Posted on 05/16/2002 11:37:00 AM PDT by Aurelius
During my May 7 debate with Harry Jaffa at the Independent Institute in Oakland, California, Jaffa made several statements that literally caused some jaws to drop in the audience along with looks of utter disbelief. (His supporters grinned and nodded approvingly). He stated, for instance, that "Lincoln never did anything that was unconstitutional;" that Virginia never reserved the right to withdraw from the Union when she ratified the Constitution; and that the British government never recognized the colonies or states individually in the Treaty of Paris. There was never any such thing as state sovereignty, in other words, and nothing Lincoln ever did – even unilaterally suspending the writ of habeas corpus and having the military arrest thousands of Northern citizens – violated the Constitution.
One gets a very different perspective if one reads Jonathan Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution, edited by James McClellan and Mel Bradford and reprinted by J. River Press in 1989 – or the original ratification documents, for that matter. One finds that this is what the Virginia delegates said:
We, the delegates of the people of Virginia . . . Do, in the name and behalf of the people of Virginia, declare and make known that the powers granted under the Constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them at their will . . .
New York made a similar declaration: "We, the delegates of the people of New York . . . do declare and make known that the powers of government may be reassumed by the people whenever it shall become necessary to their happiness . . ." And Rhode Island made an almost identical declaration: "We, the delegates of the people of Rhode Island and Plantations, duly elected . . . do declare and make known . . . that the powers of government may be resumed by the people whenever it shall become necessary to their happiness . . ."
Jaffa is the master of what Joe Stromberg calls the "dark art" of "reinterpreting" documents such as these to mean not what they say in plain English but what he wishes them to say in a way that is consistent with his political proclivities.
During the debate Jaffa relied on his quite substantial reputation to simply declare that the British government did not recognize the states individually in the 1783 Treaty of Paris at the conclusion of the American Revolution. I could only respond that I made it a point to re-read the treaty in preparation for the debate, and that Jaffa was wrong. I should have brought a copy of the Treaty with me, for here is what Article I says:
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, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; and he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, proprietory and territorial rights of the same, and every part thereof. ("Treaty with Great Britain," in Charles Eliot, ed., The Harvard Classics, vol. 43,
This is important, for the founding documents consistently make the point that the states are sovereign and are establishing a Union to act as their agent. That’s why, whenever the phrase "United States" appears in the Constitution, it is in the plural – to signify that the individual sovereign states were voluntarily banding together to form the Union. This use of language was turned on its head by force of arms from 1861 to 1865 when, as Shelby Foote writes in his book, The Civil War, Americans quit saying "the United States are" and began saying "the United States is," signifying the transformation from a confederacy of sovereign states to a consolidated, monolithic empire.
The one comment of Jaffa’s that drew gasps and looks of disbelief was his insistence that Lincoln never did anything that was unconstitutional. These people were obviously aware that the Constitution does not provide for a dictator but a president, and that generations of historians have referred to Lincoln as a "dictator" but a benevolent one. "Dictatorship played a decisive role in the North’s successful effort to maintain the Union by force of arms," wrote Clinton Rossiter in Constitutional Dictatorship. Lincoln’s "amazing disregard for the Constitution was considered by nobody as legal," Rossiter also proclaimed. "If Lincoln was a dictator, it must be admitted that he was a benevolent dictator," wrote James Ford Rhodes in his History of the United States, a statement that was repeated almost verbatim by James G. Randall in Constitutional Problems Under Lincoln.
The main reason why generations of historians have labeled Lincoln a dictator (but also made an ends-justify-the-means defense of his dictatorial behavior) is probably the fact that on April 27, 1861, two weeks after Fort Sumter, he unilaterally suspended the writ of habeas corpus and eventually ordered the federal army to arrest between 13,000 and 38,000 Northern civilians who were suspected of opposing his administration (this is the range of estimates that exists in published literature). These people were never given any due process at all.
The chief justice of the U.S. Supreme Court, Roger B. Taney, issued an opinion that such an act was unconstitutional because only Congress has the power to do so. He cited former chief Justice John Marshall as saying that "it is for the legislature to say so" if habeas corpus is to be suspended; he cited Justice Joseph Story as concurring with that opinion, as did English and American precedents; and he pointed out that the suspension of habeas corpus appears in the Constitution under the section on legislative, not executive powers.
If an American president can unilaterally suspend habeas corpus, Taney wrote, then "the people of the United States are no longer living under a government of laws; but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found." Lincoln simply ignored Taney’s opinion.
The jaw droppers at the Independent Institute debate must have also been aware of Lincoln’s demolition of the First Amendment during his administration to have reacted with such looks of disbelief. There were hundreds of opposition newspapers in the North, and many of them were shut down and their editors and owners thrown into military prisons without any due process. For example, on May 18, 1864 Lincoln issued an order to General John Dix that read as follows: "You will take possession by military force, of the printing establishments of the New York World and Journal of Commerce . . . and prohibit any further publication thereof . . . you are therefore commanded forthwith to arrest and imprison . . . the editors, proprietors and publishers of aforesaid newspapers." Dix complied, and hundreds of newspapers were censored (see Dean Sprague’s Freedom Under Lincoln).
