Posted on 11/01/2002 6:42:37 AM PST by stainlessbanner
that was MY mistake. it's called not PROOFREADING!
free dixie,sw
The Supreme Court decides which acts of Congress are unconstitutional.
The Court in 1862 cited two acts of Congress as allowing the president the power to put down insurrection and rebellion. One of those same acts requires that United States law operate in all the states.
What you think doesn't enter into it.
Walt
You don’t have to “dig that up later” – I have a link to his text at my FR home page. Just click on my ‘screen name’ and ‘ante up,’ sport...
;>)
In any case, Rawle is a minor author, and it certainly seems odd that you would put him forward (and out of context) in face of the many Supreme Court decisions that make plain that unilateral state secession is clearly outside U.S. law.
Thank you for not disputing the plain fact that this “minor author” wrote the text used to teach constitutional law at West Point, the fact that this “minor author” was a friend of Washington and Franklin, the fact that this “minor author” prosecuted the ‘insurrectionists’ responsible for the Whiskey Rebellion (this “minor author” – unlike you – clearly knew the difference between “insurrection” and “secession” ;>), and that this “minor author” was an abolitionist who’s legal texts were recommended by Northern literary reviews well into the 1850’s. By the way, if “many Supreme Court decisions...make plain that unilateral state secession is clearly outside U.S. law,” why don’t you quote three or four, rather than resorting to an undefined “moderated ACW nesgroup” and “Robert Penn Warren?” Pretty please?
;>)
That's not what Jefferson Davis thought.
You do enjoy quoting Jefferson Davis, don't you? I must ask: are you quoting ‘Jeff Davis the vile traitor,’ or ‘Jeff Davis the patriotic staesman?’ Hmm? If the former, why should we bother with his opinions? If the latter, you seem to have a bit of a conundrum on your hands, do you not? Which is it, sport? Traitor or statesman?
Bon appetit!
;>)
From the majority opinion in McCullough v. Maryland (1819)...
You have repeatedly quoted James Madison’s personal letters - when they suit you. Let’s take a look at something you consistently ignore: his written opinion (from one of those letters) regarding McCullough v. Maryland:
[James Madison] To Spencer Roane
Septr. 2; 1819.
Dear Sir
I have recd. your favor of the 22d Ult inclosing a copy of your observations on the Judgment of the Supreme Court of the U. S. in the case of M'Culloch agst. the State of Maryland...
...(W)hat is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned. In the great system of Political Economy having for its general object the national welfare, everything is related immediately or remotely to every other thing; and consequently a Power over any one thing, if not limited by some obvious and precise affinity, may amount to a Power over every other...
Is there a Legislative power in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified Power? Does not the Court also relinquish by their doctrine, all controul on the Legislative exercise of unconstitutional powers? According to that doctrine, the expediency & constitutionality of means for carrying into effect a specified Power are convertible terms; and Congress are admitted to be Judges of the expediency...
(S)uppose Congress should, as would doubtless happen, pass unconstitutional laws not to accomplish objects not specified in the Constitution, but the same laws as means expedient, convenient or conducive to the accomplishment of objects entrusted to the Government; by what handle could the Court take hold of the case?
It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter; more especially those which divide legislation between the General & local Governments; and that it might require a regular course of practice to liquidate & settle the meaning of some of them. But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification...
Guess what, friend Walt? Mr. Madison, in his private correspondence (which you selectively quote ;>), considered the court’s opinion in McCullough v. Maryland to be constitutional heresy.
No wonder you quote “A.T. Mason” rather than James Madison.
;>)
”... ...there is certainly nothing in the circumstances under which our constitution was formed; nothing in the history of the times, which justify the opinion that the confidence reposed in the states was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legislative measures of the Union..."
What complete and utter horse manure. Shall I quote the ratification documents of New York, Rhode Island, and Virginia (links available at my FR home page ;>)? Each of those States specifically reserved the right to reassume the powers of government when they ratified the Constitution. In other words, your Mr. Mason was either an ignoramous, or he was lying through his teeth.
;>)
The Supreme Court decides which acts of Congress are unconstitutional.
For your edification:
”The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn't say that anywhere. We made it up.”
