Lincoln s Spectacular Lie

To conclude, finally, my reply to your post to me:

There's a romanticism of lost causes that makes people think that those who lost in history were better and nobler than those who won.

The short form of this argument is "So's your old man, and you're another." It's a fallacy, an argument ad hominem tendered in the absence of evidence that an independent South would have followed the same, or a worse, road than the United States has done. Without getting into recriminatory argle-bargle, let me just say that the form of your argument is defective, in that 1) it consists of a known fallacy, and 2) is beside the point. The point is, the Southerners had the right to create their own future, whether better or worse -- and Abraham Lincoln denied them their future by violent force, in order to compel them to remain in the Union to become his policy objects.

I still don't believe that victory for the segregationists would have been better than their defeat.

Well, that is a discussion for another thread, anyway, and I tend to be neutral on that subject anyway. I think there are a lot of loose ends in equity to the history of the civil rights movement (such as the egregious statistics I quoted above), but overall it's a completely different situation in several ways from the 1860's.

Herein lie the true roots of the Union, in that the various colonies, and later states, had common interests and goals in these regards.

That's called "cooperation". When I lie down with a girl, I'm "cooperating" with her -- I'm not marrying her!

....the foundations of the Union were formed relatively early in the Colonial period, and thus long predated the States, which after the Revolution replaced the British government with governments of their own, but which pretty much kept the British borders.

Your failure to distinguish between the cooperation of the committees of correspondence and the sitting of delegates from the various burgesses together in congress, and the formal union of these States into the United States of America, is fraudulent.

And when the Articles proved unworkable, those same men, "in order to form a more perfect Union," replaced the Articles with the Constitution.

And when the Articles of Confederation expired, on the ratification of the Constitution, that original Union died, expired, passed into nothingness -- it was not a "perpetual Union" as advertised. The fact that a second Union was formed by the Constitution does not mean that it was a continuation of the first. Point not granted.

The Constitution defined the political limitations not only of the Union, but also of the states. In these ways, the Union did indeed create the states.

No, the Union did not create the States. By the language of the Constitution itself, the States predated the document that created the Union. Your continuing assertion of the opposite is flat-headed ideological Big Lie agitation.

As I have stated before. It is entirely theoretical but if they do it legally, by electing a majority of officials in each of the state houses, then bills of secession pass respective houses and are signed by the governor of each state, I don't see how I or any other person that respects the intent of the Constitution could not.

However the actions being requested by these groups in the Southwest probably don't include going to any governing body under Constitutional procedure. These people just want to revolt and that is not a Republic, that's mob rule. So under the present plans that have been forwarded, no I do not support them

You aren't breaking the rules of the Club if you aren't a member any more, and don't come around any more.

This is the theory that treats the Federal Government like some sort of catering company that the states chip in and hire each Friday night for the sock hop. One week, South Carolina calls in and says, "Can't make it this week. Or next week. Or anytime soon. Need to start staying home with the new wife."

Now you know why South Carolina decided not to take this theory to the Supreme Court.

I'll try this one more time with you and attempt to keep it real simple. Pursuant to Article I of the Constitution, the United States (that's the government headquartered in Washington, D.C.) is empowered to, inter alia, operate a postal service in each state, including, for example, Wyoming...

Your argument is simple: it is also nonsensical. You insist that a State may not leave the union, simply because such action would interfere with federal powers that are applicable only within States that are within the union. If your irrational argument were true, then the very establishment of the United States Constitution was invalid, simply because such action interfered “with the United State's power to operate a postal service.” Or are you unfamiliar with the following clause from the Articles of Confederation?

“The United States in Congress assembled shall also have the sole and exclusive right and power of ... establishing or regulating post offices from one State to another, throughout all the United States...”

Note the language: “all the United States.” How many States were there – 9 or 13? Establishing a new Constitution between only nine ratifying States would “interfere with the United State's power” to establish “post offices...throughout all [13 of] the United States,” would it not? Will you insist that the establishment of the Constitution in 1788 invalid? Or will you admit that States may ‘formally withdraw’ from a union of States (becoming ex-member States ;>), even if such withdrawal ‘interferes’ with the ability of the central government to exercise its delegated ‘powers’ within member States?

Thank you for the post, by the way – I enjoy highlighting the many contradictions inherent in the ‘secession-is-unconstitutional’ argument...

;>)

As regards your quote from Mr. Rawles (a U.S. Attorney in Pennsylvania) I am not surprised that someone in the 1820's should have such a view. As I mentioned in post 247, the seeds for this notion of a "disunion" or "scission" (later called "secession") were being sowed as early as the 1790's.

“Not surprised?” Let’s review your words:

“...(I)t was the desire to protect slavery that motivated the southern politicians to invent the ‘secession’ argument.”

Congratulations – you have proved you know how to ‘backpedal’...

In that regard, you might look into the Thomas Jefferson (then Vice-President) - John Taylor correspondence in the summer and fall of 1798 regarding what could be done about the excesses of the Federalists then controlling Congress. And look into Jefferson's then secret role in the preparation of the Kentucky and Virginia Resolutions.

I quote Mr. Jefferson and Mr. Taylor repeatedly, and at length. Their statements do not appear to support your position.

;>)

But the long and the short of it is that none of these writings or conversations serve as a substitute for the terms of the Constitution itself. My understanding is that there were also numerous Northern newspaper editors who found no constitutional problem with secession. And if you're just looking for people who will say that the constitution does not forbid a state from unilaterally seceding from the Union, you don't have to look any further than some of the posts on this thread. The problem is that none of this is a substitution for the Constitution itself.

