Posted on 09/30/2003 12:19:22 PM PDT by 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.
Quite correct! And what did the Congress do when it got the proposed constitution back from the Philadelphia Convention? A few hot heads called for the scalps of the convention delegates (figuratively speaking - some people on this thread do not understand the concept of hyperbole), the Congress debated the proposed constitution for a few more days, and then sent it out to the people of the States for ratification! I would call that the "Congressional Seal of Approval."
The Convention quickly realized that to accomplish the higher goal of rendering "the federal Constitution adequate to the exigencies of the government and the preservation of the Union," meant the impossibility of simply "altering" the AoC. There are many, many references about the Convention, its charge, its actions, and its results. You have become caught up in minutiae and completely miss the greater point - that being the necessity of fixing a broken government.
You are right, you don't have to do any of those things. But you continue to maintain that that nine (or more) states seceded from the Articles (or the government under the Articles, or the Union created by the Articles - I hesitate to mischaracterize your contention), or four (or fewer) states were "expelled" from the Union for some period of time. Yet you provide no documentation that either of these formal governmental acts ever actually occurred. You are working in the realm of the hypothetical.
On the other hand, I have provided a timeline and shown that the transition from government under the Articles to government under the Constitution, was orderly, was provided for by Acts of the Congress of the Confederation, was debated, ratified, and authorized by the American people.
You correctly point out they were not, during the time after March 4, 1789, until the States each ratified the Constitution, subject to the authority of the new government. What would you say their status was during that "interregnum"?
Because you say so? Congress did not have to consent to any state ceding part of their lands, as did Virginia, Georgia etc. There is no requirement for Congress to approve of any divesture of land - only a requirement for approval for the creation of a state from ANY land. Georgia ceded what was to become Alabama on 24 Apr 1802. Congress did not have to approve the act.
We think a proper examination of this subject will show, that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory, of which Alabama, or any of the new states were formed.The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain. It is evidence that this right is, in certain cases, necessary to him who governs, and is, consequently, a part of the empire, or sovereign power.
Justice McKinley, Lessee of Pollard v. Hagan, 3 How. 212 (1845)
Alabama
Admitted: December 3, 1818
Population: 144,317
Prior time as territory: 2 years, 9 months
Journey to statehood: Trouble free. After being severed from Mississippi in 1817, the territory requested and was granted a congressional enabling act, held a constitutional convention and drafted a state charter, which in turn was approved by Congress as the final step toward admission.
- Knight Ridder Tribune Information Services
There are, I believe, seven states that do not have specific "Congressional Enabling Acts." However, there exists some form of Congressional action, such as an annexation, etc.
In some ways the failed state, which existed in principle from 1785 to 1788, was the first abortive attempt of "secession at will."
”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.”
Justice Thomas (with whom The Chief Justice, Justice O'Connor, and Justice Scalia join), U.S. Term Limits, Inc. v. Thornton, 1995
You have advised us repeatedly how important judicial opinion and judicial precedence are: care to tell us why you refuse to employ the judicial standard of “necessary implication?”
Correct me if I am wrong about this, but didn't you get the citation wrong? Shouldn't it read:
"JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting."???
And, if I am correct that you quote from the dissent, how is it that the dissenting opinion becomes the "judicial standard"?
Check into the history of Vermont. It was the first secessionary state.
You miss the whole point. Congress did not have to approve - and could not - the legislation of Georgia divesting itself of the land in question. The case cited points out that the states are sovereign over their land - not the federal government.
c_r: I didn't know you could throw a curveball! Too bad you can't get it in the strike zone!!
For instance, if the Union today were to by consent let Hawaii (or as they write it "Hawai'i") leave, would that dissolve the Union? Nope. The Union would still exist. You seem to work under the misconception that a "perpetual" Union is rigid and fixed in its constitution [the other meaning ;^)].
It’s entertaining to see you attempt to ‘swap horses in midstream.’ I believe you initially argued that unilateral secession was unconstitutional because (among other things ;>) the union was supposedly “perpetual.” In other words, the “perpetual” union ‘requirement’ prevented the departure of even a single State.
Here, on the other hand, you apparently abandon that argument, and attempt to equate “a State…’opting out’” (to use your phrase ;>) with ‘dissolution of the Union.’ Sorry, my friend, it is your ‘straw man’ argument that can't stumble into “the strike zone”…
WIJG: "Contradictions, contradictions..."
c_r: Not so! I used your terminology and concepts.
