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U.S. Constitution
See other U.S. Constitution Articles

Title: The Supreme Court’s early years: When censorship was constitutional?
Source: soso
URL Source: http://www.minnpost.com/eric-black- ... -censorship-was-constitutional
Published: Jan 20, 2015
Author: Eric Black
Post Date: 2015-01-20 14:14:59 by SOSO
Keywords: None
Views: 23391
Comments: 72

The Supreme Court’s early years: When censorship was constitutional? TweetShare on printShare on emailBy Eric Black | 11/13/12

In the first decade-plus of its history, the U.S. Supreme Court struck down zero congressional enactments.

At the risk of being slightly snarky, I would point out that the first two presidents (George Washington and John Adams) were Federalists, the first Congresses were dominated by Federalists, so all of the early Supreme Court appointees were nominated and confirmed by members of the same party that was also passing and signing all the laws and, coincidentally or not, none of the laws were struck down, nor even challenged, as unconstitutional.

This is especially noteworthy because in 1798 the Federalist-dominated Congress passed and President John Adams signed the blatantly unconstitutional and highly partisan Alien and Sedition acts which, among other things, made it a crime, punishable by imprisonment, to:

“Write, print, utter or publish, or ... cause or procure to be written, printed, uttered or published, or ... knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.”

In other words: No criticizing the government (although technically the criticism has to be false, scandalous or malicious).

Under this law, 25 men, many of them editors of newspapers supportive of the nation’s first opposition party, the Democratic Republicans led by Thomas Jefferson and James Madison, were arrested and prosecuted. Some went to prison. In many instances, the newspapers were shut down. The First Amendment – “Congress shall make no law … abridging the freedom of speech, or of the press” -- was on the books and in effect.

Jefferson and Madison were learned in the law. Madison was the “father of the Constitution” and the chief author of the Bill of Rights, which included the free speech and press guarantees that were so blatantly flouted by the Alien and Sedition Acts. And the acts were clearly intended to intimidate and silence members of the Jeffersonian party. Yet, neither of them, nor anyone else, started a legal action seeking to have the Alien and Sedition Acts overturned by the Supreme Court as unconstitutional.

This is hard to understand if, at the time of the drafting and ratification of the Constitution and the Bill of Rights, it had been understood that the Supreme Court had this authority.

Instead, Jefferson and Madison redoubled their efforts to win the next election, making the Alien and Sedition Acts an issue against Adams and the Federalists. And they did win, which set the stage for the jaw-dropping developments that lead up to the Marbury v. Madison case, which established or created or made the first use of the Supreme Court’s power strike down congressional enactments that – in the court’s opinion – violated the Constitution.

The late professor Alexander Bickel, one of the leading 20th century scholars of constitutional law, once said of the Marbury ruling: “It is hallowed; it is revered. If it had a physical presence, like the Alamo or Gettysburg, it would be a tourist attraction.”

In the previous installment, I call the Marbury case “a stinkpot of hardball politics, partisanship, questionable logic and conflicts of interest.” I will attempt to back up that statement, beginning with the factual background of the case:

The Midnight Judges

John Adams deserves tremendous credit. After losing his bid for reelection in 1800, he became the first president to peacefully surrender power. There are still plenty of countries that can’t take a peaceful transition of power for granted. In the United States, many presidents have been defeated for reelection and never once has there been any question that the incumbent would peacefully accede to the will of the electorate.

On the other hand, Adams had several months to serve (in those days, the new president wasn’t inaugurated until March) and he still had a cooperative Federalist-dominated Congress.

Adams and the lame-duck Congress used those last months of power to, among other things, pass laws creating a great many new judicial positions and rushing through appointments of loyal Federalist to fill what the Constitution mandated would be lifetime appointments to federal judgeships. This was constitutional, but not really cricket. It’s also another example of a vulnerability that the framers inadvertently built into the system because of their belief that the republic they were designing would operate without the kind of partisanship that almost immediately developed.

In addition, Adams nominated and the Federalist Senate quickly confirmed John Marshall as the new chief justice of the Supreme Court. Leader of the Virginia Federalist Party, a rising national star of the pro-Adams party, one of President-elect Jefferson’s least favorite people (although they were cousins), Marshall was at the time of his appointment a young and healthy 45-year-old.

Adams’ binge of judicial appointments is known to history as the Midnight Judgeships. Among those appointed were Adams’ son-in-law, Marshall’s brother and two of Marshall’s in-laws.

Oh, and while they were vastly expanding the federal judiciary, the Midnight Congress also reduced the size of the Supreme Court from six justice to five, for the undisguised purpose of postponing the day when Jefferson would have an opportunity to fill a Supreme Court vacancy. As I mentioned earlier, the Constitution did not specify the size of the Supreme Court, and it has been altered many times, generally for partisan reasons or to deprive a particular president of appointments.

One Federalist upon whom Adams bestowed a midnight judgeship -- actually a mere Washington D.C. justice of the peace-ship -- was William Marbury.

In the haste to complete all the paperwork for so many appointments, Marbury was one of several appointees for whom the commission was signed and sealed but not delivered by Inauguration Day. When Jefferson took over the (still-under-construction) White House, he decided not to complete the appointments of the judges that were still in process. Marbury sued, demanding his lifetime sinecure. James Madison (Jefferson’s new secretary of state) was the named defendant in the case, which would become perhaps the most famous in U.S. legal history.

Jefferson was furious about the midnight judgeships, writing to a friend that the defeated Federalists had “retired into the judiciary as a stronghold… There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased by a fraudulent use of the constitution which has made judges irremovable, they have multiplied useless judges merely to strengthen their phalanx."

In fact, the Federalist Party would soon wither and disappear, leaving behind no serious national political organization. But John Marshall would remain on the court throughout the presidencies of both Jefferson and Madison and several more presidents after them, eventually setting the longevity record that still stands of more than 34 years as chief justice of the Supreme Court. Marshall’s career, in a sense, set a precedent for the recent practice of presidents appointing young, healthy justices who would carry influence of the appointing president and his party and his ideology decades into the future regardless of election results. There is little reason to believe that this is what the Framers had in mind when they decided to make federal judicial appointments good for life.

