Uncivil Action: Was Lincoln Wrong on Secession?

With the 150th anniversary of the Civil War, I was asked in this cover story for the Civil War Magazine to explore the rivaling constitutional claims that were made at the start of that bloody conflict. As a military history buff, I have occasionally written for these history magazines but I found this assignment particularly intriguing.

Over the centuries, various excuses have been employed for starting wars. Wars have been fought over land or honor. Wars have been fought over soccer (in the case of the conflict between Honduras and El Salvador in 1969) or even the shooting of a pig (in the case of the fighting between the United States and Britain in the San Juan Islands in 1859).
But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.

The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.

Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.

It is a touchstone of American constitutional law that this is a nation based on federalism—the union of states, which retain all rights not expressly given to the federal government. After the Declaration of Independence, when most people still identified themselves not as Americans but as Virginians, New Yorkers or Rhode Islanders, this union of “Free and Independent States” was defined as a “confederation.” Some framers of the Constitution, like Maryland’s Luther Martin, argued the new states were “separate sovereignties.” Others, like Pennsylvania’s James Wilson, took the opposite view that the states “were independent, not Individually but Unitedly.”

Supporting the individual sovereignty claims is the fierce independence that was asserted by states under the Articles of Confederation and Perpetual Union, which actually established the name “The United States of America.” The charter, however, was careful to maintain the inherent sovereignty of its composite state elements, mandating that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” It affirmed the sovereignty of the respective states by declaring, “The said states hereby severally enter into a firm league of friendship with each other for their common defence [sic].” There would seem little question that the states agreed to the Confederation on the express recognition of their sovereignty and relative independence. 
Supporting the later view of Lincoln, the perpetuality of the Union was referenced during the Confederation period. For example, the Northwest Ordinance of 1787 stated that “the said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America.”

The Confederation produced endless conflicts as various states issued their own money, resisted national obligations and favored their own citizens in disputes. James Madison criticized the Articles of Confederation as reinforcing the view of the Union as “a league of sovereign powers, not as a political Constitution by virtue of which they are become one sovereign power.” Madison warned that such a view could lead to the “dissolving of the United States altogether.” If the matter had ended there with the Articles of Confederation, Lincoln would have had a much weaker case for the court of law in taking up arms to preserve the Union. His legal case was saved by an 18th-century bait-and-switch.

A convention was called in 1787 to amend the Articles of Confederation, but several delegates eventually concluded that a new political structure—a federation—was needed. As they debated what would become the Constitution, the status of the states was a primary concern. George Washington, who presided over the convention, noted, “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” Of course, Washington was more concerned with a working federal government—and national army—than resolving the question of a state’s inherent right to withdraw from such a union. The new government forged in Philadelphia would have clear lines of authority for the federal system. The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government.

The final version of the Constitution never actually refers to the states as “sovereign,” which for many at the time was the ultimate legal game-changer. In the U.S. Supreme Court’s landmark 1819 decision in McCulloch v. Maryland, Chief Justice John Marshall espoused the view later embraced by Lincoln: “The government of the Union…is emphatically and truly, a government of the people.” Those with differing views resolved to leave the matter unresolved—and thereby planted the seed that would grow into a full civil war. But did Lincoln win by force of arms or force of argument?
On January 21, 1861, Jefferson Davis of Mississippi went to the well of the U.S. Senate one last time to announce that he had “satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States.” Before resigning his Senate seat, Davis laid out the basis for Mississippi’s legal claim, coming down squarely on the fact that in the Declaration of Independence “the communities were declaring their independence”—not “the people.” He added, “I have for many years advocated, as an essential attribute of state sovereignty, the right of a state to secede from the Union.”

Davis’ position reaffirmed that of John C. Calhoun, the powerful South Carolina senator who had long viewed the states as independent sovereign entities. In an 1833 speech upholding the right of his home state to nullify federal tariffs it believed were unfair, Calhoun insisted, “I go on the ground that [the] constitution was made by the States; that it is a federal union of the States, in which the several States still retain their sovereignty.” Calhoun allowed that a state could be barred from secession by a vote of two-thirds of the states under Article V, which lays out the procedure for amending the Constitution.

Lincoln’s inauguration on March 4, 1861, was one of the least auspicious beginnings for any president in his­tory. His election was used as a rallying cry for secession, and he became the head of a country that was falling apart even as he raised his hand to take the oath of office. His first inaugural address left no doubt about his legal position: “No State, upon its own mere motion, can lawfully get out of the Union, that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.”

While Lincoln expressly called for a peaceful resolution, this was the final straw for many in the South who saw the speech as a veiled threat. Clearly when Lincoln took the oath to “preserve, protect, and defend” the Constitution, he considered himself bound to preserve the Union as the physical creation of the Declaration of Independence and a central subject of the Constitution. This was made plain in his next major legal argument—an address where Lincoln rejected the notion of sovereignty for states as an “ingenious sophism” that would lead “to the complete destruction of the Union.” In a Fourth of July message to a special session of Congress in 1861, Lincoln declared, “Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State.”

It is a brilliant framing of the issue, which Lincoln proceeds to characterize as nothing less than an attack on the very notion of democracy:
Our popular government has often been called an experiment. Two points in it, our people have already settled—the successful establishing, and the successful administering of it. One still remains—its successful maintenance against a formidable [internal] attempt to overthrow it. It is now for them to demonstrate to the world, that those who can fairly carry an election, can also suppress a rebellion—that ballots are the rightful, and peaceful, successors of bullets; and that when ballots have fairly, and constitutionally, decided, there can be no successful appeal, back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war—teaching all, the folly of being the beginners of a war.

Lincoln implicitly rejected the view of his predecessor, James Buchanan. Buchanan agreed that secession was not allowed under the Constitution, but he also believed the national government could not use force to keep a state in the Union. Notably, however, it was Buchanan who sent troops to protect Fort Sumter six days after South Carolina seceded. The subsequent seizure of Fort Sumter by rebels would push Lincoln on April 14, 1861, to call for 75,000 volunteers to restore the Southern states to the Union—a decisive move to war.

Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862. His argument also rejects the suggestion of people like Calhoun that, if states can change the Constitution under Article V by democratic vote, they can agree to a state leaving the Union. Lincoln’s view is absolute and treats secession as nothing more than rebellion. Ironically, as Lincoln himself acknowledged, that places the states in the same position as the Constitution’s framers (and presumably himself as King George).
But he did note one telling difference: “Our adversaries have adopted some Declarations of Independence; in which, unlike the good old one, penned by Jefferson, they omit the words ‘all men are created equal.'”

Lincoln’s argument was more convincing, but only up to a point. The South did in fact secede because it was unwilling to accept decisions by a majority in Congress. Moreover, the critical passage of the Constitution may be more important than the status of the states when independence was declared. Davis and Calhoun’s argument was more compelling under the Articles of Confederation, where there was no express waiver of withdrawal. The reference to the “perpetuity” of the Union in the Articles and such documents as the Northwest Ordinance does not necessarily mean each state is bound in perpetuity, but that the nation itself is so created.

After the Constitution was ratified, a new government was formed by the consent of the states that clearly established a single national government. While, as Lincoln noted, the states possessed powers not expressly given to the federal government, the federal government had sole power over the defense of its territory and maintenance of the Union. Citizens under the Constitution were guaranteed free travel and interstate commerce. Therefore it is in conflict to suggest that citizens could find themselves separated from the country as a whole by a seceding state.

Moreover, while neither the Declaration of Independence nor the Constitution says states can not secede, they also do not guarantee states such a right nor refer to the states as sovereign entities. While Calhoun’s argument that Article V allows for changing the Constitution is attractive on some levels, Article V is designed to amend the Constitution, not the Union. A clearly better argument could be made for a duly enacted amendment to the Constitution that would allow secession. In such a case, Lincoln would clearly have been warring against the democratic process he claimed to defend.

Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.

Of course, a rebellion is ultimately a contest of arms rather than arguments, and to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.

Ultimately, the War Between the States resolved the Constitution’s meaning for any states that entered the Union after 1865, with no delusions about the contractual understanding of the parties. Thus, 15 states from Alaska to Colorado to Washington entered in the full understanding that this was the view of the Union. Moreover, the enactment of the 14th Amendment strengthened the view that the Constitution is a compact between “the people” and the federal government. The amendment affirms the power of the states to make their own laws, but those laws cannot “abridge the privileges or immunities of citizens of the United States.”

There remains a separate guarantee that runs from the federal government directly to each American citizen. Indeed, it was after the Civil War that the notion of being “American” became widely accepted. People now identified themselves as Americans and Virginians. While the South had a plausible legal claim in the 19th century, there is no plausible argument in the 21st century. That argument was answered by Lincoln on July 4, 1861, and more decisively at Appomattox Court House on April 9, 1865.

Jonathan Turley is one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University.
Article originally published in the November 2010 issue of America’s Civil War.

228 thoughts on “Uncivil Action: Was Lincoln Wrong on Secession?

  1. Excellent article, JT. I do disagree with one premise in your argument that some ambiguity existed concerning the term “people.”. I also think the Madison quote is a tad misleading in this context.

    In Federalist 39, Madison had no trepidation is interpreting the “people of the United States” as refering to the sovereign states:

    “First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

    On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. 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.”

    While I agree that Lincoln, as a matter of policy, had to rein in the rebellious South Carolina by force, there is little doubt in my mind that the founders believed the individual states could secede from the federal, as opposed to national, “contract.” The Civil War was simply an evolving interpretation of the notion of “union.”

  2. The rule against secession was in fact justified in the Constitution in Article V.

    States that wished to secede had the right, then and now, to submit proposed amendments to the Constitution, either to Congress or to a Convention called for that purpose. The amendment could provide that a single state is authorized to secede, or that a group may secede. It could provide for a process of general application. In 1861, northern states might have voted to let the southern states go.

    By providing an explicit method for reordering the new government, the framers expressly excluded the chaos that would result if a single state could drop out at any time at will. The Constitution expressly provides for the admission of new states, but was silent on secession.

    The people who ratified the Constitution in conventions called for that purpose could see clearly in the literal words of the document that their States could not destroy the new partnership without the consent of their partners.

    They did not give the States the right to walk away.

    Not now.

    Not ever.

    There was nothing in the Constitution that provided or implied that a state could withdraw unilaterally, by simple act of legislation or referendum.

    The Supreme Court settled the question in Texas v. White:

    “Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.” 74 U.S. 700, 727 (1868)

    Of course, the seceding states in 1861 could have invoked the rule of law and sought a Supreme Court ruling. Article III, section 2, gives the Supreme Court original jurisdiction in cases in which a State is a party.

    But, instead, they disregarded the Constitution and they started a war at Fort Sumter.

    Here is what one leader wrote in 1861:

    “But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. I hope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.” 74 U.S. at 727.

    So he wanted all constitutional means exhausted before the resort to force.

    He saw a perpetual union, to be dissolved only by revolution or the “consent of all the people in convention assembled.”

    He said “is idle to talk of secession.”

    He said “Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.”

    That writer wrote those words on January 23, 1861.

    He was Robert E. Lee.

  3. JT: “Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862.”

    Lincoln did not “clearly” violate anything in the Constitution when he suspended habeas corpus.

    I do not think he violated the Constitution at all.

    As he said at the time, the Constitution is silent on whether the President or the Congress may suspend the writ. Although the limitation on suspension appears in Article I of the Constitution relating to Congress, the inference that this limits the suspension power to Congress is very weak.

    Section 9, which sets forth the limitation, also provides that no money may be drawn from the Treasury except by appropriation made by law. That limitation applies only to the Executive, although it is set out in Article I. The draft of the clause at one point provided expressly that the legislature could not suspend the writ, but the legislature was dropped from the final version.

    The question has never been resolved by the Supreme Court. Taney’s opinion in Merryman was one-sided and tendentious, and was only the view of one Justice.

    It is open question of constitutional law. Scholarly opinion has been divided down through the years. See “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act,” by Stephen I. Vladeck, American University, Washington College of Law. The footnotes give citations to numerous articles on both sides of the issue.
    http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=963994

    So there is no justification in saying that Lincoln, who swore to uphold the Constitution, had in any way “clearly” violated the Constitution. It may be “arguable,” but it is not clear.

    I think that Lincoln was justified under the Constitution in suspending the writ at a time when organized mobs sought to prevent Congress itself from meeting in order to consider a suspension of the writ.

    All of Lincoln’s actions in suspending the writ were ratified by Congress.

    As said many years later, the Constitution is not a suicide pact.

  4. JT notes that Calhoun and Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states, but an agreement with the people, and once a state enters the Union, it cannot leave the Union.

    Well, it might be good to take a look at how the Constitution was actually adopted. If it had in fact been ratified and entered into by the States themselves, then perhaps the south had a point.

    But if the people themselves had in fact entered into to the agreement, then the view of the southerners is much weaker.

    We do not really have to wonder about this. Just take out the Constitution and read Article VII. “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

    It looks like the framers bypassed the State legislatures and committed the ratification of the Constitution to the people of the several states.

    So the States did not enter into any compact or contract.

    The people themselves in conventions called for that purpose ratified the Constitution and entered into the sovereign union of the United States.

    This interpretation is supported by the preamble of the Constitution itself, which says that “We the People of the United States … do ordain and establish this Constitution for the United States of America.”

    So the text itself demonstrates that the original intent was not to create a compact between the states.

    The original intent of the “People of the United States” was to establish a Constitution for the United States of America.
    It seems to me that it was the intent of Calhoun, Davis, and the rest of them, to destroy the United States and its Constitution.

  5. Good read…If I read the Constitution it is a loose confederation of states….to arm if an attack on the states as a whole…but each state should remain and retain its own identity….but hey that is just my read….

  6. Do I understand your central point being that might makes right, and therefore there is no longer any such entity as a sovereign state? As you say, “there is no plausible argument [supporting the rights of sovereign States to resist tyranny?] in the 21st century,” leads me to assume that your position would be that regardless of how the federal leviathan violates the Constitution, and refuses to abide by its constitutionally limited delegated powers, our States are without the authority to resist and must therefore accept whatever our ruling elites in Washington say?

  7. @Bill Miller

    I don’t believe the “central point” was might makes right, in anyway, bill.

    The Sovereign state is our Nation.

    We, as a people, have the obligation to maintain our nation and the Constitution, but the States themselves are bound to the Constitution that has been ratified by those States.

  8. @Blind Faithiness

    As for “might makes right,” I was simply recasting Professor Turley’s argument where he said, “to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.” Sounds like might makes right to me.

    As for the Sovereign State being our nation, I couldn’t disagree more. As Lincoln said when offering a definition of sovereignty as,“a political community without a political superior.” Our States are the politically superior party (although it might not appear as such) in this Union since they created the federal government and the Union, and they alone still have the power to dissolve it.

    Finally, it was our States, as sovereign entities through their people, that agreed to be bound by the Constitution; not “we the people” since there was no national referendum on acceding to the Constitution. My question remains; that since this Compact has been repeatedly and horribly violated, is it not reasonable to conclude that a State cannot be forced to remain a party to the agreement and continue to suffer such abuse of the terms that were agreed upon when ratified?

  9. Bill, sorry, but the “ruling elites in Washington” are Members of Congress, each and every one of them elected by people back in the States, and a President elected by the people of the United States.

    They did not elect themselves.

    So if there is a problem with those “ruling elites,” then put the blame where it belongs, on the people of the states who elected them.

    Oh, but it is a lot more satisfying to rail that a “federal leviathan violates the Constitution, and refuses to abide by its constitutionally limited delegated powers,” without any specifics.

  10. Bill Miller:

    As I said in my post, I think the founders did envision a state center approach rather than an individual centered approach for the union. That view was changed (and rather forcefully so) by the unpleasantness from 1861-1865. Slavery was likewise “changed” by that same historical episode. These facts do not suggest that the current status is not the law of the land nor that those preaching revolution against these precepts are not revolutionaries. Ultima Ratio is still a viable doctrine as any glance around the world will tell you.

  11. Bill Miller: “Our States are the politically superior party (although it might not appear as such) in this Union since they created the federal government and the Union, and they alone still have the power to dissolve it.”

    Nope.

    That is wrong.

    The only method for dissolving the Constitution is Article V. Amendments must be proposed and ratified.

    “States, as sovereign entities through their people” agreed solemnly on the language of that Article, and the nation has adhered to it for over 220 years.

