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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...

;>)

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?

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!