Replies

WIJG: "But it is good to see you admit that the “perpetual” union language is no impediment to a State or States ‘opting out’..."

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.”

;>)