Replies

Federalist 39:
"The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national"
--James Madison *One of "our fathers" the spinmeister referred to

"In order, therefore, to form a more perfect union, to establish justice, to insure domestic tranquility, to provide for common defense and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present constitution. By that constitution, legislative power is vested, executive power is vested, judicial power is vested...We may then infer, that the people of the United States intended to bind the several states, by the legislative power of the national government...

Whoever considers, in a combined and comprehensive view, the general texture of the constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national government complete in all its parts, with powers legislative, executive and judiciary, ad in all those powers extending over the whole nation. "

John Jay, first Chief Justice, 1793:

"It is remarkable that in establishing it, the people exercised their own rights and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, "We the people of the United States," 'do ordain and establish this Constitution." Here we see the people acting as the sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the state governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a state to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc."

--Chisholm v. Georgia, 1793

Chief Justice John Marshall:

"The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confining their choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end...to have prescribed the means by which the government, should, in all future times, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code...To have declared, that the best means shal not be used, but those alone, without which the power given would be nugatory...if we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it..."

From McCullough v. Maryland, quoted in "American Constitutional Law" A.T. Mason, et al. ed. 1983 p. 165

As to Virginia:

"The mischievous consequences of the construction contended for on the part of Virginia, are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every state in the Union. And would this not be the effect? What power of the government could be executed by its own means, in any states disposed to resist its execution by a course of legislation?...each member will possess a veto on the will of the whole...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..."

ibid, p. 169-70

And James Madison: "The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact had always been understood to exclude such an interpretation." (Remarks to the Constitutional Convention, July 23, 1787).

And:

"The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them can have a greater right to break off from the bargain, then the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of --98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created...."

(James Madison, Writings; Rakove, Jack N., editor; The Library of America; 1999; p. 862)

In March, 1833, he wrote to William Cabell Rives as follows:

"The nullifiers it appears, endeavor to shelter themselves under a distinction between a delegation and a surrender of powers. But if the powers be attributes of sovereignty & nationality & the grant of them be perpetual, as is necessarily implied, where not otherwise expressed, sovereignty & nationality are effectually transferred by it, and the dispute about the name, is but a battle of words. The practical result is not indeed left to argument or inference. The words of the Constitution are explicit that the Constitution & laws of the U. S. shall be supreme over the Constitution and laws of the several States; supreme in their exposition and execution as well as in their authority. Without a supremacy in those respects it would be like a scabbard in the hands of a soldier without a sword in it.

The imagination itself is startled at the idea of twenty four independent expounders of a rule that cannot exist, but in a meaning and operation, the same for all.

"The conduct of S. Carolina has called forth not only the question of nullification; but the more formidable one of secession. It is asked whether a State by resuming the sovereign form in which it entered the Union, may not of right withdrasw from it at will. As this is a simple question whether a State, more than an individual, has a right to violate its engagements, it would seem that it might be safely left to answer itself. But the countenance given to the claim shows that it cannot be so lightly dismissed. The natural feelings which laudably attach the people composing a state, to its authority and importance, are at present too much excited by the unnatural feelings, with which they have been inspired agst. (sic) their bretheren of other States, not to expose them, to the dangers of being misled into erroneous views of the nature of the Union and the interest they have in it. One thing at least seems to be too clear to be questioned; that whilst a State remains within the Union it cannot withdraw its citizens from the operation of the Constitution & laws of the Union. In the event of an actual secession without the Consent of the Co-States, the course to be pursued by these involves questions painful in the discussion of them. God grant that the menacing appearances, which obtrude it may not be followed by positive occurrences requiring the more painful task of deciding them!"

(ibid; pp. 864, 865)

"That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empire--for some purposes sovereign, for some purposes subordinate."

--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821

You can play that federalist 39 tune all you like.

There is not a nickel's worth of difference in the way that Washington, Madison, Jefferson,Jackson and Lincoln viewed the Constitution.

