Perspective: Die-hard Confederates should be reconstructed

St. Augustine Record ^ | 09/27/2003 | Peter Guinta

[sheltonmac]

The South's unconditional surrender in 1865 apparently was unacceptable to today's Neo-Confederates.

They'd like to rewrite history, demonizing Abraham Lincoln and the federal government that forced them to remain in the awful United States against their will.

On top of that, now they are opposing the U.S. Navy's plan to bury the crew of the CSS H.L. Hunley under the American flag next year.

The Hunley was the first submarine to sink an enemy vessel. In 1863, it rammed and fatally damaged the Union warship USS Housatonic with a fixed torpedo, but then the manually driven sub sank on its way home, killing its eight-man crew.

It might have been a lucky shot from the Housatonic, leaks caused by the torpedo explosion, an accidental strike by another Union ship, malfunction of its snorkel valves, damage to its steering planes or getting stuck in the mud.

In any case, the Navy found and raised its remains and plans a full-dress military funeral and burial service on April 17, 2004, in Charleston, S.C. The four-mile funeral procession is expected to draw 10,000 to 20,000 people, many in period costume or Confederate battle dress.

But the Sons of Confederate Veterans, generally a moderate group that works diligently to preserve Southern history and heritage, has a radical wing that is salivating with anger.

One Texas Confederate has drawn 1,600 signatures on a petition saying "the flag of their eternal enemy, the United States of America," must not fly over the Hunley crew's funeral.

To their credit, the funeral's organizers will leave the U.S. flag flying.

After all, the search and preservation of the Hunley artifacts, as well as the funeral itself, were paid for by U.S. taxpayers.

Also, the Hunley crew was born under the Stars and Stripes. The Confederacy was never an internationally recognized nation, so the crewmen also died as citizens of the United States.

They were in rebellion, but they were still Americans.

This whole issue is an insult to all Southerners who fought under the U.S. flag before and since the Civil War.

But it isn't the only outrage by rabid secessionists.

They are also opposing the placement of a statue of Abraham Lincoln in Richmond, Va., the Confederate capital.

According to an article by Bob Moser and published in the Southern Poverty Law Center's magazine "Intelligence Report," which monitors right-wing and hate groups, the U.S. Historical Society announced it was donating a statue of Lincoln to Richmond.

Lincoln visited that city in April 1865 to begin healing the wounds caused by the war.

The proposed life-sized statue has Lincoln resting on a bench, looking sad, his arm around his 12-year-old son, Tad. The base of the statue has a quote from his second inaugural address.

However, the League of the South and the Sons of Confederate Veterans raised a stink, calling Lincoln a tyrant and war criminal. Neo-Confederates are trying to make Lincoln "a figure few history students would recognize: a racist dictator who trashed the Constitution and turned the USA into an imperialist welfare state," Moser's article says.

White supremacist groups have jumped onto the bandwagon. Their motto is "Taking America back starts with taking Lincoln down."

Actually, if it weren't for the forgiving nature of Lincoln, Richmond would be a smoking hole in the ground and hundreds of Confederate leaders -- including Jefferson Davis -- would be hanging from trees from Fredericksburg, Va., to Atlanta.

Robert E. Lee said, "I surrendered as much to Lincoln's goodness as I did to Grant's armies."

Revisionist history to suit a political agenda is as intellectually abhorrent as whitewashing slavery itself. It's racism under a different flag. While it's not a criminal offense, it is a crime against truth and history.

I'm not talking about re-enactors here. These folks just want to live history. But the Neo-Confederate movement is a disguised attempt to change history.

In the end, the Confederacy was out-fought, out-lasted, eventually out-generaled and totally over-matched. It was a criminal idea to start with, and its success would have changed the course of modern history for the worse.

Coming to that realization cost this nation half a million lives.

So I hope that all Neo-Confederates -- 140 years after the fact -- can finally get out of their racist, twisted, angry time machine and join us here in 2003.

[4CJ]

You convinced me ;o)

[Who is John Galt?]

Please pardon the length of this post – it constitutes a single reply in response to several of yours.

