Posted on 05/23/2002 8:52:25 AM PDT by stainlessbanner
Doing best Daffy Duck imitation:
"I think you're dithspicable."
Walt
Just because the affair was transacted in a disorderly and passionate manner by some people does not mean that the equities are not susceptible of reasoned analysis, which I have attempted to do, and which frankly Jefferson Davis did a better job of doing, in his inaugural address as the president of the still-provisional Confederate government, four weeks after he gave his valedictory address to the United States Senate. It's worth a read, if you haven't seen it already. It's posted somewhere here on Free Republic, as a matter of fact, in one of the other Civil War threads.
Your argument seems to involve the idea that the states are the people, the people are sovereign, therefore the states are sovereign, and the federal government is a government imposed on sovereign people and states.
Almost. I would agree with your precis, with the exception that the federal government is a government summoned into being by a Constitution agreed to by the Sovereign Peoples/States in conventions of ratification.
The other side of the coin is that the states are governments and impositions on the public as well, ....
Well, not exactly. We commonly make the mistake of confounding the States with their corresponding governments. They aren't those governments, they are those Peoples, those populi, poleis, or polities.
.....and the nation is a people as well, and "the people" that rights are reserved to under the Constitution is not "the people of the states", but simply "the people" which many would take as the people of the nation.
Unless I missed a post, that hasn't been argued here, except by you. I suggested it be bruited, but it hasn't. In my reductio ad absurdum, I tried to show that the Constitution does not contain explicit language that would establish that to be the case. If it was the intention of the Framers, I should think they would certainly have said so.
The deletion or addition of a word, in such circumstances, is very heavily loaded. For example, in the U.S. Senate's official discussion of the Tenth Amendment, which I linked to above, it is pointed out that much has been made of the omission of the word "expressly", between the writing of the Articles of Confederation in 1777 and that of the Tenth Amendment several years later, when referring to powers delegated to the United States, as opposed to those reserved to the People. The omission of the word "expressly" has been used to construct a legal argle-bargle to perfume wholesale invasions by Congress and the courts of areas of the law reserved to the States under the Tenth Amendment, to the point that in the 20th century the amendment became very nearly a dead letter, as I showed. (It was my purpose to show what cavalier treatment of reserved rights and powers has looked like, as a triumphant "consolidation" movement launched by Lincoln has progressively invaded the People's rights.)
The Centrist Consolidators and imperialist Statists having made much over language, to argue that the failure to re-use the word "expressly" signals original intent to overthrow an entire theory of government, I reserve the same right, and I do not concede that I am less than they a citizen with the right to interpret the Constitution's plain language as the Framers intended everyone should have the right. Of course, that runs contrary to the new theory of government, under which attorneys on retainer to Money and Power do all the interpreting, and we have recourse only to their hired opinions, about what our rights in the law are.
Therefore I insist that the Constitution's reticence about a transfer of Sovereignty, or the creation of a new Populus and the subsumption of the extant Peoples who created the Union by a new populus or polity of the Union, is explicit and every bit as wilful and determining as the Framers' omission of the word "expressly" when referring to delegated powers. I conclude from the omission, that the intent to subsume and displace the People of the State in a People of the Nation was deliberate, and that the Unionists may not correctly infer such an intent, only because it is convenient to their larger purposes.
Of course not, not that any sort of Constitutional restriction would have bothered Davis anyway. Maybe they needed that large an army to keep all the dissatisfied sections of their new 'country' in line? Can't have anyone yelling 'states rights' and seceeding from the confederacy, could we?
The Act of 1790 recognized that the state acts were legal. Accordingly, they ceased being a state in the union.
What act?
I don't suppose the Supreme Court had ever heard of it, as they ruled in The Prize Cases of 1862 that the actions of "the so-called Confederate states" (their phrase) were rebellion against the lawful government and that the federal government was within the law to put down the rebellion.
The concept of legal unilateral state secession is null in our laws. It doesn't exist.
To buy off on such blather, we have to swallow the idea that the Constitutional Convention met, deliberated, and then changed nothing at all.