Justice Antonin Scalia, Remarks at The Catholic University of America Washington, D.C., October 18, 1996
Looks like the justices of your own court don’t even agree with you.
;>)
The Court in 1862 cited two acts of Congress as allowing the president the power to put down insurrection and rebellion.
“Insurrection and rebellion?” Once again you ignore the meaning of simple English words - neither “insurrection” nor “rebellion” means “secession.” Buy yourself a dictionary.
What you think doesn't enter into it.
Oh, but it does:
”It is every American's right and obligation to read and interpret the Constitution for himself."
--Thomas Jefferson
;>)
I haven't quoted A.T. Mason one time, have I?
Walt
What complete and utter horse manure. Shall I quote the ratification documents of New York, Rhode Island, and Virginia (links available at my FR home page ;>)?
Quote them all you like. They mean nothing when compared to the ruling of the Supreme Court. Nor does your calling the words of the Chief Justice horse manure have any bearing on anything.
You don't like what the Court said; that's too bad.
Walt
“Insurrection and rebellion?” Once again you ignore the meaning of simple English words - neither “insurrection” nor “rebellion” means “secession.” Buy yourself a dictionary.
Got this James Madison edition right here:
"I return my thanks for the copy of your late very powerful speech in the Senate of the U. S. It crushes "nullification" and must hasten an abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy."
Madison says secession is but another name for revolution, and so it was -- revolution and rebellion agaist the lawful authority.
No matter how much you may dislike it, the Supreme Court has the final say, and they found nothing wrong with the Congress's passing the Militia Act that reuqires that United States law operate in all the states.
Secession as practiced by the slave power was nothing but rebellion, unwarranted revolution and treason.
Walt
For one year.
"Duty, Honor, Country: A History of West Point," by Stephen Ambrose Page 187:
"In 1904 Robert Bingham claimed that from 1825, the year Lee and Jefferson Davis entered the Academy, until 1850, the right of secession was taught at West Point in a text by William Rawles, "A View of the Constitution of the United States of America." Charles Francis Adams supported Bingham. In a more or less official reply, Colonel Edgar S. Dudley, professor of law at West Point, demonstrated that Rawle's work had only been used for one year, 1826, and that Kent's "Commentaries" was the text used to teach law thereafter. In any case Rawle's views were neither as extreme as Bingham claimed, nor were they any different from those being taught elsewhere. In declaring for the right of seccession, Rawle was careful to associate it with the final right of rebellion, enjoyed by all people at all times. He was, in fact, rooted in Lockean tradition. "To deny this right" to secede, he said, "would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases the right to determine how they shall be governed." He was personally strongly opposed to seccession and felt there was a "sacred obligation to preserve the union of our country," in which, " we feel our glory, our saftey, and our happiness." Secession, he warned, would produce "jealousies, discord, and...mutual hostilities," and the nation would be conqured by foreign enemies."
Rawle is a minor figure, and you are spreading disinformation to rely on the quotes you use.
Walt
"If there be any among us who would wish to dissolve this Union or to change its republucan form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."
--Jefferson: 1st Inaugural, March 4 1801
An appeal to reason gives the weight to your argument that it deserves --none.
Walt
I haven't quoted A.T. Mason one time, have I?
I refer you to your Post #100:
From the majority opinion in McCullough v. Maryland (1819), quoted in "American Constittutional Law" A.T. Mason, et al. ed. 1983 p. 165.
Perhaps I should have said ‘No wonder you quote “A.T. Mason, et al.” (Consider it done! ;>) In any case, “A.T. Mason” is a “minor figure” when compared to Mr. Madison.’ Speaking of which, care to comment on Mr. Madison’s derogatory opinion of McCullough v. Maryland, which I quoted at length?
I thought not.
Quote them all you like.
Happy to oblige:
Virginia (June 1788): ”...(T)he 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...”
New York (July 1788): ”...(T)he Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution...”
Rhode Island (May 1790): ”...(T)he powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution...”
There you go (again)!
;>)
They mean nothing when compared to the ruling of the Supreme Court. Nor does your calling the words of the Chief Justice horse manure have any bearing on anything.
Let’s review your quote:
”...there is certainly nothing in the circumstances under which our constitution was formed; nothing in the history of the times, which justify the opinion that the confidence reposed in the states was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legislative measures of the Union..."