Although he remained ideologically “federalist” in the sense that he believed in a strong national government, Marshall’s key institutional loyalty transferred from a political party to a branch of the government. Marshall built the power of the federal judiciary beyond anything conceived by the Framers.

But in 1801, as he and Jefferson faced off across branch lines, Jefferson held the whip hand.

In 1802, Jefferson and his allies in Congress passed a bill uncreating many of the judgeships that had been signed into existence by Adams. You could, if you chose, view those repeal bills as unconstitutional.

Abolishing federal judgeships has the effect of firing the judges in those positions, which certainly violates the spirit and perhaps the essence of the lifetime tenure provision (although it’s easy to understand why Jefferson might have felt justified in pursuing such a strategy, considering the way the judgeships had come into existence).

The repeal issue didn’t result in a constitutional court case (more evidence, by the way, that judicial review wasn’t much in the air). But if it had reached the Supreme Court, and if Marshall had struck down the repeal and ordered Jefferson to reinstate the judges and resume paying them, there is every possibility that Jefferson would have ignored the order, with impunity, which would have resulted in exactly the opposite of establishing the power of judicial review or judicial supremacy over constitutional matters.

Marbury’s lawsuit, however, seeking the judicial appointment that had been signed and sealed but not delivered, did come before the court.

The Jefferson administration showed its contempt for the proceedings (and for Marshall) by refusing to defend itself or participate in the case in any way. This could be taken as yet another warning to Marshall that if he ordered Madison to hand over Marbury’s commission, the Jefferson administration would disregard the order, thus setting what might be the opposite of the precedent Marshall hoped to set.

This will come as a surprise, but it’s an important technical fact. The Supreme Court, with Marshall presiding, didn’t get the case on appeal but conducted the actual trial and heard the testimony, which showed that Marbury had been legally appointed by Adams, confirmed by the lame duck Federalist-controlled Senate and that his commission had been prepared, but that Adams’ secretary of state had failed to get the paperwork delivered by the last day of Adams’ term.

Article III of the Constitution assigns the Supreme Court original jurisdiction in a few small categories of cases (such as those involving ambassadors, for example). The Constitution says that the high court will hear appeals in other categories of federal cases “with such exceptions, and under such regulations as the Congress shall make.”

In the Judiciary Act of 1789, Congress availed itself of that language about exceptions and assigned the Supreme Court original jurisdiction over cases in which a plaintiff is trying to get the court to order a federal official to do something like, in this case, order Secretary of State Madison to give Marbury his commission.

After hearing the case, Chief Justice Marshall devised a clever -- or diabolical or possibly diabolically clever -- solution to his dilemma. He ruled that Marbury was right and should have received his commission. But Marshall’s landmark decision also ruled the Supreme Court could not order Madison to give Marbury’s appointment because Congress, in passing the Judiciary Act of 1789, had exceeded its constitutional authority by assigning the Supreme Court to hear cases like Marbury’s because the Constitution sets out the limited kinds of cases in which the Supreme Court holds original jurisdiction.

Now that constitutional language, mentioned above, does empower Congress to make exceptions to the Supreme Court’s role as a trial court. If, in the spirit of Chief Justice John Roberts’ recent ruling on the health care law, Marshall believed that it was his duty to show deference to the elected branches and find a statute constitutional if there was any way to do so, he had plenty of ways to do so.

But no, Marshall concluded that the constitutional language didn’t mean Congress could give the Supreme Court jurisdiction over the Marbury case. So Marshall ruled that Marbury deserved to get his commission, but the Supreme Court couldn’t order Madison to give it to him because Congress had violated the Constitution when it assigned additional jurisdiction to the Supreme Court. That portion of the 1789 law was the first ever to be struck down as unconstitutional and that aspect of Marshall’s ruling established or discovered or invented the power of judicial review.

Was it unconstitutional? In my haste to introduce Chief Justice Marshall above, I neglected to tell you one important fact of his biography. In 1788, at the tender age of 33, already a minor war hero (who served under Gen. George Washington at Valley Forge), already a member of the Virginia Legislature, Marshall was chosen to serve on the Virginia ratifying convention that ultimately, and narrowly, voted to accept the draft of the Constitution.

I mention this because to strict “textualists” like today’s Associate Justice Antonin Scalia, the quest for the “original meaning” of the words in the Constitution is not limited to the meaning intended by those who wrote it, but the meaning as understood by those who ratified it and even by those who voted for those who ratified it. As a member of the Virginia ratifying convention, Marshall’s “understanding” of what the words in the Constitution meant would be of above-average importance.

Still, there are some serious problems with Marshall as the explicator of the original understanding of the 1789 law that he struck down. For example…

MinnPost illustration by Jaime AndersonHow about this: The act that was adopted in 1789 – by the very first Congress – was signed into law by President Washington, who had presided over the Constitutional Convention itself and who had taken the constitutionally prescribed oath to “preserve, protect and defend the Constitution,” but who had nonetheless signed a law that was (according to Marshall) unconstitutional.

And this: That first Congress included 13 members who had also been delegates to the Constitutional Convention, all of whom appear to have supported the 1789 law that Marshall ruled unconstitutional. In fact, the Senate sponsor of the law, Oliver Ellsworth of Connecticut, had not only been an influential member of the Constitutional Convention but had then been Washington’s nominee as chief justice of the Supreme Court, where he had served a few years and retired, creating the vacancy that President Adams had filled with John Marshall.

And if you can stand it: Among those joining Marshall’s unanimous opinion that the Judiciary Act violated the Constitution was William Paterson of New Jersey, who had been a member of the Philadelphia Convention in 1787 that wrote the Constitution, then a member of the first Senate in 1789 when it passed the Judiciary Act, which Paterson supported, then an associate justice of the Supreme Court who concurred with Marshall in 1803 that the law (for which he had voted) violated the Constitution (which he had helped draft).

But I’ve been saving this for last: (By rights I should have disclosed this several paragraphs ago but I saved it for the big finish.)