    They did not reserve the right to dissolve the Union, unilaterally, anywhere in the Constitution, except by the due processes of Article V.

    They created a process that requires the consent of both Congress and the States. Congress must either propose the Amendment or call the Convention. The States must ratify by a 3-4ths vote.

    That is what is in the Constitution.

    The “Sovereign” states cannot be found in it.

    The people who ratified the Constitution in the conventions approved that limitation on the so-called sovereignty of the States.

  12. This essay sheds an intriguing light on Lincoln’s famous words at Gettysburg, “..of the people, by the people, and for the people…” Not only was the address prayer and poetry, but polemic.

  13. Burning Feet:

    Carefully chosen words indeed by Lincoln. Both patriotic and propagandistic at the same time and a tad demagogic as well.

  14. The “States” at the time of America’s birth were a ragtag collection of cobbled together borders and original settlers with similar backgrounds. They were tightly controlled by various money influences and anything but shining examples of democratic behavior. While from a knowledge of the time it is understandable that the nature of compromises needed to form a national government would result in a flawed constitutional setup, it produced a work in progress that has had great success.

    What is laughable to me is the idea that any of our “States” should be entrusted with sovereignty. They are unequal political fictions and curiously the least democratic part of American life. Examples of this are numerous and to obvious to catalog. THe flawed compromise produced a system where Delaware, via it senators has powers in that legislative body equal to California, NY, Texas, etc.

    The concept of “States Rights” has always been tied to slavery and local oligarchy. Smart people are always able to develop cogent arguments on either side of the issue. Lost in the rhetoric, however, is the reality that lies beneath the verbiage.

  15. @Vince Treacy

    Your comment: “Bill, sorry, but the “ruling elites in Washington” are Members of Congress, each and every one of them elected by people back in the States, and a President elected by the people of the United States.”

    I agree totally with you that those I refer to as “Ruling Elites” have been elected by the people of the various States. For me, how they came to power doesn’t change what they are. You might refer to them as humble public servants; it matters not since the question I am posing is where they are in violation of the Constitution, what is a State to do about such violations.

    So specifically speaking, as you suggest: Suppose a group of elected humble public servants from a majority of States that favor an all powerful federal government pass laws that violate the Constitution as these laws transfer powers to the federal government that are not included in the very few limited powers so delegated to the federal government; what then can those States that take offense to this unconstitutional transfer of power do? I say the Compact is broken and they are well within their right to peacefully withdraw from such a failed agreement.

  16. BM: “what then can those States that take offense to this unconstitutional transfer of power do?”

    US Constitution, Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”

    If the States object to an unconstitutional action, then two thirds of the States may apply to Congress to call a Convention for proposing amendments.

    Three quarters of the States may then ratify the amendments.

    That is what the Founders said should be done if the courts or legislature veer away from its principles.

    And it has been done.

    In Dred Scott v. Sanford, Chief Justice Taney substituted his own personal racist views for the language of the Constitution and ruled that no person of African descent, whether enslaved or free, could ever be a citizen. The southern states were very happy with this gross misinterpretation and distortion of the Constitution. It was reversed by the 14th Amendment.

    That is how it is done.

    I just do not see anything that the Founders said in the Constitution about allowing a State to withdraw unilaterally from the compact, without the due consent of the partners to the compact, all of whom have relied extensively to the commitments of their fellow states.

  17. @mespo727272

    Where you referred to the fact that indeed might did make right in changing the Constitution you said, “Slavery was likewise “changed” by that same historical episode.”

    I agree it most certainly did, but that was accomplished through the Thirteenth Amendment, not by a later reading of some new meaning on slavery, or as you claim the final word on the subject.

    The difficulty, in my opinion, with such reasoning is that we have a written Compact between the States, and if the federal government is now in complete charge of each and every facet of our lives, they should go ahead and pass an amendment to this Compact that says as much. Otherwise, if we are just to imagine and debate what the government can or cannot do, there is nothing this federal leviathan cannot do—which is pretty much where we are now.

  18. Vince: “That is what is in the Constitution.

    The “Sovereign” states cannot be found in it.

    The people who ratified the Constitution in the conventions approved that limitation on the so-called sovereignty of the States.”

    No Vince,

    Sovereignty runs with the land; always has always will. (See Thompson on Real Property Vol 1, Introduction; See also Nichols on Eminent Domain)

    The Declaration is in essence a C&R against tyranny running with all land situate within the 13 original colonies and other land as described in the Preliminary Articles of Peace, Article II.

    http://avalon.law.yale.edu/18th_century/prel1782.asp

    Said C&R runs with all other land added subsequently via the Equal Footing Doctrine.

    Bottom line: Nothing within the specifically enumerated powers or the establishment of Article VI supremacy can trump the original C&R against tyranny. IOW, should the Fed engage in the “exercise of power beyond right, which no body can have a right to,” then the states, by inherent rule of construction of the constitution, as well as aforesaid C&R against tyranny running with the land, are categorically absolved of any prior duty to remain in the ‘union.’

  19. My apologies.

    For those unfamiliar with the terminology, a “C&R” is short for a ‘Declaration of Covenants and Restrictions’

  20. Under Article VI, the Constitution is the “supreme Law of the Land.”

    The Constitution, and only the Constitution, was ratified by the people in conventions, and duly amended under Article V.

    I have not seen any authority indicating that Thompson on Real Property or Nichols on Eminent Domain were ever ratified as part of the Constitution.

  21. Vince,

    I’m not appealing to the authority of Thompson or Nichols, I’m merely pointing you to two sources that lay out the ubiquitous facts regarding the origin of sovereign power; a topic which you sorely need to brush up on.

    Further, citing Article VI, sans argumentation, fails to address the fact that the constitution was constructed as the contradiction of tyranny; see Article IV. Accordingly, only in your imagination may the Fed act tyrannically and thence by virtue of Article VI demand that the States remain subordinate.

    Ya see, those 13 original colonies had the same problem with King George III, and they resolved to adopt the maxim, which would become for them a universal law, to establish a new government that recognized and opposed all forms of tyranny. And while Jefferson claimed to have relied on neither book nor pamphlet, it’s pretty much common knowledge that he plagiarized John Locke, who defined tyranny as:

    “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.”

    So, ya see, when Article IV guarantees a republican form of government, it’s guaranteeing that there shall be NO TYRANNY. (See Federalist 47 & 53 for discussion re: separation of powers and tyranny)

    Accordingly, should the Fed act tyrannically, it cannot BY DEFINITION, absolve itself by simply claiming immunity by virtue of Article VI.

    And the States, therefore, would be absolved of any duty to remain in said tyrannical union by virtue of the C&R against tyranny running with the land as described above.

    Apparently you’re not familiar with Article IV’s guarantee of a republican form of government.

  22. Bob, Esq. has raised the new issue of Article IV’s guarantee of a republican form of government.

    He writes: “So, ya see, when Article IV guarantees a republican form of government, it’s guaranteeing that there shall be NO TYRANNY. (See Federalist 47 & 53 for discussion re: separation of powers and tyranny)
    Accordingly, should the Fed act tyrannically, it cannot BY DEFINITION, absolve itself by simply claiming immunity by virtue of Article VI.”

    So, let’s take a look at the actual words of section 4 of Article IV.

    “Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

    It says that the United States shall guarantee “to every State” a republican form of government.

    So it imposes a duty on the federal government, and imposes a limitation on each state. It is a guarantee against tyranny by a State, not tyranny by the federal government, and it mandates that the federal government eliminate any such state-sponsored tyranny.

    If a state abolished its representative government to establish a monarchy or dictatorship, then its so-called sovereignty would not protect it from the power of the United States to guarantee a republican form of government.

    That would not be tyranny by the federal government, but a lawful and constitutional exercise of an expressly delegated power.

    Please, everyone, read section 4. It simply does not speak to federal tyranny. It speaks to state tyranny in express terms. It applies when a State acts in a manner that destroys republican government, and obliges the United States to step in and restore lawful governance.

    Let’s repeat those words: “The United States shall guarantee to every State in this Union a Republican Form of Government.” The article guarantees that each state maintain a republican form of government. It does not give any state the right to secede, expressly or by implication. It does not mean that a state is “absolved of any duty to remain in said tyrannical union.” It means that the federal government must step in to abolish the state’s tyranny.

    It imposes a duty on the states. That in itself is a limit on their so-called sovereignty. It says that the people of the United States, who ratified the Constitution, have limited the several states from deciding, in all their sovereign majesty, to establish monarchies, duchies or dictatorships in derogation of the rights of their inhabitants.

    That is what the Constitution provides, like it or not.

    Everybody, read the words of the Constitution.

  23. @Vince Treacy

    Your comment: “Nope. That is wrong.” In reference to my “Our States are the politically superior party (although it might not appear as such) in this Union since they created the federal government and the Union, and they alone still have the power to dissolve it.” Is somewhat confusing to me since your comments following seem to agree with the core argument I was trying to make (that the States are the supreme sovereign authority), and I actually agree with most of what you are saying.

    I did not mention how the States could dissolve the federal government since I assumed it would be well known. You are correct that the States can dissolve the federal government through the amendment process; that is what I was alluding to as the method of dissolution. Therefore, since you agree that the States have the power and authority to dissolve the Union, I assume you then agree that the States are in fact the superior political party and therefore sovereign.

    You are also right that the Constitution does not include the term “sovereign,” but you take that to mean that the States are not sovereign—I believe this a highly flawed jumping to an unproved conclusion.

    You obviously know that the Constitution also does not refer to the federal government as sovereign. The Constitution does not likewise mention that the States are not sovereign, and since the States were known to be sovereign as per the Treaty of Paris and the Articles of Confederation, it is a condition that must be specifically refuted and agreed to in order for it to be established as a change in their legal standing. Since this refutation has never occurred, there is no lawful need to keep declaring the obvious. It is also of some significance that most State constitutions before and after the Constitution was ratified contain statements proclaiming their sovereignty. This really is a non issue; each of our States, through the authority of their people, are empowered with supreme sovereign authority.

    I apologize, but I can’t fully understand your final point in this post where you say, “The people who ratified the Constitution in the conventions approved that limitation on the so-called sovereignty of the States.” I am sure someone of your obvious intellect is not saying that by ratifying the Compact, the States agreed to all un-written statements and terms whatever they may be. That seems to be what you are saying, but as I said, I am sure if you did is was simply a slip-of-the-keyboard.

  24. @Vince Treacy

    In reply to your attempted answer to my question, “what then can those States that take offense to this unconstitutional transfer of power do?”:

    I can say there is some validity in your answer, but it is backward. Simply put, the amendment process is for making changes to the terms and conditions of the Constitution, not restating the obvious.

    For example, if the States wanted to PROHIBIT States from withdrawing from the Compact, an amendment would have to be proposed, and if ratified, this new termination clause would be approved. Amendments are not necessary to confirm what is already a given.

    You see, the Constitution does not contain language stating under what conditions a State may withdraw from the Compact. This type of an agreement is known as a “contract at will” and as such all a party has to do to withdraw from such an agreement is provide notice to the other parties. Not having a termination clause does not mean a State can’t withdraw; it means that there is no restrictions on such withdrawal.

    Most folks will say that the Tenth Amendment gives a State the right to end their participation in the Compact, but legally speaking, a stronger argument, is that the actual language of the Compact contains nothing whatsoever prohibiting such withdrawal.

    Finally, another point related to your amendment argument is that unlike the Articles of Confederation, the Constitution does not name the States that are the parties. Therefore, an Amendment is not necessary to change this list of parties; they can come and go as the case may be. Even when the parties are listed, as in the Articles of Confederation, that little detail didn’t stop those initial nine States from leaving (i.e. seceding) the remaining four.

  25. Professor Turley,

    I am presently reading Rakove’s “Original Meanings” … this particular thread is a serendipitous gold mine … thank you!

  26. Miller wrote: “I apologize, but I can’t fully understand your final point in this post where you say, ‘The people who ratified the Constitution in the conventions approved that limitation on the so-called sovereignty of the States.’ I am sure someone of your obvious intellect is not saying that by ratifying the Compact, the States agreed to all un-written statements and terms whatever they may be. That seems to be what you are saying, but as I said, I am sure if you did is was simply a slip-of-the-keyboard.

    I meant what I wrote.
    http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161429

    I was clearly referring to the express, written limitation on the states embodied in Article V. That article allowed changes in the Constitution with the consent of 3-4th of all states. Under the Articles of Confederation, unanimous consent had been needed for amendments to the Articles. No state could have been affected by changes to provisions for the powers of the national government without its consent. The thirteen states therefore had greater sovereignty before the Ratification than after.

    In other words, ratification put limits on state sovereignty that did not exist before ratification. The specific limitation I referred to was the process for modification of the charter of national government.

    The people, assembled in representative conventions called for that purpose, ratified the Constitution, including its limitations on state sovereignty. As I said above, I think the people, rather than the States, ratified the original Constitution.

    I never wrote or implied that “the States agreed to all un-written statements and terms whatever they may be.”

    I disagree that the constitution is a contract at will, like an employment at will agreement (a nineteenth century court-created doctrine). A contract at will provides in its terms “that all a party has to do to withdraw from such an agreement is provide notice to the other parties.” I think that if a contract provides that changes to its terms must be approved by all parties, or a stated majority of parties, then it is no longer a contract at will. But, in any event, the Constitution is not a bill or sale, and mercantile contract terms have limited application.

    The withdrawal of a state or group of states, in my view, would be a major restructuring of the agreement. It must be done through the Article V process. To allow unilateral withdrawal would simply return the nation to the disarray under the Articles. Louisiana could have withdrawn unless all shipping through its port paid exorbitant levies, and New York could have banned traffic on the Erie canal. The Constitution barred this with the Commerce Clause.

    If people want to allow that sort of thing, then they can provide for a Secession Clause like the Clause for admission of new states.

    If some people want to cling to the antique, discredited view that a state can secede by saying “I divorce you” three time to the rest of the states, fine. I think it is a frivolous position, rejected by the country and discredited by the Supreme Court in Texas v. White. I think the language of Article V does prohibit simple secession. I don’t think “most folks” see a right to secede in the 10th, and it eluded the Supreme Court in Texas v. White.

    Finally, the discussion of “sovereignty” is only useful if it recognize that both the states and the federal governments are governments of limited powers in our federal system. The Bill of Rights limits the federal government. The 14th Amendment, with the rights incorporated by it, limits the states. It does not help the analysis to argue that one or the other is a superior sovereignty.

  27. Vince: “So it imposes a duty on the federal government, and imposes a limitation on each state. It is a guarantee against tyranny by a State, not tyranny by the federal government, and it mandates that the federal government eliminate any such state-sponsored tyranny.”

    Just to be clear, the C&R against tyranny, circa 1776, is enforceable by any party thereto; including the Fed, Article IV notwithstanding. However, I do find it amusing how you’ve attempted to claim that the Constitution was created to place limits on the states. Funny, I thought those ‘limitations’ focused on those specifically enumerated powers that created a new government. You know, the reason that Bill of Rights had absolutely nothing to do with the States until the advent of the incorporation doctrine decades later?

    A Republican form of government mandates that ultimate sovereignty rests within the states and the people. (See rules of construction clarified via Amendments IX and X) It also stands in contradiction to accumulation of power into few hands or the one; otherwise known as the Separation of Powers.

    To wit:

    “The principle of the separation of the powers of government is fundamental to the very existence of constitutional government as established in the United States. The division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people. It prevents the exercise of autocratic power, is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. In short, this division of power provision serves to create a governmental structure “resistant to the forces of tyranny.”

    “Although there may be a blending of powers in certain respects, in a broad sense the safety of our institutions depends in no small degree on the strict observance of the independence of the several departments. Each constitutes a check or balance upon the exercise of its power by any other department, and, accordingly, a concentration of power in the hands of one person or class is prevented, and a commingling of essentially different powers in the same hands is precluded.” (Departmental Separation of Governmental Powers, Importance and Purpose of Principle, 16A Am Jur 2d CONSTITUTIONAL LAW §247)

    Accordingly, when we read the words ““The United States shall guarantee to every State in this Union a Republican Form of Government” we read it as to mean that the Fed first guarantees to restrain itself from violating the Separation of Powers doctrine and thereby engaging in tyranny. Only secondarily does it apply to states violating the C&R against tyranny.