They well knew it was a fundamental change in the relation of the states and the federal government. They accepted it because the Articles were a total flop.
I remind you again that Jefferson Davis used language in the so-called constitution of the so-called CSA identical to language in the Constitution to maintain that the federal government COULD corece the states. He disgarded totally the idea of complete state sovereignty. Was he wrong?
N/S, it's no wonder they call me Whiskey poo poo.
The record blasts everything they say.
Walt
And I should also apologize for my slowness in reply, which I can account for only by confessing that I felt the burden of your argument and thought that I ought to reply carefully, but nevertheless I was drawn off by certain red-meat challenges offered elsewhere.
In your view the states seem to be like atoms free to combine and separate, but unbreakable in themselves.
That is a fair construction, and the idea rests on the idea of a Sovereign People. In the United States, the State preexisted the Union, pace Lincoln's lawyerly (not to say Clintonesque) argument and his support by the Declarationists, and so the People of the State are the basic building bloc of government, the essential Polity that enjoys Sovereignty as a result of the American Revolution.
But the nation is more than a molecule to be dissolved chemically. There is a common national heritage to be disposed of when nations are dissolved, and doing so can be very problematic.
Agreed. But it's also true that the South had tried for 30 years to deal with Northern political aggression, and came lately, and I think overall fairly, to the reasonable conclusion that the United States was Siamese twins, two separate nations divided by speechways and folkways, by values and interests, and even ethnographically. It's easy to argue that the United States should always have been two countries -- so says Roland Garreau, in The Nine Nations of North America -- and its political leaders' early strategic decision to hang together in order to avoid hanging separately outwore its usefulness after the British threat had receded.
It's also simplistic to assume that the states are the people. A working federal system allows for the majorities and minorities in the nation and the states to have their say. Secession at will doesn't incorporate the same safeguards for all interests.
Omitting for a moment the necessary objurgation of your use of the phrase "secession at will", I am otherwise unable at the moment to assess your assertions. Is there a way to test them? My first reaction is that, in the American system as we've received it from Orville Babcock and the Whiskey Ring -- the true refounders and exponents of the Newly Industrializing American Empire and its pillars of oligarchy and access capitalism -- if you aren't a member in good standing of the U.S. Chambers of Commerce or the National Association of Manufacturers, you're not really a citizen anyway, but more a policy object.
Your well-reasoned argument that, had history followed the path not taken, other problems would surely have presented themselves, is correct. They would have. The more immediate problem for the historian surveying the wreckage of the Civil War and Reconstruction and all that flowed from both, is the ineluctability of the central proposition that Lincoln's Revolution unleashed what John D. Rockefeller I called "the age of combinations", viz., of the submergence of the individual by heartless and ruthless economic organizations. Something like that would have occurred in the North, no doubt, but it would not have achieved the popular legitimacy it did as the dominant culture of inequality, social Darwinism, timeclock serfdom, and the horrible diminishment of the sense of self that lies at the core of modernism, and makes modern individuals mendicant supplicants of giant, Orwellian apparatuses of one ideological stripe or another. It is no accident that this folkway, this "Gorebot" way of being, is much less common in the South, Midwest, and Mountain West than it is in "Blue Country"......and if the South had gone free, it would have been much less pronounced, I think, and the values and teaching of freedom much more prominent, in the inner life of 20th-century North America.
I don't think there are any easy formulas to solve the problem. The founders could have resolved the problem by including a means of dissolution of the union in the Constitution. That they didn't means that subsequent generations must procede [sic] with caution and not presume answers that aren't present in the Constitution or acceptable to all concerned parties.
I disagree. I say rather that silence in the Constitution leaves us at liberty, in the best sense, to proceed by our lights. I think that that is what the Framers intended......or at least, what they said they intended: as long as Hamilton was speaking, I think one needed to watch his purse -- and his throat.
Silence in the Constitution does not withhold permission to act, it permits action. Or so I think.
