You always conveniently overlook the fact that the States, when they ratified the Constitution did so as 13 Sovereign and Independent States, and never gave up their sovereignty after ratification.Simply not supported in the record.
"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 shall 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 withdraw 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)
"We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. . . .
Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme.
Consequently, the people of a single state cannot confer a sovereignty which will extend over them.
The convention which framed the constitution was, indeed, elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might "be submitted to a convention of Delegates, chosen in each State, by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account cease to be the measures of the people themselves, or become the measures of the state governments.
-- McCullough v. Maryland
"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 The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution; and if there be any who deny its necessity, none can deny its authority.
To this supreme government, ample powers are confided; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity. With the ample powers confided to this supreme government, for these interesting purposes, are connected many express and important limitations on the sovereignty of the states which are made for the same purposes. The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the states; but, in addition to these, the sovereignty of the states is surrendered, in many instances, where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the Constitution. The maintenance of these principles in their purity is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed is the Judicial Department. It is authorized to decide all cases of every description arising under the Constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. When we consider the situation of the government of the Union and of a state, in relation to each other; the nature of our Constitution; the subordination of the state governments to that Constitution; the great purpose for which jurisdiction over all cases arising under the Constitution and laws of the United States is confided to the Judicial Department, are we at liberty to insert in this general grant an exception of those cases in which a state may be a party?
Will the spirit of the Constitution justify this attempt to control its words? We think it will not. We think a case arising under the Constitution or laws of the United States is cognizable in the courts of the Union, whoever may be the parties to that case.
The Constitution gave to every person having a claim upon a state a right to submit his case to the Court of the nation. However unimportant his claim might be, however little the community might be interested in its decision, the framers of our Constitution thought it necessary, for the purposes of justice, to provide a tribunal as superior to influence as possible in which that claim might be decided. The judicial power of every well-constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws.
In many states, the judges are dependent for office and for salary on the will of the legislature. The Constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that Constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this in dependence may not exist, in all cases where a state shall prosecute an individual who claims the protection of an act of Congress. These prosecutions may take place even without a legislative act. A person making a seizure under an act of Congress may be indicted as a trespasser if force has been employed, and of this a jury may judge. How extensive may be the mischief if the first decisions in such cases should be final!
A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always he tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed if they have not provided it, so far as its nature will permit, with the means of self preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of Justice are the means most usually employed; and it is reasonable to expect that a government should repose on its own courts rather than on others.
It is very true that whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation and ought to be repelled by those to whom the people have delegated their power of repelling it.
The acknowledged inability of the government, then, to sustain itself against the public will and, by force or otherwise, to control the whole nation is no sound argument in support of its constitutional inability to preserve itself against a section of the Nation acting in opposition to the general will. 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 to 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 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.
In a government so constituted, is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the Constitution or law of a state if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a state tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the Constitution?
We think it is not. We think that in a government, acknowledgedly supreme, with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the state tribunals which may contravene the Constitution or laws of the United States is, we believe, essential to the attainment of those objects. In determining the sense in which Georgia is a sovereign state, it may be useful to turn our attention to the political rights which emerged from the revolution: All the country now possessed by the United States was then a part of the dominions appertaining to the crown of Great Britian. Every acre of land in this country was then held mediately or immediately by grants from that crown. All the people of this country were then, subjects of the king of Great Britain, and owed allegiance to him: and all the civil authority then existing or exercised here, flowed from the head of the British Empire. They were in strict sense, fellow subjects, and in a variety of respects, one people. When the revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people, of the colonies, which subsisted between the people of Gaul, Britain and Spain, while Roman provinces, viz., only that affinity and social connection which result from the mere circumstances of being governed by the same prince; different ideas prevailed, and gave occasion to the congress of 1774 and 1775."
Walt
You must remember that the Founders ideals are precedent! Well, here's what "Mr. Constitution" said:
From Letters and Other Writings of James Madison,. New York: R. Worthington, 1884. 287-290.
To General Washington
New York, April 16th, 1787
Dear Sir,
--I have been honored with your letter of the 31 March, and find, with much pleasure, that your views of the reform which ought to be pursued by the Convention give a sanction to those I entertained. Temporizing applications will dishonor the councils which propose them, and may foment the internal malignity of the disease, at the same time that they produce an ostensible palliation of it. Radical attempts, although unsuccessful, will at least justify the authors of them.
Having been lately led to revolve the subject which is to undergo the discussion of the Convention, and formed some outlines of a new system, I take the liberty of submitting them without apology to your eye.
Conceiving that an individual independence of the States is utterly irreconcilable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.