Actually, I would suggest that your fallacious arguments are no “substitution for the Constitution itself” – which, despite your pleadings, nowhere prohibits secession.

And I say that neither slavery nor "secession" has any current following in this country is because it just doesn't. Not in the north, not in the south, not in the east and not in the west.

I have addressed these points previously, in Post #278. Allow me to refresh your memory:

Those who find themselves unable to prove secession unconstitutional inevitably play the ‘slavery card.’

And:

Are you suggesting that the meaning of the Constitution is determined by popular opinion? Hmm?

;>)

Thanks for all the feedback. It's always nice to have a civil discussion and find that we aren't entirely talking past each other.

Given the century that it took us to get rid of segregation even in a larger country that helped to diffuse racial problems, it's likely that racial conflicts, problems and repression would have been greater in an independent Confederacy. It's also the case that Confederate apologists blame the winning side for all the corruption, expansionism and imperialism that came later. But had the war ended differently these things wouldn't have been avoided, and would have been attributed to the victorious Confederacy.

Did the South have the "right to create their own future?" I suppose this is true in the end of any people. But how one goes about achieving this is of great importance. It was important to go through legitimate, constitutional channels. A unilateral declaration of secession or independence would necessarily be contested, because it left too many consitutional and practical questions unanswered. Violence would lead to violence in return. With more patience, the South might have achieved their independence, though I don't think that would have been a good thing. The war was a tragedy, and war would have happened in any case, as the two groups struggled over the border states and Western territories. I don't think anything is gained by turning it into a melodrama with Lincoln as villain.

I wish that the war hadn't happened. My first impulse would be to say, "Let those who want to leave, leave." But once the shooting started, it would tear apart the border states and the country as federal and rebel factions asserted their own legitimacy and tried to force their will on their states. An alternative to the standard Confederate line is to see Lincoln as trying to maintain legimacy and constitutional and democratic processes in a situation careening towards anarchy, war and atrocity.

There are at least two ways to self-determination. The first is rebellion against an oppressor who allows you no representation or voice in your own rule. The second is to work through representative, constitutional institutions to attain your independence. Confusing the two is a deadly mistake. The secessionists believed that they had a third alternative of unilateral secession at will. This option was contested, but it ought to have been recognized that the question of how to dispose of our common federal properties and what to do about states with disputed governments or election returns, would make this a much messier option than it appeared to be at first.

The Bill of Rights applied to the federal government. It did not guarantee the individual's rights against infringement by the states. That is why the 14th amendment was passed -- to ensure that states would not violate the basic rights of persons without due process. The amendment has been misused at times, but there's a strong case to be made for its desirability.

What would the founders have thought of the 14th Amendement? Would they have seen it as a completion of their design or as a betrayal of it? It's a good question, and it's hard to resolve. But one shouldn't bias it by giving Jefferson or the anti-Federalists more weight than the framers themselves. It would also be wrong to presume that what the founders wanted was simply an alliance of wholly sovereign states. They'd found the Articles of Confederation to be deficient, and had taken a big step away from state sovereignty.

There is always some crime and barbarism at the bottom of society. Someone has to protect the community against such violence or illegality. And we do endeavor to do that. But I don't think this sanctions repression of whole ethnic groups.

Perhaps if we have a generation of true racial horrors, crime on the scale of South Africa or higher, it might be taken by more people as a justification for earlier repression. But I don't quite see that as our present condition. It does seem to me even by your statistics Black crime does fall most heavily on other Blacks and that most non-Blacks have been able to avoid it.

If you want to draw a parallel between today's black crime and yesterday's lynching of Blacks, also bear in mind the role that law enforcement had in not preventing or in allowing those lynchings. If today's police turned over whites to black mobs or left them at the mercy of such mobs, your analogy would be closer to the mark.

There is little to chose between bullying, violent Blacks and Whites. But there is a great deal of difference between police who back up the bullying and those who try to prevent it. Today's bullying by government agencies dealing with quotas and racism will be weighed against our age, but I doubt it affects the balance to a great degree. If I had been directly affected by interracial violent crime I might think differently, though.

People overlook the enormous change in work relationships (and therefore in class and civic relationships) that was wrought by the introduction of large, integrated companies and their work rules and time clocks. Some sociologists have noticed.....but as upper-crusty, highly-educated intellectuals, they don't care.

This is true, and valuable. People who presume that, but for Lincoln we would have freedoms on an 18th or 19th century scale, neglect the massive changes in society. We have lost the frontier, and family households are no longer self-sufficient. We are part of a system that makes us richer and perhaps safer, but also more dependent, more submissive and more passive. The Rockwellite idea that without Lincoln, libertarians would walk the earth, free, proud, erect and uncowed, looks to me to be seriously flawed. As likely a result would be smaller, powerful, oppressive, bitterly hostile political units. Or else something like what we have now -- an urbanized or suburbanized population that accepts what the authorities allow and avoids what they forbid.

You do not convince me that secession was truly about freedom, rather than about power. If one puts up a far distant perimeter around one's interests and argues that any infringement of that perimeter is a violation of your liberties, one may convince one's self that one's freedom is at stake. Others will disagree. Wisconsin might feel that any step away from butter to margarine or Shedd's Spread is a violation of their powers, interests and freedom, but it wouldn't justify a shooting war.