As for your example, I'd imagine a lot of Floridians would object to joining an "Antilian Confederation"....Secessionists forces will assert their own legitimacy and deny that of their opponents. Violence is likely. That is why dissolution of the union is such a grave and ponderous matter. Simply arguing that "states" can leave at will is in the end a recipe for war. There has to be much negotiation and there has to be unquestioned procedural legitimacy.
Well, I thought it was the New York bankers who threw down the gauntlet, politically, on the idea of secession -- they and Lincoln, who wanted the Southern States in the Union so he could job them. It seemed to the Southerners that remaining in the Union -- and they said so -- was the course more fraught with danger.
As to procedural legitimacy, the South tried to show it by convening as the People, to rescind their long-ago ratification, and to secede from the Union. There was nothing left for them in the Union, nobody argues seriously, North or South, that there was. And their suffering ever since, either more or less at any given time, gives the lie to Unionist propaganda, that the South would have been better off if they'd tucked their chins, gone lily-livered, and crawled for the Northerners. To this day, they are still officially suspect characters under the Civil Rights Act of 1965, and may not hold elections, ever, without the express permission of the Department of Justice's Civil Rights Division, which is really a political bureau to which the Southern states must slavishly recur every time they reapportion.
The general lesson seems to be that patience and persistence win out in the end. ... If secessionist leaders had taken that path, they would have gotten their nation or nations. We would be the worse for it, though their own generation would have been spared great losses.
I agree as to outcomes, but whether we should be worse off by another outcome depends on who "we" is. The Northern Industrialists would have lost their generations-long stream of cream gravy from the tariffs, and their captive markets and price supports. Blacks would obviously have lost, but even so there might not have been as much Jim Crow -- I can't prove that, since I've only seen a few moderate expressions of view, e.g. w/ respect to black soldiering in the Confederacy, discussed elsewhere, and white attitudes toward the idea. Smallholding or propertyless Southern whites might actually have lost, I don't know -- the equities for them and other groups are harder to calculate and speculate about.
Unfortunately, Southern political elites were mesmerized by the idea that they were struggling against some tyranny or oppression, rather than just trying to get a divorce.
Well, their milieu was a lot closer to the Revolution and the War of 1812 than ours, and no-fault divorce was unheard-of.
Therefore they had to make the federal government of their time out to be some sort of oppressor to be resisted by any means -- an evil misrepresentation that would poison the situation and have evil consequences.
Not the federal government itself, but the federal government as a tool of the Republicans. As someone has pointed out elsewhere, Lincoln represented the more reasonable wing of the Republican Party. Please remember that it was the Abolitionists who began the sectional hate-baiting.
But justifying or glorifying [the secessionists] is another matter, and excusing them while vilifying their opponents is even further out of line. ...They replaced constitutional government with violence and buried the old Republic. I might have had more respect for them if they'd shown more respect to our national venture and history and hadn't simply given up on it. That they were willing to throw away the country when, through their own folly, they lost an election, makes them unacceptable as a model for republican virtue. That they chose to cloak themselves in the garments of the Founders makes them more repugnant.
Well, that is a value judgement you are free to take for yourself. I share your opinion, I think, of their leadership abilities and political perspicuousness; there was rather less of rational forethought than e.g. Abraham Lincoln brought to the table, and rather more of the manner manorial, of gentlemanly prickliness and early resort to drastic resolutions (many of them, remember, had lived by Code Duello as a metric of personal manliness). Too, a lot of slavocrats may have been arriviste new players and apt to overdo it, in order to impress the ladies. I think you err, though, when you persist in holding the planters of the antebellum South accountable for having practiced chattel slavery, as if they were moderns and not premoderns imbued with another body of law and custom, but you are free to reprehend anyone you want to. Please don't take it as a repudiation of your moral vision if other posters demur on teleological grounds, that it isn't fair to judge Aristotle by the standards of Fermi, for the purpose of belittling Aristotle.