Really? I’ve (rather consistently, I believe ;>) used ‘secession from the union formed under the terms of the Articles,’ or similar language.
WIJG: "And which clause of the Articles specified a process for ‘superceding,’ rather than 'altering,' that contract? Hmm? Please be specific."
c_r: The quick and dirty answer is that it was the will of the people that their failing form of government be replaced. I recall a phrase, "whenever any Form of Government becomes destructive of those ends (the peoples' rights, safety, and happiness), it is the Right of the People to alter or to abolish it, and to institute new Government....". In essence, you are arguing that the Constitutional Convention had no authority to procede the way they did. You are on the wrong side of that argument.
Actually, I was merely attempting to determine whether you believed that ‘supersession’ of the Articles was allowed under the terms of that compact – considering that:
“Article II. Each state retains … every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
I see no ‘express’ delegation of any power to ‘supersede’ the Articles - apart from Article XIII, which requires that ‘alterations’ be approved by “every State,” and which you have suggested repeatedly does not apply to the supposed ‘supersession’ in question.
Alternatively, one might suggest that ‘supersession’ of the Articles was a ‘revolutionary’ act – as you imply, by quoting Mr. Jefferson’s Declaration of Independence.
Which is it: a ‘Congressional power authorized under the terms of the Articles,’ a ‘power retained by the States under the terms of the Articles,’ or a ‘revolutionary act?’
;>)
I posted the foundation for my position throughout many posts on this thread, and reasoned why it is so. You are gameplaying and fail to justify your position with a rational discussion.
And I have suggested “throughout many posts on this thread” that your position was flawed, both logically and factually. Furthermore, I labeled the statement in question "opinion" offered in response to “opinion.” As for “gameplaying,” and ‘failure to justify a position with a rational discussion,” I note that you have once again refused to tell us whether Mr. Madison’s & Mr. Taylor’s arguments concerning judicial review are logical, or not.
Ante up, my friend.
Did you really mean fewer?... Zero is fewer than 37.
I take it you have abandoned that line of reasoning (i.e. "37 or fewer")?
Actually, it was posted as an ‘analogy.’ As for whether or not I “have abandoned that line of reasoning,” I refer you to my reply in Post #1,855:
”And 9 is fewer than 13.”
The ‘9 State requirement’ of Article VII of the Constitution is still insufficient to satisfy the ’13 State requirement’ of Article XIII of the Articles. Which brings us back to the question of authority:
Was the ‘supersession’ (your term ;>) of the Articles a power delegated to Congress under the specific written terms of the Articles? (If so, then by what specific clause?) Or was it a ‘power retained by the States?’ Or was ‘supersession’ of the Articles a ‘revolutionary act,’ as you imply by quoting the Declaration of Independence?
WIJG: [Congress authorized]“[A convention] for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislature such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”
c_r: Quite correct! And what did the Congress do when it got the proposed constitution back from the Philadelphia Convention? A few hot heads called for the scalps of the convention delegates (figuratively speaking - some people on this thread do not understand the concept of hyperbole), the Congress debated the proposed constitution for a few more days, and then sent it out to the people of the States for ratification! I would call that the "Congressional Seal of Approval." … You have become caught up in minutiae and completely miss the greater point - that being the necessity of fixing a broken government.
Actually, it’s not “minutiae:” it’s the foundation of your argument. I have suggested that the establishment of the constitutional union (without the unanimous approval required by Article XIII of the Articles) amounted to the secession of the ratifying States from the union formed under the Articles. I have further suggested that, if secession is rejected as the process used to create a 9- (or 11- ;>) member union from the 13-member union formed under the Articles, that the only alternative is to claim that the non-ratifying States were somehow expelled from that union. You claim that a “third option” existed: “The people of the states that had not ratified were free to choose their own path, by the consent of the other states.” In an attempt to substantiate your claim that “the other States” – including Rhode Island – had consented to such a ‘supersession’ of the Articles, you contend that “Rhode Island was a member of the Congress of the Confederation that authorized the Philadelphia Convention,” and “[t]hat [the fact that] Rhode Island did not attend [the constitutional convention], makes no material difference.”
In fact, Congress ‘expressly’ authorized only “alterations” to the Articles, not the ‘supersession’ that you claim. And any “alterations” proposed as a result of the Congressional authorization in question would have remained subject to a subsequent ‘veto’ by the State of Rhode Island, under the specific terms of Article XIII.