    Any state in ‘the union’ denied a republican form of government by the Fed as described above, would necessarily be absolved of any duty to remain in said tyrannical union by virtue of the C&R against tyranny running with the land and the terms of said constitution.

    Furthermore, assuming you’re not a man bereft of integrity the ‘right to secede’ ALSO arises necessarily from the negative implication of your argument ‘justifying the Fed to “step in and restore lawful governance” should a state violate the C&R against tyranny.

    Finally, the restrictions imposed by the specific enumeration of powers within the Constitution, circa 1787 & 1789, were against the newly formed Fed. Your take on Article IV above is ‘unique’ to say the least. Please refrain from attempting to re-write history in the future.

  28. BM “This really is a non issue; each of our States, through the authority of their people, are empowered with supreme sovereign authority.”

    The authority is not that supreme.

    See Article I, section 9:

    “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 Controul 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.”

    And also.

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 14th Amendment.

    The list goes on and on….

  29. BE: “Finally, the restrictions imposed by the specific enumeration of powers within the Constitution, circa 1787 & 1789, were against the newly formed Fed.”

    Please see the specific enumeration of limitations on the powers of the States, in Art. I, sec. 10, in the above post.

  30. Vince: “The withdrawal of a state or group of states, in my view, would be a major restructuring of the agreement. It must be done through the Article V process.”

    I see; just for shits and giggles, how did Madison keep from blushing about Article VII of the non-ratified constitution in light of Article XIII of the Articles of Confederation requiring unanimous rescission?

  31. Vince: “Please see the specific enumeration of limitations on the powers of the States, in Art. I, sec. 10, in the above post.”

    My apologies; I should have prefaced with “beyond the patently obvious.”

  32. Patently obvious; why? We’re talking first and foremost about the origin, nature and restrictions of power itself.

    What Locke was talking about; what Jefferson set forth in paragraph 2, and what the structure of the constitution itself further defines; the predicates are incidental at best.

  33. Vince: “I just do not see anything that the Founders said in the Constitution about allowing a State to withdraw unilaterally from the compact, without the due consent of the partners to the compact, all of whom have relied extensively to the commitments of their fellow states.”

    And the specifically enumerated power of the Fed to keep a State from seceding, for any reason, is where?

  34. To all on this thread,

    My 4 older grandchildren are all “encouraged” to read this blog. I set this encouragement 6 months ago and have noticed a marked improvement in their political discussions at the dinner table.

    I have thus far today received unsolicited emails from 3 of them remarking on this particular thread. These 3 young men and women are all freshmen at university. The 4th is a senior in high school and I have not heard from her yet.

    I want to thank you for the gift of your intellect and your experience … young minds appreciate it.

  35. 2 things –
    It always amazes me that such strong believers in the right of the individual states were strongly in favor of denying individual states the right to make their own laws regarding slavery. Those same types today demand states rights on issues like abortion but are equally adamant that the Federal law trumps state law on drugs.

    Many Presidents have violated the constitution. Usually, but hardly universally, with good intent. It happens. What matters is what happened because of their actions. The US would be a third world backwater if it continued down the road of agrarian, ignorant, every-man-for-himselfism that was the Antebellum South. We are about to prove that 150 years later as it appears those same minds are ruling public thought today.

  36. BE: :And the specifically enumerated power of the Fed to keep a State from seceding, for any reason, is where?”

    Article V.

  37. Vince: “Article V.”

    I see, and under what theory of logic or contract law is ‘amending an agreement’ and ‘denying said agreement continues to exist’ are deemed the same thing?

    The states never conferred any power to the Fed to force them to remain subordinate to a tyrannical Federal government; period. To so much as intimate anything otherwise is to re-write history and re-define the very nature of this republic in such a manner as to make the founders roll over in their graves.

  38. Bill Miller:

    It seems patently obvious to me based on my reading of the Federalist Papers that ours is a Federalist system with each of the constituent governmental units having both distinct and commingled powers. That States are sovereign in some areas like education, and control of their militias, but subservient to the national government in other areas like national defense and trade policy. In areas where the powes conflict, the national government prevails under the Supremacy Clause. The founders envisioned popular sovereignty as co-extensive with State citizenship and the rights attendant thereto and they said so time and again.

    I have yet see any refutation of Madison’s commentary on the Constitution found in Federalist 39 which I cited in my first post. Therefore any argument contradicting that position is rather like commenting on gravity while ignoring the writings of Sir Isaac Newton. I find no authority for the proposition that a contract once made cannot be broken, but I suppose the only remedy available to the aggrieved national government is force of arms to compel performance by the seceding state. All very Williston-esque if you ask me.

    My position is simply that the issue of the right of a state to withdraw from the union was an open one until May 26, 1865. When Kirby Smith surrendered his troops west of the Mississippi, the issue was decided once and for all, and, as I mentioned before, the Doctrine of Ultima Ratio held sway.

    To bring up new grievances under the rubric of “states rights” or some other discarded Constitutional interpretation seems a bit contrived to me. If you want to advocate secession, please just come out and do so, but understand the consequences that both history and law hold for the proponents of actual treason.

  39. In trying to figure out what the founders had in mind when the Constitution was written and enacted, it seems important to me that the Constitution appears to be essentially a rejection of aspects of the Articles of Confederation.

    Given that the Articles explicitly included the “sovereignty” of the States, and the Constitution omits it, isn’t it clear that a choice was made to, for the most part, eliminate the idea that the States were fundamentally “sovereign”?

    It also seems telling that Prof. Turley could reference several examples of written, legally enacted documents that side with the idea that States can not secede without a Constitutional amendment, but the “evidence” for the “state sovereignty” argument primarily consists of southerners saying “cuz I say so.”

    Also, in a practical sense, the quote from George Washington is important. If any State can secede at any time for any reason, how could the US expect to ever defend itself in a war?

    Given that California Prop 19 (decriminalizing small amounts of pot) seems likely to pass, we’re going to get to see another round of shameless right-wingers engaging in hypocrisy on “states rights.”

  40. “There are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty; with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.“ Virginia Ratifying Convention, Proposed Amendments to the Constitution, 27 June 1788

    “The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents a comparatively late outgrowth of American Constitutional theory. Earlier the supremacy accorded to the constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of essential and unchanging justice.” (Corwin,
    The Higher Law, Background of American Constitutional Law, 1928, 42 Harv. L. Rev. 1439, 152

    “WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common-wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known.

    That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

    That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

    That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

    http://avalon.law.yale.edu/18th_century/ratny.asp

  41. Mespo: “If you want to advocate secession, please just come out and do so, but understand the consequences that both history and law hold for the proponents of actual treason.”

    Paraphrasing Marshall:

    “[The Federal Government has] no more right to decline the exercise of [power] which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. …All [it] can do is to exercise [its] best judgment, and conscientiously perform [its Article VI Duty].” ( Cohens v. Virginia, 6 Wheat, 264 )

    Because….

    “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”

  42. Sorry, Bob, Esq., but, as a lawyer, given a choice between controlling Supreme Court precedent and you personal legal opinion, unsupported by any cases, I have to choose the Court.

    Texas v. White, 74 U. S. 700, 726-28 (1868)

    QUOTE When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

    Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

    Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

    UNQUOTE

    http://supreme.justia.com/us/74/700/case.html

    This is the second time I have posted this link.

    So. The Court ruled that “…the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”

    That is clear. Until the secessionist get an amendment passed, or pack the Court so as to reverse Texas v. White, that is the law.

    These arguments for secession are historical curiosities.

    Look, everyone, a poster on another thread once said that a woman could not be elected President because the Constitution uses the pronoun “he.” In 2010, the secession-by-simple-withdrawal has about as much heft.

    So some folk do not agree with Texas v. White. So what? Some folk still think Plessy v. Ferguson is the correct interpretation of the 14th Amendment. It does not matter. The Court has spoken.

    On the historical background, I agree with Tom that the unionist position, as eloquently expressed by Lincoln and others, was persuasive. The states never had any independent existence outside the United States. The Union was perpetual, not dissoluble at will.

    The arguments of the secessionist in 1861 were especially specious, since they were just a smoke screen for their ambitions to preserve slavery and to expand it and spread it to the territories.

  43. Treason, Bob?

    The Constitution defines “actual” treason.

    It consists only of levying war against the United States.

    There must be the testimony of two witnesses to the same act.

    Well, the rebels waged war against the U.S. There were at least two witnesses.

    So there was your treason.

    And tyranny?

    Hey, please recall that the rebels enslaved, repeat, enslaved, four million human beings.

    It takes some nerve to start tossing around terms like treason and tyranny while talking about an academic, moot, point of law, while ignoring the actual bloody history.

  44. Sorry Vince, but
    Texas v. White is completely inapplicable per my argument.

    My argument centers around tyranny; i.e. the victim of tyranny is categorically excused from remaining subordinate to said tyrant. (See Declaration of Covenants and Restrictions against Tyranny dated July 4, 1776)

    Texas, in Texas v. White, was in fact the admitted tyrant in the equation; not the Federal Government.

    to wit:

    “[Texas] was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery– the servitude of the African to the white race within her limits— a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time.”

    http://avalon.law.yale.edu/19th_century/csa_texsec.asp

    “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”

    “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.”

    N.B. The exercise of power over an individual’s property in his own person is an act of tyranny PER SE. In other words, slavery is tyranny per se.

    Accordingly, since Texas joined the union under the Equal Footing Doctrine — making Texas a party to the Declaration of Covenants and Restrictions Against Tyranny dated July 4, 1776 — the Fed had every right to kick the ass of every Confederate Texan that deluded themselves into believing they had a right to secede so as to perpetuate tyranny as described above.

    Thus Texas v. White, and you, have completely failed to address my argument.

    QED

  45. Vince,

    Do try not to get hysterical.

    Seeing you haven’t been paying attention, my arguments are not based in history or the Civil War. My arguments are based on the a priori principles we’ve been left to work with.

    “Treason to the constitution” is Marshall’s phraseology for describing lack of fealty to the constitution.

    Violating the separation of powers doctrine necessitates a lack of fealty to the constitution. It is also defined as tyranny since the separation of powers …”prevents the exercise of autocratic power, is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. In short, this division of power provision serves to create a governmental structure “resistant to the forces of tyranny.”

    Accordingly, it would be greatly appreciated if kept your historically based dismissive sophistry to yourself.

  46. “Accordingly, it would be greatly appreciated if kept your historically based dismissive sophistry to yourself.”(Bob,Esq.)

    I have failed to grasp any deception or attempts to mislead … go back and check the argument, grandkids, and then email me if you find examples of “historically based dismissive sophistry”.(Bob/Vince exchange)

  47. “It takes some nerve to start tossing around terms like treason and tyranny while talking about an academic, moot, point of law, while ignoring the actual bloody history.”

    Is that what I was doing Blouise? Or does a comment like that completely ignore the argument I made?

    Finally, per the distinction between his-story based argumentation and argumentation based on a priori principles…

    “Everyone must admit that if a law is to be morally valid as a ground of obligation, then it must carry with it absolute necessity. [One] must concede that the ground of obligation here must therefore be sought not in the nature of man, nor in the circumstances of the world in which man is placed, but must be sought a priori solely in the concepts of pure reason; he must grant that every other precept which is founded on principles of mere experience-even a precept that may in certain respects be universal-in so far as it rests in the least on empirical grounds-perhaps only in its motive–can indeed be called a practical rule, but never a moral law.” — Immanuel Kant

  48. Bob … Bob … no criticism intended … simply attempting to get the kids to pay attention … their emails were going off topic.

    I want them to pay attention to your argument!

  49. “Any people anywhere being inclined and having the power have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right–a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of the territory as they inhabit.”

    — Abraham Lincoln, January 12, 1848 in the US House of Representatives

  50. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    — United States Declaration of Independence

  51. @Vince Treacy

    I know it’s late in the discussion, and I have been attending to other business, but there is one statement that should not be allowed to stand without correction: Texas v. White. It has been said here that, “The Supreme Court settled the question in Texas v. White”

    This is simply not at all true!Here’s why:

    As far as the merits of Texas v. White are concerned, the most serious flaw in bestowing any credibility on this decision was that this case was not about secession; it was about the ownership and sale of bonds as well as jurisdiction. The parties to this case did not argue or cite evidence claiming the States had, or did not have, a right to secede; they focused their arguments on the legality of the bond sale, and their arguments on jurisdiction dealt with the status of Texas as a State under military rule—not if Texas had the constitutional right to secede.

    The Chief Justice made his comments on secession when he wrote the majority opinion, and his comments were not based on arguments made by the parties to the case. Furthermore, the Chief Justice’s comments were what is know as “dicta.”

    It is therefore unreasonable to claim this issue was “settled” when the arguments presented by the parties to the case did not address the right of States to secede. Without the opportunity for argument, debate, and rebuttal on the issue, it cannot be said that this issue was “settled” when a very partisan Chief Justice took the occasion to insert his opinion on a question that was not argued before the Court.

    Fact is, there has never been a court case where arguments were made on the right of States to withdraw from the Union. Without the opportunity for both sides to present their arguments on the issue, just dicta alone from the Chief Justice does not establish a precedent setting opinion of the Court. This fact alone should put an end to the use of Texas v. White to refute the right of States to withdraw from the Union, but even so, there are other problems with Texas v. White that need to be exposed.

    There was also a serious conflict of interest and lack of impartiality by the Chief justice in his writing of the majority opinion. There were five Lincoln appointees sitting on the bench when Chief Justice Chase offered his opinion on secession, but the Chief justice was the only Justice intimately entwined with the Lincoln administration and its policies regarding secession. He certainly should have recused himself if he was going to opine from the Bench on Lincoln’s view of secession.

    It is interesting that in Justice Chase’s opinion, he again used the term “the seceded states” as he did in his advice to Lincoln on Fort Sumter. Not to make too much of this phrase, but Lincoln seemed to take great care not to use the “seceded states” phrase, for in doing so it could be taken as an admission that the States had indeed seceded. Further evidence that Chase believed secession had occurred can also be found in his opinion on this case when he wrote, “The relations of Texas to the Union were broken up, and new relations to a new government were established for them.” Here again, he seemed to be saying that Texas had indeed “broken up” its relations with the Union and joined another government—in other words, they had seceded.

    Despite Chief Justice Chase’s clear bias regarding the issue of secession, there were also problems with the underlying facts of his ruling. Not surprisingly, for someone intimately involved with Lincoln’s administration, his opinion parroted one of Lincoln’s arguments—the thoroughly debunked theory of, “a more perfect and perpetual Union.”

    Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.

    It was also odd that for someone as well versed in the law as was the Chief Justice, to use a phrase found in the preamble of our Constitution, “a more perfect union,” upon which he based his claim of a perpetual union. Odd because preambles and headings are rarely used to form legal opinions.

    This ruling also claimed the, “Authority to suppress rebellion is found in the power to suppress insurrection and carry on war, and authority to provide for the restoration of State governments, under the Constitution, when subverted and overthrown, is derived from the obligation of the United States to guarantee to every State in the Union a republican form of government.” But Chase’s opinion conveniently leaves out the constitutional requirement for the “Application of the Legislature” in the suppression of domestic violence, the constitutional protection against invasion, and the fact that the seceded States had a “republican form of government” under their newly constituted government.

    Another canard promoted in the Court’s opinion claims, “War having become necessary to complete the purposed destruction by the South of the Federal government, Texas joined the other Southern States, and made war upon the United States…” This is pure nonsense since even those deniers of the right of secession understand that the South was not attempting to wage war against the United States—they simply wanted to be left alone.

    Finally, the United States Supreme Court, as an impartial arbiter on disputes involving the interpretation of the Constitution, has lost all credibility. Who can deny that politics plays the most prominent of roles in the nomination of Supreme Court Justices as well as their confirmation. Republicans and Democrats both work to insure that new Justices look favorably on their issues when they are seated on the Court. If one needs any evidence of the extreme political nature of the Supreme Court today, all they need do is look at the number of 5-4 decisions on issues of import—with the same Justices split ideological between liberal and conservative views.