Whatever their failings, and their failures, the leaders of the Old South had recognized an attempt on the Peoples' liberty, and had attempted to remove their Peoples beyond the reach of the aggrandizing and triumphant faction. Madison and Calhoun had never solved the problem in the Old Republic, of what to do about avaricious or ambitious Factions -- of which the Republican Party, in its aspect in 1860, was surely one, a fact we can recognize easily from the rapidity and ease with which it entrenched itself in four years' incumbency, even in time of war.
If there was no road map for dealing with such ideologically- and greed-driven.... drivenness, can you be so sure of yourself in condemning the Southerners for trying to avoid a contest they felt they would lose, by contracting the ambit of the Republic they would be willing to participate in? Theirs was a not-unreasonable response, even if they failed signally in the carrying forward of their attempted remedy.
Very noble. Exept for the 3.5 million slaves. Weren't they southern people too?
Walt
Pardon me for differing, but I preferred the Second National to all of them -- it's a knockout, frankly.
I have some two dozen flags, all American flags save one or two colonial and pre-independence Texas flags (the 1824 flag is really a Mexican Constitutionalist banner), including three or four Confederate ones. I would like to add to the Confederate collection and to my collection of U.S. National patterns (I have 31- and 34-star flags from the Civil War era; the 34-star is the big star-and-circle pattern in the Union). I would like to find a copy of Polk's corps flag, and the reversed-colors flags used in Texas and Kirby Smithdom. There are also a couple of Revolutionary War patterns I'd like to find -- in lightweight prints, of course, since I'm not prepared to spring $30-70/flag.
Operative word, "advice".
--"Our Sacred Honor" p. 92, by William Bennett
"This government, the offspring of own own choice uninfluenced and unawed, adopted upon full investigation and mature deliberatin, completely free in its principals, in the distribution of oits powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. ....The basis of our political systems is the right of the people to make and alter their system of government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all."--George Washington, 1796
Washington got it partly right. What he didn't get right is that the Constitution and its powers flow from the People, not vice versa. The People are Sovereign, and merely use the laws to govern themselves: the laws are not the Sovereign, and the People may unmake them. The bit about "the whole people" meaning all the Peoples of all the States is just GW's opinion -- if he and the Framers really meant that and had agreed to it, those words would have been in the Constitution itself as a necessary clarification -- since it would have represented a fundamental change from the status quo ante in which the Peoples of the several States were Sovereign, and retained Final Power under the Articles of Confederation, as clearly stipulated in Article II of the same. Furthermore, such a change, if agreed to (and it wasn't), would have been written into the document in plain, inescapable language. It wasn't.
"It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States." --Thomas Jefferson, 1821
But Thomas Jefferson never met Abraham Lincoln.
And then you quote Lincoln. Beautiful.
"Must a government, of neccessity, be too strong for the liberties of its own people, or too weak to maintain its own existance?" A. Lincoln, 7/4/61
Well, I guess he showed us the answer to that question, didn't he?
The secessionists were ....
Yeah, right. Keep mumbling.
But thanks for the link/cite.
Close. Read the 10th. The federal government has powers which have been delegated and enumerated, and those that the states are forbidden from exercising. Madison, in Federalist 45: "The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite."
Those powers are delegated by the constitution to the federal authority.
Wrong. The powers were delegated by the STATES (derived from the people of each state), and from the states to the federal government via the Constitution. The states existed before the union, they created the federal government. Or else you'd have to assert that the union created itself from the non-existing states.
No state can usurp them. But by seceding, the southern states were doing exactly that.
Wrong. No state in the union can usurp them. A seceded state is no longer part of the union. The states possessed those powers originally and delegated them to the federal government. They are not usurping the powers - they returned to the state when the political bonds between them and the federal governemnt were broken.
Again, I note that no state laws (including secession ordinances) can possibly take precedence over the constitution given that Article VI, clause 2 says that all state laws are subordinate to the constitution and that no amendment overrules the supremacy clause.
What, you think that if you repeat it a million times I'm finally going to agree with you? Pursuant. Don't forget the word. And exactly where does the supremacy clause state that no amendment can override it? Isn't an amendment part of the Constitution?
In your mind, and only in your mind.