I would propose as the groundwork, that a change be made in the principle of representation. According to the present form of the Union, in which the intervention of the States is in all great cases necessary to effectuate the measures of Congress, an equality of suffrage does not destroy the inequality of importance in the several members. No one will deny that Virginia and Massachusetts have more weight and influence, both within and without Congress, than Delaware or Rhode Island. Under a system which would operate in many essential points without the intervention of the State legislatures, the case would be materially altered. A vote in the national Councils from Delaware would then have the same effect and value as one from the largest State in the Union. I am ready to believe that such a change would not be attended with much difficulty. A majority of the States, and those of greatest influence, will regard it as favorable to them. To the northern States it will be recommended by their present populousness; to the Southern, by their expected advantage in this respect. The lesser States must in every event yield to the predominant will. But the consideration which particularly urges a change in the representation is, that it will obviate the principal objections of the larger States to the necessary concessions of power.
I would propose next, that in addition to the present federal powers, the national Government should be armed with positive and complete authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, &c., &c.
Over and above this positive power, a negative in all cases whatsoever on the Legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded or defeated. The States will continue to invade the National jurisdiction, to violate treaties, and the law of nations, and to harass each other with rival and spiteful measures dictated by mistaken views of interest. . . .
The national supremacy ought also to be extended, as I conceive, to the Judiciary departments. If those who are to expound and apply the laws are connected by their interests and their oaths with the particular States wholly, and not with the Union, the participation of the Union in the making of the laws may be possibly rendered unavailing. It seems at least necessary that the oaths of the Judges should include a fidelity to the general as well as local Constitution, and that an appeal should lie to some National tribunal in all cases to which foreigners or inhabitants or other States may be parties. The admiralty jurisdiction seems to fall entirely within the purview of the National Government.
The National supremacy in the Executive departments is liable to some difficulty, unless the officers administering them could be made appointable by the Supreme Government. The Militia ought certainly to be placed, in some form or other, under the authority which is entrusted with the general protection and defense.
A Government composed of such extensive powers should be well organized and balanced. The legislative department might be divided into two branches; one of them chosen every. . .years, by the people at large, or by the Legislatures; the other to consist of fewer members, to hold their places for a longer term, and to go out in such rotation as always to leave in office a large majority of old members. Perhaps the negative on the laws might be most conveniently exercised by this branch. As a further check, a Council of revision, including the great ministerial officers, might be superadded.
A National Executive must also be provided. I have scarcely ventured, as yet, to form my own opinion either of the manner in which it ought to be constituted, or of the authorities with which it ought to be clothed. An article should be inserted expressly guaranteeing the tranquility of the States against internal as well as external dangers.
In like manner the right of coercion should be expressly declared. With the resources of commerce in hand, the National administration might always find means of exerting it either by sea or land. But the difficulty and awkwardness of operating by force on the collective will of a State render it particularly desirable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutuality of dependence between the general and particular authorities as to answer this purpose. Or, perhaps, some defined objects of taxation might be submitted, along with commerce, to the general authority.
To give a new system its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordination of the Legislatures. This will be the more essential, as inroads on the existing Constitutions of the States will be unavoidable."
And George Washington responds:
Mount Vernon, November 5, 1786.
... Fain would I hope, that the great, and most important of all objects, the foederal governmt., may be considered with that calm and deliberate attention which the magnitude of it so loudly calls for at this critical moment. Let prejudices, unreasonable jealousies, and local interest yield to reason and liberality. Let us look to our National character, and to things beyond the present period. No morn ever dawned more favourably than ours did; and no day was ever more clouded than the present! Wisdom, and good examples are necessary at this time to rescue the political machine from the impending storm. Virginia has now an opportunity to set the latter, and has enough of the former, I hope, to take the lead in promoting this great and arduous work. Without some alteration in our political creed, the superstructure we have been seven years raising at the expence of so much blood and treasure, must fall. We are fast verging to anarchy and confusion! ...
How melancholy is the reflection, that in so short a space, we should have made such large strides towards fulfilling the prediction of our transatlantic foe! "leave them to themselves, and their government will soon dissolve." Will not the wise and good strive hard to avert this evil? Or will their supineness suffer ignorance, and the arts of self-interested designing disaffected and desperate characters, to involve this rising empire in wretchedness and contempt? What stronger evidence can be given of the want of energy in our governments than these disorders? If there exists not a power to check them, what security has a man for life, liberty, or property? To you, I am sure I need not add aught on this subject, the consequences of a lax, or inefficient government, are too obvious to be dwelt on. Thirteen Sovereignties pulling against each other, and all tugging at the foederal head will soon bring ruin on the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent incroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining. With sentiments of the sincerest esteem etc."
When the federal government was formed, there was no idea of or recourse to, secession.
You are feeding me some great one liners.
Walt