The history books also discuss how federal troops were ordered to interfere with Northern elections (Lincoln won New York by 7,000 votes in 1864 "with the help of federal bayonets," according to David Donald in Lincoln Reconsidered); all telegraph communication was censored; the railroads were nationalized; new states were created unconstitutionally; and the Tenth Amendment was all but destroyed by the war.
Even Lincoln’s own attorney general, Edward Bates, was of the opinion that Lincoln’s orchestration of the secession of western Virginia from the rest of the state was unconstitutional. Article IV, Section 3 of the U.S. Constitution reads: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any state be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress" (emphasis added).
West Virginia was unconstitutionally carved out of Virginia, and since it did not even exist as a state, its non-existent legislature could not have consented, as required by the Constitution. A puppet government was established in Alexandria, Virginia, run by Republican Party operatives, which guaranteed a few more electoral votes for Lincoln in the 1864 election.
I’m sure Jaffa can come up with some tongue-twisting, Clintonian "spin" as to why these realities are not really realities. He’s been doing it all his life. And he absolutely must continue doing so, for the entire case against states’ rights rests on the assumption that Lincoln was only enforcing the Constitution when he launched his invasion. The Southern states were dissatisfied with the results of a duly constituted election, and that is no reason to secede. Jaffa repeated this during the debate and has done so in many of his writings. His position is that no state ever has a right to secede, for any reason, as long as the constitutional rules of elections are followed. Presumably, this would hold true if say, a Southern sectional candidate were to be elected president and, with his party in control of Congress, enacted a flat 80 percent income tax on the Northern states and a 20 percent flat tax on the Southern states, while making interstate migration illegal. That was roughly the tax situation after Lincoln was elected, with Southerners paying as much as 80 percent of all tariff revenues which, at the time, were the primary form of federal taxation.
If Lincoln was not, in fact, a devoted champion of the Constitution, the whole anti-states’ rights house of cards collapses. If he disregarded the Constitution and acted like a dictator, no matter how noble his ends might have been, then the sanctity-of-the-Constitution argument against secession goes out the window. This, in my opinion, is why Jaffa must continue to make such outrageously ahistorical statements.
I agree with you 100% right down the the past tense of "It worked".
It no longer does!
If you like. But that is hardly the fault of Abraham Lincoln or the brave Union soldiers who saved the government envisioned by George Washington.
Walt
Tarot card readings are held to be valid by many. The question is whether those opinions were backed up by Constitutional law. The answer is no.
Who thought that?
In four seminal court cases, SCOTUS made rulings that preclude such an interpretation.
Those cases are:
Chisholm v. Georgia 1793
Martin v. Hunter's Lessee, 1816
McCullough v. Maryland, 1819
Cohens v. Virginia, 1821
Your statement doesn't hold much water when compared to the actual record.
Walt
It is good to see someone call one of these Socialist deceivers on an out and out lie; and frankly I am glad for the heads up on the Treaty of Paris. That is an excellent point to respond to those who refuse to recognize that our Constitutional system was adopted by completely sovereign States--each as sovereign, for example, as the States of France or Great Britain at the time. That is certainly how our Declaration Of Independence treats them, and thus has certainly always been the historic American view--liars like Jaffa notwithstanding.
For a fuller appreciation of how completely Socialism in all of its varieties depends upon a willingness to lie, see The Lies Of Socialism.
Do you know if the Treaty of Paris is available on the Web? I would like to lift it and publish it at my web site, or at least have a link. Again, that point is really an excellent one to nail the point.
William Flax Return Of The Gods Web Site
These states acted as independent sovereigns when they negotiated the Articles of Confederation, Constitution and supported the Declaration of Independence. They wrote those resevations of their right to withdraw at the time of their ratifications. Secession is not covered in the Constitution, but in the same manner the States were created, the justification for secession comes from the claims of the secessionists and the agreements arrived at from the eventual resolution of the matter with opposing parties.
Historically justifications in this sort of matter were validated, or not, by open warfare. Constitutions are contracts. When disputes arise that involve irreconcilable differences, the party most adept at exerting their will wins and awards itself the title of right in whatever justifications it expounds.
Can you post that? And can you also post where the US Congress which received the ratifications left any record of whether or not they considered such resolutions?
But many thanks for the labor saver!!!
William Flax Return Of The Gods Web Site
Mr. Tyler stated that "[p]revious and subsequent amendments are now the only dispute", an opinion held by numerous other delegates. To which the majority agreed they could not amend the Constitution before ratification. Which is why their proposed amendments are found after their assent to ratification. And conditions, expectations, stipulations - whatever you want to call them - were placed in writing before the ratification - and only with the understanding that such conditions were non-negotiable - let me post that entire portion of their ratification:
WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.