The reason Madison was the named defendant in Marbury v. Madison is that in those days the secretary of state was in charge of the paperwork for appointments like Marbury’s. So it was the secretary of state in the last days of the Adams Administration who had failed to get Marbury’s commission out the door in time, which gave rise to the whole lawsuit.

And that secretary of state was John Marshall. Yes, same John Marshall. In fact, Marshall had been sworn in as chief justice of the Supreme Court and still hadn’t resigned as secretary of state on the last day of the Adams presidency, which is weird enough on its own, but also means that, in his new capacity as chief justice, Marshall was sitting in judgment of his own failure, in his former capacity as secretary of state, to complete Marbury’s appointment.

Nowadays, we would call that a conflict of interest requiring Justice Marshall to recuse himself from presiding over the case in which Secretary Marshall played such a large role.

Other than to Marbury (whose home in Georgetown, by the way, is now the Ukrainian Embassy to the United States), the question of his justice of the peaceship is relatively unimportant to history. And given the totality of the circumstances described, I think it is reasonable to suspect that Marshall wasn’t exactly calling them as he saw them but rather trying to find a way out of his dilemma while aggrandizing the power of the judicial branch by establishing the doctrine which has come to be called “judicial supremacy,” which means mostly that in deciding issues of the proper meaning of the Constitution, the ruling of the Supreme Court is the final word.

If Marshall had ordered Jefferson and Madison to hand over Marbury’s commission, they would almost certainly have defied him, or even ignored him, which would have been a serious blow to the court’s prestige. By giving Jefferson no orders to defy, he seems to have accomplished both purposes and may have succeeded beyond his wildest hopes.

In a way, it creates a weird link to the case with which I started the previous installment, the Watergate tapes case. If President Richard Nixon thought he had the option of defying the court and destroying the Watergate tapes, he might well have done so. But two centuries after Marbury, such defiance of a Supreme Court ruling seemed almost unthinkable.

This installment has run on too long. But after all the disrespect I have displayed for Chief Justice Marshall’s conduct in this matter, I will begin the next installment with the famous, elegant statement he made in his Marbury ruling explaining the rationale for the power of judicial review.

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Begin Trace Mode for Comment # 61.

#42. To: SOSO (#0)

Abolishing federal judgeships has the effect of firing the judges in those positions, which certainly violates the spirit and perhaps the essence of the lifetime tenure provision (although it’s easy to understand why Jefferson might have felt justified in pursuing such a strategy, considering the way the judgeships had come into existence).

The repeal issue didn’t result in a constitutional court case (more evidence, by the way, that judicial review wasn’t much in the air). But if it had reached the Supreme Court, and if Marshall had struck down the repeal and ordered Jefferson to reinstate the judges and resume paying them, there is every possibility that Jefferson would have ignored the order, with impunity, which would have resulted in exactly the opposite of establishing the power of judicial review or judicial supremacy over constitutional matters.

Abolishing federal judgeships has been done. Leave it to Lincoln. He then created a court with the same jurisdiction and powers and gave it a new name and very select judges. Notably, during the Lincoln administration, the U.S. Supreme Court was packed with a 10th justice, making for five sitting Lincoln appointees. When Andrew Johnson became president, no appointments were allowed until the membership fell to seven which it never did. When Grant became president, it was reset to nine where it remains. The below extract is from Chief Justice John G. Roberts.

http://www.virginialawreview.org/sites/virginialawreview.org/files/375_0.pdf

VIRGINIA LAW REVIEW
VOLUME 92 MAY 2006 NUMBER 3

LECTURE WHAT MAKES THE D.C. CIRCUIT DIFFERENT? A HISTORICAL VIEW

John G. Roberts, Jr.*

Excerpt at 382-383. Article at 375-389.

[Excerpt, footnotes omitted]

III. POLITICAL PRESSURES DURING THE CIVIL WAR

The D.C. Circuit would not be so lucky in its next brush with the political branches. During the Civil War, the three judges on the D.C. Circuit found themselves at loggerheads with the Lincoln administration. The court was led in this struggle by Judge William Merrick, a Democrat who had been appointed by Franklin Pierce and who was deeply suspected by the Lincoln administration of harboring secessionist sympathies. The question facing the court was whether habeas corpus could issue against the Army to secure the release of minors who had enlisted without their parents’ consent. Judge Merrick held in one decision that it could and secured the release of minors from the Army. When he tried again two weeks later to do the same thing in another case, President Lincoln reacted. He ordered the Army not to comply with the judicial process. He further ordered the Comptroller General not to pay the salaries of the three judges, and he sent an armed sentry to stand guard outside Judge Merrick’s house. There is a lot of confusion and debate about exactly what was going on, but Judge Merrick chose to regard himself as confined to his house, and so he wrote a letter to his two colleagues to explain why he could not come to court the next day. Judge Merrick’s colleagues, in solidarity with their imprisoned—perhaps—colleague, issued an order to the Provost Marshal of the District of Columbia to show cause why he should not be held in contempt for these actions against Judge Merrick. One of the judges, Judge Morsel, said, “I intend to do my duty, and vindicate the character of this court as long as I sit here.” He then added, in my view somewhat ambiguously, “I am an old man.” This last statement seemed to detract from the threat, but maybe he was being maudlin in saying it was not going to be very long.

In any event, President Lincoln did not back down. He sent Army officials to the court to announce that he had suspended the writ of habeas corpus in the District of Columbia. The court questioned whether Lincoln had the authority to do that retrospectively, as they put it, but they concluded that in the face of military authority there was nothing more that they could do, and that they would consider the case closed and accept no further filings in it.

President Lincoln and the Republican Congress did not consider the case closed. They abolished the court and terminated the judgeships, creating in the place of the abolished court a new court called the Supreme Court of the District of Columbia. It looked a lot like the old court, except for the fact that it now had four vacancies to which President Lincoln appointed, and the Senate confirmed, four new appointees—a former Republican Congressman from New York; a Republican Congressman from Delaware; an Ohio delegate to the Republican convention that nominated Lincoln; and Andrew Wylie. Wylie was reputed to be the only person in Alexandria who had voted for Lincoln.