Walt

http://www.jewishworldreview.com/cols/williams012600.asp

Black Confederates

http://www.jewishworldreview.com --
DURING OUR WAR OF 1861, ex-slave Frederick Douglass observed, "There are at the present moment, many colored men in the Confederate Army doing duty not only as cooks, servants and laborers, but as real soldiers, having muskets on their shoulders and bullets in their pockets, ready to shoot down ... and do all that soldiers may do to destroy the Federal government."

Dr. Lewis Steiner, a Union Sanitary Commission employee who lived through the Confederate occupation of Frederick, Maryland said, "Most of the Negroes ... were manifestly an integral portion of the Southern Confederacy Army." Erwin L. Jordan's book "Black Confederates and Afro-Yankees in Civil War Virginia" cites eyewitness accounts of the Antietam campaign of "armed blacks in rebel columns bearing rifles, sabers, and knives and carrying knapsacks and haversacks." After the Battle of Seven Pines in June 1862, Union soldiers said that "two black Confederate regiments not only fought but showed no mercy to the Yankee dead or wounded whom they mutilated, murdered and robbed."

In April 1861, a Petersburg, Virginia newspaper proposed "three cheers for the patriotic free Negroes of Lynchburg" after 70 blacks offered "to act in whatever capacity may be assigned to them" in defense of Virginia. Erwin L. Jordan cites one case where a captured group of white slave owners and blacks were offered freedom if they would take an oath of allegiance to the United States. One free black indignantly replied, "I can't take no such oaf as dat. I'm a secesh nigger." A slave in the group upon learning that his master refused to take the oath said, "I can't take no oath dat Massa won't take." A second slave said, "I ain't going out here on no dishonorable terms." One of the slave owners took the oath but his slave, who didn't take the oath, returning to Virginia under a flag of truce, expressed disgust at his master's disloyalty saying, "Massa had no principles."

Horace Greeley, in pointing out some differences between the two warring armies said, "For more than two years, Negroes have been extensively employed in belligerent operations by the Confederacy. They have been embodied and drilled as rebel soldiers and had paraded with white troops at a time when this would not have been tolerated in the armies of the Union." General Nathan Bedford Forrest had both slaves and freemen serving in units under his command. After the war, General Forrest said of the black men who served under him "(T)hese boys stayed with me ... and better Confederates did not live."

It was not just Southern generals who owned slaves but northern generals owned them as well. General Ulysses Grant's slaves had to await the Thirteenth Amendment for freedom. When asked why he didn't free his slaves earlier, General Grant said, "Good help is so hard to come by these days."

These are but a few examples of the important role that blacks served, both as slaves and freemen in the Confederacy during the War Between the States.

The flap over the Confederate flag is not quite as simple as the nation's race experts make it. They want us to believe the flag is a symbol of racism. Yes, racists have used the Confederate flag, but racists have also used the Bible and the U.S. flag. Should we get rid of the Bible and lower the U.S. flag? Black civil rights activists and their white liberal supporters who're attacking the Confederate flag have committed a deep, despicable dishonor to our patriotic black ancestors who marched, fought and died to protect their homeland from what they saw as Northern aggression.

Federalist 39:
Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority.

First. 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; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, 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 have 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.

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

PUBLIUS.

There's more than a dime's worth of difference between the way Lincoln 'interpreted' the Constitution and what the Founding Fathers meant. Lincoln was a tyrant to the States. He actually killed Americans. Unbelievable to think of the things he did, when you understand that the States had secured their independence in the Revolutionary War, and the Union was a Voluntary Union.

James Madison's plan for emancipating the Slaves:
http://www.jmu.edu/madison/emancslaves.htm

(Note that it required Just Compensation, in order to not be defective, as it relates to the United States)

Sir,-I have received your letter of the 3d instant, requesting such hints as may have occurred to me on the subject of an eventual extinguishment of slavery in the United States.

Not doubting the purity of your views, and relying on the discretion by which they will be regulated, I cannot refuse such a compliance as will, at least, manifest my respect for the object of your undertaking.

A general emancipation of slaves ought to be--1. Gradual. 2. Equitable, and satisfactory to the individuals immediately concerned. 3. Consistent with the existing and durable prejudices of the nation.

That it ought, like remedies for other deep-rooted and widespread evils, to be gradual, is so obvious, that there seems to be no difference of opinion on that point.