What I was looking at was the 1st Amendment to Rhode Island's ratification document. It is toward the bottom of the document …

Why bother to look “toward the bottom of the document?” (My fault, no doubt: I referred to the language in the reservation of rights as the proposed Tenth Amendment, due to the similarity of language, and the fact that it predated the amendment. ;>) The written reservation of the right of secession and a written reservation of undelegated rights occur in a single sentence ‘toward the top of the document’ (the “3d” clause ;>)…

But you raise an excellent point: the language of the ratification document suggests that the State of Rhode Island actually reserved “every other power, jurisdiction and right, which is not by the said constitution clearly delegated,” but suggested that the delegation of power to the federal government be further defined and limited to those “expressly delegated.”

Nevertheless, whether one uses "expressly" or its synonym "clearly," the point Madison would make is that modification constituted a further limitation on the Federal government, and one that was not supported by the Congress in debate on the issue. Congress used no adverb to modify "delegated."

And ‘whether Congress deleted the term "expressly" or "clearly" from the proposed amendment,’ such a deletion does not magically transform a ‘reservation of all powers not delegated’ into a ‘grant of all powers not prohibited’ – which appears to be what you are arguing.

Let's deal in the realm of political theory for a moment.

;>)

Would you agree the "right of unilateral secession" (not to be confused with the natural right of revolution) did not exist under the "Articles of Confederation and Perpetual Union between the States"?

History suggests that such a right did exist. If not, then the establishment of a government between the States ratifying the Constitution must have been based upon (in your words ;>) “the natural right of revolution” – which would also, by the way, contradict your theory that the Constitution was simply a ‘modification’ of the Articles of Confederation.

If so, then would you agree that changing the form of the "general" government (in the sense of Madison) did not represent secession?

Because the Constitution was established between the first nine States to ratify; and because the Constitution was not established between non-ratifying States; and because 9 (the number of States required to establish the constitutional union ;>) does not equal 13 (the number of States required to modify the existing compact ;>), only one conclusion is possible: the ratifying States ‘formally withdrew’ - seceded - from the union formed under the Articles of Confederation.

If so, then would you agree those States entering the Constitutional Union, upon ratification of the Constitution, sans Bill of Rights, did not carry with them the explicit "right to secession"?

Actually, the ratification process constituted ‘secession’ of the ratifying States from the union formed under the Articles – the new constitutional government was born of State secession, and could not have been formed under the specified terms without it. In fact, it might be said that nothing could be more “explicit,” and only the inclusion of a written prohibition of such action within the new Constitution would suggest otherwise.

As Mr. Madison noted in Federalist No. 45 (written and published as he attempted to ‘sell’ the proposed federal Constitution to the people of the several States ;>):

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.

Tell us: would you call any references to State secession located within the Constitution well “defined” - or “indefinite?” Hmm?

;>)

In addition, many argued against a Bill of Rights, noting that the federal government could exercise only those powers clearly delegated to it by the written terms of the Constitution. They feared that the addition of a Bill of Rights might encourage the new government to ‘assume’ it had been granted all powers not specifically prohibited to it by such a ‘bill’ – which is just the assumption you appear to be making (although you add insult to injury by completely ignoring portions of the Bill of Rights itself ;>) . In fact, I see no power to prohibit secession “defined” within the Constitution – nor do I see any evidence of intent to delegate such a power to the federal government - with or without the Bill of Rights.

And would you also agree they did not carry an implicit "right to secession"? (I think you will claim that certain reservations made by New York, Rhode Island, and possibly Virginia in their ratification documents would provide, at a minimum, and implicit right - you earlier referred to the language as an "express" right to secession with out showing any sort of "expression." Let's set those cases aside for a moment and continue to the main point.)

As I stated above, historical evidence suggests that the right of secession was ‘fully and clearly expressed’ by the requirements adopted for ratification of the new Constitution – and by its subsequent adoption. When the right is arguably ‘explicit,’ one need not debate whether it is “implicit.” But the failure to include within the body of the Constitution (either explicitly or by necessary implication ;>) any claim of “perpetual” union, any prohibition of secession among the powers denied to the States; or any right to prevent secession among the powers delegated to the federal government, suggests that the States did indeed carry with them “an implicit ‘right of [State] secession’” when they entered the new union.

Will you agree that there exists nowhere in the main body of the Constitution an affirmation expression for the right of unilateral secession?