The new court had those wonderful new judges, but the same jurisdiction and authority of the court it "replaced."

nolu chan  posted on  2015-01-25   0:06:28 ET  Reply   Untrace   Trace   Private Reply  


#43. To: nolu chan (#42)

Lincoln did what he thought he needed to do to win the war. And he achieved his objective.

By contrast, the South refused to compromise on any of their principles in order to win the war. So they lost.

Vicomte13  posted on  2015-01-25   8:42:02 ET  Reply   Untrace   Trace   Private Reply  


#44. To: Vicomte13 (#43)

Lincoln did what he thought he needed to do to win the war.

Even when it involved serial rape of the Constitution he was sworn to uphold.

Lincoln did not save the union created by the Constitution, but revolutionized it and created a new one. The government we had was lost for all. Whether one approves of his new order depends on whether one prefers the former sovereign states (the political communities of people organized as states) and weak federal government, or one prefers the destruction of state sovereignty and a massive, consolidated national government. I guess one could say that Hamilton and the Federalists prevailed.

nolu chan  posted on  2015-01-25   19:27:06 ET  Reply   Untrace   Trace   Private Reply  


#45. To: nolu chan (#44)

Whether one approves of his new order depends on whether one prefers the former sovereign states (the political communities of people organized as states) and weak federal government, or one prefers the destruction of state sovereignty and a massive, consolidated national government. I guess one could say that Hamilton and the Federalists prevailed.

I look at it differently.

I myself generally prefer the former view: political communities of people organized as sovereign states. However, the fly in the ointment is that I do not hold the system of political organization, or the law itself, to be the highest order thing. No, there's a fundamental reasonableness and goodness that has to trump all of that.

And that's a problem when you come to America. We had sovereign states and a Constitution that was pretty reasonable...except that a quarter of the population were in chains, literally, without rights, and without any prospect of achieving them.

To my mind, that is so bad that it renders the nation itself illegitimate. Any nation that does THAT, for THAT long and THAT persistently, needs to be wiped from the face of the earth.

Now, it is completely true that Lincoln did not fight the war to free the slaves and end slavery. There was only the tiniest fraction of people who wanted something as radical as that, at the outset of the war.

But once again, I don't care about people's motives, or their politics: I care about the result. The South rebelled and was strong. To defeat it and "preserve the Union" - the cause that LINCOLN was on about (but that I don't myself care about either way) - ended up in a series of events that freed the slaves and kept them free.

And that is the only acceptable result as far as I am concerned. If that could have been achieved - in the same or a shorter time frame - without war, then that would have been great. But it could not have been achieved in that short a time frame without war, and I see no reason why millions of people should have to be in chains waiting on their masters to finally develop to the point to set them free. No, I think it is far better to murder their masters, by the hundreds of thousands, and destroy everything, including the original Constitution and the whole form of government, rather than to let that evil last even a decade more.

To me, the nice instrument that was the American Constitution before the Civil War was not worth preserving if that meant tolerating slavery for another decade, or five, or ten. And that is what was on offer, given Dredd Scott. The South and the Democrats win, and States Rights be preserved...and that meant slavery continue. Or the North could win won swiftly, and that would have meant slavery continued. Neither of those outcomes would have been acceptable by my lights.

The South was never going to give up the institution of slavery easily or peacefully. It was central to their idea of States rights. And the North would have let it go on had the South quickly been brought back into the fold.

By my lights, the war happened pretty much as it had to, for slavery to truly be uprooted. It went on long enough that attitudes hardened and Lincoln had to cast around for something to keep the Europeans out. And the destruction was sufficient that the slaveowners really did lose almost everything, which is an important aspect of justice as well.

Do I approve of the post-Civil War order of the American Union. Eh. It would have been better if the pre-war structure had found the intestinal fortitude to abolish slavery and keep itself intact. But that didn't happen (and wasn't going to). The result: slavery wiped out and the wealth piled up by slavery destroyed - that was a good result. So that's what I chalk up as a win. The before/after form of government? Well, before it was so bad that it permitted slavery to expand throughout the Old Southwest. And afterwards it was the sort of bad we have today. Structure wise, I'd say it was bad before and bad after.

But the country was a better place for having fought the war, so that's what I key on...to the consternation of many who do not think that the suffering of slaves is sufficient cause to destroy a country.

Vicomte13  posted on  2015-01-25   20:46:20 ET  Reply   Untrace   Trace   Private Reply  


#49. To: Vicomte13 (#45)

I myself generally prefer the former view: political communities of people organized as sovereign states.

As do I. What I take offense to is Lincoln apologists who rewrite history to say that the states were never sovereign and the union created the states. Sort of, if Lincoln said it, it must be true. Lincoln equated states and counties.

Disclaimer: I am not saying you said any such thing. I am just raising a point of discussion.

President Lincoln's message of July 4, 1861 to the Special Session of Congress.

What is the particular sacredness of a State? I speak not of that position which is given to a State in and by the Constitution of the United States, for that all of us agree to—we abide by; but that position assumed, that a State can carry with it out of the Union that which it holds in sacredness by virtue of its connection with the Union. I am speaking of that assumed right of a State, as a primary principle, that the Constitution should rule all that is less than itself, and ruin all that is bigger than itself. But, I ask, wherein does consist that right? If a State, in one instance, and a county in another, should be equal in extent of territory, and equal in the number of people, wherein is that State any better than the county?

- - -

President Lincoln's message of July 4, 1861 to the Special Session of Congress.

The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States.

- - -

Or as another politician phrased it:

What is a federated state?

By a federated state we understand a league of sovereign states which band together of their own free will, on the strength of their sovereignty; ceding to the totality that share of their particular sovereign rights which makes possible and guarantees the existence of the common federation.

