Posted on 04/03/2002 9:52:50 AM PST by r9etb
Last week, Walter Williams published a column called The Real Lincoln, in which he mostly quoted editorialists to support his claim that "virtually every political leader of the time and earlier believed that states had a right of secession."
If that were really true, of course, the Civil War would never have been fought. "Virtually every" political leader in Washington would have let the secessionist states go their own ways. But of course they didn't do that. Instead, they prosecuted a long, bloody war to prevent it. So that part of Williams' case simply fails.
The question remains as to the legality of secession: does the Constitution grant power to the Federal Government to prevent it? Oddly, Williams does not refer to the Constitution itself, to see whether it has something to say about the matter. Rather, Williams (quoting author Thomas DiLorenzo) only provides several quotations about the Constitution, and peoples' opinions about secession.
One can see why: the Constitution itself does not support his case.
Article 1, Section 8 gives Congress the power To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Thus, the Constitution recognizes the possibility of rebellion (armed secession would seem to qualify), and gives Congress the power to suppress it.
The next question is: does secession represent a rebellion or insurrection? Webster's defines insurrection as "an act or instance of revolting against civil authority or an established government." So if secession is a revolt against the defined powers and authority of the Federal Government, as defined in the Constitution, then the Federal Government is granted the power to prevent it.
The rights and restrictions on the States are defined in Section 10:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The secessionist states clearly violated almost every part of Section 10 -- especially that last clause -- and would by any standard be considered in a state of insurrection.
Article III, Section 3 states that Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The actions of the people in secessionist states fit this definition of treason, and it is within the powers of the Federal Government to deal with them.
Article VI says, in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Section VI clearly states that, since the Constitution is the "supreme Law of the Land," the interests of individual states are inferior to those of the United States -- even if their state Constitutions say otherwise. The individual states are bound to remain part of the United States, both by their ratification of the Constitution, and also by their Oath of Affirmation to support the Constitution.
A plain reading of the Constitution not only does not support DiLorenzo's (and thus Williams's) argument, it flat-out refutes it. The powers of the Federal Government do in fact include the power to prevent secession, and Lincoln was properly discharging his duties as President when he acted against the Confederacy.
DiLorenzo's argument thus reduces to whether or not Congress and Lincoln should have allowed the seceeding states to violate the supreme Law of the Land with impunity -- which puts DiLorenzo in the awkward position of having to argue against the rule of Law.
Finally, the pro-secession case simply ignores history: a war between North and South was inevitable. It had been brewing for decades. Even had the secession been allowed to proceed, war would undoubtedly have occurred anyway, following the pattern of Kansas in the 1850s.
Williams is a smart fellow, and he says a lot of good things. But he also says some dumb things -- his "Lincoln" column being exhibit A.
I notice you didn't define "union." It gives me trouble too. The best I can come up with is: The States acting as one (in unity) for their mutual benefit and interest and that of their citizens. (I don't know how much I like that, but it's the best I can come up with on short order.)
For that union to continue ALL 13 states must forever remain in the same government.
In one sense perhaps. If states succeed in secession, they will certainly not be in the same government as they were before seceding. In another sense, no. The Constitution was "…a different organization." in the words of the president of the Federal Convention, but of the same United States. See my post 215.
2.Were the Articles dissolved or merely strengthened?
Only relevant if the United States were dependent upon the Articles for the Union. They were not.
3.If dissolved, was it done legally?
Assuming you're talking about the Articles, the legality was as "questionable" as you point out. But then the activity took place closer to the boundaries of the ordered State of Society, where the law does not hold as much sway. And again, only relevant if the United States were dependent upon the Articles for the Union, which they were not. (How many areas of land with given boundaries and with a more or less common group of people living within those boundaries (nation, country, whatever) cease to be that which they are when the government changes legally or not? )
4.Could a state be a member of both governments at the same time?
This assumes the states were members of a government at all. They were not. They were members of a Union. The United States and the Government are not the same thing. The United States can change its form of government.