Did the Constitution establish a government of limited, or unlimited powers? If Mr. Madison was correct, and “[t]he powers delegated by the… Constitution to the Federal Government, are few and defined,” while “[t]hose which are to remain in the State Governments are numerous and indefinite,” then the absence of any “defined” prohibition of secession, and the “indefinite” way with which the Constitution specifically addresses the question, constitute ‘an affirmative expression for the right of unilateral secession.’

;>)

How, then, does the 10th Amendment convey or allow an unspoken, unwritten, and untested right of unilateral secession, when none existed prior to the adoption of the Tenth Amendment?

Barring the existence, within the Constitution, of a ‘delegation’ of the power to the federal government, or a ‘prohibition’ of the power to the States, there is no way to exclude the right from reservation under the terms of the Tenth Amendment. Whether such right had ever been ‘spoken’ or ‘written’ of is irrelevant (although it might be said that the right was most certainly ‘tested’ during the ratification process ;>).

To my knowledge, there was no affirmative expression made concerning secession in the debates over the Tenth Amendment!

I suspect that many of the proponents of the new Constitution were somewhat embarrassed by the subject. Having founded a self-described “perpetual” union, they were confronted with the prospect of discarding that same union almost ‘before the ink was dry’ – and forced to do so in a manner entirely inconsistent with the requirements for amending the existing compact (remember, 9 does not equal 13 ;>). In my opinion, they ‘danced around’ the subject: Mr. Madison’s comments in Federalist No. 43 provide an excellent example:

9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same."

This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.

Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?

The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.

The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.

“The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits” – obviously including the right of the States to determine, each for itself, “the absolute necessity of the case.” And in the “case” being discussed, that included the formal withdrawal – secession – of States from a supposedly “perpetual” union.

There has never been an official action that has declared unilateral secession to be lawful, constitutional, or democratic.

Are you suggesting that State powers are “few,” and “defined” only by “official action,” but that federal powers are “numerous and indefinite?” Strange – James Madison suggested exactly the opposite.

;>)

Madison, in his letter to Trist, in 1832, stated, "It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject." It is highly illogical, if not totally preposterous, to believe that the very people who had fought so hard, and at such cost, for independence and the opportunity to build an American Nation, would provide in their seminal document an unwritten method of national execution.

(Can’t find support for your argument in Mr. Madison’s official public writings? ;>) As for a power to “secede at will,” Mr. Madison noted in his Report on the Virginia Resolutions that the States, as parties to the compact, retained the power to judge “in relation to [their own constitutional] rights.” In fact, Madison and Jefferson noted repeatedly, in official, written, public documents, that the States reserved the right to make such determinations. Allow me to suggest that an apparent change of heart by Mr. Madison, expressed late in life and in private, could hardly limit the constitutional rights he himself previously defended.

The Tenth is purportedly a guarantor of State's and individual's rights, correct? From the Tenth, how do we determine whether I have the right to smoke a cigar on a crowded bus, or if you have the right to a clean environment while sitting next to me? How do we determine if I have the right to play loud music all night long, or you, as my neighbor, have the right to peace and quiet?

With regard to your imagined conflict between “State's and individual's rights,” the amendment was not designed to make such a differentiation. Rather, the amendment was intended to confine the federal government. As Mr. Justice Thomas observed:

[The people of each State] affirmatively deprived their States of certain powers, see, e.g., Art. I, 10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government's powers are limited and enumerated. In the words of Justice Black, -[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source.- Reid v. Covert, 354 U. S. 1, 5-6 (1957) (plurality opinion) (footnote omitted).

In each State, the remainder of the people's powers- -[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States,- Amdt. 10-are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it.

These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States -are reserved to the States respectively, or to the people.- With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which -reserved- powers their state government may exercise.

U.S. Term Limits, Inc. v. Thornton, 1995

Mr. Justice Thomas’ opinion is well worth reading. You can find a link (guess where? ;>) on my FR homepage.

How do we determine if my State has a right to authorize the use of medical marijuana, or if the federal government has to right to prohibit that practice? How do we determine if your state has a right to unilaterally secede from the Union, or if my state has the right to expect your state to live up to its constitutional agreements?

Again:

”[W]here the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it.”