For many Southerners, any limitation of slavery, even by the exercise of "state's rights" in Northern states, was a dagger at the heart of the institution and a knife at their throats. But outsiders don't have to see things that way. They might also consider the Northern belief that if the slaveowners got their own way, it would be the end of Northern liberties.

The fact that disputes on the periphery of the central issue came to be seen as battles over that issue is what contributed to the war. For your distant periphery is also my periphery, and what you desire to keep your central institutions safe may be seen by me as a threat to my basic institutions.

I will grant that this "house divided against itself" was bound to fall, but I don't think one can argue that Southerners were entirely concerned about freedom or that their grievances can all be filed under "Liberties, concerns about loss of."

Your case against empire and larger political units and more distant governments is a good one and bears closer examination. Where I differ is first of all in not assuming that pre-Lincoln America didn't have its own imperial tendencies. The Confederate leadership itself was taken from the more militaristic and imperialistic segments of society, and it struggled to create an effective and unified nation against recalcitrant state governments.

Arguably, too, the "Old Republic" and the "settled arrangement of the Constitution" broke down in 1860. Whatever replaced it would be different -- as different after a Confederate victory or an amicable settlement as after a union victory.

Secondly, the question of the means one uses to attain independence or localization is important. Violence to win independence for this region or state is only a last resort. I don't think it was justified in 1860.

Third is the question of groups that assert their own rights to freedom and oppress other groups. It may be that we have no choice but to allow them to do so, on the grounds of majority rule, self-determination, and legitimacy. It may also be that all societies rely on differences in power and status, relative empowerment and relative subjugation. But morally, I don't think that we should celebrate a society that demands its own freedom and holds others in bondage. One may grant their right to independence and self-government, but I don't want to make excuses for such a regime and throw blame on others that may have had serious problems and injustices, but were on the whole less oppressive.

One can find mitigating circumstances for the Confederacy, and one can find vices in their opponents. But one shouldn't ignore the vices of the rebel leaders themselves. One can admire the courage with which soldiers and officers fought for their cause, but I draw the line at making political heroes out of the Confederate leadership.

As I mentioned in a previous post, there did exists concerns about the legitimacy of the Constitutional Convention's having exceeded its authority in the drafting of the Constitution. That is why the document was referred by the Articles of Confederation's own Congress to the state conventions for ratification. Had less than five of the states not ratified the Constitution, I think that the non-ratifying states would have had a legitimate complaint about the violation of their Articles of Confederation. No one can know what might have been done to resolve that problem. As it happened, though, this potential legitimacy crisis was avoided by the Constitution's unanimous and unqualified ratification. A new government was formed, this time by the people of the United States.

It's really too bad that the southern politicians didn't submit their "secession" theory for consideration to the Congress (like the Consitutional Convention did) or to the Supreme Court. Hundreds of thousands of lives might have been saved.

But the southern politicians were desperate. They thought that the institution of slavery was in jeopardy and they erroneously thought that slavery was a vital part of southern culture. (They even had some wonderful "theories" to demonstrate the value of slavery.) So rather than submitting their "secession" theory to any of the other interested parties (the people of the United States, the government of the United States, the other states), the southern politicians decided to gamble all and just issue unilateral declarations of "secession." Slavery was so manifestly vital that these political stewards gambled with (to paraphrase the Declaration of Independence) their lives, their fortunes and their sacred honor. And they crapped out. And they even lost the institution of slavery.

And 140 years later, we still have a few among us who insist that these southern politicians were nothing less than unrecognized geniuses, statesmen of the first order, that their magnificent theories were free of any and all doubts, and that it is all because of one evil man (Abraham Lincoln) that we are now forced to live lives of perpetual servitude and misery. It's just downright pitiful, it is.

Well, in view of that fine performance by the southern politicians, I think we can be pretty sure of one thing. If there ever is a next time that any state or community wishes to unilaterally withdraw from the United States, the proponents will find another name for their theory. Any goodwill that ever existed for "secession" has been pretty much all used up.

Sorry ned, but

It's really too bad that the southern politicians didn't submit their "secession" theory for consideration to the Congress

That would not have worked. Can you imagine?

"BTW, Secretary of Treasury Chase, you see we don't want to pay our money anymore to fund your schemes up north. We were thinking we would open our own ports, charge little if no tariffs for incoming ships, really expand on this free trade idea, and send our cotton to Britain where we would get more for it and not have to pay on the backend from northern manufacturers after they refined our own product."

would have just worked wonders I imagine < /sarcasm>

That would not have worked. Can you imagine?

1) Why couldn't South Carolina have submitted their proposal of disunion to the Congress?

2) And if the southern politicians genuinely believed in the legitimacy of their "secession" theory, why couldn't South Carolina have submitted its theory to the Supreme Court, the Court that decided Dred Scott v. Sandford (1857) 60 U.S. 393?

Hundreds of thousands of kids had to die because the southern politicians lacked confidence in the constitutional grounds upon which they were proceeding. I wonder how many of those young men had enough education or experience to even understand the crackpot theory for which they were to give their lives.

WIJG: The point, which you seem to have missed, is that the two unions were distinct and separate entities.

r9: No they weren't. You're mistaking the marriage vows for the marriage. The Articles and the Constitution merely formalized the fact that the states (or more precisely, the people in them) considered themselves to be bound together by something more than paper and ink.

“Something more than paper and ink?” There we have it – the words of a mystic appealing to ‘unwritten law.’ The Articles and the Constitution contradict your claims, so you refer us to “something more than paper and ink.” How nice.

