the decisions of my Confederate ancestors based on todays standards.
Although slavery was central to the decision by the Southern states to break away from the Union, many causes over the years led to conflict.
Sectional rivalry developed as the North became industrialized and gained population with European immigration.
The North wanted to build roads, canals and railroads to accommodate growing industries. Without personal or corporate taxation, revenue was raised by tariffs, which protected Northern products and increased prices of imported goods needed by the nonindustrialized South.
Southerners felt they were being gouged by their Northern brethern. They also felt that the states, not the federal government, had the authority to regulate commerce and other affairs. They also felt that the states had the right under the Constitution to separate from the Union, an idea that had strong supporters in both the North and South.
Deciding whether new territories and states would be slave or nonslave became a North-South fight for power in Congress and within the federal government.
Northern abolitionists demonized the Southerners and backed them into their own regional corner. Many Americans in the early years of the nation felt stronger regional and state pride than national pride.
Lee, who did not want to break up the Union, declined an offer to command the Union Army. He chose fight for Virginia and the South.
There must be lessons to be learned from the Civil War that can be applied to current and future conflicts.
The only problem with that view is that the government of the United States was already governing in the "seceded states." The purpose of the southern states' declarations of "secession" was to kick the government of the United States out of the southern states and to prevent the government of the United States from continuing to perform its constitutional functions there. The declarations of "secession" were not made in jest; they really meant what they said.
Slavery comes up so often in these discussions because the southern politicians who were guiding the rebellion claimed that they were doing it to protect the institution of slavery. I think that they deserve to have their words taken seriously.
Slavery is now gone forever. It has very little continuing support in any state. Same with "secession."
But the Tenth Amendment puts the burden of proof upon you, my friend – remember, the Constitution itself declares that all “powers not delegated...nor prohibited...are reserved to the States” and their people.
In the opinion of the Supreme Court, though, unilateral secession is not a right protected by the Constitution and their opinion is the only one which carries any real weight.
Allow me to ask you a few questions, courtesy of John Taylor (1823):
The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring "that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby." Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are "the judges in every state" to obey the articles of the union, or the construction of these articles by the supreme federal court?
The project for a national government [proposed in convention by Hamilton, Randolph, and others], gave a supremacy over the articles of the constitution...to the legislative, judiciary, and executive, and did not propose that the constitution should be supreme over these departments, because it would have involved a contradiction. As they were to have had a supreme power of construing its articles, these articles could not possess a supreme power over their constructions. But a federal system required that the articles of union should be invested with supremacy, over the instruments created to obey and execute them. Hence they are declared to be so in reference to all these instruments, without excepting the federal court. And hence the right of altering these articles is retained by [the States as] these parties.”
What say you: “Is the court supreme over the constitution, or the constitution supreme over the court?” As Mr. Taylor observed nearly two centuries ago, the constitutional convention considered several plans that would have established a national government with supremacy over the Constitution itself – that is, with the ability to determine the meaning of the compact. All such plans were rejected. Rather, the Constitution established “a federal system,” which “required that the articles of union should be invested with supremacy” over the federal government. In short, “the opinion of the Supreme Court” is itself irrelevant, whenever it contradicts the Constitution. (Speaking of which, shall we discuss the Alien & Sedition Acts? ;>)
And if the motive is irrelevant to the constitutionality then why is it so hard for southterners to admit that by far the single, most important reason for their rebellion was defense of the institution of slavery.
One might just as well ask why it is “so hard” for Republicans to debate policy issues only in terms of their supposed impact on “the children”...
;>)
Your statement assumes that secession is not a power reserved to the States by the Constitution itself. The language of the Tenth Amendment suggests otherwise. Furthermore, please consider the ratification of the Constitution. There was a pre-existing “government of the United States [formed under the terms of the Articles of Confederation] already governing in the” thirteen member States. “The purpose of the” States independently ratifying the new Constitution "was to kick the [previous] government of the United States “out of the” ratifying States, “and to prevent the [previous] government of the United States from continuing to perform its constitutional functions there.” By the way, many of the States' ratification documents explicitly or implicitly reserved the right of secession - they "were not made in jest; they really meant what they said."