5.Was the concept of a "perpetual" union carried over into the Constitution?
The Union is not dependent upon the Constitution as written for its existence. But the concept was continued
As to the Federalist Papers:
It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution.
(That was Hamilton in Federalist No. 1. "Will be exposed" speaks to a possible future dissolution, which he seeks to avoid. He's not talking of dissolution in the past or present tense..)
Title:
Federalist No. 17, The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
Title:
Federalist No. 19 The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
Title:
Federalist No. 20 The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved;
(From Federalist 40 (Madison))
None of this reads like the Union was to be or had been dissolved in any way.
And the Federalist Papers contain several references to the "Articles of Confederation" without the "and Perpetual Union."
I am not swayed from my argument.
Three "Reconstruction Acts" were passed over President Johnson's vetos (no southern states represented as noted above), stating that "no legal State governments or adequate protection for life or property now exists in the rebel States" and that "said rebel States shall be divided into military districts and made subject to the military authority of the United States." They also disenfranchised the bulk of white male voters by denying suffrage to anyone who participated "in any rebellion or civil war against the United States, ...or engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof".
It is strange.
I didn't - they did: "The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare."
"Only relevant if the United States were dependent upon the Articles for the Union. They were not." and "And again, only relevant if the United States were dependent upon the Articles for the Union, which they were not."
Then why were Madison, Hamilton et al worried about a dissolution of the "union"? If forming a new government and abandoning the old would have no effect on the "union" why even mention it as a possibility?
"How many areas of land with given boundaries and with a more or less common group of people living within those boundaries (nation, country, whatever) cease to be that which they are when the government changes legally or not?"
Due to geographic impossibilities (land can't grow legs and move away), that only leaves people to be within this mythologocal union. Consider the people of Norway and Sweden, once united, yet later Norway seceded peacefully. They might be neighbors geographically, but they are not part of the same "union" they once were. Cultural differences, ideological and political differences etc will change any "union"; Just because I lived next to "Mary" last year or was friends with "Bob" yesterday, doesn't meant that either "union" is permanent.
They were members of a Union. The United States and the Government are not the same thing. The United States can change its form of government.
States make up the "union". The states did change their collaborative government more than once (see the New England Confederacy of 1643). States can be added (or secede), but nothing requires permanence in their relationship.
The Union is not dependent upon the Constitution as written for its existence. But the concept was continued.
The union would end if the Constititution were dissolved. But again, where is anything written requiring a permanent relationship? Once I announced to my neighbor and good friend "Joe" that I was moving off, does he have the right to forcefully prevent me from moving? Where is anything that requires states to maintain a relationship?
As to the Federalist Papers: None of this reads like the Union was to be or had been dissolved in any way.
Madison, Hamilton and Jay (among others) all recognized that the "union" would be dissolved unless ALL 13 existing states ratified the Constitution. I'll take their word for it over yours.
And the Federalist Papers contain several references to the "Articles of Confederation" without the "and Perpetual Union."
And I had also stated that you'll also see "Rhode Island" and "Rhode Island and Providence Plantations" referring to the same state. The latter is still the legal name for the state
From your 215: "The United States existed as a Perpetual Union by mutual agreement of the States prior to the Constituion."
And when they changed their government they debated including anything to denote permanence. Alexander Hamilton noted the absence and lost the argument. Additionaly, during debates, it was explicitly proposed that the Federal government be granted the power to use the military against a state. In was refused. In the Federalist Papers Madison argued that the states could use force against the federal government, not vice versa.
" …binding themselves…"
Then why were Madison, Hamilton et al worried about a dissolution of the "union"? If forming a new government and abandoning the old would have no effect on the "union" why even mention it as a possibility?