In practice this theoretical formulation does not apply entirely to any of the federated states existing on earth today. Least of all to the American Union, where, as far as the overwhelming part of the individual states are concerned, there can be no question of any original sovereignty, but, on the contrary, many of them were sketched into the total area of the Union in the course of time, so to speak. Hence in the individual states of the American Union we have mostly to do with smaller and larger territories, formed for technical, administrative reasons, and, often marked out with a ruler, states which previously had not and could not have possessed any state sovereignty of their own. For it was not these states that had formed the Union, on the contrary it was the Union which formed a great part of such so-called states. The very extensive special rights granted, or rather assigned, to the individual territories are not only in keeping with the whole character of this federation of states, but above all with the size of its area, its spatial dimensions which approach the scope of a continent. And so, as far as the states of the American Union are concerned, we cannot speak of their state sovereignty, but only of their constitutionally established and guaranteed rights, or better, perhaps, privileges.

Or, as Ronald Reagan put it:

President Ronald Reagan, First Inaugural Address, Tuesday, January 20, 1981

All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.

nolu chan  posted on  2015-01-25   23:40:33 ET  Reply   Untrace   Trace   Private Reply  


#53. To: nolu chan (#49)

What I take offense to is Lincoln apologists who rewrite history to say that the states were never sovereign and the union created the states.

The thing about the States that's historically complicated is that most states - except for the original 13 and a few other outliers - really WERE created by the federal government. Most of them were carved out of land that was federal first, acquired by the federal government by purchase or treaty or warfare, and then carved into districts by the federal government under federal rule.

The feds established the boundaries and the rules by which those territories could become states, and then once those terms were met and the states applied, the joined the existing states.

Consider the 5 states carved out of the old Northwest Territories. The Northwest Ordinance was passed under the old Articles of Confederation, it even preceded the federal gov't created by the 1787 Constitution. We might say that the Great Lakes States' existence was ordained by the confederal government.

Nevertheless, that confederal law was binding on the US, and in particular binding on the states that came out of those territories.

Notably, the setting aside of a portion of every section as public land for public education. Universal public education in Michigan, Minnesota, Wisconsin, Indiana and Ohio was ordained by the (con)federal government. The states could not overturn those land grants.

Similarly, those territories and the states that would succeed them were by confederal law to be free states. They never had the choice to be slave states. The territories were declared free.

Things that the original states and other oddball states could decide by pre- existing the federal government were not among the decisions that states carved out of federal territory could make.

So in a very real sense, most of the states were never truly sovereign: they were set up by the federal (or confederal) government on federal land following federal law, and admitted following federal procedures. Virginia, and especially Massachussetts, really were sovereign at a certain point, but Ohio never really was in any sense. It was an empty woods when it became part of the US, its land belong to the US government, which sold it on its own terms and which set up the basic parameters for the territory and the state that followed, including no slavery and public education.

Of course I'm not looking for a fight here. I recognize that the political theory of the setup of America is that sovereign states join the union and retain state sovereignty - to a degree.

I don't disagree with the thought.

I merely note that for about 35 of the states, truth is they were federal property and appendages of the federal government, founded by and established by the federal government, and organized into states under federal tutelage. They passed from being federal vassals into being states with the (limited) sovereignty of states under the Constitution.

I grew up in Michigan. Now, Michigan was first settled by Three Fires people: Potawotamie, Ottawa and Chippewa. These people were kin and relatives, so the territory was not some amalgam thrown together.

It passed largely as a unit, with the Three Tribes as the population, under French rule with conversion to Christianity, and was administered out of three French forts (at Detroit, Michilimackinac, and Sault Ste Marie, and some missions.

It passed as a unit to the British after the Treaty of Paris 1763...and promptly was the subject of a massive Indian rebellion that wiped the British out (except at Fort Detroit) and left the French (and whatever British survivors the French hid) intact. With the end of Pontiac's War the area passed (unconquered, and still mostly Indian, with some French in the three settlements, and a handful of traumatized British survivors) back into British hands. It was part of Quebec and governed (loosely) and covered by the Quebec Act.

It passed as part of the territory south of the Great Lakes into US hands with the 1783 Treaty of Paris, and was organized as the Northwest Territories in 1786 under the Confederal government's Northwest Ordinance.

The federal government moved the borders to and fro in the territories, until finally Ohio was admitted in 1802 (?) beginning the transition process to becoming states. Michigan was admitted as state in 1837, having filled up more slowly than the states to the South.

The Michiganders, heavily French and Canadian (including former American Tories) in origin, and with blood ties to the Indians, did not join in President Jackson's enthusiasm for deporting Indians to Oklahoma, so while the Cherokee were being death marched west, the Michigan territorial government was, in its transition to statehood, making all of the Indians full voting citizens of the state. Therefore, the Three Fires peoples remained in their ancestral grounds, and are significant portions of the population in certain areas.

Certainly the desires of the state as a sovereign affected things like that - the rest of the Indians in territories east of the Mississippi were mostly deported to Oklahoma. Still, Michigan pretty much passed from French tutelage to American tutelage to statehood, and never was an independent sovereignty as such other than as indian tribal lands...and even then it was like the Iroquois: a confederation of three related tribes that covered the territory.

I guess within the theory, Michiganders formed a state, were sovereign, and decided to join the Union, but really, a substantial number of people in the brand new state of Michigan were not citizens of the US before Michigan became a state, because they were "Indians not taxed", and slotted for deportation. It was only the fact of statehood that transformed that significant element of the population into citizens of something (the state), and therefore suddenly part of America.

History is really messy when the facts on the ground are compared to the political theory.

Did all these new Michiganders WANT to be US citizens? Probably not. They probably didn't CARE. But they sure as hell didn't want to be DEPORTED, so having their French cousins (mostly mixed blood also) make them full state citizens protected them...and caused federal forts to be built to watch the Indians who could not now be deported, and thereby brought in federal money and patronage to the hinterland areas by way of the federal military expenditures and provisioning.

(Later, these Michigan Indians would set up the first tribal casinos in America, getting there so quickly because the state and locals supported it...which usually is not the case in most states. Vicissitudes of history again.)

Vicomte13  posted on  2015-01-26   14:06:38 ET  Reply   Untrace   Trace   Private Reply  


#59. To: Vicomte13 (#53)

Of course I'm not looking for a fight here.