With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification:
We the said Delegates, in the name and in behalf of the people of Virginia, do by these presents assent to, and ratify the Constitution recommended on the sevententh day of September, one thousand seven hundred and eighty seven, by the Foederal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:
Woops! Where did the whole phrase go? You're being dishonest AGAIN. I have caught you before. I have caught you again. The words read: the powers...may be reassumed by the people of the United States...
I wrote in #80: "What part of "the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness ... Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated ... do by these Presents, assent to, and ratify the said Constitution" don't you understand?"
Now, if you would simply follow the chain of responses backward - I'll mark mine in blue, yours in red: 80-47-45-40-36-26-23. Which was in response to your statement "I have never seen anything that explains how something in a state-authored ratification document can dictate terms to a Constitution which was agreed upon in a Convention of delegates who set the terms for ratification." found in your 11. In my response 23 I cited the ratification of the state of Rhode Island & Providence Plantations, not Virginia:
We, the delegates of the people of the state of Rhode Island and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the commonwealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately considered the present situation of this state, do declare and make known,--
I. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity,--among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
II. That all power is naturally vested in, and consequently derived from, the people; that magistrates, therefore, are their trustees and agents, and at all times amenable to them.
III. That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness [lengthy list removed, unless you insist that the entire document be posted every time]
Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments hereafter mentioned will receive an early and mature consideration, and, conformably to the fifth article of said Constitution, speedily become a part thereof,--We, the said delegates, in the name and in the behalf of the people of the state of Rhode Island and Providence Plantations, do, by these presents, assent to and ratify the said Constitution.
No dishonesty - now or before.
Some of it is posted in the original article; that's where I got the cut. I don't have access to any transcripts of the ratification deliberations.
"...where the US Congress which received the ratifications left any record of whether or not they considered such resolutions?
The 1st Continental Congress supported the Declaration of Independence. The following is from the VA declaration of rights and embodies the sentiment in the Declaration of Independence.
" Aticle III.
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.
"reform, alter or abolish", would encompass secession as a case of the people of a state finding the fed charter, "...inadequate or contrary to these purposes". The Constitution demands Congress keep records of their deliberations. I don't have access to them.
In every judicial decision, do the justices have to cite within the entire history of English common-law to support their decision? Do they have to instruct & teach the English language? Why supply "supporting" documents - when the document in question contains the proof of what is being requested? Just like a building is proof of the intent to build it - it stands own it's own.
Do you honestly think that men such as Madison, Tyler, Lee, Mason, and John Marshall (ring a bell) were ignorant, and crafted a ratification that was illegal? Why would they include the phrase "the powers granted under the Constitution, being derived from the people of the United States may be resumed by them" if it was simply declaratory? Why assert that such rights could not be violated? Why state that their ratification was done with "these impressions" and evidenced by "these presents" if it was simply declaratory? Why put it in writing at all?
I'm not suggesting it - the founders are the ones who reserved that right. And there's nothing unilateral about it - they gave notice in their ratification agreements that it could be exercised.. But if you disagree, please cite the statute in US Code that explicitly prohibits secession. Pardon me if I don't hold my breath - if it's like your concept of treason, I already know you're wrong.
You are engaged in a ridiculous word game, that starts without bothering to actually read the meaning of the words you use.
William Flax Return Of The Gods Web Site
Thanks for the cases. I don't have time to read them now. I scan Chisholm v. Georgia.
The point of disscussion I addressed is whether or not a state, or sovereign entity for that matter, has a right to and can cede. Many state constitutions contain a clause, such as I gave in 111. It embodies the claims and justifications given in the declaration of Independence. The Supreme Court can not rightfully nullify the very justifications used to create the charter responsible for it's very existence. They would logically undermine their own foundation.
What, you think they didn't even read them - they just took the states at their word? You'll note that "such ratifications duly authenticated have been received by Congress" means that the ratifications were received. How were they authenticated? Do you think they read them perhaps? If they had objection to any condition contained therein would you assert that they could not refuse the ratification, that they must accept it simply because the states returned it?
The normal thing for someone asserting that they did consider such things to do would be to find actual documented proof, and present it. Go ahead. Let the truth be known, whatever it may be.
The ratifications were returned - and accepted. The proof is in front of you again - there is no need to search for ADDITIONAL evidence - the statement "And whereas the constitution so reported by the Convention and by Congress transmitted to the several legislatures has been ratified in the manner therein declared to be sufficient for the establishment of the same and such ratifications duly authenticated have been received by Congress" is the proof.
Actually they're not. Reread it. Just from Article 1 and 2 of said treaty. Of course you know the first
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states,
Article 2
And that all disputes which might arise in future on the subject of the boundaries of the said United States may be prevented, it is hereby agreed and declared, that the following are and shall be their boundaries
Interesting that if the treaty was signed with the United StateS as a whole entity, the correct grammar would have been its boundaries instead of THEIR (plural meaning more than one entituy
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