;>)
The Tenth Amendment reserves to the states or to the people only "[t]he powers not delegated to the United States by the constitution" or the powers that are prohibited by the constitution to the states. The manifest intention of the southern politicians who were declaring their state's secession in order to protect slavery was to prevent the government of the United States from exercising in the southern portion of the United States the powers that are delegated to the United States by the Constitution. Do you really think that these fellas were planning to continue to allow the government of the United States to continue to exercise the powers delegated to it by the constitution within their states? That's not how I read those declarations! I think that they really meant it!
Furthermore, please consider the ratification of the Constitution. There was a pre-existing “government of the United States [formed under the terms of the Articles of Confederation] already governing in the” thirteen member States. “The purpose of the” States independently ratifying the new Constitution "was to kick the [previous] government of the United States “out of the” ratifying States, “and to prevent the [previous] government of the United States from continuing to perform its constitutional functions there.”
Our Founding Fathers were painfully conscious of the "legitimacy" issues presented by the facts you mention as well as by the fact that the Constitutional Convention had clearly exceeded the express authority of the Congress. They attempted to solve this legitimacy problem by referring the constitution back to the Congress so that the Congress could refer it to conventions in the states for ratification. But the problem that you mention would have continued to present an interesting issue if one or more of the states belonging to United States had not ratified the new constitution. Fortunately, that problem was avoided by unanimous ratification.
In contrast, the southern states totally disregarded the legitimacy issues presented by their declarations of "secession." They didn't refer their declarations to the Congress. They didn't attempt to litigate the questions raised by "secession." They just invented a theory and declared it legal. Resistance by the government of the United States was inevitable.
By the way, many of the States' ratification documents explicitly or implicitly reserved the right of secession - they "were not made in jest; they really meant what they said."
I don't remember anything like that. Which documents are you referring to?
True. Care to tell us where secession was “delegated” or “prohibited” by the Constitution?
The manifest intention of the southern politicians who were declaring their state's secession in order to protect slavery was to prevent the government of the United States from exercising in the southern portion of the United States the powers that are delegated to the United States by the Constitution.
Actually, their “manifest intention” was to withdraw from the union. Once a State had seceded, it was no longer bound by the terms of the Constitution, or the laws of the United States.
Do you really think that these fellas were planning to continue to allow the government of the United States to continue to exercise the powers delegated to it by the constitution within their states?
Why on earth would they allow a foreign government to “exercise the powers delegated to it by” a foreign Constitution “within their [seceded] states?”
That's not how I read those declarations! I think that they really meant it!
Yes, they really meant it. In the words of Robert Augustus Toombs of Georgia, upon his resignation from the U.S. Senate:
“Sirs, the Constitution is a compact. It contains all our obligations and the duties of the federal government. I am content and have ever been content to sustain it... I say that the Constitution is the whole compact. All the obligations, all the chains that fetter the limbs of my people, are nominated in the bond, and they wisely excluded any conclusion against them, by declaring that ‘the powers not granted by the Constitution to the United States, or forbidden by it to the States, belonged to the States respectively or the people.’”
Once again we see a specific reference to the Tenth Amendment: barring a delegation of the power over secession to the federal government, or a prohibition of State secession, the Constitution itself guarantees that the States retain the right to withdraw from the union.
Our Founding Fathers were painfully conscious of the "legitimacy" issues presented by the facts you mention as well as by the fact that the Constitutional Convention had clearly exceeded the express authority of the Congress. They attempted to solve this legitimacy problem by referring the constitution back to the Congress so that the Congress could refer it to conventions in the states for ratification.
Actually, the Articles of Confederation specifically required that action:
Article XIII. ... nor shall any alteration at any time hereafter be made in any of [the Articles of Confederation]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
The Founders were merely complying with some of the requirements of the then-current 'constitution,' not 'attempting to solve a legitimacy problem'...
But the problem that you mention would have continued to present an interesting issue if one or more of the states belonging to United States had not ratified the new constitution. Fortunately, that problem was avoided by unanimous ratification.
The “problem was avoided” by happenstance, not by design. Article VII of the Constitution declares that the new compact will be established upon the ratification of the ninth State – which is a clear contradiction of the terms of Article XIII of the Articles of Confederation...