On this point I offer up the words of James Madison, in Federalist 40...

Thank you – Mr. Madison’s statement clearly supports the idea that there were two distinct unions. Your insistence that Rhode Island remained a member of a single on-going union provides “an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth.” Twelve States abandoned the Articles and formed a new union, while Rhode Island (the supposedly ‘perverse and corrupt thirteenth’ ;>) insisted that the terms of the Articles be observed. As a result, Rhode Island eventually found itself a completely independent country, outside and apart from the union, for almost two years - through no action of its own.

Better luck next time. Perhaps you should try referencing your ‘unwritten law’ again...

;>)

That state did, nevertheless, decide to ratify...But it did occur, and was eventually unanimous.

“Eventually” is the operative term. You will no doubt refer us to your ‘unwritten law,’ insisting that those States bound by the Constitution (the ratifying States) and the States which had not yet ratified (and were in no way bound to do so) were all members of one on-going union. Your mystical approach to history and union membership provides all sorts of entertaining possibilities! What if Puerto Rico becomes a State? Will you insist that Puerto Rico was always a member of the union, even while it was a Spanish possession, simply because it would “eventually” become one of the united States?

You should consider labeling your posts as ‘humor’...

;>)

But here again, you mistake the marriage vows for the marriage.

More ‘unwritten law.’ Feel free to document the "marriage"...

The basic question for ratification was not whether the states wanted to join a Union, but whether they wanted to remain part of the Union under the new Constitution.

“Remain a part?” Again, you assume the existence of a single on-going union. The people who debated ratification knew better:

“Mr. Chancellor LIVINGSTON observed, that it would not, perhaps, be altogether impertinent to remind the committee, that, since the intelligence of yesterday [June 21, 1788, when New Hampshire became the ninth State to ratify the new Constitution], it had become evident that the circumstances of the country were greatly altered, and the ground of the present debate changed. The Confederation, he said, was now dissolved.”
The Debates in the Convention of the State of New York, on the Adoption of the Federal Constitution
(italics in the original)

“The Confederation...was now dissolved.” Oh , that’s right – you will simply refer to your ‘unwritten’ mystical dictionary, advise us that the Articles of Confederation did not actually define membership in the union (despite the specific list of member States in the preamble, and the requirement for ratification by each State), and insist that ‘just because the Confederation formed under the articles was dissolved does not mean that the union was dissolved.’ You will no doubt assure us that ‘the States still considered themselves to be members of the good old, on-going union!’ Again, the people who actually debated ratification knew better: Mr. Livingston also noted that the convention delegates had considered the possibility that “some of the [non-ratifying] Southern States would form a league with us.” It doesn’t appear that the delegates to the New York State convention considered their State to still be a member of your on-going union..

Finally, although you have no desire to address the fact, the terms of the Articles of Confederation and the terms of the Constitution were mutually contradictory. Only a mystic would insist that such contradictory documents could provide any basis for a single, on-going union.

Sigh. You're once again focusing on the vows.

Indeed, I have a preference for written laws. If I am ‘pulled over’ by a law enforcement officer, I would rather he not cite me for violating “something more than paper and ink.” When the President of the United States acts, I prefer that he act in accordance with the written Constitution – the “vows,” as you put it. Obviously, there are others who prefer a more ‘free-form’ approach to government, based on “something more than paper and ink.” However, such a government by definition fails to provide the rule of law.

The Union was not changed, which is no surprise, given that its defining characteristic was a desire by the states to stick together in some manner. The presumptive difference between the "old" and "new" unions was little more than the paper that governed the relations between states and Union.

“Its defining characteristic was a desire by the states to stick together in some manner” – another reference to ‘unwritten law.’ The union was ‘defined,’ in your opinion, by ‘desire’ rather than any legal agreement. Your approach seems to afford endless opportunities for creative thinking...

Well of course [the delegates to the constitutional convention] represented each state. However, they were assembled in Congress, and in the development and voting on the final form of the Constitution they agreed to be bound by the results of non-unanimous votes. They passed out of their convention a product that was developed by representatives of all the states, for ratification by all the states. This is not merely an act of individuals representing individual states, it is also an act of individuals acting as part of a Union.

Once again your mystical opinions are completely contradicted by historical fact. The delegates to the constitutional convention were NOT “assembled in Congress” – the convention and Congress were distinct and separate entities. The “product” of the convention was NOT “developed by representatives of all the states” – Rhode Island was not even represented at the convention. The Constitution was NOT “developed... for ratification by all the states” – it was presented to each of the individual States for consideration, no State was bound by the action of any other, and non-ratification was as much in their power as ratification. But I’m sure a few facts will not disabuse you of your pleasant notions...

In a nutshell, it is ludicrous to ask a state to ratify or reject a Constitution if it does not really have the right to do so. Only by treating each state as sovereign can ratification have meaning.

Frankly, it is your insistence upon the idea of a single on-going union that effectively discounts the right of the States to ratify or reject the Constitution. You noted that the decision to ratify was “eventually unanimous.” Tell us: during the period prior to “unanimous” agreement, were the non-ratifying States members of the union, or were they not? You have suggested that they were, in fact, members of the union during that period, which necessarily implies that their right to “ratify or reject” was essentially irrelevant.

This has no bearing on the existence of the Union itself. Ratification was a vote to remain in Union. Failure to ratify could only have meant a divorce -- a decision to leave the Union.