Clearly, the people of at least three States reserved the right to ‘resume’ or ‘reassume’ the powers of government – not when permitted to do so by “the legislative measures of the Union,” but “[whensoever ‘the legislative measures of the Union’] shall be perverted to their injury or oppression,” or even “whensoever it shall become necessary to their happiness.” That is rock-solid historical fact, sport, and nothing you or any black-robed political appointee says to the contrary can change it. “Horse manure?” My description, quite frankly, was overly generous...
Got this James Madison edition right here...
Madison says secession is but another name for revolution, and so it was -- revolution and rebellion agaist the lawful authority.
No matter how much you may dislike it, the Supreme Court has the final say...
If you insist on citing Mr. Madison’s private correspondence rather than the public documents he authored (like the Virginia Resolutions and Report of 1800), you really should be a bit more honest. Let’s take a look at James Madison’s opinion of the 'expansive' doctrines of the high court:
[James Madison] To Spencer Roane
Montpr., May 6, 1821
...It is to be regretted that the Court is so much in the practice of mingling with their judgments pronounced, comments & reasonings of a scope beyond them; and that there is often an apparent disposition to amplify the authorities of the Union at the expence of those of the States. It is of great importance as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation from it in practice detracts from the superiority of a Chartered [constitutional government] over a traditional Govt...
On the questions brought before the Public by the late doctrines of the Supreme Court of the U S concerning the extent of their own powers, and that of the exclusive jurisdiction of Congress over the ten miles square and other specified places, there is as yet no evidence that they express either the opinions of Congress or those of their Constituents. There is nothing therefore to discourage a development of whatever flaws the doctrines may contain, or tendencies they may threaten...
In expounding the Constitution the Court seems not insensible that the intention of the parties to it ought to be kept in view (quite obviously including the ratifcation documents of those parties ;>), and that as far as the language of the instrument will permit, this intention ought to be traced in the contemporaneous expositions. But is the Court as prompt and as careful in citing and following this evidence, when agst the federal Authority as when agst that of the States?
...On the question relating to involuntary submissions of the States to the Tribunal of the Supreme Court, the Court seems not to have adverted at all to the expository language when the Constitution was adopted, nor to that of the Eleventh Amendment, which may as well import that it was declaratory, as that it was restrictive of the meaning of the original text. It seems to be a strange reasoning also that would imply that a State in controversies with its own Citizens might have less of sovereignty, than in controversies with foreign individuals, by which the national relations might be affected. Nor is it less to be wondered that it should have appeared to the Court that the dignity of a State was not more compromised by being made a party agst a private person than agst a co ordinate Party.
The Judicial power of the U. S. over cases arising under the Constitution, must be admitted to be a vital part of the System. But that there are limitations and exceptions to its efficient character, is among the admissions of the Court itself...It is particularly incumbent, in taking cognizance of cases arising under the Constitution, and in which the laws and rights of the States may be involved, to let the proceedings touch individuals only. Prudence enjoins this if there were no other motive, in consideration of the impracticability of applying coercion to States...
So much for your obviously incomplete “James Madison edition,” and the supposed constitutionality of your court opinions...
Secession as practiced by the slave power was nothing but rebellion...
(And the constitutional clause specifically prohibiting secession is...? ;>)
...unwarranted revolution...
(Who, precisely, decides whether “revolution” is ‘warranted,’ in your opinion? Hmm? Please be specific... ;>)
...and treason.
(Article III, Section 3: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” You’re wrong again, sport - “secession” is not mentioned... ;>)
Rawle is a minor figure, and you are spreading disinformation to rely on the quotes you use.
“Minor figure?” In the same way that you consider Thomas Jefferson to have been a minor figure, because he happened to be serving his country overseas when the Constitution was ratified? Mr. Rawle was a member of the rather exclusive ‘Society for Political Inquiries,’ established in Philadelphia on February 9, 1787. The society, which met at Benjamin Franklin's house, included only 42 members, including Dr. Franklin, George Washington, Robert and Gouverneur Morris, James Wilson – and William Rawle.
And I do not spread “disinformation.” Unlike you, I quote original historical documents, rather than “someone on the moderated ACW nesgroup” (your Post #99) or "American Constittutional Law" by “A.T. Mason, et al.” (referenced in your Post #100 - whoever and whatever they may be). In addition, I provide links to most of my documentation at my FR home page – you should try it some time...