In contrast, the southern states totally disregarded the legitimacy issues presented by their declarations of "secession." They didn't refer their declarations to the Congress. They didn't attempt to litigate the questions raised by "secession." They just invented a theory and declared it legal.
Poppycock. The Constitution nowhere ‘delegates or prohibits’ secession – are you suggesting that the Constitution contains a clause requiring seceding States to “refer their declarations to...Congress?” To which article and section are you referring? And why on earth would they attempt to “litigate” something that is not prohibited? Must you “litigate the questions raised” every time you brush your teeth? Finally, the Southern States had no need to ‘invent a theory:’ several of the States specifically reserved the right of secession when they ratified the Constitution (seven decades prior to the war), Tucker’s Blackstone’s Commentaries documented the right (six decades before the war), and the right of secession was even taught to the cadets at the United States Military Academy at West Point (courtesy of U.S. Attorney Rawle’s text on constitutional law, nearly four decades before the war). If anyone has “invented a theory and declared it legal,” it is the 'union-at-any-cost' folks and their theory that the Constitution prohibits secession.
Resistance by the government of the United States was inevitable.
“Inevitable?” Only if the government chose to ignore the Constitution. (By the way – why didn't the government “attempt to litigate the questions raised by ‘secession?’" ;>)
I don't remember anything like that. Which documents are you referring to?
Allow me:
”WE the Delegates of the People of the State of New York...Do declare and make known...That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution...”
Ratification of the Constitution by the State of New York (1788)
"We the Delegates of the People of Virginia...Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes...”
Ratification of the Constitution by the State of Virginia (1788)
”We the Delegates of the People of the State of Rhode-Island, and Providence Plantations...do declare and make known...That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution...”
Ratification of the Constitution by the State of Rhode Island (1790)
Several other States implicitly reserved the right of secession by including language in their ratification documents such as (in the words of the people of New Hampshire):
“That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised...”
And there's more where that came from. As a matter of fact, the Tenth Amendment was specifically based upon the language of the States’ ratification documents...
;>)
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.
Article IV requires congressional approval before a state can enter the Union, and it requires congressional approval for any change in a state. Any alteration of borders of a state requires congressional approval. If a state wants to split in two or more parts it requires congressional approval. If a state wants to join with another state it requires congressional approval. Clearly the power for a state to unilaterally change its makeup is a power denied them by the Constitution. And that should include the ultimate change of status, leaving the union.
Two questions then. Who decides if the opinion of the Supreme Court contradicts the Constitution? And what do the Alien and Sedition Acts have to do with the Supreme Court?
NS: Two questions then. Who decides if the opinion of the Supreme Court contradicts the Constitution? And what do the Alien and Sedition Acts have to do with the Supreme Court?
Allow me to answer the second question first. The Alien and Sedition Acts were "palpably unconstitutional" laws passed by the Federalist Party-controlled federal government in the 1790’s. The United States Supreme Court never ’reviewed’ the laws in question - possibly because all of the justices had been appointed by Federalist presidents, and their party benefited from the legislation. Nevertheless, several of the justices personally prosecuted and sentenced Americans for violating the Sedition Act, which made it a federal crime to simply criticize the president. (What is it the First Amendment says? "Congress shall make no law...abridging the freedom of speech, or of the press..." ;>) That is what “the Alien and Sedition Acts have to do with the Supreme Court:” they provide an irrefutable example of unconstitutional action by the federal government - while the Supreme Court ‘watchdogs’ either ‘slept at the switch,’ or actively participated in the unconstitutional action.
Which brings us to your first question – allow me to refer you to the words of Thomas Jefferson, written in response to the federal government’s aforementioned Alien & Sedition Acts:
“...(T)he 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 [State as a] party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Thomas Jefferson, The Kentucky Resolutions, 1798
And let us not forget James Madison, writing for similar reasons:
“It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
”It does not follow, however, because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions...
”But it is objected, that the [federal] judicial authority is to he regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner...
”...(T)he proper answer to the objection is, that the resolution of the General Assembly...supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the [federal] judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution [shall we refer, yet again, to the Alien & Sedition Acts?]; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another--by the judiciary as well as by the executive, or the legislature.