Hogwash. Rhode Island and the other States formed a union under the specific terms of the Articles of Confederation. Each and every State agreed that “the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” Subsequently, a group of States that did NOT include Rhode Island assembled in convention, and drafted a Constitution that could be established WITHOUT unanimous agreement. Nor was any State REQUIRED to ratify. Rhode Island prefered to retain the existing Articles, which had been previously agreed to by ALL parties – and you claim that Rhode Island’s lack of action constituted “a decision to leave the Union?”

Now THAT is funny!

At this point it is necessary to consider exactly what is meant by "state," something which you seem to have taken for granted up to now. However, for your position on states vs. Union to have any logical consistency, you are required to hold the position that the states always existed as sovereign and independent entities. This is obviously incorrect.
In point of fact, "the states" were created by the British.
The British defined the states as specific areas of land with certain geographical borders. People who lived within those borders were under the authority of the British governor.
However, there's obviously more to a state than people, borders, and a British governor. One must also consider culture, econonmy, and methods of government.

Let’s refer to Mr. Madison’s Report of 1800:

It is indeed true that the term "states" is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means [1] the separate sections of territory occupied by the political societies within each; [2] sometimes the particular governments established by those societies; [3] sometimes those societies as organized into those particular governments; and lastly, [4] it means the people composing those political societies, in their highest sovereign Capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different construction of the term "states," in the resolution, may have been entertained, all will at least concur in that last [4] mentioned; because in that sense the Constitution was submitted to the "states;" in that sense the "states" ratified it; and in that sense of the term states, they are consequently, parties to the compact from which the powers of the federal government result.

You would appear to favor definitions [1] and [3]. James Madison suggests that [4] was the correct definition for the subject of our discussion.

Herein lie the true roots of the Union, in that the various colonies, and later states, had common interests and goals in these regards.
As it happens, the foundations of the Union were formed relatively early in the Colonial period, and thus long predated the States, which after the Revolution replaced the British government with governments of their own, but which pretty much kept the British borders.

Yes, let’s take a look at “the foundations of the Union...in the Colonial period:”

"...(I)t is misleading to date the tradition of American liberty from the late 1780s, since the Constitution of the United States was in fact only the culmination of generations of practical self-government on the part of Americans. At the time of the framing of the Constitution and the formation of an allegedly ‘more perfect union,’ the colonists had precedents for challenging the powers of a confederation, as in the case of the Confederation of New England, for rejecting a confederation, as in the case of the Albany Plan of Union, and for bringing down a confederation by force, as in the case of the Dominion of New England. It can hardly be surprising, therefore, to learn that at the time of the ratification of the Constitution, three states [Virginia, New York, and Rhode Island] in acceding to the new confederation, explicitly reserved the right to withdraw from the Union at such time as it should become oppressive. In so doing they were only exercising the vigilance and libertarian principle that had animated the American experience during the colonial period.

"Thus when a union of polities becomes an end in itself, as it has in the minds of some since the days of Daniel Webster but certainly since Abraham Lincoln's revolution, the repudiation and indeed perversion of the colonial ideal is complete. Yet today, even self-proclaimed conservatives, whom one might expect to be engaged in preserving their country's tradition of liberty, cavalierly decry attachment to the principles embodied in the Confederate flag as "treason," even though the value of self-government vindicated by the South had been insisted upon since colonial times. The real traitors, however, are not the Confederates, but those who betray the real American tradition of independence and self-government in favor of the principle of unlimited submission to central authority. This is what the colonial period has to teach us."
Thomas Woods, Colonial Origins of American Liberty, 2000

Looks like your ideas regarding “the foundations of the Union” are overly simplistic – you neglected to mention the colonies “challenging the powers of a confederation, ...rejecting a confederation, ...[and] bringing down a confederation by force.”

The Constitution defined the political limitations not only of the Union, but also of the states. In these ways, the Union did indeed create the states.

How can "the Constitution define" anything, let alone "political limitations," if it can be superceded by 'unwritten law?' As for your suggestion that the union created the States, such a claim is clearly contradicted by historical fact:

“When the colonies declared their independence it raised the question of sovereignty; to whom, or what, did the citizens of each of the new states owe their allegiance? This was answered by each of the states after war had begun between each colony and the Crown when allegiance to the state was demanded of each of the inhabitants, and this often as much as a year before the Declaration of Independence. Sovereignty of each of the states was recognized as the end result of freedom from the Crown as was so noted in all of the early state constitutions, Declaration of Independence, and the Articles of Confederation...

”The issue of sovereignty was further strengthened in 1783 with the Treaty of Paris, which ended the Revolutionary War. The treaty between the United States and England began thus: ‘His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent States.’ The King of England, which until this time had been the only power that denied the independence of the colonies, admitted in the Treaty of Paris that indeed the thirteen former colonies had taken their place in the world as thirteen sovereign and independent nations, denoted by the fact that he recognized each by name...”
R.H. Veal et. al., A Constitutional View of State Sovereignty and Secession, 1994

Please note: “allegiance to the state was demanded of each of the inhabitants...as much as a year before the Declaration of Independence.” Which union created those States? Hmm? And why did Britain sign a treaty recognizing the thirteen “free, sovereign, and independent States,” if they were simply creatures of the union?

If you research the constitutionality of secession, you will find a remarkable consistency among historical documents in support of a State’s right to ‘formally withdraw’ from union – and innumerable contradictions inflicting the argument that secession is unconstitutional...