I never said it would have no effect. As a matter of fact, it was supposed to have an effect-a more perfect union. They may have worried because they thought some saw the change as illegal, threatening and an excuse or reason for dissolution. (Notice I did not say an excuse or reason for not reuniting.) Perhaps they thought that some would see a rationale rising to the level provided in the Declaration of Independence, and they wanted to reassure them. (Notice that I have not said that there is no right to secession if the rationale rises to that level.) I've used words like "may" and "perhaps" because I'm not up to doing the necessary research to find a more definitive answer on this particular night.
… nothing requires permanence in their relationship.
That's what the discussion is about and that's your side of it, not mine.
I see your analogies using Mary, Bob and Joe as apples to oranges. Think in terms of a less casual relationship. One in which the parties have given their word of honor. One in which they are obliged by duty. One in which they are bound to a deal by a handshake.
Madison, Hamilton and Jay (among others) all recognized that the "union" would be dissolved unless ALL 13 existing states ratified the Constitution.
"Would be dissolved"? Which side of this are you arguing?
Look, each side could go back and forth like this for decades. At some point it's going to come down to something like this.
"We have a deal. We've had some differences, and maybe there's fault on both sides, but not enough to end the deal. Now you want to weasel out. And you're using a lot of Philadelphia lawyering to justify it. Well it won't wash. When you cut through it all, we still have a deal which must be accounted for. I will not be betrayed. At my discretion, I will hold you to the deal or I will have satisfaction. The accounting will take place. I'll use every resource I have and as much of yours as I can get a hold of. And in the sorry event that my efforts are of no avail, I will still be able to stand unbowed in the company of honorable people, justified by the deal you say never existed."
By the end of such a statement the doors of the court of judicial combat will be open. Whether or not the court will take up session remains to be seen.
So you maintain that's it was ok to secede from the Articles peaceflly, forming a new "union" - which all states may not of joined, but they finally did after receiving legal gurantees that they had the right to resume the power of self-government (peaceful/legal secession), and that when such power was exercised that it was then ok to kill 620,000 Americans to deny that right?
"I believe that I have maintained that a State has a right to secede based on the underlying priciples of The DOI, that the other States have a right to prevent that secession as a breach of the agreement for a perpetual Union if they want to and can, and that this creates a conflict of rights."
As indicated in my post 668, I believe that:
a. There have been a lot of learned comments about the Constitution, the law, the courts, precedent, history and so forth in this thread, but those comments assume that the matters at hand are conclusively settled well within the bounds of a complex, ordered, more unified than not state of Society.
b. These matters are conclusively settled closer to the boundary of the state of Society, where things are less complex, less ordered, less (if at all) unified.
c. These matters are conclusively settled when one side or the other resorts to force. If the other side does the same, things can get nasty. By this point, one or both sides may feel betrayed (possibly correctly) and therefore justified (possibly correctly) in going outside the constraints of the state of Society to settle the issue.
d. One or both sides may decide that the benefits are not worth the costs. One or both may give in, or both may seek a way around the impasse.
I realize that you do not share my position regarding a perpetual Union. You may even be correct. But I am not persuaded, so that correctness must be founded in some argument either not presented to me or overlooked by me.
As to whether or not it was OK to kill 620.000 Americans:
I read somewhere that "Rule of Law:" was instituted to eliminate "Blood Feud."
In our society, when we have a conflict of rights we most likely resort to the "Rule of Law." Our state of Society prefers that to "Blood Feud. When the Rule of Law fails to satisfactorily settle a conflict of rights, offended parties may still resort to Blood Feud. (We are not that far from it. Those who do not abide by the Rule of Law find that the long arm of the law has a normally invisible gun in its hand. There's a thread about that somewhere around here.) Those 620,000 Americans killed or were trying to kill each other to settle a conflict of rights.
Was it OK? My first reaction was to say "I dunno." My second was to ask "Compared to what?" Compared to anything else in the world, the United States is the best thing going in spite of its faults. If the Union had dissolved in 1860, if there had been no War Between the States, what would the world be now? Germany would have still lost WW I, so there probably would have been a WW II, but who would have won it without participation from a US composed as it was at the time? I don't see that the Russian Revolution and the rise of Russian Communism would have been much different, so the USSR would still have arisen, but how would their efforts to subdue the world have turned out without opposition from a US composed as it was at the time? I'm still not answering the question so maybe my first reaction was the right one. But I don't think we'd like the world if they hadn't died.