”However true, therefore, it may be, that the [federal] judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the [federal] government; not in relation to the rights of the [States as] parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”
James Madison, Report on the Virginia Resolutions, 1799-1800
In other words, Mr. Jefferson and Mr. Madison suggested that the States, as parties to the compact, had the right “in the last resort” to determine whether the terms of the Constitution had been violated – in essence, to determine the meaning of the Constitution. ”But it is objected [by many here], that the [federal] judicial authority is to he regarded as the sole expositor of the Constitution in the last resort!" John Taylor discussed the issue in 1823:
“The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring ‘that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby.’ Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are ‘the judges in every state’ to obey the articles of the union, or the construction of these articles by the supreme federal court?
”...(A) federal system required that the articles of union should be invested with supremacy, over the instruments created to obey and execute them [i.e., the federal government]. Hence they are declared to be so in reference to all these instruments, without excepting the federal court. And hence the right of altering these articles is retained by [the States as] parties.”
What say you, my friend – “Is the court supreme over the constitution, or the constitution supreme over the court?”
;>)
Or, as the Texans said at the Battle of Gonzales:
"COME AND TAKE IT!"
;>)
Actually, I see mention of a State entering the union – not seceding (and the example is not applicable to the first 13 States). And I see mention of state borders – but not secession. As for a State splitting in two (or four ;>), your example may again be less than absolute – consider the Texas annexation documents. In any case, although you may honestly believe the restrictions you mention “should include the ultimate change of status,” secession is nowhere mentioned in those restrictions. Nor is a prohibition of secession necessarily implied by those restrictions, any more than the constitutional age requirements for Representatives, Senators, and the President necessarily imply similar age requirements for federal judges.
As Mr. Madison noted:
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
And Mr. Madison made that observation before the Tenth Amendment ‘insurance policy’ was appended to clarify the matter. I would suggest that the burden remains on you...
;>)
As for your second part, where in the Constitution does it give the states the right to determine what is constitutional? It gives the Supreme Court jurisdiction on matters arising under the Constitution, not the states.
Maybe, as President Lincoln suggested, the war was just the means by which every American paid for the sin of slavery.
Walt
I believe this is the clause to which you are referring:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
A few points:
1) What we see is “congressional approval required” for certain specific changes. If the Founders had wished, they could phrased the clause exactly as you did – “congressional approval [is] required for every change in a state's status.” They did not do so, probably because such a blanket authorization of congressional power would have caused some States to refuse to ratify.
2) Please note: “the Consent of the Legislatures of the States concerned” was required as well. The clause hardly describes the type of unlimited federal power implied by your statement.
3) Finally, please note the absence of any reference to secession. The Constitution would be established only upon the ‘formal withdrawal’ of nine States from the union formed under the Articles of Confederation – and the same convention that produced Article VII of the Constitution placed no limits on such withdrawal in Article IV.
Finally, an analogy: even though your approval is required before anyone may enter your home, allow me to suggest that such approval is hardly required before your guests may leave.
But that's OK because I never expected you to accept my argument anyway. Any more than I accept your arguement that the Constitution can forbid states from acting in any unilateral manner where the interests of other states might be affected, except for secession. That makes no sense at all.
I don’t believe I have ever made that argument, but let us consider it for a moment. Any State action apart from secession fails to change the State's “status” as one of the consensually united States. The State’s obligations remain those of a member of the union. When a State secedes, however, it is no longer a member of the union of States, and it is no longer bound by the terms of the compact uniting those States. In fact, it is a reasonable argument.
Which brings us back to my original point. I can no more prove to you that the Constitution forbids unilateral secession than you can prove to me that the Constitution allows it.
That may be true – but I, at least, do not have to base my argument upon vague implications. The Tenth Amendment says exactly what it says. And when I defend “the right of the people to keep and bear Arms,” for example, I will not have to contradict myself in the face of liberal arguments that the ‘general welfare’ clause ‘implies’ a government right to ban firearms ownership...
I am quite familiar with the Alien and Sedition Acts. And if the court never ruled on them it is because they were never brought before if. The court cannot issue rulings unless they do.
More to the point, apparently the court need not issue rulings unless it so desires. And the court at that time was composed entirely of the appointees of a single political party - the same party, naturally, that benefited from the unconstitutional legislation in question.