;>)

As it happened, though, this potential legitimacy crisis was avoided by the Constitution's unanimous and unqualified ratification. A new government was formed, this time by the people of the United States.

Your statements are (yet again) completely contradicted by historical fact. “Unqualified ratification?” In Post #224 (of the thread entitled ‘What Motivated Southerners To Defend The Indefensible?’) I observed that the ratification documents of several States specifically reserved the right of secession. Upon your request to do so (in Post #225 of that thread), I quoted the relevant portions of those documents (please see Post #226). Do you consider a document containing an explicit reservation of the right of unilateral secession to represent “unqualified ratification?” How about three such documents – or more, if we include those that implicitly reserved the right? Or do you simply not read the information that is posted at your own request?

Furthermore, the new government was not formed “by the people of the United States.” I refer you to Article VII of the United States Constitution:

”The Ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the Same...”

See any mention of “the people of the United States?” As Mr. Madison noted in Federalist No. 39:

“In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established...

”On examining [this] relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America [as you claim], given by deputies elected for the special purpose; but on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State - the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.

”That it 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 has 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. In this relation, then, the new Constitution will, if established, be a federal and not a national constitution...”

An antiquated viewpoint? Consider Mr. Justice Thomas’ opinion in U.S. Term Limits, Inc. v. Thornton (1995):

“The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole. The ratification procedure erected by Article VII makes this point clear...the people of the several States are the only true source of power... it would make no sense to speak of powers as being reserved to 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...As Chief Justice Marshall put it, -[n]o 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, 4 Wheat. 316, 403 (1819)...”

In other words, “(a) new government was formed” by the people of the individual States.

It's really too bad that the southern politicians didn't submit their "secession" theory for consideration to the Congress (like the Consitutional Convention did) or to the Supreme Court. Hundreds of thousands of lives might have been saved.

I did not post this statement. Please address your comments to the author.

But the southern politicians were desperate. They thought that the institution of slavery was in jeopardy and they erroneously thought that slavery was a vital part of southern culture. (They even had some wonderful "theories" to demonstrate the value of slavery.) ... Slavery was so manifestly vital that these political stewards gambled with (to paraphrase the Declaration of Independence) their lives, their fortunes and their sacred honor. And they crapped out. And they even lost the institution of slavery.

As I observed previously:

Those who find themselves unable to prove secession unconstitutional inevitably play the ‘slavery card.’

Congratulations.

And 140 years later, we still have a few among us who insist that these southern politicians were nothing less than unrecognized geniuses, statesmen of the first order, that their magnificent theories were free of any and all doubts, and that it is all because of one evil man (Abraham Lincoln) that we are now forced to live lives of perpetual servitude and misery. It's just downright pitiful, it is.

Facts, my friend – you might wish to consider the facts. If certain of Mr. Lincoln’s actions were unconstitutional, it was not because ‘southern politicians’ traveled north, stopped by the White House, and forced him at gunpoint to violate his oath. As for the issue of secession, one Professor of History at Harvard University recently observed:

“(T)he proponents of secession had a strong constitutional argument, probably a stronger argument than the nationalists advanced.”

If there is anything “downright pitiful” about these debates, it is the refusal of some participants to recognize that simple truth...

;>)

“Something more than paper and ink?” There we have it – the words of a mystic appealing to ‘unwritten law.’ The Articles and the Constitution contradict your claims, so you refer us to “something more than paper and ink.” How nice.

Mystic? You're the mystic in this debate, postulating some ethereal "states" that have all the characteristics of eternal entities.

The Articles and the Constitution don't "contradict" my claims at all -- they confirm them. Do you think that somebody suddenly, and in the dead of night, decided to just write those documents and present them for ratification? Of course not -- those documents merely formalized the relationship that predated them. The relationship, and not the documents, is what defines the Union.

As for the rest, I can only say that those quotes do a better job of making my case than they do yours.

Article VII of the Constitution did not invite or authorize any ratifications with “conditions,” “qualifications,” or “reservations.” Conventions of the people in each of the states were given the option to ratify the Constitution as it existed. They were not given the option to amend the Constitution by their own unique qualifications or conditions or reservations. That is why a southerner, James Madison, spent so much time and effort directly (in the case of Virginia) and indirectly (in the case of New York) urging that the conventions not attempt to attach various bills of rights as conditions to their ratifications. Because he was successful, such additional proposals were made as “recommendations” accompanying ratification rather than conditional ratifications.

It is true that the preambles to several of the certifications expressed the same theory that formed the basis for our own Declaration of Independence - that sovereignty rests with the people Thus, in Virginia, the certification began:

"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 . . .”

How can you read that part which states that “the powers granted under the Constitution being derived from the People of the United States” and contend that the Virginians who ratified the Constitution did not understand that the government of the United States was being formed by the “people of the United States”? And how can you read that language and contend that it provides the state of Virginia (as distinguished from “the people of the United States”) with the authority to resume the powers being granted?

There are decent records of the actual debates that took place in at least a few of the state ratifying conventions. If you ever get a chance to read them, you will find that many of delegates voted against ratification because they knew that ratification was destructive to state sovereignty.

Sir, if “secession” is so clearly constitutional, don’t you think that your argument could be a lot shorter and less convoluted than it is?

I ask you:

Why couldn't South Carolina have submitted their proposal of disunion to the Congress?

And if the southern politicians genuinely believed in the legitimacy of their "secession" theory, why couldn't South Carolina have submitted its theory to the Supreme Court, the Court that decided Dred Scott v. Sandford (1857) 60 U.S. 393?