    The opinions rendered in this case had many flaws when it came to deciding the constitutionality of secession, and any one of the more serious problems found in the majority’s opinion should be enough to remove the cloak of respectability from this dubious opinion. While there was no hard evidence of such, some believe this case was manufactured for the sole purpose of legitimizing the Civil War. But, speculation aside, it does appear that so soon after the Civil War there was desperation by those involved in the horrific and unconstitutional actions of the Lincoln administration, including Chief Justice Chase, to look for any opportunity that might justify their misdeeds. Texas v. White offered that opportunity, regardless of the convoluted and flawed opinion of the Court’s majority.

  52. This posting by Miller is too long for a single response. It rehearses 150 years of Lost Cause and Neo-Confederate cant about the secession issue and the White case. The rebel states never left the Union. Their stars stayed on the flag.

    I will respond that Miller’s statement that ruling of the case was “dicta.”

    That statement is legally wrong.

    Dicta refers to opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding.

    The ruling on secession was essential to the very jurisdiction of the Court in White.

    According to the Court, it was an “original suit in this court, in which the State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National government, and to compel the surrender of the bonds to the State.”

    The Court stated that it “presents a question of jurisdiction. It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.

    “If, therefore, it is true that the State of Texas was not, at he time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it.”

    So the Court had to resolve the question of secession in order to rule on the case. If the secession had been lawful, then Texas would not have been a State, and the Court would have been bereft of jurisdiction.

    After an extensive review of the facts and law, the Court concluded held that “Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred.”

    The Court went on to rule that “On the whole case, therefore, our conclusion is that the State of Texas is entitled to the relief sought by her bill, and a decree must be made accordingly.”

    So the ruling on secession was not dicta, but holding, since it was necessary for the decision of the case.

  53. Also, the so-called “horrific and unconstitutional actions of the Lincoln administration” is another myth of the Civil War spread far and wide by the losers and their followers..

    I recommend the book Lincoln’s Constitution, by law professor Daniel Farber, for a balanced treatment of the constitutional issues.

    I have already stated my disagreement with JT’s assertion that Lincoln “clearly” violated the habeas corpus clause. It was not clear by any means, there are strong arguments in Lincoln’s favor, and the question has not been resolved by the Supreme Court.

    The secession question, however, has been settled.

    By the way, the Constitution defines treason as waging war against the United States, and requires two witnesses.

    Davis, Lee and all the secessionists did in fact wage war against the United States and there were more than two witnesses. The all engaged in treason.

    In an effort to bind up the wounds of war, a pardon was granted to all rebels during the administration of Andrew Johnson. Lee finally got his pardon from Gerry Ford; it is displayed at the Lee Museum and Washington and Lee.

    The latter day supporters of the rebellion repaid this with a century of segregation, denial of voting rights, Jim Crow laws and lynchings.

    So there are some subtle legal arguments about Lincoln’s actions, taken in good faith, and intended to save the Union and free the slaves.

    They pale to insignificance in the wake of four years of treason aimed at destroying the United States and preserving and expanding human slavery.

  54. Miller: “Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.”

    Yep.

    Article VII was ultra vires because Article XIII of the Articles of Confederation required nothing less than unanimous rescission.

  55. Vince: “So the ruling on secession was not dicta, but holding, since it was necessary for the decision of the case.”

    That’s the same sophistry employed by Marshall in Marbury wherein he pulled that non-Article III rabbit known as ‘judicial review’ out of thin air so as to lay the groundwork for his hitherto non-existent power to render a decision in the case.

  56. And Miller says “the South was not attempting to wage war against the United States—they simply wanted to be left alone.”

    So.

    In their effort to be left alone, they bombarded Fort Sumter, after Lincoln expressly limited re-supply to food and water, but no munitions.

    The Japanese, in their effort to be left alone, bombed Pearl Harbor.

    The North Koreans, wanting to be left alone, invaded South Korea.

    Saddam, desiring solitude, invaded Kuwait.

    In historical perspective, Davis made a monumental blunder when he attacked Sumter. It galvanized the U.S. There was no excuse for such a mistake. Without that attack, Lincoln’s efforts to save the Union could have foundered. After the attack, as after Pearl Harbor, the people of the United States were furious.

    So let’s bury this “left alone” myth. It the southerners had wanted to be left alone, they should have left the federal installations alone, awaiting future negotiations.

    Instead, they began it with an act of naked aggression against federal property.

    On the their effort to be “left alone,” James McPherson reports in Battle Cry of Freedom that Lee’s troops in the Gettysburg campaign sought to round up free black citizens in Pennsylvania and send them south to be sold into slavery.

  57. Bob,Esq., does not know much law.

    Bob said: That’s the same sophistry employed by Marshall in Marbury wherein he pulled that non-Article III rabbit known as ‘judicial review’ out of thin air so as to lay the groundwork for his hitherto non-existent power to render a decision in the case.”

    This is wrong.

    This commenter should actually try to read the Constitution.

    “The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Art. III.

    Where does the Judicial Power reside? “The judicial Power of the United States, shall be vested in one supreme Court….” Art. III.

    “This Constitution … shall be the supreme law of the land….” Art. VI.

    And finally, the judicial Officers shall be “bound by Oath or Affirmation, to support this Constitution.” Art. VI.

    So where is the problem for the commenter?

    The courts have jurisdiction over all cases under the Constitution and laws of the United States.

    If there is a controversy between a law and the Constitution, the Constitution is supreme.

    The judicial power is vested in the Supreme Court.

    And the Court is bound by oath to uphold the Constitution.

    If the Court is confronted with a law that violates the Constitution, it is bound by oath to support the Constitution.

    This is just another urban legal legend that studiously ignores the language of the Constitution.

    Here is a statement from one of the leading treatises on the history of the interpretation of the Constitution in the courts, Kelly and Harbison, The American Constitution, pp. 229-30:

    “Marshall’s argument in favor of the Court’s power to declare an act of Congress void was not of major significance at the time he made it, and the importance of Marbury v. Madison in the history of judicial review has in fact been somewhat exaggerated. The idea that the Court could invalidate acts of Congress was not then new. More than a score on analogous state cases, in which state courts had declared void the acts of their legislatures, had already occurred. In The Federalist, Hamilton had argued for the right of judicial review in the forthcoming judiciary, and the reader will recall that in Hylton v. United States (1796) the Court had assumed the right, although it had decided that the statute in question was constitutional. Prior to 1803, a decided majority of the bench and bar had apparently considered judicial review a necessary part of the constitutional system, and the principle had not been seriously disputed until the recent debate on the highly controversial Repeal Act of 1802. Marshall’s reaffirmation of the Court’s power therefore received by little attention from either the friends or the foes of the federal judiciary.”

    Once again, judicial review is absolutely and inherently necessary for the Constitution to function. The need was recognized from the beginning.

    Read the Constitution again.

    The Constitution is the supreme law of the land. The Court is sworn to uphold the Constitution. If Congress passes a law that violates the Constitution, the Court is bound by oath to overturn it.

    If the Court is wrong, it is up to the people to reverse it by constitutional amendment.

  58. Bob, Esq: “Article VII was ultra vires because Article XIII of the Articles of Confederation required nothing less than unanimous rescission.”

    What is he saying? That the Constitution is invalid?

    Someone tell him that this abstract question is now moot because ALL THIRTEEN STATE ratified the Constitution.

    Bob has put out some of these bizarre arguments before.

    http://jonathanturley.org/2009/03/04/dcs-speed-bump-the-constitution/

    His views are just as wrong now as they were then, for the reasons there stated.

  59. “It the southerners had wanted to be left alone, they should have left the federal installations alone, awaiting future negotiations.”

    What future negotiations? Secession is not accompanied by future negotiations. Secession is an announcement that the ties are hereby broken. After that announcement, Lincoln, rather than withdrawing his troops from the soverign state of South Carolina, provided supplies to Fort Sumter. In doing so, Lincoln clearly established that he did not recognize the sovereignty of South Carolina. Lincoln pushed until he got a reaction.

  60. @Vince Treacy

    Oh my, I had planned my previous post to be my last; I do have football to watch today. However, I must make one hopefully final comment on your statements regarding Lincoln abuse of the Constitution and treason.

    First Lincoln: Fortunately there are a number of worthy books documenting the facts concerning Lincoln’s unconstitutional trashing of the limitations imposed on the federal government by the Compact. I prefer the scholarship of Thomas DiLorenzo’s “Real Lincoln” or “Lincoln Unmasked.”

    As for treason: I believe you have a misunderstanding of the meaning of treason as found in the Constitution. As defined in Article III, Section 3, treason is waging war against the States NOT the federal government (note the use of the the words “them” and “their” when referring to the united States). Therefore when Lincoln invaded Virginia he was the one, along with his forces, committing treason.

    Withdrawing from a Compact is not treason. As per the Constitution’s definition, invading another State is. Enough said.

    And finally you say:

    The Japanese, in their effort to be left alone, bombed Pearl Harbor. (Pearl Harbor was not in Japan’s Harbor)

    The North Koreans, wanting to be left alone, invaded South Korea. (South Korea was not in North Korea’s harbor)

    Saddam, desiring solitude, invaded Kuwait. (Kuwait was not in Iraq’s harbor).

    Evicting the unwelcome occupation by federal troops of property inside the Charleston harbor without causing serious injury to any of the foreign occupiers and then transporting them safely to their ships offshore is not worthy of anyone claiming an act of war—any student of history knows that it was a planned provocation for the purpose of providing an excuse for invading.

  61. Note: (please, all posters ignore the notes I may occasionally type unless said note is wrong in which case we would very much appreciate a correction/clarification)

    Dicta is a term often used in this argument and if you missed the definition VT gave in his 10:24a 9/25 post here is a definition you need to grasp to understand an important point both sides are making:

    Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum.

  62. Gee Vince,

    I’m truly humbled by your genius. Apparently you settled a two century old debate with just this:

    —-

    “This commenter should actually try to read the Constitution.

    “The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Art. III.

    Where does the Judicial Power reside? “The judicial Power of the United States, shall be vested in one supreme Court….” Art. III.

    “This Constitution … shall be the supreme law of the land….” Art. VI.

    And finally, the judicial Officers shall be “bound by Oath or Affirmation, to support this Constitution.” Art. VI.

    So where is the problem for the commenter?

    The courts have jurisdiction over all cases under the Constitution and laws of the United States.

    If there is a controversy between a law and the Constitution, the Constitution is supreme.

    The judicial power is vested in the Supreme Court.

    And the Court is bound by oath to uphold the Constitution.

    If the Court is confronted with a law that violates the Constitution, it is bound by oath to support the Constitution.

    This is just another urban legal legend that studiously ignores the language of the Constitution.”

    ————

    Amazing!

    So Nowak & Rotunda should have consulted you before writing in their hornbook on Constitutional Law:

    “The criticisms of John Marshall’s opinion in Marbury fall into two general areas.[FN2] First there is disapproval of the way in which Marshall strove to reach the conclusion concerning the constitutional authority of the Court over the other branches of government. Second, there is the criticism of Marshall’s arguments supporting judicial authority as merely bare assertions of authority rather than REASONS justifying that authority.” [MY FOOTNOTE 3]

    [FN2] The historical criticisms of Marbury are analyzed and supplemented in Van Alstyne A Critical Guide to Marbury v. Madison 1969 Duke L.J. 1. We commend this excellent article, which contains a further bibliography, to those more interested in more detailed and documented analytical treatment of the opinion.

    [MFN3] Arguing is reason giving. Reasons are justifications or support for claims. Rationality is the ability to engage in reason giving. The alternative to reason giving is to accept or reject claims on whim or command.

    And based solely on your say so, we are to ignore the aforementioned problems in Marbury. Because anyone who disagrees with you has failed to read the constitution?

    Get over yourself.

  63. Bob, Esq: “Article VII was ultra vires because Article XIII of the Articles of Confederation required nothing less than unanimous rescission.”

    Vince: What is he saying? That the Constitution is invalid?

    I said Article VII was ultra vires (by definition). It was the second time I mentioned it.

    Miller, on the other hand, did a fine job elaborating on the issue:

    Miller: “Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.”

    While the issue may be abstract and moot, it does ADDRESS YOUR ARGUMENT.

    Vince: “Bob has put out some of these bizarre arguments before.”

    Poisoning the well is one thing; but poisoning the well with your ignorance of real property and constitutional law is another.

    If you want to dismiss me, then do so properly by dismissing my arguments directly. Why not start with dismissing this argument:

    http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161517

  64. For an excellent independent analysis may I suggest “The Confederate Secession” by William Schomberg Robert Kerr

    “But what government did [King George III] recognise? Did he recognize the American Union as a single body? He recognised nothing of the kind. He recognised the thirteen colonies as separate, independent, and sovereign states. The Union was a creation of a later date. The States formed themselves into a federation for their common advantage, bound themselves to do
    or not to do certain specified acts, entrusted certain definite powers, or attributes of sovereignty, to the central government, and kept the rest to themselves. On the Divine Right theory, the rebels are not the seceding States, but President Lincoln and those who have aided him. in trying to break oft’ portions of
    those States, in order to form. new ones.

    But the question of Secession is something beyond this. It is not a justifiable breach of law, for it is not a breach of law at all.”

    “I believe that if, before seceding, South Carolina had referred her right to do so to any competent and impartial tribunal in the world, her claim must have been admitted on strictly legal grounds, without any reference to any motives she may have had for wishing it.”

    “The Southerners did not secede from caprice, but from reasons which would have justified not only a secession but a rebellion. They did not provoke the war; for all the provocation, if that name can be applied to most unsparing threats and most virulent
    abuse for a long term of years, came from the Northern
    Abolitionists. They did not commence it; for the first act of war was Lincoln’s perfidious attempt to throw supplies into Fort Sumter. And, finally, they could not know that the Northerners would resist it by force; for not only is there no provision for
    such resistance by the Constitution, but the fact that it would be illegal, and also both wicked and ridiculous, to attempt to coerce States into any course that they did not approve, has been attested by a chorus of voices from the days of Jefferson and Madison to those of Mr. Secretary Seward and Horace Greeley.”

  65. Miller relies on DiLorenzo, a well known revisionist anti-Lincoln scholar. I can see where Miller’s views come from. It follows a long line of distorted pro-southern pseudo-history.

    For a different view, see James Loewen, The Confederate and Neo-Confederate Reader: The “Great Truth” about the “Lost Cause.”

    Also, The Myth of the Lost Cause and Civil War History, edited by Gary W. Gallagher.

    Miller wrote: ” I believe you have a misunderstanding of the meaning of treason as found in the Constitution. As defined in Article III, Section 3, treason is waging war against the States NOT the federal government (note the use of the words “them” and “their” when referring to the united States).”

    I have no misunderstanding. Let’s take a look at the words. “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

    So Miller misquoted the text. The provision covers “treason against the United States,” not “waging war against the States NOT the federal government.” The southerners waged war against the United States of American, not merely the federal government.

    Miller says “when Lincoln invaded Virginia he was the one, along with his forces, committing treason.” Miller has got to be kidding. He is not even consistent with his own scheme. He believes that Virginia was a foreign country at that time, since it withdrew from the United States, yet he argues that Lincoln was somehow committing treason against a foreign country.

    The so-called confederate government did wage in fact war against the United States, not merely the federal government. It waged war against all of the United States. It wage war against the United States as a nation and against the individual states. It gave aid and comfort to their enemies by seeking alliances with foreign governments.

    Miller said that “Withdrawing from a Compact is not treason. As per the Constitution’s definition, invading another State is. Enough said.”

    That is not enough. The purported withdrawal was not the act of treason. The waging of war was the act of treason.

    Miller says: “(Pearl Harbor was not in Japan’s Harbor).” So what? It was still United States property and it was attacked. It was an act of war, just like the attacks by North Korea and Iraq.

    Finally, the crowning euphemism: “Evicting the unwelcome occupation by federal troops of property inside the Charleston harbor without causing serious injury to any of the foreign occupiers and then transporting them safely to their ships offshore is not worthy of anyone claiming an act of war.”

    Oh. In this view, the southern authorities merely sent deputies to evict unwelcome tenants and put their furniture on the sidewalk. That is nonsense.

    The fort was bombarded by artillery. That is not a peaceful, civil eviction. It is an act of war by any definition.

    I note that there was no defense of the stupidity of Davis in giving in to the so-called “provocation.” There was, in fact, no provocation. There was a peaceful re-supply.

    Davis ordered the guns fired and started the war.

    Dumb, dumber and dumbest.