Your attempt to substitute the approval of Congress for the approval of the State of Rhode Island might have appeared more reasonable if:
A) Congress had actually authorized ‘[A convention] for the purpose of ‘superseding’ the Articles of Confederation;’and
B) Rhode Island had actually voted in favor of that authorization; and
C) Rhode Island had actually voted in favor of submitting the resulting proposal “to the people of the States for ratification.”
None of these is true – and your “third option” did not in fact exist.
(Not that your arguments are not entertaining! Once again we see you attempt to ‘swap horses in midstream,’ as you offer up a supposed "Congressional Seal of Approval" in lieu of the lawful “consent of the other states” required by your own claims… ;>)
…you continue to maintain that that nine (or more) states seceded from the Articles (or the government under the Articles, or the Union created by the Articles - I hesitate to mischaracterize your contention), or four (or fewer) states were "expelled" from the Union for some period of time. Yet you provide no documentation that either of these formal governmental acts ever actually occurred. You are working in the realm of the hypothetical.
Actually, I am working in the “realm” of simple fact. The terms of Article XIII of the Articles of Confederation (which I have previously ‘provided’ ;>) clearly require that “every State” (13 in all) approve any ‘alterations’ to said Articles. The terms of Article VII of the Constitution (which I have also previously ‘provided’ ;>) clearly require only the approval of 9 States – rather than 13 – for the ‘establishment’ of the new constitutional union. That constitutional union was, in fact, established upon the ratification of fewer than 13 States (and I have ‘provided’ copies of ratification documents proving that point as well ;>). Clearly, the number of States establishing the constitutional union was insufficient to satisfy the requirements of Article XIII of the Articles, and any description of the “process” involved in the “transition” from a 13-member union to a 9- (or 11- ;>) member union must recognize that simple fact.
On the other hand, I have provided a timeline and shown that the transition from government under the Articles to government under the Constitution, was orderly, was provided for by Acts of the Congress of the Confederation, was debated, ratified, and authorized by the American people.
Unfortunately, you have failed to provide any evidence of an ‘express’ authority within the Articles for the “transition” you describe. You insist that the Constitution can not be termed an “alteration” of the Articles, in an attempt to sidestep the unanimous approval required by Article XIII – but Article XIII therefore provides no authority for the ‘supersession’ and “transition” you describe. And your suggestion that the Articles were ‘superceded’ rather than ‘altered’ only undermines your claim that the union formed under the Constitution was a continuation of the supposedly “perpetual” union formed under the Articles. Which once again raises a most interesting question: was ‘supersession’ a power delegated to Congress under the terms of the Articles – and if so, by what specific clause? Or was the power to ‘supersede’ the Articles retained by the States?’ Or was ‘supersession’ of the Articles a revolutionary act, as you imply by quoting the Declaration of Independence?
Correct me if I am wrong about this, but didn't you get the citation wrong? Shouldn't it read:
"JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting."???
And, if I am correct that you quote from the dissent, how is it that the dissenting opinion becomes the "judicial standard"?
I assumed you would know that the ‘judicial standard’ in question was not established by U.S. Term Limits v. Thornton. Mr. Justice Thomas’ merely employed the ‘standard’ in his dissent, and his opinion provided a convenient citation. Allow me to quote yet another “dissenting opinion” which cites the same ‘standard:’
”[F]rom the foundation of the government this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martin v. Hunter., 1 Wheat. 326, 331, 4 L. ed. 102, 104)…”
Mr. Justice Harlan (dissenting ;>), Downes v. Bidwell, 182 U.S. 244, 1901
And lest you think the 'standard' (that federal powers be either expressed or “necessarily implied”) was developed as recently as 1901:
[I]t is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.
These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by one of the articles in amendment of the constitution, which declares, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' [14 U.S. 304, 326] The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.
Mr. Justice Story (delivering the opinion of the court ;>), MARTIN v. HUNTER'S LESSEE, 14 U.S. 304, 1816
In summary, the ‘judicial standard’ I cited has been recognized for nearly 200 years (and, amazingly enough, is ‘even’ recognized by the 9th Circuit Court of Appeals - which somewhat deflates my “liberal Democrat” jest in Post #1,855 ;>). I simply assumed you were aware of that fact, and that you were being ‘pigheaded’ in your refusal to employ it.
Now that you are aware that the federal government “can claim no powers which are not … expressly given, or given by necessary implication,” would you care to reevaluate your argument? You have based much of that argument upon judicial opinion (such as it is ;>), and I presume you would like to honor precedent. If so, you must now prove that the use of military force to prevent State secession from “the Constitutional Union is a [necessarily] implied power of the federal government.”