WIJG: “Something more than paper and ink?” There we have it – the words of a mystic appealing to ‘unwritten law.’ The Articles and the Constitution contradict your claims, so you refer us to “something more than paper and ink.” How nice.

r9: Mystic? You're the mystic in this debate, postulating some ethereal "states" that have all the characteristics of eternal entities.

Obviously you didn’t bother to read my post. You insisted that “’the states’ were created by the British.” According to Mr. Madison, the term ‘State’ (as used in reference to the Constitution) means “the people composing those political societies, in their highest sovereign Capacity.” I find Mr. Madison’s definition more appropriate. If you prefer a definition that must ultimately be derived from the authority of the British monarchy and ‘the divine right of kings,’ you are certainly welcome to it.

In any case, your reference to “something more than paper and ink” as a basis for a political union certainly qualifies you for the term ‘mystic’...

The Articles and the Constitution don't "contradict" my claims at all -- they confirm them.

Including your claim that “the states considered themselves to be bound together by something more than paper and ink?” If so, why bother with written compacts? If so, then why did the terms of the compacts contradict each other? If so, why was unanimous agreement required to alter the first compact, but the agreement of only nine States proved sufficient to establish the second? If indeed “the Articles and the Constitution...confirm” your mystical claims, feel free to provide a few examples – quote the documents in question. I will especially enjoy reading any clauses that suggest that the member States are bound by any conditions whatsoever that are not specified, in writing, in the compacts...

Do you think that somebody suddenly, and in the dead of night, decided to just write those documents and present them for ratification? Of course not -- those documents merely formalized the relationship that predated them. The relationship, and not the documents, is what defines the Union.

Your statement can most charitably be described as an interesting opinion. You seem to be suggesting that an ‘informal’ relationship somehow takes precedence over the specific terms of ‘formal’ compacts between member States. Although the ‘formal’ terms of the new Constitution initially produced a union of only nine States, with the non-ratifying States ‘formally’ excluded from that union, you would nevertheless have us believe that some ‘informal’ relationship negated the specific terms of the Constitution, and ‘informally’ kept the non-ratifying States within a constitutional union to which they were not even parties. As I said – certainly an interesting opinion.

As for the rest, I can only say that those quotes do a better job of making my case than they do yours.

In that case, you will not mind if I re-post a few of “those quotes:”

“Mr. Chancellor LIVINGSTON observed, that it would not, perhaps, be altogether impertinent to remind the committee, that, since the intelligence of yesterday [June 21, 1788, when New Hampshire became the ninth State to ratify the new Constitution], it had become evident that the circumstances of the country were greatly altered, and the ground of the present debate changed. The Confederation, he said, was now dissolved.”
The Debates in the Convention of the State of New York on the Adoption of the Federal Constitution

“It is indeed true that the term ‘states’ is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means...the people composing those political societies, in their highest sovereign Capacity... all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the ‘states;’ in that sense the ‘states’ ratified it; and in that sense of the term states, they are consequently, parties to the compact from which the powers of the federal government result.”
James Madison, Report of 1800

”When the colonies declared their independence it raised the question of sovereignty; to whom, or what, did the citizens of each of the new states owe their allegiance? This was answered by each of the states after war had begun between each colony and the Crown when allegiance to the state was demanded of each of the inhabitants, and this often as much as a year before the Declaration of Independence. Sovereignty of each of the states was recognized as the end result of freedom from the Crown as was so noted in all of the early state constitutions, Declaration of Independence, and the Articles of Confederation...”
R.H. Veal et. al., A Constitutional View of State Sovereignty and Secession, 1994

” "...(I)t is misleading to date the tradition of American liberty from the late 1780s, since the Constitution of the United States was in fact only the culmination of generations of practical self-government on the part of Americans. At the time of the framing of the Constitution and the formation of an allegedly ‘more perfect union,’ the colonists had precedents for challenging the powers of a confederation, as in the case of the Confederation of New England, for rejecting a confederation, as in the case of the Albany Plan of Union, and for bringing down a confederation by force, as in the case of the Dominion of New England. It can hardly be surprising, therefore, to learn that at the time of the ratification of the Constitution, three states [Virginia, New York, and Rhode Island] in acceding to the new confederation, explicitly reserved the right to withdraw from the Union at such time as it should become oppressive. In so doing they were only exercising the vigilance and libertarian principle that had animated the American experience during the colonial period.

"Thus when a union of polities becomes an end in itself, as it has in the minds of some since the days of Daniel Webster but certainly since Abraham Lincoln's revolution, the repudiation and indeed perversion of the colonial ideal is complete. Yet today, even self-proclaimed conservatives, whom one might expect to be engaged in preserving their country's tradition of liberty, cavalierly decry attachment to the principles embodied in the Confederate flag as "treason," even though the value of self-government vindicated by the South had been insisted upon since colonial times. The real traitors, however, are not the Confederates, but those who betray the real American tradition of independence and self-government in favor of the principle of unlimited submission to central authority. This is what the colonial period has to teach us."
Thomas Woods, Colonial Origins of American Liberty, 2000

Enjoy!

;>)

Patrick Henry

The Virginians Knew What They Were Doing!