And that, my friend, is entirely consistent with the plain meaning of the Tenth Amendment.

;>)

For those who claim unilateral secession springs from the nebulosity of the Tenth Amendment, show me how this right is superior to other equally nebulous rihgts contained therein… The Tenth Amendment is not so cut and dried as pro-secessionists seem to think. There are a lot of conflicting "rights," don't you think?

“[N]ebulosity?” The Tenth Amendment appears “nebulous” only to those who refuse to admit that it means precisely what it says.

Would you consider RI's proposed amendments to be reservations?

(Back to “the bottom of the document,” eh? ;>) Why would I consider the proposed amendments to be reservations? The people of Rhode Island described them as follows:

And the Convention, do in the name and behalf of the People of the State of Rhode-Island and Providence Plantations, enjoin it upon their Senators and Representative or Representatives, which may be elected to represent this State in Congress, to exert all their influence, and use all reasonable means to obtain a ratification of the following Amendments to the said Constitution, in the manner prescribed therein, and in all laws to be passed by the Congress in the mean time, to conform to the spirit of the said amendments, as far as the constitution will admit.

AMENDMENTS…

That seems reasonably clear (but given my previous 'miscommunication,' perhaps I should reread the document in question ;>)…

What happens if reservations and/or proposed amendments are in conflict with those proposed by another state.

Care to provide an example? No? Well, since we are dealing with “the realm of political theory,” I imagine one or more of the conflicting ratifications would simply be rejected. As you know, that did not in fact occur.

I think the main point is, the State ratified the Constitution, and that's all that was asked. I seriously doubt if reservations in these cases become "de facto" part of the agreement.

At the moment, I can think of only two ethical ways to prevent such reservations from becoming a part of the agreement. The first would be (as previously mentioned ;>) to simply reject the ratification. The second would be to notify the ratifying State, in writing, that the ratification had not yet been accepted, and specify the language which was considered ‘unacceptable.’ At that point the State could either resubmit ratification documents without the ‘offending’ language, or submit a written addendum modifying their original submittal.

Speaking of which, I know for years you have considered Rawles to be an authoritative reference on the Constitution (circa early 1800's). You might say he was a Constitutional expert in his day, wouldn't you? Do you give equal reverence to the writings of Laurence Tribe or Alan Dershowitz? I didn't think so. So much for legal scholars.

Now you appear to be giving Non-Sequitur a run for his money, by posting this wonderful nonsequitur. In fact:

* Neither Tribe nor Dershowitz were personal friends of George Washington and Benjamin Franklin.

* Neither Tribe nor Dershowitz was “the founder of the Philadelphia Bar Association.”

* Neither founded “the law office with the longest continuous practice in the United States.”

* Neither of them was appointed a United States Attorney by the country’s first president.

* Neither prosecuted the ringleaders of the Whiskey Rebellion.

* Neither wrote a text that was in used to teach constitutional law to many of the military officers who actually fought in support of their States’ right to secede.

And that’s ‘just scratching the surface.’ (By the way, it’s “Rawle,” not “Rawles” - you’re not confusing William Rawle with Lou Rawles, are you? ;>) Perhaps you will attempt next to compare St. George Tucker (the author of Blackstone’s Commentaries of 1803) to Tribe & company. If so, I’m sure the results will be entertaining…

;>)

[Who is John Galt?]

(I'll have to update the links at my home page - several of them appear to have 'expired'... ;>)

[nolu chan]

Interpreting International Law.

The Supreme Court exercises considerable influence over foreign affairs legislation. The federal judiciary, acting in a quasi-legislative capacity, interprets laws, international law, executive agreements and treaties.¹⁶ The Court's authority to construe international law was discussed in The Paquete Habana where the Court stated: "International law is a part of our law and must be ascertained and administered by the courts of justice...."¹⁷

[16] L. Henkin, foreign Affairs and the Constitution 216 (1972)
[17] 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900)

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 207

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[nolu chan]

The Treaty-Making Process.