To be sure, Sam Adams would approve of your picture, and maybe Patrick Henry, but not Washington, Hamilton or Madison. One can already see a national consciousness developing then. Washington certainly allowed states a free hand in the areas reserved to them, but I think the idea of a state as a tribe or city-state or absolute sovereign was something he disapproved of and wanted to get beyond.
I used to think Madison was wrong, and regretted the loss of smaller communities with their own traditions and culture. It certainly must have been more colorful when the different states had their own distinctive memories and practices and nice to actually meet people who worked in the distinctive industries we learned about as kids, rather than just people who worked at the same sort of jobs from one end of the country to the other. But looking at what's happened in the Balkans, the Caucasus and the Middle East, and remembering what's happened throughout history makes me think that greater standardization wasn't the worst thing to happen.
The ancient city could be a terrifying place, as Platonists and anti-Platonists could both tell you. The weight of the city's cult and civic solidarity fell very hard on outsiders and non-conformists. A larger union allowed individuals greater freedom to live and work without having completely to accept the views of the local authorities on every question. This does open the door to greater power for the federal or union government, but I hope it's not an either-or exclusive choice between federal or state tyranny.
I don't have time to respond to the rest of your posts now, but I will make two comments. First, Rockwellites want us to believe that had the nation fragmented into smaller countries committed to laissez-faire policies it would have developed economically pretty much as it did in our reality. But it's not clear that such new countries would have been committed to laissez-faire, or that laissez-faire would have spurred development as fast as protectionism did. In the back of their minds the Rockwellites presume that the free trade conditions of the late 20th century would have prevailed in the 19th. In fact, dog-eat-dog was much more the rule in the late 19th century. One could expect trade wars, and those that weren't prepared to engage in them might sink into subordinate, neo-colonial status.
Secondly, the Republican party was in many ways a faction. But that was also true of the Breckenridge party and the secessionists. Factionalism was the essence of the age politically, and the Republican saw themselves, with good reason, as responding to the factionalism of the slaveholders and organizing to defend free soil. I suppose one could say something similar about Southern radicals who saw themselves as organizing to defend their own "institutions." Curiously, it was the moderate Douglas who did most to create such a heated atmosphere with his Kansas-Nebraska act.
I could have sworn it was Lincoln who said that. I would admit that he had a kind of low criminal cunning, but I certainly wouldn't call him smart - and least of all "wise".
1). A state joins the Union.
Three states explicitly reserve the right to leave.
2). By so joining, she gives up her sovereignty and accepts the constitution as the supreme law of the land.
Only where the states have delegated sovereignty to the federal government.
3). Any laws that she makes from ratification onwards are subordinate to the constitution. This includes any secessionist ordinances since they are also laws.
Only where the states have delegated sovereignty to the federal government.. The ratification agreements were not laws - secession ordinances are not laws - they simply rescind ratification. They are public acts of the state. Think of it as another ratifcication vote, only this one fails to accede.
4). Any secessionist ordinance is a blatant attempt to put state laws above consitutional ones. This is because the state is trying to usurp the powers reserved specifically to the federal government in Article I of the constitution.
Nonsense. Once seceded, the state is no longer a member of the Union, and not bound by any restrictions. As noted previously, secession ordinances are not laws.
5). The southern states admitted in most of their secessionist ordinances that they had no sovereignty under the constitution.
So? That doesn't change anything, even if true.
6). Using your arguments would mean that it would be legal for one person to secede (with all of his property) from the state and the Union and set up his own country.
No. That's an issue for the state itself to decide, and is covered by the state constitutions and laws.
Sorry, but your arguments don't wash. ... Neither the 9th nor the 10th nor any other amendment or article of the constitution overrule the delegated federal authority listed in Article I. And that is exactly what a secession is trying to do.
Sorry, but your arguments don't wash. The 9th & 10th are part of the Constitution. The delegated authorities do not include a clause granting the federal government the ability to prohibit secession. The prohibitions enumerated do not include a clause limiting the states power to rescind their ratification.
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