Please no. I am just looking for an intellectual exchange with someone who has exhibited some real knowledge in this historical area.

The thing about the States that's historically complicated is that most states - except for the original 13 and a few other outliers - really WERE created by the federal government. Most of them were carved out of land that was federal first, acquired by the federal government by purchase or treaty or warfare, and then carved into districts by the federal government under federal rule.

I would disagree as a matter of semantics. The federal government did all you said to territories, but the states, the groups of people who had formed political communities, were admitted as states. In political terms, the state is a political community of people, not a geographical place.

Lincoln's position, echoed elsewhere, was that the union created the states, all of them. I find the claim preposterous that a union of anything created its own members. How was it a union before it had any members? A union of what?

Under the Constitution, there was an original eleven. North Carolina held out until about six months after Washington was inaugurated. Rhode Island held out for a year and its governor corresponded to the U.S. government asking that they not be treated completely as foreigners.

Consider the 5 states carved out of the old Northwest Territories. The Northwest Ordinance was passed under the old Articles of Confederation, it even preceded the federal gov't created by the 1787 Constitution. We might say that the Great Lakes States' existence was ordained by the confederal government.

The Northwest Territories were ceded to the federal government by the Virginia Act of Cession of 1783 and the Deed of Cession from Virginia of 1784 with the condition that the territory be formed into states and that "the States so formed shall be distinct Republican States, and admitted members of the Federal Union, having the same rights of sovereignty, freedom, and independence as the other States...."

We might say that the Great Lakes' existence was ordained by the Virginia Act of Cession as a condition of said cession.

Nevertheless, that confederal law was binding on the US, and in particular binding on the states that came out of those territories.

Notably, the setting aside of a portion of every section as public land for public education. Universal public education in Michigan, Minnesota, Wisconsin, Indiana and Ohio was ordained by the (con)federal government. The states could not overturn those land grants.

Similarly, those territories and the states that would succeed them were by confederal law to be free states. They never had the choice to be slave states. The territories were declared free.

Things that the original states and other oddball states could decide by pre- existing the federal government were not among the decisions that states carved out of federal territory could make.

So in a very real sense, most of the states were never truly sovereign: they were set up by the federal (or confederal) government on federal land following federal law, and admitted following federal procedures. Virginia, and especially Massachussetts, really were sovereign at a certain point, but Ohio never really was in any sense. It was an empty woods when it became part of the US, its land belong to the US government, which sold it on its own terms and which set up the basic parameters for the territory and the state that followed, including no slavery and public education.

Of course I'm not looking for a fight here. I recognize that the political theory of the setup of America is that sovereign states join the union and retain state sovereignty - to a degree.

I don't disagree with the thought.

I merely note that for about 35 of the states, truth is they were federal property and appendages of the federal government, founded by and established by the federal government, and organized into states under federal tutelage. They passed from being federal vassals into being states with the (limited) sovereignty of states under the Constitution.

I would note first, my disagreement with the entire notion of limited sovereignty. A sovereign is a political entity that knows no superior. Being a little bit sovereign is akin to being a little bit pregnant. A distortion of our founding and framing has led to the notion of divided sovereignty between the Federal and the State governments. I believe that the people are the only sovereigns, and that the Federal and State governments operate under delegated powers. The people did not delegate sovereignty, but power. The people remained sovereign and can, at their choosing, act to take back powers from the State or Federal governments.

The law that was binding on the territories became less so when they became states.

The Kansas-Nebraska Act of 1854 effectively repealed the Missouri Compromise Act of 1820. In Scott, the Missouri Compromise act of 1820 prohibiting owning slaves in certain areas was declared unconstitutional and void. This was never judicially overturned. The post-war amendments changed U.S. law so that the point was moot.

60 U.S. 452

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.

Also, as noted by Don E. Fehrenbacher in The Dred Scott Case, at page 85, "[i]n 1803, the governor and judges of Indiana Territory (comprising the whole of the Northwest except Ohio) established an indenture system tat differed little from chattel slavery except for certain legal technicalities. Sourced to Francis S. Philbrice, ed., The Laws of Indiana Territory, 1801-1809 (Springfield, Ill., 1930), 42-43; Dunn, Indiana, 314-16.

http://www.eiu.edu/past_tracker/esrace.php

Indenture of Judith, Pope County, 1818 / Typed Transcription

One can read the Indenture document from the year Illinois was admitted as a state. It held one Judith in indenture for 99 years in accordance with the law of the territory, specifically "until the twenty sixth day of January one thousand nine hundred and seventeen."

99-year indentured servitude was slavery by another name. The Illinois state constitution of 1818, created for admittance as a state, provided at Article VI:

SEC. 3. Each and every person who has been bound to service by contract or indenture in virtue of the laws of Illinois Territory heretofore existing, and in conformity to the provisions of the same, without fraud or collusion, shall be held to a specific performance of their contracts or indentures; and such negroes and mulattoes as have been registered in conformity with the aforesaid laws shall serve out the time appointed by said laws: Provided, however, That the children hereafter born of such person, negroes, or mulattoes, shall become free, the males at the age of twenty-one years, the females at the age of eighteen years. Each and every child born of indentured parents shall be entered with the clerk of the county in which they reside, by their owners, within six months after the birth of said child.

Illinois Servitude and Emancipation Records (1722–1863) [Illinois State Archives]

In Phoebe v. Jay, the Supreme Court of Illinois held that the Ordinance of 1787 was abrogated by the Illinois constitution of 1808 as approved by the U.S. congress.

Phoebe v. Jay.

Breese R., 207, Supreme Court of the State of Illinois, December Term 1828

Error to Randolph.

1. The ordinance of July 18, 1787, prohibited slavery in the territory north and west of the river Ohio.

2. That ordinance was valid, and while it remained in force no system of slavery could exist In the northwestern territory.

3. The act of the Territorial legislature of Indiana, approved September 17, 1807, which provided for the migration, registration, and service for a specified period, of persons of color, is invalid.