From these provisions a specific treaty making process has developed. Generally the executive appoints and supervises a team of individuals who negotiate the agreement. After a satisfactory agreement is concluded the executive submits the proposed treaty to the Senate. If the treaty is approved by two-thirds of the Senate, the president then signs it and the treaty becomes an agreement binding as an international obligation. ⁶ Its effectiveness as domestic law depends on its being either self-executory or, if it is executory, there being the required implementing legislation. ⁷

[6] L. Henkin, foreign Affairs and the Constitution 130 (1972)
[7] See e.g.,/i> Foster v. Neilson, 27 U.S. (2 Pet.) 253, 7 L.Ed. 415 (1829)

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 210

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[nolu chan]

Limitations on the Treaty Power

Although there are no express limitations on treaty making in the text of the Constitution the Supreme Court has endeavored to define the scope of the treaty power.

* * *

The Supreme Court addressed this problem in De Geofroy v. Riggs³ where Justice Field in often quoted dicta, discussed the constitutional limitations on the treaty power.

That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear .... The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments.... It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent.... But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is property the subject of negotiation with a foreign country.⁴

Thus the specific restraints of the Bill of Rights and other similar constitutional restraints do exist. The definitive pronouncement on this constitutional question was made by Justice black's opinion in Reid v. Covert:⁵

[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution⁶

Black concluded that Constitutional provisions limit the acts of the President, the joint actions of the President and the Senate, and consequently they limit the treaty power. Given these limitations on the scope of the treaty making power, unless treaties are contrary to the constitution, they are equal in status to congressional legislation, and, as expressly provided in the text of the Constitution, the supreme law of the land.

[3] 133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642 (1890)
[4] 133 U.S. azt 266-67, 10 S.Ct. at 296-7.
[5] 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Justice Black announced the judgment for the court; his opinion was joined in by only three other Justices (Warren, C.J., and Doublas and Brennan, JJ.) but none of the other justices, either concurring or dissenting, questioned his analysis of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). There was no opinion for the Court. Justice Whittaker took no part in the case; Justice Frankfurter concurred in a separate opinion; Justice Harlan also concurred in another separate opinion; and Harlan also concurred in another separate opinion; and Justice Clark, joined by Justice Burton, dissented.
[6] 304 U.S. at 16, 77 S.CT. at 1230. See also, De Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L.Ed. 523 (1872); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21, 20 L.Ed. 227 (1870; Doe ex dem. Clark v. Braden, 57 U.S. (16 How.) 635, 657, 14 L.Ed. 1090) (1853); New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736, 9 L.Ed. 573 (1836).

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 210-11

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[nolu chan]

The President's Power to Terminate Treaties.

For a time, efforts to limit the treaty power focused on the President's authority to terminate treaties. If the Constitution requires a two-thirds vote of the Senate in order to ratify a treaty, the Constitution, it was argued, must also require a two-thirds vote before the President can abrogate a treaty. A fragmented Court rejected this claim in Goldwater v. Carter.²¹

In that case, several Senators and others sued for declaratory and injunctive relief against President Carter after he announced that he planned to terminate the mutual defense treaty with Taiwan, the Republic of China. The President gave the one year notice which the termination clause of the treaty required. He also recognized the Peoples Republic of China (the Peking Government) rather than the Nationalist Government of China.

The Court, without opinion, granted certiorari and ordered the district court to dismiss the complaint. Justice Rehnquist, joined by Chief Justice Burger and Justices Stevens and Steward, concurred in the judgement and filed a statement concluding that the "basic question presented by the petitioners in this case is political and therefore nonjusticiable because it involves the authority of the President in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President."²²

[21] 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979).
[22] 444 U.S. at 1001, 100 U.S. S.Ct. at 536

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 213

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[nolu chan]

Conflicts Between Treaties and Acts of Congress.

The Court stated that constitutionally treaties and legislative acts are equal, both being the supreme law of the land. When the treaty and statute:

relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other.... ³

Acts of congress passed after the date of the treaty, the Court held, control over the treaty terms. Similarly, a self-executing treaty is valid as domestic law and takes precedence over a federal law enacted earlier. In short, the last expression of the sovereign will controls.

In the Chinese Exclusion Case ⁴ the Supreme Court affirmed the lower court's decision that an act excluding Chinese laborers from the United States was a constitutional exercise of legislative power even though it conflicted with an existing treaty. The court reasoned that because treaties are equivalent to acts of the legislature, they can, like statutes, be repealed or amended.