;>)
Actually, Congress may well have considered itself bound by the terms of the States' cessions. If I remember correctly, Virginia ceded lands, under specific terms regarding use and the size (or number) of any States that might be created therefrom, prior to the ratification of the Constitution. Following ratification, Congress requested that Virginia amend the act authorizing the cession, so as to allow the creation of fewer States than initially required by the State of Virginia. Virginia approved of the idea, and did so. No modification was requested or offered, however, with regard to the use of the land.
Which brings us (again, if I remember correctly ;>) to U.S. v. Gratiot. Gratiot had reneged on an agreement to pay the federal government for his lead smelting 'lease,' and when held to account, sought to prove that the federal government had no right to lease lands obtained in the Virginia land cession. If Gratiot had employed a decent attorney, he most likely would have proved his point: the attorney failed to cite the specific language of the act ceding the land, or the request by Congress that said act be amended, or the language of the subsequent amendment. Gratiot lost - and the case thus become a foundational element of the federal mineral leasing program, and federal ownership of lands that approach 90% of certain States. Which emphasizes the contention of one constitutional scholar that "bad cases badly argued produce bad precedents."
;>)
When the Articles were superceded by the Constitution, it was essentially an act of the people, exercising their own sovereign authority. Review the quotation from the Declaration; "... whenever any Form of Government becomes destructive of those ends (the peoples' rights, safety, and happiness), it is the Right of the People to alter or to abolish it, and to institute new Government....". The Conferdation under the Articles had proven to be a failed form of government. Several failed attempts had been made to amend the Articles under the terms of the Articles.
The Convention at Philadelphia proposed a replacement for the Articles, and required ratification by the people, rather than the state legislatures. The Congress debated the issue and voted "unanimously" to send it our to the people for ratification (note here that "unanimous" refers not to the individiual votes of all the members of Congress, but the States' votes under the caucus system used in the Confederation Congress). It was evident that there were powerful voices who opposed the new Constitution. There were those who worried that the proposed Constitution created a too-powerful general government (as I noted earlier, distrust of government is seemingly genetic in Amercians). The ratification of the proposed Constitution was one of the most widely debated issue, if not the most widely debated issue, of its day. One need only read the Federalist and Anti-federalist papers, to get an idea of how very important the issue was to even the most common man.
The first words of the new Constitution cite its authority, "We the people." The Framers of the Constitution did not need to find any authorization, sanction, endorsement, or justification from the Articles they proposed to replace.
The story of "New Connecticut" (aka Vermont) is contemporary and just as entertaining. I think it is fair to say that the "Republic of Vermont" was more of a tax separatist movement than secession. After all, New York and New Hampshire had trouble figuring out who the Vermonters were separating from, and the "Republic" was never recognized by any official act or by any other country. As it turned out New York and breakaway Vermont worked out a deal by 1791, whereby Vermont paid off New York for New York's legislative approval and real independence.
Bullheaded. I think I am more headstrong than obstinate.
I think the definition I posted earlier for "implied power" connotes necessity:
Implied power - a political power that is not enumerated but nonetheless exists because it is needed to carry out an express power.
You misunderstand, or misinterpret, my position. I made no argument that "pepetual" "prevented the departure of even a single state." I several times mentioned the concept of "concent" of the other states (which is mentioned in Texas v White.
Let me simplify my position so you can better understand it: A state cannot lawfully leave the Union on its own volition.
I never claimed the Congress authorized the replacement of the Articles, prior to the Convention.
The position you hold, and the points you make, with regard to the charge made to the Convention by the Congress, is nothing new. A minority of the delegates to the Convention made them as well, and a small minority of the members of Congress, after receiving the proposed Constitution, made similar complaints. Congress could have stopped the proposed Constitution right then and there. Instead, they voted unanimously to send it out to the people for ratification.
I recommend that you read the classic Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 by Catherine Drinker Bowen (I have the 1986 reprint with the forward by former Chief Justice Warren Burger), or the more recent A Brilliant Solution: Inventing the American Constitution by Professor Carol Berkin (the paperback version came out last month).
I think I have been pretty consistent in my position that the Constitution of 1787 was not an alteration of the Articles of Confederation. It was a replacement. It superceded the Articles. You fail to recognize the obvious.
Can you provide a contemporary (c. 1787-1790) source for your claim that states seceded from the Articles (or seceded from the government under the Articles? or from the Union governed by the Articles?) I don't think anybody viewed the transition in those terms.
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