4. A state of slavery cannot exist under a contract in a free territory, where the person to be enslaved has no volition, but is compelled either to sign a contract or return to a state of bondage in the slave State from whence he migrated with, and where he was held in bondage by his master.

5. After a Territory forms a constitution, and is admitted into the Union as a sovereign State, her absolute powers of sovereignty then attach, and she has competent power to establish, regulate, protect, abolish, or recognize slavery, as her people may in their discretion determine.

6. The ordinance of 1787 could only be abrogated by common consent.

7. The formation of a State constitution by Illinois, and her admission into the Union by Act of Congress, is an abrogation of the ordinance by "common consent."

8. The constitution of Illinois having recognized the validity of the indentures of slaves, made in pursuance of the Indiana Act of 1807, a state of slavery is legally existing in Illinois, notwithstanding the ordinance of 1787.

9. An indentured slave is a chattel under the constitution and laws of Illinois, passes to the heirs and personal representatives of his or her master, and may be sold as personal property under an execution against the master, or his heirs or personal representatives.

10. A plea that the plaintiff was an indentured servant under the Act of Indiana of 1807, as recognized by the Illinois constitution, need not show a strict compliance with the provisions of the law; this is proper by way of replication, and the onus probandi is upon the plaintiff.

11. An administrator has no power to compel an indentured slave to attend to the ordinary business of the administrator—the latter has simply a right to the custody of the slave until he or she can be sold.

12. Distinction between a constitution and an ordinary legislative act. The constitution can make a void act valid, but no number of legislative repetitions can make an originally void act obligatory.

13. A demurrer opens the entire record, and will be sustained against the party who committed the first fault ir pleading, though his adversary's pleading is defective.

It passed largely as a unit, with the Three Tribes as the population, under French rule with conversion to Christianity, and was administered out of three French forts (at Detroit, Michilimackinac, and Sault Ste Marie, and some missions.

I hope never to be called upon to pronounce Michilimackinac. I suspect it may phonetically end in naw.

I guess within the theory, Michiganders formed a state, were sovereign, and decided to join the Union....

No. As a territory, nobody was sovereign. Sovereignty came with statehood.

I guess within the theory, Michiganders formed a state, were sovereign, and decided to join the Union, but really, a substantial number of people in the brand new state of Michigan were not citizens of the US before Michigan became a state, because they were "Indians not taxed", and slotted for deportation. It was only the fact of statehood that transformed that significant element of the population into citizens of something (the state), and therefore suddenly part of America.

This is interesting. Indians not taxed, living on reservations, did not become citizens of the United States upon statehood. Indians could leave tribal citizenship and be U.S. citizens. Did you ever hear of tribal passports? I had an Indian mention them years ago and discovered they really did exist.

http://www.news.harvard.edu/gazette/2002/03.07/20-tribal.html

HARVARD GAZETTE ARCHIVES

Finalists for American Indian awards announced

The first-ever American Indian tribally operated eagle sanctuary that helps meet a pueblo's religious and ceremonial needs, an internationally recognized Native American lacrosse team whose members travel abroad using passports issued by their Indian nation, and a tribal wellness program that prevents and combats diabetes are among the 16 finalists in the University's American Indian tribal governance awards program for the year 2002.

Did all these new Michiganders WANT to be US citizens? Probably not. They probably didn't CARE.

I would presume not, but not all the colonists wanted to stop being British. They had to choose.

History is really messy when the facts on the ground are compared to the political theory.

It's said that history is the fable agreed upon. The motives of politics on the ground may be the opposite of what is publicly professed. The law can be what a court says it is. SCOTUS once ruled that, for tax purposes, tomatoes are vegetables. I just like to rummage through old books and documents.

nolu chan  posted on  2015-01-26   20:29:48 ET  Reply   Untrace   Trace   Private Reply  


#61. To: nolu chan (#59)

I would note first, my disagreement with the entire notion of limited sovereignty. A sovereign is a political entity that knows no superior.

If sovereignty is so defined, then none of the states has been sovereign since they enacted the Constitution, given its Supremacy Clause, as well as its clause that imposes "a republican form of government" upon each state.

If sovereigns have no superior, then by acceding to the US Constitution the states surrendered their sovereignty and became dependencies with enumerated rights, but not sovereigns.

Vicomte13  posted on  2015-01-27   7:00:50 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 61.

#64. To: Vicomte13 (#61)

If sovereignty is so defined, then none of the states has been sovereign since they enacted the Constitution, given its Supremacy Clause, as well as its clause that imposes "a republican form of government" upon each state.

If sovereigns have no superior, then by acceding to the US Constitution the states surrendered their sovereignty and became dependencies with enumerated rights, but not sovereigns.

In terms of sovereignties, the states are the political communities formed by various groups of people, as opposed to a geographical place or government.

The people did not surrender the slightest scintilla of their sovereignty by acceding to the Constitution. Nor did the Constitution impose anything upon the people. It was a compact, originally among eleven states, where the people, as states, agreed not to exercise certain powers of sovereignty. The same may be said for the Articles of Confederation, a self-described perpetual union. The people, at their pleasure met and abrogated the Articles and that union. Eleven states departed that union and started a new union with George Washington as the first president of that union.

Rather than an imposition, the people, organized as states, voluntarily undertook a new and different set of responsibilities and limitations as part of being members of the new union.

The Constitution set up governments of limited delegated powers. The Constitution set up the Federal government and specified its powers and limitations. Originally, the bill of rights only pertained to the Federal government, and not to State governments. Since the 14th Amendment, various elements of the bill of rights have been "incorporated" by the Supreme Court to apply to the States.

The Constitution explicitly states that

Amendment X

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.

Whatever powers the people did not give to the Federal government, the Federal government did not have, by direction of some sovereign superior to the Federal government.

The powers of the State governments were similarly limited by some sovereign power superior to the State governments.

It was the people, acting in their sovereign capacity, who created the Constitution and the constitutional union.

The Articles provied:

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

[...]

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

[...]

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In the face of that clear, perpetual agreement, the people abrogated it and adopted the Constitution in clear and unmistakable violation of the terms of the Articles. The Constitution was deemed to be effective upon the agreement of nine (9) states. There were actually eleven agreed states when George Washington was inaugurated and North Carolina and Rhode Island were sort of abandoned, as their legislatures had not confirmed the Constitution.