[3] 124 U.S. 190, 194; 8 S.Ct. 456, 458.
[4] Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889)

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 213-4.

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[nolu chan]

The constitutional status of treaties.

A treaty negotiated and, with the consent of two thirds of the Senators present, ratified by the President, must "be regarded in courts of justice as equivalent to an act of the legislature"¹

[1] Foster v. Neilson, 27 U.S. (2. Pet.) 253, 314 (1829) (Marshall, C.J.). Although the President may, or course, terminate a treaty in accord with its terms, cf. Goldwater v. Carter, 444 U.S. 996 (1979) (refusing to adjudicate validity of treaty termination without Senate consent), discussed in § 3-13 supra, he is not free to treat a treaty as though it meant something entirely different from what it ways, and was presented to the Senate as meaning at the time the Senate was asked to give its consent under art II, § 2. See "Constitutional Principles Constraining the President's Reinterpretation of the ABM Treaty," Testimony of Laurence H. Tribe Before Joint Hearing of the Senate Foreign Relations and Senate Judiciary Committees, 100th Cong. (March 11, 1987)....

SOURCE: American Constitutional Law, 3 Ed., Vol 1, Laurence H. Tribe, Foundation Press, 2000, pp. 643-4.

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[nolu chan]

Limitations on the treaty power.

Presidential exercise of the treaty-making power is limited not only by the procedural requirements of Article II, § 2, but also by structural and substantive constitutional restrictions. First, the treaty power is best read as limited to matters involving another signatory nation. Thomas Jefferson, in his Manual of Parliamentary Practice prepared for the United States Senate, wrote that a treaty "must concern the foreign-nation party to the contract, or it would be a mere nullity."¹⁴ The Supreme Court, in dictum, has embraced Jefferson's view as a constitutional limitation: A treaty must deal with questions "property the subject of negotiation with a foreign country."¹⁵ Even though global interdependence now reaches across an ever broadening spectrum of issues, this limit on the subject matter of treaties remains a meaningful restriction.¹⁶

The treaty power is also significantly limited by the panoply of other constitutional restrictions that are independent of the Framers' conception of what constituted a proper topic for treaty-making. Indeed, the notion that structural considerations may limit what the President and Senate may achieve by treaty was the basis of the Court's inquiry in the leading case on the treaty power, Missouri v. Holland. Although the Court held there that no "invisible radiation from the general terms of the Tenth Amendment" prohibited the treaty in question in that case,¹⁷ it has long recognized that:

The treaty power ... is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.¹⁸

If there were any remaining doubt on the issue whether there is any outer limit to the treaty-making power, that question was closed resoundingly in Reid v. Covert, where a plurality of the supreme Court, in holding American civilian dependents of overseas military personnel entitled to civilian trial, stated that neither a treaty nor an executive agreement "can confer power on the Congress, or on any other branch of government, which is free from restraints of the Constitution."¹⁹

[14] See. S.Doc. No. 92-1, 92d Cong., 1st Sess. 435, 516-18 (1971)
[15] De Geofroy v. Riggs, 133 U.S. 258, 267 (1890); cf. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 541 (1885)
[16] It is generally accepted that the Treaty Clause procedure is legitimate only for internaitonal agreements related genuinely, and not just pretextually, to foreign relations. See Restatement (Third) of the Foreign Relations Law of the United States § 302 reporters' note 2 (1986) (noting that the requirement that a treaty be related to foreign relations "may well be implied in the [very] word 'treaty' or 'agreement'"). The President could not, for example, circumvent the House of Representatives by creating a fully operating nationah health care system in the United States by "treaty" with Canada -- although establishment of a joint, binational health care system by a treaty followed by implementing legislation would presumably be possible....
[17] 252 U.S. at 433-34.
[18] De Geofroy v. Riggs, 133 U.S. 258, 267 (1890); see also The Cherokee tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871) (dictum) ("a treaty cannot change the Constitution or be held valid it it be in violation of that instrument"). But cf. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (grant to Indians of rights in reservations within state boundaries held valid.)
[19] 354 U.S. 1, 16 (1957). On this point, the plurality opinion in Reid is widely and properly regarded as authoritative. See, e.g., Boos v. Barry, 485 U.S. 312, 324 (1988).

