Replies

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...

;>)