  66. “Bob,Esq., does not know much law.”

    *******************

    My friend, vince Treachy, and I rarely disagree, but we diverge sharply here. Bob, Esq knows quite a bit of law as anyone following his very rational posts knows. I believe Bob sometimes confuses his normative approach to law (which requires a coincidence of both rational basis and moral imperative) with the actual law which sometimes does not live up to his loft expectations. All in all, his position is not a bad place to be. It stands well above the position of many of those who do, in fact, make the law.

  67. @Vince Treacy

    Quickly:

    I was not quoting the text on treason, only explaining its meaning. The term United States as used here refers to the States as I point out by the reference of “them” and “their.” I was simply pointing out that by definition, treason is an act against a State or States, not the federal government. Invading a State is an act of treason.

    Next it does not matter that I think Virginia had seceded and was then a foreign country, Lincoln took the position that they never seceded and it was Lincoln, not me, that invaded this State, therefore treason. Since as you say Lincoln did not violate the Constitution, please refer me to where in the Constitution the Executive Branch to permitted to invade a State.

    My point that “Pearl Harbor was not in Japan’s Harbor” was nothing more than a rebuttal to your equating Japan’s attack on Pearl Harbor with Fort Sumter in Charleston’s harbor.

    And finally, I grant that The fort was bombarded by artillery, and it was not planned to be a peaceful, civil eviction. However, that’s not how it turned out. They injured no one, and safely removed them to their own ships. My point being that what ACTUALLY HAPPENED was certainly not an event that would in any way justify total war, unless of course Lincoln was just looking for an excuse to do so.

  68. Miller asked “Since as you say Lincoln did not violate the Constitution, please refer me to where in the Constitution the Executive Branch to permitted to invade a State.”

    Sure. Since he asked, here are the provisions of the Constitution:

    Article I, section 8: “The Congress shall have Power…

    “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

    And, Article II, section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

    Congress authorized actions against insurrections in the Insurrection Act of 1807:

    “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

    Lincoln was upholding the Constitution and acting in accordance with law by suppressing an unlawful insurrection.

    That’s the law.

  69. Miller said “I was simply pointing out that by definition, treason is an act against a State or States, not the federal government.”

    No, the crime is “Treason against the United States.” See the statutory definition.

    § 2381. Treason “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

    It applies to treason against the nation named the United States of America. The use of the pronoun “them” does not alter this conclusion. A citizen who waged war against an army of the United States while in a foreign country would be guilty of treason, although he had not warred against any particular named State or group of States.

    The so-called rebels, owing allegiance to the United States, waged war against the United States of America.

  70. Vince: Sorry, Bob, what was your argument, again?

    You mean that the existence of the ‘union’ is predicated upon the Fed refraining from exercising power in a tyrannical fashion?

    Lemme guess, you were sleeping during seventh grade American Studies?

    Coward.

  71. It is my understanding that during the Northern Aggression (loved that word)….POW were exchanged quite frequently…..Northern for Southerns… the numbers didn’t matter…then U.S. Grants thinking got the better of him and figured out that the South was returning these men back to service and well…the rest is History..

    FYI. Texas did have the right to withdraw from the Union…why? Because they were the only State not stolen or purchased….We were annexed so that Taylor could justify the use of Federal Troops in suppressing the Mexicans from encroaching and trying to take back what was stolen and became its own Republic….what was originally stolen from the Mexicans was pretty damn big…

    http://www.sonofthesouth.net/texas/maps-republic-texas.htm

    These maps show the territory included in the Republic of Texas, which was much more expansive than the present day State of Texas. When the Republic of Texas was Annexed into the United States, its territory was split into different states. The original territory became the state of Texas, and parts of New Mexico, Colorado, Wyoming, Oklahoma and Kansas.

  72. AY, Texas was admitted on the same basis as all other states, and once admitted had no more right to secede than any other state, as the Court held in Texas v. White. There was no reservation of the right to secede in the process of its admission.

    This is just another Lost Cause myth.

    I think you will recall that the southerners did not respect the prisoner of war rights of African American troops.

    And they can call it the war of northern aggression all they want, but it does not change the history of the war to preserve southern slavery and to expand it into all the federal territories.

  73. Mespo, I asked for Bob’s argument, and all that came back was another unsupported, insulting statement.

    Bob’s latest: “You mean that the existence of the ‘union’ is predicated upon the Fed refraining from exercising power in a tyrannical fashion? Lemme guess, you were sleeping during seventh grade American Studies? Coward.”

    In other posts, he misread the republican form of government clause, as I have demonstrated.

    He seems to argue (it is hard to tell) that there is no judicial review under the Constitution, a position at odds with its language, the view of many founders, and the hundreds of cases of judicial review of the constitutionality of state and federal legislation in the Supreme Court throughout our history. I think he is wrong. I have posted the constitutional provisions that lead me to my conclusion, and all that comes back is a brief excerpt from Ron Rotunda. I do not think that Ron would deny the role of judicial review in our system.

    He refers to some “Declaration of Covenants and Restrictions Against Tyranny dated July 4, 1776″ that seems to be a fictional concoction of his own. What is that all about?

    I have posted the texts from the Constitution and provided reasons for my conclusions.

    All we get back are cryptic, mysterious statements.

    What, for example, does this mean?

    “Arguing is reason giving. Reasons are justifications or support for claims. Rationality is the ability to engage in reason giving. The alternative to reason giving is to accept or reject claims on whim or command.”

    And this? “Just to be clear, the C&R against tyranny, circa 1776, is enforceable by any party thereto; including the Fed, Article IV notwithstanding.”

    And this? “A Republican form of government mandates that ultimate sovereignty rests within the states and the people. (See rules of construction clarified via Amendments IX and X) It also stands in contradiction to accumulation of power into few hands or the one; otherwise known as the Separation of Powers.”

    Enough already.

    Bob, Esq. may be on a search for his “normative” ideal, but I have tried to set out the law and history as I see it.

  74. Vince,

    The argument about Texas not being able to is BULL SHIT period. Read the Articles of Annexation……Its a fucking contract…If slavery is an issue to you and it was to them because no state could be formed north of the Mason Dixon line that would violate the terms and condition of the Missouri compromise…breached the contract…I would say…seems like a good reason to break the rest of the contract…..but see we got even….we let the village idiot out so that could come spend joy…..we get even…..

    And my History and Geography is real fuzzy right now….but exactly what other state was annexed? Help me, will ya?

    Here is a link for ya:

    http://www.sonofthesouth.net/texas/annexation-texas.htm

    By the way….my family came over with the first journey of an Austin….I am pretty sure to steal it from the Mexicans….You do know that the biggest thief to come to Texas was Sam Houston….he left behind 15 K in debt to someone in Tennessee….

    But back to the original stuff you said…

  75. Vince: “Mespo, I asked for Bob’s argument, and all that came back was another unsupported, insulting statement.”

    If you plant ice you’re gonna harvest wind.

    Vince: “In other posts, he misread the republican form of government clause, as I have demonstrated.”

    No, you didn’t. Contrary to what you say, a guarantee of a republican form of government is in essence a guarantee against tyranny; particularly via violation of the separation of powers.

    “The principle of the separation of the powers of government is fundamental to the very existence of constitutional government as established in the United States. The division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people. It prevents the exercise of autocratic power, is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. In short, this division of power provision serves to create a governmental structure “resistant to the forces of tyranny.” (Departmental Separation of Governmental Powers, Importance and Purpose of Principle, 16A Am Jur 2d CONSTITUTIONAL LAW §247)

    Vince: “He seems to argue (it is hard to tell) that there is no judicial review under the Constitution, a position at odds with its language, the view of many founders, and the hundreds of cases of judicial review of the constitutionality of state and federal legislation in the Supreme Court throughout our history.
    I think he is wrong. I have posted the constitutional provisions that lead me to my conclusion, and all that comes back is a brief excerpt from Ron Rotunda. I do not think that Ron would deny the role of judicial review in our system.

    Did I say all that? No, that’s you inserting your own premises into my argument and reducing them to absurdity; a cowardly tactic indeed.

    Here’s how it went:

    Vince: “So the ruling on secession was not dicta, but holding, since it was necessary for the decision of the case.”

    To which I remarked: “That’s the same sophistry employed by Marshall in Marbury wherein he pulled that non-Article III rabbit known as ‘judicial review’ out of thin air so as to lay the groundwork for his hitherto non-existent power to render a decision in the case.”

    Gee, was I arguing “that there is no judicial review under the Constitution” or was I comparing the anemic arguments made in Marbury to the one you made about Texas v. White? Ya think that was the reason I bolstered my argument with that cite from Nowak & Rotunda? Is it really that hard to tell Vince, or is it that hard for you to remain intellectually honest?

    Vince: He refers to some “Declaration of Covenants and Restrictions Against Tyranny date”d July 4, 1776″ that seems to be a fictional concoction of his own.”

    Yes, I am the solipsist and the Declaration of Independence is my creation. Whatever you say.

    Vince: What is that all about?

    Apparently references to chain of sovereign title is a tad over your head.

    Vince: I have posted the texts from the Constitution and provided reasons for my conclusions.

    Particularly amusing was your dismissal of the Marbury debate.

    Vince: All we get back are cryptic, mysterious statements. What, for example, does this mean? “Arguing is reason giving. Reasons are justifications or support for claims. Rationality is the ability to engage in reason giving. The alternative to reason giving is to accept or reject claims on whim or command.”

    That was my footnote regarding this: “Second, there is the criticism of Marshall’s arguments supporting judicial authority as merely bare assertions of authority rather than REASONS justifying that authority.” [MY FOOTNOTE 3]

    Allow me to translate: Marshall’s bare assertion of authority was not an argument or ‘reason giving.’ Just like your ‘argument’ regarding Texas v. White that “the ruling on secession was not dicta, but holding, since it was necessary for the decision of the case.”

    Same rabbit; different hat. Oh, I’m sorry, do tell me if I’m being too cryptic; perhaps I can find a “Hooked on Phonics” volume for simple argument comparison. Perhaps it would also contain a lesson or two on the dishonesty of inserting your premises into your opponents’ argument and thence attacking them.

    Vince: And this? “Just to be clear, the C&R against tyranny, circa 1776, is enforceable by any party thereto; including the Fed, Article IV notwithstanding.”

    Unfamiliar with the Equal footing doctrine?

    Let me help.

    The Equal Footing Doctrine generally states “there can be no state of the Union whose sovereignty or freedom of action is in any respect different from that of any other state, including those states constituting the 13 original colonies.”
    (Distribution of Powers of Federal and State Governments, In General; 16A Am Jur 2d CONSTITUTIONAL LAW § 229 Sovereignty of states; generally

    Now Vince, would it be fair to allow Texas to enter the union without being bound by the same covenants against tyranny as binding on those 13 original colonies?

    Do I hear it said that “[Texas] was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery– the servitude of the African to the white race within her limits– a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time.”

    Do I really need to go over it again?

    http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161517

    Vince: And this? “A Republican form of government mandates that ultimate sovereignty rests within the states and the people. (See rules of construction clarified via Amendments IX and X) It also stands in contradiction to accumulation of power into few hands or the one; otherwise known as the Separation of Powers.”

    Enough already.”

    So the man who tells me that I need to read the constitution is now telling me the foregoing is somehow ‘cryptic?’ The fact that you’re capable of parroting so many words from and regarding the constitution without a scintilla of a clue regarding its overall architecture is truly unfortunate if not completely mind blowing.

  76. Bob,Esq.

    I suppose where the facts are obvious some are incapable of admitting error. Vince here (and I have stayed out of most of it), is incapable of admittance of error…..

  77. Vince,

    I hate to say it, you’re still my hero, but I think Bob has you in checkmate. Well fought, but dicta – no matter its persuasive value – is still just dicta. Dicta will always have limited application. Bob’s logical foundation is sound and plays off basic principles regarding republicanisms utility in a representative Federal democracy, although it too could improve if Bob had gone to primary sources instead of Am Jur, but this does not change that the Am Jur summary is an accurate representation of the law(s) in question. The distinction in quality of evidence is technical, but of note. Even cited in summary form, laws trump dicta.

    As often said around here “the Constitution isn’t a suicide pact.” The checks the Founding Fathers put on legislative, executive and judicial authority were just as important in discouraging tyranny as their structural choice to use republicanism as a bulwark against concentration of power in the Fed. The very reason for our legal system and its core documents are based on eliminating state sponsored tyranny. To suggest that union is forever is antithetical to that end. Any relationship can go bad. Tyranny should not be allowed in Federal actions any more than it should be tolerated in the action of individual states.

  78. BIL, thank you for your thoughtful comments. I thought that the conclusion in Texas v. White was holding, not dicta, because it was essential to the ruling in the case and to the Court’s very jurisdiction, so I am not clear about the issue of dicta.

    I argued that Bob misread the Republican Form of Government Clause. The clause dealt with federalism and the relation of the states to the national government. It did not relate to the “separation of powers” between the legislative, executive, and judicial branches. The AmJur excerpt pasted up by Bob was about “Departmental Separation of Governmental Powers, Importance and Purpose of Principle,” not about the Republican Government Clause, so it is not even a secondary source that is relevant to the discussion, let alone a primary text. Perhaps the AmJur article on the Republican Government Clause might have been more appropriate.

    Here is the Constitution Annotated entry on the Clause (scroll to page 934):

    http://www.gpoaccess.gov/constitution/pdf2002/014.pdf

    I agree with you that “The checks the Founding Fathers put on legislative, executive and judicial authority were just as important in discouraging tyranny as their structural choice to use republicanism as a bulwark against concentration of power in the Fed.” But my point was that the Republican Government Clause was not aimed at the states, preventing the possibility of dictatorial or monarchial power springing up in a State. That is why it mandates that the “United States” shall guarantee a republican form of government “to every State.” As you say, it is based on eliminating “state” sponsored tyranny, and it does guard against tyranny by the individual states.

    All I have pointed out is that that particular clause does not relate to the relationship between the three federal branches. The federal government is limited by many, many other provisions of the original Constitution and its Amendments. It has been suggested that the Clause may possibly restrain Congressional power over the States, but this again is a matter of federalism, not the separation of powers in the federal government itself.

    I think the possibility of state tyranny cannot be ruled out completely. A demagogue like Huey Long or a religious fanatic like Nehemiah Scudder might never be a national threat, but under extreme conditions might be able to seize power in a small state and establish an oligarchy or theocracy. The fanatic could seize power, but under the Constitution, he cannot take his state out of the Union unilaterally, and the United States can step in to restore a republican form of government.

    While you write that “To suggest that union is forever is antithetical to that end,” I suggest that the principle of “union forever ” is expressly limited by the terms of Article V, which has no limits whatsoever on the subject matter of proposed amendments, other than equal suffrage in the Senate.

    As JT wrote, a “clearly better argument could be made for a duly enacted amendment to the Constitution that would allow secession.” My position is that the Union is forever, but that it is subject to possible alteration or restructuring, (or even termination, perhaps if necessary sometime under completely unforeseen circumstances in the far future), but only by amendment or constitutional convention, duly ratified by the States.

  79. How can so many lawyers, have such diverging opinions? I’m shocked, shocked I tell you!

    Related to this thread: Since many on the Right are now railing against “federal tyranny,” perhaps some bold folks might suggest a Constitutional amendment repealing the entire Constitution (rather like repealing Health Care) and going back to the Articles of Confederation. I’ll bet that would actually resonate in some quarters.

  80. Hey Buddha,

    Since this argument has turned transitive, lemme ask you;

    In re this Am Jur cite:

    “The principle of the separation of the powers of government is fundamental to the very existence of constitutional government as established in the United States. The division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people. It prevents the exercise of autocratic power, is a matter of fundamental necessity, and is essential to the maintenance of a REPUBLICAN FORM OF GOVERNMENT. In short, this division of power provision serves to create a governmental structure “resistant to the forces of tyranny.” (Departmental Separation of Governmental Powers, Importance and Purpose of Principle, 16A Am Jur 2d CONSTITUTIONAL LAW §247)

    Care to venture a guess what topic this section of Federalist Papers is concerned with?