SOURCE: American Constitutional Law, 3 Ed., Vol 1, Laurence H. Tribe, Foundation Press, 2000, pp. 646-7.

---

[Terry Mross]

States have the right to succeed even today. And those Confederates were not "rebels". They never once tried to overthrow the US government. What about this is unclear to you left wing yankees?

[Who is John Galt?]

'...a treaty cannot change the Constitution or be held valid if it be in violation of that instrument...'

Thank you!

;>)

[Terry Mross]

When I hear Al Sharpton, Jesse Jackson, Sheila Jackson-Lee and Maxine waters open their mouths I wish the South had won. Argue that point. And by the way, your man Lincoln was one butt ugly dude.

[nolu chan]

|CapnR #1497|

"(T)he proper function of the U.S. Constitution, as the Framers understood it, is to constitute a government that is controlled by the people but also controls them. In fact, it controls them through the very proscess of being controlled by them. It establishes popular sovereignty in that it is supposed 'to elicit reason from the people rather than impose it on them.' However, the eliciting is done by the creation of constitutional distance between the people and those who are chosen by the people - chosen to make decisions in the people's name and in their behalf."

"But notice this. The first word of the First Amendment is 'Congress.' Congress is the repository of popular sovereignty. And what comes after that word in the First Amendment? A stern denial of the people's right to make, through Congress, certain choices: 'Congress shall make no law ...'"

"The point of representative government is that the people do not decide the issues, they decise who shall decide."

George Will, Restoration: Congress, Term Limits, and the Recovery of Deliberative Democracy

Here is the concept with diagrams.

SOURCE: The Republic of Republics, Bernard Janin Safge, 1878, p 317 and 319.

[Held_to_Ransom]

States have the right to succeed even today. And those Confederates were not "rebels". They never once tried to overthrow the US government. What about this is unclear to you left wing yankees?

Why an alleged right wing Republican like yourself would spout Democratic Revisionism that is offensive to the memories and works of great Americans. Probably it was just poured in your ancestor's ears so often they just sucked it up without thinking.

[billbears]

Why an alleged right wing Republican like yourself would spout Democratic Revisionism that is offensive to the memories and works of great Americans

I'm so conservative I doubt I even fit in the Republican party anymore. The wrong decision of Texas v. White should be overturned. However to do so, a state would have to secede from the union. Of course, there's nothing wrong with that, as evidenced by the words of the Founders. The revisionism comes from the viewpoint that the union created the states as lincoln believed. Perhaps if you looked at the actual political stances of the Democratic party of the time, you would realize that they were the conservative party. Contrary to what many around here scream over and over, big government and the policy of expanding the strength of the national government came from the Whig/Republicans

The War of Southern Independence was a valid and honorable undertaking and I am proud of my ancestors who fought for their independence from the tyranny in Washington

[nolu chan]

When the Articles of confederation were amended, when the new Constitution was substituted in their place and the General Government reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the State government; but the seat of sovereignty -- the source of all those delegated and dependent powers -- was not disturbed. There was a new Government or an amended government -- it is entirely immaterial in which of these lights we consider it -- but no new PEOPLE was created or constituted. The people, in whom alone sovereignty inheres, remained just as they had been before. The only change was in the form, structure, and relations of their governmental agencies.

No doubt, the States -- the people of the States -- if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of convenience. But such a merger must have been distinctly and formally stated, not left to deduction or implication.

Men do not alienate even an estate, without positive and express terms and stipulations. But in this case not only was there no express transfer -- no formal surrender -- of the preexisting sovereignty, but it was expressly provided that nothing should be understood as even delegated -- that everything was reserved, unless granted in express terms. The monstrous conception of the creation of a new people, invested with the whole or a great part of the sovereignty which had previously belonged to the people of each State, has not a syllable to sustain it in the Constitution, but is built up entirely upon the palpable misconstruction of a singleexpression in the preamble.