Some sovereignty greater than the Articles of Confederation and the confederate government must have acted, or the entire process would appear to be criminal.

acceding to the US Constitution

I agree with this word usage but would just note that the use of the word accede is an extremely contentious issue surrounding the civil war and secession legal debates. Notably, that applies to the legal status in 1860-61, and that does not consider changes wrought by the war and post war legal changes. In the preface to his book, Albert T. Bledsoe noted:

It is not the design of this book to open the subject of secession. The subjugation of the Southern States, and their acceptance of the terms dictated by the North, may, if the reader please, be considered as having shifted the Federal Government from the basis of compact to that of conquest; and thereby extinguished every claim to the right of secession for the future.

Bledsoe's book, Is Davis a Traitor?, was later retitled The War Between the States or Was Secession a Constitutional Right Previous to the War of 1861-65?. A Virginian, Bledsoe went to Britain during the war to work on a legal brief for the CSA. He noted the counter argument of Daniel Webster:

DID THE STATES "ACCEDE" TO THE CONSTITUTION?

He finds an example of this adroit use of language in the first resolution of Mr. Calhoun. "The first resolution," says he, "declares that the people of the several States 'acceded' to the Constitution." As "the natural converse of accession is secession, so Mr. Webster supposes that Calhoun has adroitly, and "not without a well-considered purpose," shaped his premises to a foregone conclusion. "When it is stated," says he, "that the people of the States acceded to the union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact."

But "this term accede, asserts Mr. Webster, "is wholly out of place.... There is more importance than may, at first sight, appear in the introduction of this new word by the honorable mover of the resolutions.... The People of the United States," he continues, "used no such form of expression in establishing the present Government...." It is "unconstitutional language."

Bledsoe went on the provide quote after quote of Founders and Framers applying the words accede and accession. Indeed, he quoted Webster applying those words repeatedly.

Chief Justice John Jay, one of the authors of the Federalist Papers, in Chisholm v. State of Georgia, 2 U.S. 419, 470-72 (1793) wrote:

The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain, the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war and in the warmth of mutual confidence, they made a Confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it, and then the people, in their collective and national capacity, established the present Constitution. It is remarkable

2 U. S. 471

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

If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former. There is reason to suspect that some of the difficulties which embarrass the present question arise from inattention to differences which subsist between them.

It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority, and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a court of justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African

2 U. S. 472

slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.

From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here, it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our Governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities, and preeminences; our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.

Jay definitely speaks of a compact.

Going back to Bledsoe, he wrote:

IS THE CONSTITUTION A COMPACT?

THE QUESTION STATED

It is conceded, both by Webster1 and Story, that if the Constitution is a compact to which the States are the parties, then the States have a right to secede from the Union at pleasure. Thus says Webster: "If a league between sovereign powers have no limitation as to the time of duration, and contain nothing making it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If in the opinion of either party, it be violated, such party may say he will no longer fulfill its obligations on his part, but will consider the whole league or compact at an end, although it might be one of its stipulations that it shoulde be perpetual." In like manner Mr. Justice Story says: "The obvious deductions which may be, and indeed, have been drawn from considering the Constitution a compact tetween States, are that it operates as a mere treaty or convention between them, and has an obligatory force no longer than suits its pleasure or its consent continues,"2 etc. Thus the great controversy is narrowed down to a single question—Is the Constitution a compact between the States? If so, then the right of secession is conceded, even by its most powerful and determined opponents; by the great jurist, as well as by "the great expounder" of the North.

1 Daniel Webster

2 "Commentaries on the Constitution," vol iii, p. 287, first published in 1833.

While Federalist Jay speaks of the people establishing the Constitution in their national capacity, and therein acting as sovereigns of the whole country, I believe this was a Federalist dream that was denied by the vote of the convention.

The people of the United States have never acted in any national capacity or had a consolidated vote on anything. In enacting the Constitution, each State gave one vote of approval (or disapproval, or no vote), and nine such votes of ratification were required to establish the Constitution, and then it was only established between those eleven states that had ratified.

The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.

If the people had acted in a consolidated, national manner, it would have been impossible to have eleven states in, and two states out. It would have been impossible to have a new union between only those states that had ratified.

In exercising their sovereignty, the people acted as political communities called states. Only as States was there any ratification of the Constitution. We have never had a national vote for President or anything else. For President, we vote in 50 states under 50 different sets of election laws. As President Gore knows, the majority of the national popular vote does not count for much.

At the Virginia Convention, Patrick Henry attacked the Constitution as forming a consolidated government. James Madison responded.

http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28ed0037%29%29:

A Century of Lawmaking for a New Nation
U.S. Congressional Documents and Debates, 1774 - 1875
Elliot's Debates, Volume 3, pp. 22
Patrick Henry, Wednesday, June 4, 1788

And here I would make this inquiry of those worthy characters who composed a part of the late federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated government, instead of a confederation. That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.

http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28ed0039%29%29:

Elliot's Debates, Volume 3, pp. 94-95 James Madison in response to Patrick Henry, Friday, June 6, 1788

In some respects it is a government of a federal nature; in others, it is of a consolidated nature. Even if we attend to the manner in which the Constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this government is not completely consolidated, nor is it entirely federal. Who are parties to it? The people—but not the people as composing one great body; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it. Were it such a government as is suggested, it would be now binding on the people of this state, without having had the privilege of deliberating upon it. But, sir, no state is bound by it, as it is, without its own consent. Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made in it, the same idea is, in some degree, attended to. By the new system, a majority of the states cannot introduce amendments; nor are all the states required for that purpose; three fourths of them must concur in alterations; in this there is a departure from the federal idea. The members to the national House of Representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the Senate, its members are elected by the states in their equal and political capacity. But had the government been completely consolidated,

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the Senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.

nolu chan  posted on  2015-01-27 23:42:42 ET  Reply   Untrace   Trace   Private Reply  


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