;>)
”If there be any among us who would wish to dissolve this Union or to change its republucan form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."
--Jefferson: 1st Inaugural, March 4 1801
An appeal to reason gives the weight to your argument that it deserves --none.
On the contrary – “an appeal to reason” provides the following:
“Whether we remain in one confederacy or form into Atlantic and Mississippi confederations, I believe not very important to the happiness of either part.”
Thomas Jefferson, 1804
And:
”...The federal branch has assumed in some cases, and claimed in others, a right of enlarging its own powers by constructions, inferences, and indefinite deductions from those directly given, which this assembly does declare to be usurpations of the powers retained to the independent [State] branches, mere interpolations into the compact, and direct infractions of it.... the General Assembly [of the State of Virginia] thus declares the rights retained by the States, rights which they have never yielded, and which this State will never voluntarily yield, they do not mean to raise the banner of disaffection, or of separation from their sister States, co-parties with themselves to this compact. They know and value too highly the blessings of their Union as to foreign nations and questions arising among themselves, to consider every infraction as to be met by actual resistance. They respect too affectionately the opinions of those possessing the same rights under the same instrument, to make every difference of construction a ground of immediate rupture. They would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers. It is only when the hope of avoiding this shall become absolutely desperate, that further forebearance could not be indulged...”
Thomas Jefferson, Declaration and Protest on the Principles of the Constitution of the United States of America, and on the Violations of Them, 1825
By the way, friend Walt: the government you advocate, wherein five political appointees have “the final say” no matter what the written Constitution says, is a “government of unlimited powers” - as both Jefferson and Madison observed in 1798...
Bon appetit!
(If I remember correctly, you are from Tennessee - thanks for voting for Lamar Alexander rather than "that idiot [Bob Clement]", and helping thereby to put the Republicans in control of the United States Senate... ;>) .
Actually, there is some dispute to how long it was used. At minimum it was used a year, but records seem to be inconclusive.
It's use in 1826 is known to coincide with the schooling of several participants in the war and confederate leadership. Davis was there at the time. So were generals Robert E. Lee, Joseph E. Johnston, John B. Magruder, and several others.
It doesn't seem to have taken, at least with Lee:
"I am one of those dull creatures that cannot see the good of seccession."
Robert E. Lee, 1861
--from "A house Divided, A century of Great Civil War Quotations," by Edward Ayers.
"The framers of our Constitution never exhausted so much labor, wisdom and forebearance in its formation, and surrounded it with so many guards and securities, if it was to be broken by every member of the Confederacy at will. It was intended for 'perpetual union' so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession."
--R.E. Lee January 23, 1861
Walt
I haven't quoted A.T. Mason, et al.
I quoted the Chief Justice of the United States, whom Mason included in a book on constitutional law.
You seem unable to admit you made a mistake. That's not very adult, but what a big surprise.
Walt
Happy to oblige:
Virginia (June 1788): ”...(T)he 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...”
New York (July 1788): ”...(T)he Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution...”
Rhode Island (May 1790): ”...(T)he powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution...”
There you go (again)!
No one, for the umpteenth time, is denying a right to revolution. That is all these excerpts speak to. Virginia even refers to the "people of the United States", not the people of Virginia.
In ther meantime, men have to administer the government. The supreme authority to do that rests with the Supreme Court. Even if you don't like their rulings, SOMEONE must have the final authority. You don't like what the Court says, so you spout all this nonsense that no fair person could possibly accept.
Walt
”...there is certainly nothing in the circumstances under which our constitution was formed; nothing in the history of the times, which justify the opinion that the confidence reposed in the states was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legislative measures of the Union..."
It's not my quote; it's the Chief Justice of the Supreme Court. And it is an absolute bar to unilateral state secession in U.S. law.
Walt
No one has ever said anything different. Not me, not the Supreme Court, and not President Lincoln.
They just can't do it under U.S. law. That is because U.S. law requires that U.S. law operate in all the states. See the Miliita Act of 1792 as amended in 1795. See also the Judiciary Act of 1789, which requires disputes between the states to be adjudicated by the Supreme Court.
Walt
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