In arguing against ratification of the Constitution at the Virginia ratifying convention, Patrick Henry made it clear that he was opposed to the Constitution because it was destructive to state sovereignty:

"I am apt to entertain doubts. I rose yesterday to ask a question which arose in my own mind. When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing — the expression, We, the people, instead of the states, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England — a compact between prince and people, with checks on the former to secure the liberty of the latter? Is this a confederacy, like Holland — an association of a number of independent states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition, from a confederacy to a consolidated government. We have no detail of these great consideration, which, in my opinion, ought to have abounded before we should recur to a government of this kind. Here is a resolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: and cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others. Is this tame relinquishment of rights worthy of freemen? Is it worthy of that manly fortitude that ought to characterize republicans? It is said eight states have adopted this plan. I declare that if twelve states and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it." – Patrick Henry, Debates of the Virginia Ratification Convention, June 5, 1788

In its declaration of secession, Texas proudly proclaimed the underlying theory of humanity that prompted the southern politicians to invent the theory of "secession":

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color-- a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

Maybe this is why South Carolina didn't feel it had time to present their solid constitutional claim to either the Congress or the Supreme Court:

"We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; . . ."

"A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that 'Government cannot endure permanently half slave, half free,' and that the public mind must rest in the belief that slavery is in the course of ultimate extinction." - South Carolina's Declaration of Secession

The southern politicians were disappointed with the results of the election and had to move quickly to prevent the "ultimate extinction" of slavery. There was no time to waste with litigation. That could take longer than a war!

Is that the best you've got? No founders huh?

"The advice nearest to my heart and deepest in my convictions is that the Union of the States be cherished and perpetuated. Let the open enemies to it be regarded as a Pandora with her box opened; and the disguised one, as the serpent creeping with his deadly wiles into Paradise."

-James Madison, 1834

Walt

Article VII of the Constitution did not invite or authorize any ratifications with “conditions,” “qualifications,” or “reservations.” Conventions of the people in each of the states were given the option to ratify the Constitution as it existed. They were not given the option to amend the Constitution by their own unique qualifications or conditions or reservations. That is why a southerner, James Madison, spent so much time and effort directly (in the case of Virginia) and indirectly (in the case of New York) urging that the conventions not attempt to attach various bills of rights as conditions to their ratifications. Because he was successful, such additional proposals were made as “recommendations” accompanying ratification rather than conditional ratifications.

Perhaps you should take the time to actually read the documents in question – some contained “recommendations,” others contained specific “reservations.” The critical point is this: were those ratification documents containing specific “reservations” accepted as valid, or not? Hmm? When a contract is modified by specific written conditions placed on the signature page, those conditions become a part of the contract upon acceptance by the parties. In fact, the ratification documents were the ‘signature pages’ of the Constitution, the ratifications in question were accepted as valid, and even the States which had specifically reserved the right of secession were admitted to the union. If the documents in question had been contested, you would have a case - not otherwise.

How can you read that part which states that “the powers granted under the Constitution being derived from the People of the United States” and contend that the Virginians who ratified the Constitution did not understand that the government of the United States was being formed by the “people of the United States”?

Quite easily – because I also note that the delegates acted only “in the name and in behalf of the People of Virginia,” something you obviously find it more convenient to ignore.

And how can you read that language and contend that it provides the state of Virginia (as distinguished from “the people of the United States”) with the authority to resume the powers being granted?

The only logical way to “read that language” is as a provision applying in a specific sense to the people of Virginia, and in a general sense to the delegates view of the nature of the compact as it related to the individual States. Are you suggesting that the delegates acted for “the people of the United States” rather than “in the name and in behalf of the People of Virginia?” Or would you suggest that the ratification is invalid and that the State of Virginia is not a member of the union?

I note that you have carefully avoided any mention of the ratification documents of New York and Rhode Island, that you fail to address Mr. Madison’s remarks contradicting your views, and that you have no answer for Mr. Justice Thomas’ careful analysis. Too much for you?

;>)

There are decent records of the actual debates that took place in at least a few of the state ratifying conventions. If you ever get a chance to read them, you will find that many of delegates voted against ratification because they knew that ratification was destructive to state sovereignty.

“If you ever get a chance to read” the records of the Philadelphia convention, you will find that the nationalist proposals of Hamilton and others - which would have effectively ‘destroyed State sovereignty’ – were debated and discarded (something John Taylor discussed at length in his writings). A federal plan was adopted instead. If the delegates to the State conventions feared a ‘destruction of State sovereignty,’ it was largely because they feared the new federal government would overstep the bounds placed upon it by the federal (not 'national') Constitution. Unfortunately, they were right.

Sir, if “secession” is so clearly constitutional, don’t you think that your argument could be a lot shorter and less convoluted than it is?

My argument can be summarized as follows: ‘the Constitution means what it says – no more, and no less.’ I find it most amusing that anyone would consider that argument “convoluted.”

I ask you:
Why couldn't South Carolina have submitted their proposal of disunion to the Congress? And if the southern politicians genuinely believed in the legitimacy of their "secession" theory, why couldn't South Carolina have submitted its theory to the Supreme Court, the Court that decided Dred Scott v. Sandford (1857) 60 U.S. 393?

Are you suggesting that every time a State considers an action that is nowhere mentioned in the Constitution, and that is not even prohibited by federal law, that the State should ‘submit’ the matter to Congress? Or are you suggesting the State should ‘submit’ such matters to the Supreme Court? Which is it? It’s not surprising that you seem unable to decide between the two, given the fact that neither process is mentioned in the Constitution itself - quite the contrary, in fact, given the words of the Tenth Amendment. In any case, I guess we should not be surprised that both of your proposals represent extra-constitutional expansions of federal power...

;>)