Are you suggesting that we should have an activist court, ruling on whatever strikes their fancy? It should issue advisory rulings on matters before they are voted on by congress? That would violate the separation of powers, wouldn't it?
Perhaps you should review my Post #231. The advocates of “an activist court” tend to support your side of the secession debate: given the lack of any prohibition of secession within the Constitution itself, they must perforce rely upon judicial ‘opinion’...
As for your second part, where in the Constitution does it give the states the right to determine what is constitutional? It gives the Supreme Court jurisdiction on matters arising under the Constitution, not the states.
Interesting choice of words, “under this Constitution,” don’t you agree? As for the States, they retained every power not granted or prohibited - and in the words of Mr. Justice Antonin Scalia:
”The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn't say that anywhere. We made it up.”
Perhaps you can take a few minutes and answer the questions posed by John Taylor in 1823:
“The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring ‘that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby.’ Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are ‘the judges in every state’ to obey the articles of the union, or the construction of these articles by the supreme federal court?”
What say you?
;>)
What we see is “congressional approval required” for certain specific changes. If the Founders had wished, they could phrased the clause exactly as you did – “congressional approval [is] required for every change in a state's status.” They did not do so, probably because such a blanket authorization of congressional power would have caused some States to refuse to ratify.
Speaking for the Founders again? If the founding father's did not mean for congressional approval for every change then why did the go into such detail. If two states wished to combine and both of the legislatures agreed to it then why should congressional approval be needed? The obvious answer is that the interests of the other states could be affected and congressional approval was a way of safe-guarding those interests. And if the people of California decide to split into two states then why should that require congressional approval? For the same reason. And if a state decides that it wants to leave the Union then why shouldn't Congress be expected to approve in order to ensure that the interests of other states are not protected?
Please note: “the Consent of the Legislatures of the States concerned” was required as well. The clause hardly describes the type of unlimited federal power implied by your statement.
I'm not advocating unlimited federal power. Once a state becomes a state Congress cannot unilaterally take any actions that affect its status. Why should the legislatures be allowed to take unilateral action that affects its status? The clear meaning of the Founders is that the approval of both would be necessary.
Finally, please note the absence of any reference to secession.
Once again, the Constitution does not specifically forbid secession and it also does not specifically allow secession, either. Your sole claim that that right exists lies with the 10th Amendment. My claim is that the right of unilateral secession is not granted by that Amendment or any other.
Finally, an analogy: even though your approval is required before anyone may enter your home, allow me to suggest that such approval is hardly required before your guests may leave.
Your analogy is rather lame because we are not talking about you asking me to leave your house. We are joint tenants in the same house. A better analogy would be if you wanted to cut off the one wing of the house you happen to live in and move it. Since we own the whole property jointly that should require the approval of both of us.
That may be true – but I, at least, do not have to base my argument upon vague implications.
No, you base your argument on your belief that the Constitution requires congressional approval for every thing affecting the status of a state - except unilateral secession. That the Constitution either forbids or requires congressional approval for other actions by states where the interests of the other states may be impacted - but somehow allows for unilateral secession. It is your argument which seems to be vague to me.
More to the point, apparently the court need not issue rulings unless it so desires.
No, the court issues a ruling on matters which comes before it. While it is true that the Supreme Court can chose not to hear a case, I am not familiar with any instance where the Alien and Sedition act was brought before the court and the court refused to hear it. Unless that happened then your claim that the Supreme Court ignored the matter is ridiculous.
and in the words of Mr. Justice Antonin Scalia...
Article III Section 2, Clause 1 says, among other things, that the judicial power of the Supreme Court extends to all cases, in law and equity, arising under the Constitution, and to the laws of the United States made under it. Clause to says that the jurisdiction of the court is either original or appellate, depending on the parties involved. The definition of 'jurisdiction' is the power to interpret and apply the law for a specific area. Justice Scalia's quote nowhere says that it is not the duty of the Supreme Court to interpret laws made under the Constitution. Nor does he say who the last word on what the Constittion means is. Until he specifies that I'll continue to depend on the Supreme Court.
You suggest that “congressional approval for every change” is implied by a short list of specific changes. Apply your reasoning to Article I: ‘If the founding father's did not mean for Congress to “make laws to bind us in all cases whatsoever,” then why did they go into such detail in enumerating specific powers?’ Your claim is ridiculous.