In denying that there is any such collective unit as the people of the United States in the aggregate, of course I am not to be understood as denying that there is such a political organization as the United States, or that there exists, with large and distinct powers, a Government of the United States; but it is claimed that the Union, as its name implies, is constituted of States. As a British author,¹ referring to the old Teutonic system, has expressed the same idea, the States are the integers, the United States the multiple which results from them. The Government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the State governments. The people of each State are, in either case, the source. The only difference is that, in the creation of the State governments, each sovereign acted alone; in that of the Federal Government, they acted in cooperation with the others. Neither the whole nor any part of their sovereignty has been surrendered to either Government.

To whom, in fine, could the States have surrendered their sovereignty? Not to the mass of the people inhabiting the territory possessed by all the States, for there was no such community in existence, and they took no measures for the organization of such a community. If they had intended to do so, the very style, "United States," would have been a palpable misnomer, nor would treason have been defined as levying war against them. Could it have been transferred to the Government of the Union? Clearly not, in accordance with the ideas and principles of those who made the Declaration of Independence, adopted the Articles of Confederation, and established the Constitution of the United States; for in each and all of these the corner-stone is the inherent and inalienable sovereignty of the people. To have transferred sovereignty from the people to a government would have been to have fought the battles of the Revolution in vain -- not for the freedom and independence of the states, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union, and could have found lodgement only when the ebbing tide of patriotism and fraternity had swept away the landmarks which they erected who sought by the compact of union to secure and perpetuate the liberties then possessed. The men who had won at great cost the independence of their respective States were deeply impressed with the value of union, but they could never have consented, like "the base Judean," to fling away the priceless pearl of State sovereignty for any possible alliance.

[1] Sir Francis Palgrave, quoted by Mr. Calhoun, "Congressional Debates," vol. ix, Part 1, p. 541

SOURCE: Jefferson Davis, The Rise and Fall of the Confederate Government, Vol I, pp. 154-6.

[Held_to_Ransom]

Perhaps if you looked at the actual political stances of the Democratic party of the time, you would realize that they were the conservative party.

Fleshmongery is too conservative for me. So too ignorance, illiteracy, widespread squalid poverty, martial law, no freedom of the press and book burnings. It's a free country now and you can worship these things, but it's still the heritage of the Democratic Party, not the Republican.

[nolu chan]

[billbears] The revisionism comes from the viewpoint that the union created the states as lincoln believed.

LINK

FIRST INAUGURAL ADDRESS
MARCH 4, 1861

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

Lincoln claims The Articles of Association formed the Union. Apparently, Lincoln's Union was formed by "We, his majesty's most loyal subjects ... avowing our allegiance to his majesty...."

Lincoln claims the union was matured and continued by the Declaration of Independence. The document declares, "these united colonies are, and of right ought to be free and independent states," ... "and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do."

THE ARTICLES OF ASSOCIATION
October 20, 1774

We, his majesty's most loyal subjects, the delegates of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New-York, New-Jersey, Pennsylvania, the three lower counties of Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North-Carolina, and South-Carolina, deputed to represent them in a continental Congress, held in the city of Philadelphia, on the 5th day of September, 1774, avowing our allegiance to his majesty, our affection and regard for our fellow-subjects in Great-Britain and elsewhere, affected with the deepest anxiety, and most alarming apprehensions, at those grievances and distresses, with which his Majesty's American subjects are oppressed; and having taken under our most serious deliberation, the state of the whole continent, find, that the present unhappy situation of our affairs is occasioned by a ruinous system of colony administration, adopted by the British ministry about the year 1763, evidently calculated for enslaving these colonies, and, with them, the British Empire. ...

DECLARATION OF INDEPENDENCE
JULY 4, 1776

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor

JOHN HANCOCK, President

PRELIMINARY ARTICLES OF PEACE
NOVEMBER 30, 1782

ARTICLE 1

His Britannic Majesty acknowledges the said United States, Viz New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free Sovereign and independent States; That he treats with them as such; And for himself, his Heirs and Successors, relinquishes all Claims to the Government, Propriety, and territorial Rights of the same, and every part thereof; and that all Disputes which might arise in future, on the Subject of the Boundaries of the said United States, may be prevented, It is hereby agreed and declared that the following are, and shall be their Boundaries Viz

THE PARIS PEACE TREATY
SEPTEMBER 3, 1783

Article 1:

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.

[capitan_refugio]

"Other than a delegate showing up to present their credentials, the only person in attendence was the secretary Charles Thomson."

The original Maytag repair man.