You want more opinions? You're up too late, you usually reply to my posts in the morning. And you inspire me to write too much.
Which, if anything, should have been settled by the courts. Not by sending federal troops into South Carolina. Buchanan never sent troops. Lincoln waited MONTHS before convening an "emergency" session of Congress - why wait? Lincoln refused to meet a delegation from the South to discuss payment for the federal facilities in southern territory. Lincoln acted as judge and jury, usurping powers delegated to the Legislature and Juducial branches.
Be that as it may, three states explicitly demanded the right to resume self-govenment as a condition of acceptance. Two states refused to ratify until that right had been enumerated in the bill of rights. To refute protests from anti-federalists that a single "nation" or union would be created, Madison set things straight:
"It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act. That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."
James Madison, Federalist Papers, Federalist No. 39, "The Conformity of the Plan to Republican Principles", (undated).
The breach you refer to had already occurred. The north had refused to return fugitive slaves, incited riots among them, even resorted to murder. Given that the north had failed their Constitutional duties on numerous occasions, the south consided the compact broken by the north. Again, in Federlist No. 43 Madison had made it explict that this was the case, "that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void."
These matters are conclusively settled when one side or the other resorts to force.
Given the abundance of these threads, and the sentiments expressed, it has not been settled.
Compared to anything else in the world, the United States is the best thing going in spite of its faults. If the Union had dissolved in 1860, if there had been no War Between the States, what would the world be now? ... But I don't think we'd like the world if they hadn't died.
I do agree that the US is far and away the best nation in the world, but I am of the opinion that it could have been much better.
Ever read the Confederate Constitution? It outlawed the further importation of slaves, something the US Constitution failed to do. Jefferson Davis vetoed an act to allow intended to circumvent this prohibition. On 28 Feb 1861 he stated the reason for his veto (which was not overriden),
"The Constitution, section 9, article 1, provides that the importation of African negroes from any foreign country other than the Slaveholding States is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same. The rule herein given is emphatic, and distinctly directs legislation which shall effectually prevent the importation of African negroes."
In the Confederate preamble, it stated that each ratifying state was acting "in its sovereign and independent character. The desire for a "permanent" relationship was expressed, but nothing legally binding was added to prevent secession. They also added a direct appeal for the "favor and guidance of Almighty God."
The "general welfare" clause was removed. States paid for their own projects.
It affirmed strong support for free trade and prohibted protectionism, "but no bounties shall be granted from the Treasury; nor shall any duties or taxes on importation from foreign nations be laid to promote or foster any branch of industry." Sink or swim.
It prevented Congress from appropriating money "for any internal improvement intended to facilitate commerce" except for facilitating waterway navigation. But to pay for it, "duties shall be laid on the navigation facilitated thereby, as may be necessary to pay for the costs and expenses thereof.” A fee-based system. You use it - you pay for it. Not subsidized by non-users.
Besides the above elimination of "pork" to ensure that revenues would be spent ONLY for programs that benefited everyone, not a specific segment of the population, they also included a line-item veto for the President. Wielding such a power, he could cut pork out of any legislation.
A third clause required a 2/3 majority of both Houses to allocate funds without the President's request.
A fourth required that all funding bills shall specify "the exact amount of each appropriation, and the purposes for which it is made." No open-ended appropriations.
A fifth clause ensured fiscal management by contractors, "And Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered." No more cost-overruns. If they bid wrong, they absorbed the costs - not the people.
A sixth clause limited bills to a single subject - "expressed in the title." No amendments unrelated to that subject.
It limited the President to one 6-year term. He could lead from day one, not having to worry about being "popular" or being re-elected.