    Federalist Papers

    No. 37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government MADISON

    No. 38 The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed MADISON

    No. 39 The Conformity of the Plan to Republican Principles MADISON

    No. 40 The Powers of the Convention to Form a Mixed Government Examined and Sustained MADISON

    No. 41 General View of the Powers Conferred by The Constitution MADISON

    No. 42 The Powers Conferred by the Constitution Further Considered MADISON

    No. 43 The Powers Conferred by the Constitution Further Considered MADISON

    No. 44 Restrictions on the Authority of the Several States MADISON

    No. 45 The Alleged Danger From the Powers of the Union to the State Governments Considered MADISON

    No. 46 The Influence of the State and Federal Governments Compared MADISON

    No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts MADISON

    No. 48 These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other MADISON

    No. 49 Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention HAMILTON OR MADISON

    No. 50 Periodical Appeals to the People Considered HAMILTON OR MADISON

    No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments HAMILTON OR MADISON

    I’m sorry; what did you say?

    A [what] form of [what?]

    And how could Article IV apply to the states if not the guarantor itself analytically?

    Silly me.

  81. Give some thought to the following:

    Buddha Is Laughing
    1, September 26, 2010 at 10:13 am

    …. but dicta – no matter its persuasive value – is still just dicta. Dicta will always have limited application. Bob’s logical foundation is sound and plays off basic principles regarding republicanisms utility in a representative Federal democracy, although it too could improve if Bob had gone to primary sources instead of Am Jur, but this does not change that the Am Jur summary is an accurate representation of the law(s) in question. The distinction in quality of evidence is technical, but of note. Even cited in summary form, laws trump dicta.

    As often said around here “the Constitution isn’t a suicide pact.” The checks the Founding Fathers put on legislative, executive and judicial authority were just as important in discouraging tyranny as their structural choice to use republicanism as a bulwark against concentration of power in the Fed. The very reason for our legal system and its core documents are based on eliminating state sponsored tyranny. To suggest that union is forever is antithetical to that end. Any relationship can go bad. Tyranny should not be allowed in Federal actions any more than it should be tolerated in the action of individual states.

    =========================================================

    And as you all have remarked and can see from this post … lawyers accept such difference as a given:

    Jay S.
    1, September 26, 2010 at 4:12 pm

    How can so many lawyers, have such diverging opinions? I’m shocked, shocked I tell you!

  82. Vince Treacy,

    I would like answers to mine questions and we can leave all of the federalist shit out…..no diatribes needed….all subject to individual interpretations….But that’s an issue Hamilton and Burr contended with in their fashion.

    Now my question is who breach the Agreement for Annexation? Can Texas rescind the contract? If no, why no? If yes, why?

    It was a Bi-Lateral Agreement….Did Texas keep its end of the bargain? Were slaves placed North of the Mason-Dixon line? Were parts of Texas ceded etc…..

    Exactly why is Texas the only state that can fly its Flag the same height as the USA Flag? I am not a fan of the ideal of secession….but….you appear to have the answers and I would like to know…..

    I have my answers and I will stay out of the rest of the conversation but since you brought up Texas vs White….

    “In accepting jurisdiction, the court ruled that Texas had remained a state ever since it first joined the Union.”

    Explain what that means…..

  83. Bob, Esq., should explain to his friend AY how the equal footing doctrine barred Texas from seceding.

    Quoth Bob:

    “(Accordingly, since Texas joined the union under the Equal Footing Doctrine — making Texas a party to the Declaration of Covenants and Restrictions Against Tyranny dated July 4, 1776 — the Fed had every right to kick the ass of every Confederate Texan that deluded themselves into believing they had a right to secede so as to perpetuate tyranny as described above).”

  84. Jay S.: “Since many on the Right are now railing against ‘federal tyranny,’ perhaps some bold folks might suggest a Constitutional amendment repealing the entire Constitution (rather like repealing Health Care) and going back to the Articles of Confederation. I’ll bet that would actually resonate in some quarters.”

    Be careful what you wish for, Jay. A lot of them will take you seriously.

  85. This should answer AY’s questions.

    Texas v White, quote on:

    It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States.

    If, therefore, it is true that the State of Texas was not, at he time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it.

    Page 74 U. S. 720

    We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.

    Some not unimportant aid, however, in ascertaining the true sense of the Constitution may be derived from considering what is the correct idea of a State, apart from any union or confederation with other States. The poverty of language often compels the employment of terms in quite different significations, and of this hardly any example more signal is to be found than in the use of the word we are now considering. It would serve no useful purpose to attempt an enumeration of all the various senses in which it is used. A few only need be noticed.

    It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times, it represents the combined idea of people, territory, and government.

    It is not difficult to see that, in all these senses, the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state.

    This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. It was stated very clearly by an eminent judge, [Footnote 6] in one of the earliest cases adjudicated by this court, and we are not aware of anything in any subsequent decision of a different tenor.

    Page 74 U. S. 721

    In the Constitution, the term “state” most frequently expresses the combined idea just noticed, of people, territory, and government. A “state,” in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country.

    The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind.

    But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.

    And there are instances in which the principal sense of the word seems to be that primary one to which we have adverted, of a people or political community, as distinguished from a government.

    In this latter sense, the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.

    In this clause, a plain distinction is made between a State and the government of a State.

    Having thus ascertained the senses in which the word state is employed in the Constitution, we will proceed to consider the proper application of what has been said.

    Page 74 U. S. 722

    The Republic of Texas was admitted into the Union, as a State, on the 27th of December, 1845. By this act, the new State, and the people of the new State, were invested with all the rights, and became subject to all the responsibilities and duties of the original States under the Constitution.

    From the date of admission until 1861, the State was represented in the Congress of the United States by her senators and representatives, and her relations as a member of the Union remained unimpaired. In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States.

    On the 1st of February, [Footnote 7] a convention, called without authority but subsequently sanctioned by the legislature regularly elected, adopted an ordinance to dissolve the union between the State of Texas and the other States under the Constitution of the United States, whereby Texas was declared to be “a separate and sovereign State,” and “her people and citizens” to be “absolved from all allegiance to the United States, or the government thereof.”

    It was ordered by a vote of the convention [Footnote 8] and by an act of the legislature [Footnote 9] that this ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861.

    Without awaiting, however, the decision thus invoked, the convention, on the 4th of February, adopted a resolution designating seven delegates to represent the State in the convention of seceding States at Montgomery, “in order”, as the resolution declared,

    “that the wishes and interests of the people of Texas may be consulted in reference to the constitution and provisional government that may be established by said convention.”

    Before the passage of this resolution, the convention had

    Page 74 U. S. 723

    appointed a committee of public safety and adopted an ordinance giving authority to that committee to take measures for obtaining possession of the property of the United States in Texas, and for removing the National troops from her limits. The members of the committee, and all officers and agents appointed or employed by it, were sworn to secrecy and to allegiance to the State. [Footnote 10] Commissioners were at once appointed, with instructions to repair to the headquarters of General Twiggs, then representing the United States in command of the department, and to make the demands necessary for the accomplishment of the purposes of the committee. A military force was organized in support of these demands, and an arrangement was effected with the commanding general by which the United States troops were engaged to leave the State, and the forts and all the public property not necessary to the removal of the troops were surrendered to the commissioners. [Footnote 11]

    These transactions took place between the 2d and the 18th of February, and it was under these circumstances that the vote upon the ratification or rejection of the ordinance of secession was taken on the 23d of February. It was ratified by a majority of the voters of the State.

    The convention, which had adjourned before the vote was taken, reassembled on the 2d of March and instructed the delegates already sent to the Congress of the seceding States to apply for admission into the confederation and to give the adhesion of Texas to its provisional constitution.

    It proceeded also to make the changes in the State constitution which this adhesion made necessary. The words “United States” were stricken out wherever they occurred and the words “Confederate States” substituted, and the members of the legislature, and all officers of the State, were required by the new constitution to take an oath of fidelity to the constitution and laws of the new confederacy.

    Before, indeed, these changes in the constitution had been

    Page 74 U. S. 724

    completed, the officers of the State had been required to appear before the committee and take an oath of allegiance to the Confederate States.

    The governor and secretary of state, refusing to comply, were summarily ejected from office.

    The members of the legislature, which had also adjourned and reassembled on the 18th of March, were more compliant. They took the oath and proceeded, on the 8th of April, to provide by law for the choice of electors of president and vice-president of the Confederate States.

    The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress.

    In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.

    The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces.

    Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?

    It is needless to discuss at length the question whether the right of a State to withdraw from the Union for any cause regarded by herself as sufficient is consistent with the Constitution of the United States.

    The Union of the States never was a purely artificial and

    Page 74 U. S. 725

    arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

    But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that

    “the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,”

    and that, “without the States in union, there could be no such political body as the United States.” [Footnote 12] Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.

    Page 74 U. S. 726

    When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

    Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

    Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

    End quotes.

    These are the key paras: “The Republic of Texas was admitted into the Union, as a State, on the 27th of December, 1845. By this act, the new State, and the people of the new State, were invested with all the rights, and became subject to all the responsibilities and duties of the original States under the Constitution.”

    And: “When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”

    http://supreme.justia.com/us/74/700/case.html

    That should answer the questions. Texas “became subject to all the responsibilities and duties of the original States,” so its prior status and the conditions of its admission made it no different from any other state, and “the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”

  86. Vince,

    Bingo….I said that as well. But this is not a trick…so if that was null and void…da de da de da…..then its takes you back to the original agreement…wouldn’t you agree and since one part of the basis of agreeing to join the Union was because of slavery and other related and material sections….so if you are saying what you are saying as regarding Texas…I never want you to represent anyone in a Contractual dispute as it relates to Real Property as you have no clue of bi-lateral agreements…..covenants…..and do not forget Texas is an Intent State…so every Statue reads at the beginning, It is the intent of the legislature to do so and so…… Its an amazing process, you should acquaint yourself with….

    I am being a smart ass but…You do see my point and btw Real Texans are special all the others just got lucky to be allowed here…..

  87. AY, say what?

    The last two post from AY seem to be incoherent and incomprehensible. Let AY study the Constitution and the Court decisions, remembering that a question of constitutional law is not the same as a ” Contractual dispute as it relates to Real Property.”

    I am out of this particular exchange.

  88. Vince said that Bob, Esq., “seems to argue (it is hard to tell) that there is no judicial review under the Constitution”
    Bob responded: “Did I say all that? No, that’s you inserting your own premises into my argument and reducing them to absurdity; a cowardly tactic indeed.”

    Well, did Bob say it or not?

    Here is what he said back in 2009:

    “Article III did not give the Supreme Court any textual power of Judicial Review. Furthermore, Article III did not give the Supreme Court the power to revise or expand its own power to include Judicial Review without a Constitutional Amendment.”

    http://jonathanturley.org/2009/03/04/dcs-speed-bump-the-constitution/#comment-42307

    That sounds a lot like “no judicial review under the Constitution” to me. But “Judicial power ” is in the text. It extends to “all Cases” arising under the “law of the United States.” That says that the judicial branch can rule on cases that arise under the laws of the U.S. So I am not inserting any “premises” into his argument, just using his own words.

    Now, it is incredible to me that anyone could assert that Article III did not give the Court any “textual power,” whatever that may be, of judicial review. Once again, let’s go to the text:

    Article III : “Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. …

    “Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
    “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

    So that looks like textual power to me. Bob may be confusing judicial review with judicial supremacy, and may be arguing that the courts may review legislation but not hold it unconstitutional. This is inconsistent with the Supremacy Clause, but it may be his position. He often corrects his mistakes by saying that he meant to include the “patently obvious.”

    But the fact remains that I said that he “seems to argue (it is hard to tell) that there is no judicial review under the Constitution,” mainly because HE ARGUED that “Article III did not give the Supreme Court any textual power of Judicial Review.” If he wants me to stop quoting him to that effect, he should stop saying it.

    So, “silly” Bob says something.

    When called on it, he denies saying it.

    With intemperate accusations.

    It has happened before, and will happen again.

  89. Bob, Esq., said “Silly me.”

    Got that one right.

    Still waiting for his explanation of “equal footing” to AY.

    As for his other question, since is nothing to apologize for, there will be no apology, even if it were possible to apologize an anonymous poster who uses a pseudonym, but has the gall, while hiding behind a fictitious name, to call someone else a coward, and cannot seem to resist a puerile, juvenile schoolyard taunt in nearly every posting.

    I am ending this exchange with Squire Bob before it explodes like the 9-11 truther thread over at 120 Percent.

  90. More from Texas v. White, this time on the Insurrection Clause and the Republican Form of Government Clause:

    “All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion.

    “These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re- establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the National government.

    “The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every State in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a State, and for the time excludes the National authority from its limits, seems to be a necessary complement to the former.”

    74 U.S. at 727-78.

  91. Mespo, what’s the point? The protest is reasonable.

    If not, then please explain what this means: “And how could Article IV apply to the states if not the guarantor itself analytically?”

    Or: “But this is not a trick…so if that was null and void…da de da de da…..then its takes you back to the original agreement…wouldn’t you agree and since one part of the basis of agreeing to join the Union was because of slavery and other related and material sections…”

    “Tis deeply sworn.
    Sweet, leave me here awhile;
    My spirits grow dull, and fain I would beguile
    The tedious day with sleep.
    Sleeps.
    Player Queen Sleep rock thy brain, 225
    And never come mischance between us twain!
    Exit.
    HAMLET Madam, how like you this play?
    QUEEN GERTRUDE The lady protests too much, methinks.
    HAMLET O, but she’ll keep her word.
    KING CLAUDIUS Have you heard the argument? Is there no offence in ‘t? 230

  92. Vince Treacy 1, September 27, 2010 at 6:22 am

    AY, say what?

    The last two post from AY seem to be incoherent and incomprehensible. Let AY study the Constitution and the Court decisions, remembering that a question of constitutional law is not the same as a ” Contractual dispute as it relates to Real Property.”

    I am out of this particular exchange.
    *****************

    Texas is an Intent State: How is that incoherent and incomprehensible? Only if you don’t have a clue about what you are talking about. It appears you don’t.

    Wouldn’t you say that laws are basically contract and acts of the legislature are contracts…..

    Texas agreed to be allowed to be annexed based upon certain promises…..They have been breached….

    You don’t have a clue and you can’t admit it….but this is from a person that finds JAP offensive…..

  93. “Judicial Power”

    In order to make judicial review part of this “Judicial Power” we must first ignore the Separation of Powers Doctrine.

    Does the U.S. Constitution explicitly permit judicial power to be exercised by another branch? We only need to look at impeachment to see that it does.

    So where is this explicit permission for the Judicial Branch to exercise the Legislative Power to create or repeal law? I see nothing in the text of the Constitution that would permit such. Further, if such power existed in the text of the Constitution itself, wouldn’t it be redundant for Congress to grant such power via statute?

    Where is this discussion of judicial review at the state conventions? I can only find the mention of judicial review at one state convention (Connecticut).

  94. Vince before I go and ride off into the sunset….tell me how many other states were annexed? You alluded to the fact that there were more……

  95. I’ve reread our exchange. I think we may have a semantic disagreement about where the line is drawn between binding and persuasive precedent.

    Dictum in this country are treated as persuasive, not controlling – relevant to the ruling or not. The U.K. may employ rationes decidendi, but the last time I looked, we didn’t take that incorporating principle into how we apply judgments or codify our laws. The holding is the holding. This is where our terminology may collide: I was taught that the holding consisted of the decree. Judicial decrees read as black letter until overturned, dispensed with by legislation, and/or modified and explained out of existence by subsequent rulings. But that the majority opinion was the place to go if reasoning was needed but to treat it as any other dissent or ancillary opinion as dictum – persuasive language that does not bind the law but rather informs it. The dicta could be the judge sharing a cake recipe or a thoughtful treatise dissecting the majority’s opinion, it’s still not controlling law. I don’t think we’re on a different page, just a little out of sync.

    I’d also like to say though that Bob’s construction argument is against Federal tyranny is persuasive. While I stipulate that your proscribed methods to address differences between the states is valid it is not factually comprehensive. I submit that tyranny committed against a state by the Federal government sua sponte is perfectly valid reason from withdrawing from the Constitution (not as in the White case, but for example if the Fed responds to CA’s growing legalization movement by declaring martial law for the state). The state was hypothetically invaded for giving their public what they told them they wanted in republican and democratic manner. Surely this would count as hard tyranny. If the power to withdraw exists under no circumstance, then it is truly a death pact. The bulwark of republicanism has no teeth.