And if a state decides that it wants to leave the Union then why shouldn't Congress be expected to approve in order to ensure that the interests of other states are not protected?
Because, my friend, unlike the other examples you provided, such approval is not required by the Constitution.
I'm not advocating unlimited federal power.
Really? You seem to be attempting to add an awful lot of words to the Constitution that are not in fact there – and your ‘unwritten’ additions seem (without exception ;>) to increase federal power.
The clear meaning of the Founders is that the approval of both would be necessary.
The Founders were quite capable of using the language of your ‘interpretation’ – and they did not. They could have included another enumerated requirement for congressional approval of State secession – but they did not. I would suggest that they meant precisely what they said – nothing more, and nothing less. You apparently disagree.
By the way, what were you saying about “speaking for the Founders?”
;>)
Once again, the Constitution does not specifically forbid secession and it also does not specifically allow secession, either. Your sole claim that that right exists lies with the 10th Amendment. My claim is that the right of unilateral secession is not granted by that Amendment or any other.
Actually, my “claim” is based upon much more than just the Tenth Amendment. As Mr. Madison observed:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
My claim is supported – and yours is contradicted - even by Mr. Madison, a Federalist and an advocate of national government. But let’s not stop there. Thomas Jefferson stated:
“(T)hat 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...
”That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, 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,’ therefore the [Alien & Sedition Acts]...(and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution), are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory...
”That 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’; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people...
”That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, 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,’ the [Alien Act] which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.
”That the construction [i.e., interpretation] applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power ‘to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ and ‘to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,’ goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers...
My claim is supported – and yours is contradicted - by Mr. Jefferson. But wait, there’s more:
“ The [Tenth Amendment] to the constitution of the United States, declares, 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.
”The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10...All other powers of government whatsoever, except these, and such as fall properly under the first or third heads above-mentioned, consistent with the fundamental laws, nature, and principle of a democratic state, are therefore reserved to the state governments...
”The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary: its councils, its engagements, its authority are theirs, modified, and united. Its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.
”But until the time shall arrive when the occasion requires a resumption of the rights of sovereignty by the several states (and far be that period removed when it shall happen) the exercise of the rights of sovereignty by the states individually, is wholly suspended, or discontinued, in the cases before mentioned: nor can that suspension ever be removed, so long as the present constitution remains unchanged, but by the dissolution of the bonds of union...”
St. George Tucker’s Blackstone’s Commentaries (which is still being cited by the federal court ;>) supports my “claim” and contradicts yours. There is more, of course, but I’ve posted the references before, and this post is growing too lengthy. In summary, my “claim” is historically consistent - and your “claim” is nothing but blatant historical revisionism.
Your analogy is rather lame because we are not talking about you asking me to leave your house. We are joint tenants in the same house. A better analogy would be if you wanted to cut off the one wing of the house you happen to live in and move it. Since we own the whole property jointly that should require the approval of both of us.
Actually, my analogy was highly appropriate – the right to refuse admittance in no way necessitates or presupposes a right to refuse departure. It is your analogy that is “rather lame” – neither the federal government nor the other States “own” the territory of any given State. This is just another example of your attempts to expand federal authority beyond the bounds of the Constitution.
No, you base your argument on your belief that the Constitution requires congressional approval for every thing affecting the status of a state - except unilateral secession.
Please reread my post:
”I don’t believe I have ever made that argument...”
You seem to be willing to put words in my mouth that were never spoken. Not surprising, given your continual attempts to put powers in the hands of the federal government that were never delegated.
No, the court issues a ruling on matters which comes before it. While it is true that the Supreme Court can chose not to hear a case...
Which is it: must the court issue “issues a ruling on matters which comes before it,” or can the court “chose not to hear a case?” If the latter, then you have made my point for me.
Article III Section 2, Clause 1 says, among other things...
Care to answer the following questions? I have asked repeatedly, and you have refused to answer – repeatedly:
“The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring ‘that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby.’ Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are ‘the judges in every state’ to obey the articles of the union, or the construction of these articles by the supreme federal court?”
Let me guess: you’re on your way to see a man about a horse, and don’t have time to answer – again...
;>)
Nah, just don't see the point. Just the same stuff over and over and over again.
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