To be equitable and satisfactory, the consent of both the master and the slave should be obtained. That of the master will require a provision in the plan for compensating a loss of what he held as property, guarantied by the laws, and recognised by the Constitution. That of the slave, requires that his condition in a state of freedom be preferable, in his own estimation, to his actual one in a state of bondage.

To be consistent with existing and probably unalterable prejudices in the United States, the freed blacks ought to be permanently removed beyond the region occupied by, or allotted to, a white population. The objections to a thorough incorporation of the two people are, with most of the whites, insuperable; and are admitted by all of them to be very powerful. If the blacks, strongly marked as they are by physical and lasting peculiarities, be retained amid the whites, under the degrading privation of equal rights, political or social, they must be always dissatisfied with their condition, as a change only from one to another species of oppression; always secretly confederated against the ruling and privileged class; and always uncontrolled by some of the most cogent motives to moral and respectable conduct. The character of the free blacks, even where their legal condition is least affected by their colour, seems to put these truths beyond question. It is material, also, that the removal of the blacks be to a distance precluding the jealousies and hostilities to be apprehended from a neighbouring people, stimulated by the contempt known to be entertained for their peculiar features; to say nothing of their vindictive recollections, or the predatory propensities which their state of society might foster. Nor is it fair, in estimating the danger of collision with the whites, to charge it wholly on the side of the blacks. There would be reciprocal antipathies doubling the danger.

The colonizing plan on foot has, as far as it extends, a due regard to these requisites; with the additional object of bestowing new blessings, civil and religious, on the quarter of the Globe most in need of them. The Society proposes to transport to the African coast all free and freed blacks who may be willing to remove thither; to provide by fair means, and, it is understood, with a prospect of success, a suitable territory for their reception; and to initiate them into such an establishment as may gradually and indefinitely expand itself.

The experiment, under this view of it, merits encouragement from all who regard slavery as an evil, who wish to see it diminished and abolished by peaceable and just means, and who have themselves no better mode to propose. Those who have most doubted the success of the experiment must, at least, have wished to find themselves in an error.

But the views of the Society are limited to the case of blacks already free, or who may be gratuitously emancipated. To provide a commensurate remedy for the evil, the plan must be extended to the great mass of blacks, and must embrace a fund sufficient to induce the master, as well as the slave, to concur in it. Without the concurrence of the master, the benefit will be very limited as it relates to the Negroes, and essentially defective as it relates to the United States; and the concurrence of masters must, for the most part, be obtained by purchase.

Can it be hoped that voluntary contributions, however adequate to an auspicious commencement, will supply the sums necessary to such an enlargement of the remedy? May not another question be asked? Would it be reasonable to throw so great a burden on the individuals distinguished by their philanthropy and patriotism?

The object to be obtained, as an object of humanity, appeals alike to all; as a national object, it claims the interposition of the nation. It is the nation which is to reap the benefit. The nation, therefore, ought to bear the burden.

Must, then, the enormous sums required to pay for, to transport, and to establish in a foreign land, all the slaves in the United States, as their masters may be willing to part with them, be taxed on the good people of the United States, or be obtained by loans, swelling the public debt to a size pregnant with evils next in degree to those of slavery itself?

Happily, it is not necessary to answer this question by remarking, that if slavery, as a national evil, is to be abolished, and it be just that it be done at the national expense, the amount of the expense is not a paramount consideration. It is the peculiar fortune, or, rather, a providential blessing of the United States, to possess a resource commensurate to this great object, without taxes on the people, or even an increase of the public debt.

I allude to the vacant territory, the extent of which is so vast, and the vendible value of which is so well ascertained.

Supposing the number of slaves to be 1,500,000 and their price to average 400 dollars, the cost of the whole would be 600 millions of dollars. These estimates are probably beyond the fact; and from the number of slaves should be deducted: 1. Those whom their masters would not part with. 2. Those who may be gratuitously set free by their masters. 3. Those acquiring freedom under emancipation regulations of the States. 4. Those preferring slavery where they are to freedom in an African settlement. On the other hand, it is to be noted that the expense of removal and settlement is not included in the estimated sum; and that an increase of the slaves will be going on during the period required for the execution of the plan.