    While your assertions based in White do reach an outcome for dispute resolution between the states would apply to most circumstances, I cannot say they would apply to all circumstances. As illustrated above, where is the line for drawn for oppressive acts of tyranny? If there is no line, no threshold, it becomes an empty standard. You must stay married to the psycho even if he’s killed and eaten the pets and is sizing you up for a sauce pan this instant. Hmmm. I don’t think so. If the Constitution isn’t a death pact, the ability to withdraw if provoked by force by the Federal or another state government must be maintained. There are provisions that States may respond if invaded. Art. I, sec. 10 says “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.” Although war between the states is clearly addressed, there is nothing there that gives the Federal government the right to invade a state unchallenged. Tyranny, hard tyranny not the oft debatable soft tyranny, seems like a situation that doesn’t factually fit White. The function of republicanism is revealed not only as a protection of the people from their state government, but as a protection for the states from the potential abuses of the Fed. If the Founders hadn’t wanted a republican form, they could have chosen differently.

  96. wow, didnt have time to read all this—but im surprised Mr Turley that you didnt realize Lincoln was wrong. Havent you ever read books by Thomas J. DiLorenzo?? Lincoln was completely against secession—odd since the Constitution permits it. The founders didnt create a nation, they created a confederation of states—and the South was RIGHT.

  97. wow Mr Turley—-this line makes NO sense:

    “While I agree that Lincoln, as a matter of policy, had to rein in the rebellious South Carolina by force, there is little doubt in my mind that the founders believed the individual states could secede from the federal, as opposed to national, “contract.””

    If you believe that the founders believed states could secede from the federal, then how could u possibly agree that Lincoln could use force to keep states IN the federal?? I’ve always liked you, but now you’re beginning to make glaring contradictions.

  98. Buddha,

    I like what you have to say….However, I think that it is too over the head for some on this site….Could I paraphrase it to say that a State has a right to withdraw from the Union if they…say….felt part of an Agreement/Annexation/Contract were breached? That is my argument to VT…..I have also asked him to tell me what other state was ANNEXED? so far I have yet to hear a response….

  99. Larry:

    I can’t quite tell if your comments are sarcasm or hopeless ignorance but assuming the latter, I wouldn’t expect someone who worships at the DeLorenzo altar to understand any complexity at all, but just to correct a few of your outlandish notions:

    I wrote the apparently mystical words you cited – not JT.

    It is possible to perform an constitutionally permissible executive act which is not explicitly stated in the Constitution but that reasonably flows from its conferral of executive authority.

    Lincoln had the right as Commander in Chief and as authorized by Congress to rein in a group of treasonous yahoos bent of some wild scheme to set up their own nation surrounded by US States. Washington did the same in Pennsylvania.

    The Civil War (and all the issues it decided) is over and you won’t get a different result by re-fighting it in your mind.

  100. Vince:

    No insult intended. It is simply that you’ve clearly made your points as Bob, Esq. has made his. Repeating the arguments and counter-arguments doesn’t make your position any stronger (to the contrary it neatly fits into Shakespeare’s sentiment), and expecting a complete reversal of Bob,Esq.’s strongly held position seems only a remote possibility.

    BIL is obviously correct that obiter dictum is simply the opinion writer’s “by the way” observations and not binding on anybody. He likewise is correct that a State may not be oppressed without redress by the Federal government and may not be divested of its inherent powers by some Federal fiat. White is instructive but not comprehensive as Buddha notes. Regardless of the merits of the argument, my objection is not with the logic but more with its somewhat caustic presentation and rebuttal of opposing viewpoints.

    As I stated, I generally agree with your take on this situation, but any argument can be carried to such an extreme that the other side simply digs in and refuses to listen. As we all know, this is counter-productive and beneath learned discussion. A little biting sarcasm is fine, but I don’t think questioning the competency of one of our long-standing and regular contributors is necessary to argue the point. I don’t think that you want to project that kind of overbearing advocacy. You never have before.

  101. Let’s review:

    ‘To talk about effective reasoning is to imply concern for an audience.

    Arguments are not offered in a vacuum.

    Success ultimately depends on the assent of an audience.

    Assent is based on audience acceptance of the reasoning.’

    So, having obtained the assent of the audience here we can now stipulate that I, unlike my opponent at present, do in fact know the difference between a hawk and a handsaw no matter which way the wind blows?

    Accordingly, since I reckon it would be ‘bad form’ for me to delineate each and every informal fallacy of logic employed here:

    Vince Treacy 1, September 27, 2010 at 6:24 am

    and here:

    Vince Treacy 1, September 27, 2010 at 6:30 am

    Well then…

    “There was only one road back to L.A., U.S. interstate 15. Just a flat-out high speed burn through Baker, and Barstow, and Berdoo. Then on to the Hollywood freeway straight into frantic oblivion. Safety… obscurity… just another freak in the freak kingdom. We’d gone in search of the American dream, it had been a lame fuck around. A waste of time. There was no point in looking back. Fuck no, not today, thank you kindly. My heart was filled with joy. I felt like a monster reincarnation of Horatio Algier, a man on the move, and just sick enough to be totally confident.” — H.S.Thompson

  102. Give thought to :

    ” … but any argument can be carried to such an extreme that the other side simply digs in and refuses to listen. As we all know, this is counter-productive and beneath learned discussion. …”(mespo)

    Close you eyes to the slimgs and arrows and note instead the excellent points made by each. Correlate with other opinions and comments and include the initial statements by the Prof. Then in a separate format use no more than 3 paragraphs to explain your position … by Friday … discussion at Sunday brunch (no quarter given for hang-overs)

  103. “Then in a separate format use no more than 3 paragraphs to explain your position … by Friday … discussion at Sunday brunch (no quarter given for hang-overs)”

    ******************

    Does this apply to me too? What ever shall I do with the Dewars Signature? And most importantly, what time is brunch?:D

  104. mespo727272
    1, September 27, 2010 at 8:40 pm
    “Then in a separate format use no more than 3 paragraphs to explain your position … by Friday … discussion at Sunday brunch (no quarter given for hang-overs)”

    ******************

    Does this apply to me too? What ever shall I do with the Dewars Signature? And most importantly, what time is brunch?:D

    ===========================================================

    Weisenheimer

    … those were final instructions to the grandkids (3 college freshman/women)who have been following this thread with much enthusiasm

    Brunch is at 1:00 PM and I have a bottle of Dewars Signature saved just for you. :roll:

    I can’t wait to hear their presentations for I expect a spirited discussion will follow.

  105. mespo,

    My house-guest is leaving next Monday. You would have enjoyed spending time with him. He is a retired “Don” from, as he refers to it, “the first University in the English-speaking world”. A very down to earth man who thoroughly enjoys his scotch.

    Brunch is in his honor and is going to be composed entirely of Mexican cuisine as that is his “new found” favorite food. (I’m getting very tired of it)

  106. Vince & Bob, Esq. & Anyone Similarly Interested:

    On Bob, Esq.’s Article Iv, Sec. 4 argument, I see the opposing positions as follows:

    The language quite elegantly reads:

    “The United States shall guarantee to every State in this Union a Republican Form of Government.”

    Vince believes the language speaks for itself and that the Article simply makes a guarantee of a republican form of government in every state. Bob,Esq. sees the language broader and believes it carries with it the same purpose found throughout the founding documents, which is to serve as a bulwark against all froms of tyranny, even that of the Federal government against the States. To Bob, Esq., then, the Article guarantees a federal republican form of goverment to the States as well as republican form of government for the States themselves.

    Historically, Vince’s position has been the law of the land since Luther v. Borden, 48 U.S. 1 (1849). The passage of the 14th & 15th Amendments tended to erode this provision’s protections since the Amendments contained more specific protections, and the thrust was clearly the guarantee of republican government within the State’s borders.

    A little research into the origination of the Article though clouds the water and lends support to Bob’s argument. As many persons and all Virginia lawyers know, Article IV was originally contained in the Virginia Plan (though with somewhat different language) drafted by James Madison and proposed to the Convention. In a letter in April, 1787, to Edmund Randolph, who would formally present the Virginia Plan to the Convention, Madison suggested that ‘an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.'” 2 Writings of James Madison, G. Hunt ed. (New York: 1900).

    Thus it appears quite plausible that Madison believed Article IV addressed both Vince’s internal guarantee of republicanism within the States as the plain language suggests, AND Bob,Esq.’s view that the “Union” as a whole (and not merely the inner workings of the States themselves) is to be organized on republican principles so as to guard against “innovations of a much more objectionable form” (the most gentle euphamism for “tyranny” I have ever read).

    Therefore it seems to me that our antagonists are both quite right and somewhat wrong in their firm claims to a solitary interpretation of Art. IV, Sec. 4. As I stated earlier, ignoring Madison on the Constitution is a lot like ignoring Newton on gravity.

  107. Blouise:

    As you know, after a summer in Cambridge I came to love the British for all their pomposity and intellect. Seems you got the latter without the former. The love of Mexican comes as no surprise to me though. Enough roasted meat and baked fish will do that to you.

    I am reminded of Oscar Wilde who said of his English hosts, “In England, at any rate, education produces no effect whatsoever. If it did, it would prove a serious danger to the upper classes, and probably lead to acts of violence in Grosvenor Square.”

    Best not to mention this quote to your recent house guest!

  108. Mespo,

    At the rate he is collecting recipes, I suspect his colleagues are going to be eating Mexican cuisine for months. Presently he is happily chopping peppers in the kitchen to “practice” a marinated skirt steak he plans on preparing for Sunday. I find it strange that he did not take to Margaritas.

    He is looking forward to the discussion of Lincoln and the Civil War as he considers that conflict to have been a “necessary tragedy” brought on by the greed of the slave owning industry which he likens to our modern day Wall Street firms.

    But enough … I do not want to hijack the thread.

  109. Vince Treacy said:

    It looks like the framers bypassed the State legislatures and committed the ratification of the Constitution to the people of the several states.

    So the States did not enter into any compact or contract.

    The people themselves in conventions called for that purpose ratified the Constitution and entered into the sovereign union of the United States.

    This interpretation is supported by the preamble of the Constitution itself, which says that “We the People of the United States … do ordain and establish this Constitution for the United States of America.”

    So the text itself demonstrates that the original intent was not to create a compact between the states.

    Right.

    It’s useful to recall what led to the convention in Philadelphia, and what events were roiling about the convention, and before and after.

    Weaknesses in the Articles of Confederation were manifest to many, but particularly to George Washington, who had thousands of acres in the Ohio Valley to sell, if only a national government could devise some way to get settlers there, protect them, and get products from the Ohio Valley back to commerce in other states and the world. Alexander Hamilton, Washington’s aide during the war, wrangled with the dispute between New York and New Jersey over who had title to New York Harbor (an issue never really well settled, but papered over with the Port Authority, which makes both states rich); young James Madison came into Washington’s awareness as the lively Virginia delegate appointed to settle the dispute between Maryland and Virginia over fishing and navigation of Chesapeake Bay. Washington intervened in those negotiations when Virginia Gov. Patrick Henry, an anti-nationalist, purposely failed to inform the Virginia delegates they had been named, and that a meeting had been scheduled in Fairfax. Washington entertained the Maryland delegates, notified Madison, and kept close watch from there on in.

    Washington was probably the first who realized that there might be one solution to his problems of development in the Ohio Valley, his friend and former aide Hamilton’s issues in New York Harbor, and Madison’s problems in settling disputes between Maryland and Virginia. Washington introduced Hamilton and Madison via correspondence, and suggested to each and both that they urge the Continental Congress to convene a convention to fix the Articles of Confederation.

    That the Constitution would be a compact of the people and not the states was almost accidental. Madison understood Henry’s opposition, and Madison anticipated Henry would do his utmost to derail ratification of the Constitution — and since Henry controlled Virginia’s legislature pretty much, Madison devised a ratification scheme that by-passed approval by the state governments, but instead would require conventions of people in each of the 13 independent colonies, at least for the initial ratification.

    I am unaware that anyone anticipated that any member of the union would ever want out; there was anticipation that some of the original 13 would not want in.

    So the Constitution was ratified by the people, sitting in a position superior to the states (especially with regard to Article IV, which dictates conditions under which state governments can operate, requiring a republican form of government). Lincoln was right.

    This is not to say that it was an issue in Philadelphia, nor that Madison, Hamilton or others did not cloud the issue later. One may read the Virginia and Kentucky Resolutions as supporting the idea that the states created the federal government, and Madison and Jefferson had heavy hands in those resolutions. But the Constitution itself was not ratified by the states, but by the people of the states, in special conventions called for the purpose.

    To the best of my knowledge the issue has never been litigated, but I think one could argue that the people, in accepting and ratifying the Constitution, effectively dissolved their state governments as completely sovereign entities without superior, and instantaneously replaced those state governments with state governments (with the same constitution) under the federal Constitution. There are problems with such an argument, but fewer I think than with an argument that the states were or are superior to the U.S. Constitution and could choose to get out, unilaterally. Such unilateral action was precisely what the Constitution was created to supplant.

    Has anyone checked Madison’s notes on the convention, or other documents on the debates, to see whether the issue was raised?

    Good discussion in this thread, on an issue that rarely gets the reasoned analysis it probably deserves.

  110. Good discussion. Being of Yankee descent, I have a prejudice on the issue, but in my opinion Vince Treacy wins the debate hands down. I disagree with Prof. Turley. A state can secede only if 2/3 of the other states allow it to do so via Constitutional amendment. To get out, you need to follow the same mechanism to get in.

  111. No it does not require a constitutional amendment to be admitted….

    I do agree that each and every other state in the union has to petition to get out….but Texas was admitted under different circumstances and reasoning….but the basis for the bargain has been breached……

  112. Texaa was NOT admitted to the Union by votes of the other states. It was admitted by a Treaty of Annexation, an agreement ratified by both the Republic of Texas and the US Congress. Contrary to AY’s post (which I have trouble deciphering), the US didn’t grab Texas and involuntarily add Texas as a state. Here’s a quote from Wikipedia re the Treaty of Annexation:

    Annexation by joint resolution

    James K. Polk, a Democrat and a strong supporter of territorial expansion, was elected president in November 1844 with a mandate to acquire both the Republic of Texas and Oregon Country.[6] After the election, the Tyler administration realized that public opinion was in favor of annexation, consulted with President-elect Polk, and set out to accomplish annexation by means of a joint resolution.[7] The resolution declared that Texas would be admitted as a state as long as it approved annexation by 1 January 1846, that it could split itself up into four additional states, and that possession of the Republic’s public lands would shift to the state of Texas upon its admission.[7] On 26 February 1845, six days before Polk took office, Congress passed the joint resolution.[7] Not long afterward, Andrew Jackson Donelson, the American chargé d’affaires in Texas and the nephew of former president Andrew Jackson, presented the American resolution to President Anson Jones of Texas.[8] In July 1845, the Texan Congress endorsed the American annexation offer with only one dissenting vote and began writing a state constitution.[9] The citizens of Texas approved the new constitution and the annexation ordinance in October 1845 and Polk signed the documents formally integrating Texas into the United States on 29 December 1845.[10]

    Note that title to public lands in Texas shifted to the State of Texas, not to the federal government. One reason why there’s no Indian reservations in Texas or federal parks. All land presently owned by the US Govt in Texas was purchased from the State of Texas. Also, land titles go back to land grants from the Spanish crown.

  113. ID,

    You are clearly wrong…but then again….it was a Bi-Lateral agreement both the US and the Republic of Texas….Certain agreements/covenants were made….

  114. Never said it was a land grab….Hawaii was a land grab….they consented to being a territory….. the rest was purely stolen….

  115. Byron:

    Sadly, about all I do with kids is coach a little football. Many of my clients do fall into the category discussed in the article, and I will take a look at it tonight and reply then.

  116. “Treaty of Annexation”(Isabel Darcy)

    There was no Treaty … Native American lands were annexed by treaty but the Republic Of Texas was an annexed by resolution. There is a great deal of history that must be read and understood before intelligently discussing the particular circumstances of Texas annexation and a great deal more before understanding Texas and the Civil War.

    Although many like to refer to Texas legal rights to secede as “Texas-related legends”, a careful study of the history from that time including the changes within the Missouri Compromise, The Mexican–American War, and a host of other historical facts all flavored by the Lincoln/Douglas debates adds strength to AY’s assertions and would probably require a separate thread to properly discus the legal overtones of that particular secession.