Senators would be appointed "at the regular session next immediately preceding the commencement of the term of service". In the US Constitution senators could be appoiinted YEARS before service.
Foreigners were prevented from voting for national and state elections, as "no person of foreign birth, and not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or federal." Check the US Constitution - no such prohibition.
There are others.
I think with less government, the south would have been a much better place. Freed from oppressive economic conditions the southern economy would have flourished, much to the chagrin of the north.
Walt
Article I, Section 9, Paragraph 4: "No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed."
Article IV, Section 3, Paragraph 3: "The Confederate States may acquire new territory . . . In all such territory, the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress and the territorial government."
Walt
Couldn't find a reply from an AOL moderated forum?
"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight."
They didn't wait 20 years like the US Constitution. Originally the year was 1800, but it was moved to extend it even further:
"It was moved and seconded to amend the report of the committee of eleven, entered on the Journal of the 24th instant, as follows: to strike out the words "the year eighteen hundred," and to insert the words "the year eighteen hundred and eight;" which passed in the affirmative. Yeas: New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, 7. Nays: New Jersey, Pennsylvania, Delaware, Virginia, 4.
Elliot's Debates, pp. 264-265.
What do you know, northern and southern states voting to extend. Don't forget that the British government constantly checked the attempts of Virginia to put a stop to the slave trade, or that if the south had her way blacks would have been counted as 100% of a person, the north argued they weren't.
The only reason the CSA constitution outlawed the importation of slaves was to protect the investments of those who already had slaves.
Slaves were starting to glut the market. That is why the secessionists were so opposed to Lincoln and the Republican party's proposed ban on slavery in the territories. Speculation in human beings might not be as profitable.
Walt
The only reason the US constitution ALLOWED the importation of slaves was to increase the huge profits for those Yankees importing slaves, and three southern states that depended upon their labor. Even then, slavery was legal and practiced in every state in the nation, and continued up until the end of the war in Lincoln's own state of Illinois.
To be honest it was a tragedy that it ever occurred. Two states changing their vote from yes to no could have abolished it forever. At least the CSA did ban it, for whatever reason.
No, President Lincoln helped to preserve the government that George Washington wanted.
"Thirteen sovereignties pulling against each other, and all tugging at the federal head, will soon bring ruin to the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent encroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining..."
George Washington to James Madison November 5, 1786,
having said prior to the Constitutional Convention:
"I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner, as the authority of the different state governments extends over the several states. To be fearful of vesting Congress, constituted as that body is, with ample authorities for national purposes, appears to me to be the very climax of popular absurdity and madness."
George Washington to John Jay, 15 August 1786
Washington urged an immovable attachment to the national Union:
"The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts."
-- Farewell Address
http://www.yale.edu/lawweb/avalon/washing.htm
President Lincoln preserved the government the slave holders were willing to throw in the toilet.
Walt
Whoops, so sorry, try again.
Jefferson was not even in the country when the Constitution was written.
Washington was the president of the Constitutional Convention. Here's what he said:
"In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existance. This important consideration, seriously and deeply impressed on our minds [at the constitutional convention] led each State in the convention to be less rigid on points of inferior magnitude...the constitution, which we now present, is the result of of a spirit of amity, and of that mutual deference and concession which the peculularity of our political situation rendered indispensible."
George Washington to the Congress September 17, 1787
9/17/87, of course, is considered the birthday of the Constitution. Washington, as my previous note makles plain, was appalled at the state of the country under the Articles of COnfederation. A stronger government was clearly needed, and carping like yours was what he clearly had in mind in his farewell address.
President Lincoln helped transmit the government of Washington to us unbroken.
Now, if you think the government is broken now, that is fine with me. But President Lincoln was operating under the highest ideals. He fought for and saved the government of the framers.
Walt
The only reason the U.S. Constitution allowed slavery is because some of the southern states refused to particpate unless slavery was protected. They further were able to get the 3/5 comproimise into that august document as bribe for participating.
Your disinformation is easily exposed.
Walt
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