On the whole, the aggregate sum needed may be stated at about six hundred millions of dollars.

This will require 200 millions of acres, at three dollars per acre; or 300 millions at two dollars per acre; a quantity which, though great in itself, is perhaps not a third part of the disposable territory belonging to the United States. And to what object so good, so great, and so glorious, could that peculiar fund of wealth be appropriated? Whilst the sale of territory would, on one hand, be planting one desert with a free and civilized people, it would, on the other, be giving freedom to another people, and filling with them another desert. And if in any instances wrong has been done by our forefathers to people of one colour, by dispossessing them of their soil, what better atonement is now in our power than that of making what is rightfully acquired a source of justice and of blessings to a people of another colour?

As the revolution to be produced in the condition of the Negroes must be gradual, it will suffice if the sale of territory keep pace with its progress. For a time, at least, the proceeds would be in advance. In this case, it might be best, after deducting the expense incident to the surveys and sales, to place the surplus in a situation where its increase might correspond with the natural increase of the unpurchased slaves. Should the proceeds at any time fall short of the calls for their application, anticipations might be made by temporary loans, to be discharged as the land should find a market.

But it is probable that for a considerable period the sales would exceed the calls. Masters would not be willing to strip their plantations and farms of their labourers too rapidly. The slaves themselves, connected, as they generally are, by tender ties with others under other masters, would be kept from the list of emigrants by the want of the multiplied consents to be obtained. It is probable, indeed, that for a long time a certain portion of the proceeds might safely continue applicable to the discharge of the debts or to other purposes of the nation; or it might be most convenient, in the onset, to appropriate a certain proportion only of the income from sales to the object in view, leaving the residue otherwise applicable.

Should any plan similar to that I have sketched be deemed eligible in itself, no particular difficulty is foreseen from that portion of the nation which, with a common interest in the vacant territory, has no interest in slave property. They are too just to wish that a partial sacrifice should be made for the general good, and too well aware that whatever may be the intrinsic character of that description of property, it is one known to the Constitution, and, as such, could not be constitutionally taken away without just compensation. That part of the nation has, indeed, shown a meritorious alacrity in promoting, by pecuniary contributions, the limited scheme for colonizing the blacks, and freeing the nation from the unfortunate stain on it, which justifies the belief that any enlargement of the scheme, if founded on just principles, would find among them its earliest and warmest patrons. It ought to have great weight that the vacant lands in question have, for the most part, been derived from grants of the States holding the slaves to be redeemed and removed by the sale of them.

It is evident, however, that in effectuating a general emancipation of slaves in the mode which has been hinted, difficulties of other sorts would be encountered. The provision for ascertaining the joint consent of the masters and slaves; for guarding against unreasonable valuations of the latter; and for the discrimination of those not proper to be conveyed to a foreign residence, or who ought to remain a charge on masters in whose service they had been disabled or worn out, and for the annual transportation of such numbers, would require the mature deliberations of the national councils. The measure implies, also, the practicability of procuring in Africa an enlargement of the district or districts for receiving the exiles sufficient for so great an augmentation of their numbers.

Perhaps the Legislative provision best adapted to the case would be an incorporation of the Colonizing Society, or the establishment of a similar one, with proper powers, under the appointment and superintendence of the National Executive.

In estimating the difficulties, however, incident to any plan of general emancipation, they ought to be brought into comparison with those inseparable from other plans, and be yielded to or not according to the result of the comparison.

One difficulty presents itself which will probably attend every plan which is to go into effect under the Legislative provisions of the National Government. But whatever may be the defect of existing powers of Congress, the Constitution has pointed out the way in which it can be supplied. And it can hardly be doubted that the requisite powers might readily be procured for attaining the great object in question, in any mode whatever approved by the nation.

If these thoughts can be of any aid in your search of a remedy for the great evil under which the nation labors, you are very welcome to them.
Letter to Robert J. Evans, (Author of the pieces published under the name of Benjamin Rush.), June 15,1819 (Madison 1865, III, pages 133-138)