    On the face of it, I am of the opinion that AY is more right than wrong. His prose may wander a bit but his mind is very focused. Often the prose suffers when the mind works faster than the fingers can type. Stop taking cheap pot shots at him!

  117. Mespo—–what in THE HELL are you talking about??? The paragraph I cited was from TURLEY’S ARTICLE—–so it WAS from Turley! Are you saying that YOU are the author of Turley’s article??? Lincoln had NO RIGHT to invade the South. Secession is definately granted in the Constitution! America was formed from the act of secession—we seceeded from England! What sense would it make for the founders to secede from England and then incorporate into the Constitution that secession be treasonous when THEY did it???? What’s wrong with Thomas DiLorenzo??? He’s BRILLIANT!

    Do you HONESTLY think the Civil War was over SLAVERY?? Not ONLY was slavery Constitutional after the Dred Scott decision made it Constitutional in 1857, but Lincoln SUPPORTED slavery—he said in his first inaugural address that he had NO INTENTION of disrupting slavery. The war was about Lincoln’s abhorration of SECESSION because he wanted a centralized government—and boy did he ever get it! Many people in the North even AGREED with the South and wrote anti-Lincoln columns in their newspapers—which is why Lincoln had over 300 newspapers shut down and many editors imprioned. Lincoln made Bush look like George Washington!

  118. I wonder what Prof Turley has to say about this quote from Thomas Jefferson since he doesnt believe in secession:

    “If there be any among us who would wish
    to dissolve this Union or to change its republican form,
    let them stand undisturbed as monuments of the safety
    with which error of opinion may be tolerated
    where reason is left free to combat it.”

    Sure sounds to me like Jefferson supports secesssion!!!!!!!!

  119. Mespo—-you are simply WRONG when you said this:

    “That States are sovereign in some areas like education, and control of their militias, but subservient to the national government in other areas like national defense and trade policy.”

    Who came first? The individual, sovereign states or the “federal” government?? Remember, the government is SUPPOSED to be run by the PEOPLE [“we the people”—–remember that?] The “national government” was not even in ANY of the founders’ vocabulary. They did NOT form a NATION or a “national” government, they formed a confederation of states in a VOLUNTARY union. When will you morons understand this??? Lincoln VIOLATED the Constitution by invading the South and murdering a quarter million soldiers and thousands more innocent civilians [which was also in violation of international laws of war—there was no Geneva Conventions then—-but there WAS moral laws of war—and Lincoln violated them].

    You crackpots on this thread are a part of the Lincoln cult [he freed slaves, saved the Union, etc… blah blah blah] He did no such thing. The Emancipation Proclaimation was NOT ABOUT FREEING SLAVES—–it was a political stunt by Lincoln to gain the abolitionist vote. Lincoln supported slavery and he was extremely racist. Would you like me to list his racist quotes???

    Hmmmm???

  120. Wrong again Mespo–when you said:

    “I think the founders did envision a state center approach rather than an individual centered approach for the union.”

    Only Alexander Hamilton envisioned a centralized government—all the rest envisioned a government run by the people. And by the way, you stating that you “think” is the problem. Reading and investigating would give you certainty and not force you to just “think” things are true.

  121. Larry,on September 27, 2010 at 3:01 pm wrote: wow Mr Turley—-this line makes NO sense: “While I agree that Lincoln, as a matter of policy, had to rein in the rebellious South Carolina by force, there is little doubt in my mind that the founders believed the individual states could secede from the federal, as opposed to national, “contract.””

    Mespo demurred in a lawyerly manner, indicating that he himself, not Professor Turley, had written the words.

    Larry now writes: “Mespo—–what in THE HELL are you talking about??? The paragraph I cited was from TURLEY’S ARTICLE—–so it WAS from Turley! Are you saying that YOU are the author of Turley’s article???”

    I think if Larry, or any other reader, goes to the following link, they will find the sentence in the final paragraph of Mespo’s posting.

    http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161368

    Here is the paragraph in full: “While I agree that Lincoln, as a matter of policy, had to rein in the rebellious South Carolina by force, there is little doubt in my mind that the founders believed the individual states could secede from the federal, as opposed to national, “contract.” The Civil War was simply an evolving interpretation of the notion of “’union.’”

    Larry has a lot more to learn from the scholarly Mespo than Mespo has to learn from Larry.

  122. While it is usually Mespo’s prerogative to give us quotations from Jefferson, it is useful to put his words in context, and note the time and occasion, the First Inaugural Address, March 4, 1801:

    “During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others, and should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government can not be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.”

    Most readers would take this as a criticism of those who wish to dissolve the Union, describing them as monuments to the safety that we accord to “error of opinion.” Jefferson called the government “the strongest Government on earth.”

    The words do not support Larry’s views.

  123. “Larry now writes: “Mespo—–what in THE HELL are you talking about??? The paragraph I cited was from TURLEY’S ARTICLE—–so it WAS from Turley! Are you saying that YOU are the author of Turley’s article???”

    I think if Larry, or any other reader, goes to the following link, they will find the sentence in the final paragraph of Mespo’s posting.”

    Who really cares WHO originally said this quote [but I AM glad it wasnt Turley]—-it’s 100% WRONG and contradictory. Notice how Mespo NEVER addressed the fact that he contradicted himself in that quote, but ONLY focused on WHO said it?? A complete FRAUD. How about addressing the contradiction Mespo??

    Hmmmm.

  124. Larry:

    ““If there be any among us who would wish
    to dissolve this Union or to change its republican form,
    let them stand undisturbed as monuments of the safety
    with which error of opinion may be tolerated
    where reason is left free to combat it.” ”

    I don’t think Jefferson is supporting secession. It seems to me he is saying if you want to be a dumb ass and secede then we, the rational ones, can talk you out of it to make sure you don’t do something stupid.

    Maybe one of the more educated folks could chime in and let me know if I have that right.

  125. Larry, so much wrong, so little time.

    For example, “Do you HONESTLY think the Civil War was over SLAVERY?? Not ONLY was slavery Constitutional after the Dred Scott decision made it Constitutional in 1857, but Lincoln SUPPORTED slavery—he said in his first inaugural address that he had NO INTENTION of disrupting slavery.”

    This is not history, it is lost cause, neo-confederate, southern partisan interpretation

    Lincoln personally detested slavery, but as a constitutional lawyer recognized that the President had no legal power under the Constitution to affect it in the states where it existed.

    He ran on a free-soil platform urging legislation to ban slavery in the territories under the express constitution power of Congress to make all needful rules and regulations for the territories. In Scott, Taney ruled, in complete disregard for the literal terms of the Constitution, that Congress had no such power.

    Lincoln set out his views in his 1860 Cooper Union address, available online.

    The southern states wanted the right to expand slavery to all the federal territories under Taney’s ruling.
    The only, repeat only, thing the United States did in 1860 that affected the slave states was to lawfully elect a President who opposed slavery in the territories.

    So the Civil War did in fact break out over slavery, over the issue of the expansion of slavery to the territories.

    So Larry’s views are inaccurate and the “history” is distorted, since Lincoln’s intention to refrain from disturbing slavery was limited to the existing slave states.

  126. “The Emancipation Proclaimation was NOT ABOUT FREEING SLAVES—–it was a political stunt by Lincoln to gain the abolitionist vote.”

    The Emancipation Proclamation did in fact free nearly 2 million slaves (the remainder were freed by the 13th Amendment).

    It was not a political stunt, because it hurt Lincoln in the north by costing him votes for Congress in 1862, where the anti-war Democrats seized on the Preliminary Emancipation Proclamation of September 1862 to pander to racist voters.

    Everyone, read the excellent book by Allen Guelzo, Lincoln’s Emancipation Proclamation.

    http://www.amazon.com/Lincolns-Emancipation-Proclamation-Slavery-America/dp/0743221826/ref=cm_cr_pr_product_top

    Amazon has a good mix of review, including several that reflect Larry’s views.

  127. Vince,

    I normally do not get into disagreements with what you have had to say, because I did not wish to put the energy in to debating someone I consider well able to defend its position and you have more courage to put your real name out there….That takes guts…..But in this thread….I think either you have too much oxygen or not enough……You are clearly talking about something you have limited knowledge of….

    Lincoln had no intention of banning slavery…..NO INTENTION…..it was stated in his speeches that he had no intention…..and he also said that a house divided falls….if the South had not withdrawn from the Union….there never would have been an Emancipation gets these words “PROCLAMATION” its an executive Order without teeth….It is not LAW…..it would probably still be legal….but that’s another debate for another thread.

    Read the Missouri Compromise…Mason-Dixon Line….have I rung any bells yet? These were applicable to any new state….territories are not states…..anything south of the MDL was legitimate…Can you focus of that issue…even if it is a territory….its still not a state….

    I can’t believe how smart you are about somethings and blatantly ignorant about other things you profess to have knowledge of and too stupid to realize that you don’t know it all……

    By the way…..which side of the Lincolns was John Wilkes Booth related to and if you can answer that correctly….then I’ll tell you some history about the relationship between the “Wilkes-Booth” family…..which would also help you understand a little more about history of the US…..

    Can you tell us what profession Wilkes-Booth was in and why he was not in the service…..either for the north or south…..

    I am gonna pull a bdaman on you….

    Think in terms of Blackwater, the Bush Crime Family, Cheney, KBR, the CIA…..its all other there….How are they all related….You can take one piece and not have the whole story….
    Can you tell

  128. In 1776, the American colonies asserted a right, under natural law, to cut their political ties with Britain.

    If such a right exists under natural law, then the states–the people of Virginia, the people of Kentucky, etc.–hold the same right today, no matter what the Constitution or the law may say.

    If such a right does not exist under natural law, then the United States had no right to revolt against Britain, and the United States government was illegitimate from the start. No one owes allegiance to an illegitimate government.

  129. “Lincoln had no intention of banning slavery…..NO INTENTION…..it was stated in his speeches that he had no intention”

    Everybody, where did I say Lincoln had the intention of banning slavery?

    I never said it.

    I said clearly that Lincoln wanted to ban slavery in the territories, but had no intent to ban it in the slave states, since he and the Congress had no power to do so.

    That is historical fact.

    Keeping the territories free was the founding principle of the Republican party.

    I cannot follow the rest of the stream of consciousness.

  130. Vince:

    “Larry has a lot more to learn from the scholarly Mespo than Mespo has to learn from Larry.”

    ****************

    Shame on you Vince, Larry is teaching me reams about psychosis!! :)

    It seems that you and I ignore Larry and his marvelous malaprops out of some respect for his bludgeoning 8th grade understanding of civics. We certainly stand in lesser stead to his vast knowledge of Jefferson.

    That passage Larry quoted is from Jefferson’s First Inaugural Address (Mar. 4, 1801) following the contentious Election of 1800 where, ironically, know-nothings like Larry were in huge supply. Even a cursory review of the wording leads one to Byron’s well-stated position that Jefferson, far from advocating dissolution and praising its advocates, was holding up those who would dissolve the union as “monuments” to error.

    Digging further in the Princeton collection we will find that Jefferson first wrote “I do not believe there is one native citizen of the US. who wishes to dissolve this union: I am confident there are few native citizens who wish to change it’s republican features” before altering the sentence to its current form and thus placing even harsher light on the proponents of secession.

    Larry’s snubbing by bumblers such as I may need redressing. Personally, I promise to re-double my efforts to reach out to Larry’s family members, Moe, Curley Joe, and the oft-forgotten Shemp, in an attempt to make amends.

  131. “I don’t think Jefferson is supporting secession. It seems to me he is saying if you want to be a dumb ass and secede then we, the rational ones, can talk you out of it to make sure you don’t do something stupid.”

    Didnt we secede from ENGLAND—–which BEGAN our country???

    “Lincoln personally detested slavery, but as a constitutional lawyer recognized that the President had no legal power under the Constitution to affect it in the states where it existed.”

    Slavery ALSO existed in the NORTH. So it existed everywhere, just more prominent in the SOUTH.

    Funny how you defend Lincoln when it comes to slavery—saying he had no Constitutional power to do anything about slavery–but he IGNORED the Constitution on secession and Habeas Corpus! He suspended Habeas Corpus during his ENTIRE presidency and the President alone cant suspend HC—Congress has the authority on that!

    Anon yours—youre exactly RIGHT about Lincoln not intending to do anything about slavery—he admitted it in a letter to NY tribune’s Horace Greeley in 1862 when he said:

    “My paramount object in this struggle is to save the Union, and is NOT either to save or destroy slavery. If I could save the Union without freeing ANY slave, I would do it; and if I could save it by freeing some and leaving others alone I would do that also. What I do about slavery, and the colored race, I do because I believe it helps to save the Union.”

    In his first inaugural address 17 months earlier, he contradicted himself because he said in that address he had no constitutional authority to disturb slavery. Quite funny is the notion that Lincoln “saved the Union” when he in fact DESTROYED constitutional liberty during his entire presidency. How do you “save” the Union by destroying constitutional liberty? Explain that.

  132. Vince,

    I am outta of here on this discussion…to be so smart yet so ignorant….stay in what ever area of law you specialize in…if you wanna teach history….pity the fool suffering…

  133. Ahhhh yes Mespo, I love when people IGNORE my posts only to fight back with ad hominem attacks—-you must be proud! You didnt debunk a goddamned thing I said. So I will re-post what you IGNORED.

    “Mespo—-you are simply WRONG when you said this:

    “That States are sovereign in some areas like education, and control of their militias, but subservient to the national government in other areas like national defense and trade policy.”

    Who came first? The individual, sovereign states or the “federal” government?? Remember, the government is SUPPOSED to be run by the PEOPLE [“we the people”—–remember that?] The “national government” was not even in ANY of the founders’ vocabulary. They did NOT form a NATION or a “national” government, they formed a confederation of states in a VOLUNTARY union. When will you morons understand this??? Lincoln VIOLATED the Constitution by invading the South and murdering a quarter million soldiers and thousands more innocent civilians [which was also in violation of international laws of war—there was no Geneva Conventions then—-but there WAS moral laws of war—and Lincoln violated them].”

    “Wrong again Mespo–when you said:

    “I think the founders did envision a state center approach rather than an individual centered approach for the union.”

    Only Alexander Hamilton envisioned a centralized government—all the rest envisioned a government run by the people. And by the way, you stating that you “think” is the problem. Reading and investigating would give you certainty and not force you to just “think” things are true.”

    Mespo—I LOVE how you insist that the quote you provide from Jefferson was his FINAL draft. It was NOT. YOUR quote as his FIRST DRAFT. This is what he FIRST wrote:

    “Digging further in the Princeton collection we will find that Jefferson first wrote “I do not believe there is one native citizen of the US. who wishes to dissolve this union: I am confident there are few native citizens who wish to change it’s republican features”

    THIS was what he CHANGED IT TO:

    “if there be any among us who wish to dissolve this union, or to change it’s republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated while reason is left free to combat it.”

    Guess where I got this from???? THE PRINCETON website that you just listed as where YOU got it from!!!

    http://www.princeton.edu/~tjpapers/inaugural/inrevdraft.html

  134. “Larry’s snubbing by bumblers such as I may need redressing. Personally, I promise to re-double my efforts to reach out to Larry’s family members, Moe, Curley Joe, and the oft-forgotten Shemp, in an attempt to make amends.”(mespo)

    From the Shotgun Formation an unexpected Draw Play that resulted in a Goal … (“Well played,” said the Fan).

  135. Larry:

    Norm Crosby has nothing on you. Perhaps when you master the language you will find that I said precisely that Jefferson did change the language from the draft wording I cited to the final language YOU quoted. I said this, Grasshopper, because Jefferson didn’t change his mind; Jefferson simply added more emphasis to his clearly stated sentiment that no one in his right mind would reach the conclusion you did.

    I commend that post-WW2 classic,”Fun With Dick & Jane,” to get you off on the right foot. A little literary preview for you: That Spot sure can run!!

  136. “….no one in his right mind would reach the conclusion YOU did”

    Except the militias who fought the revolutionary war to SECEDE from England!!! Tell me—why does everyone keep ignoring the fact that we seceded from England? No one here has yet to explain why the founders would call secession treason when we fought a war of secession to break away from England to form this country!! Will anyone answer this???

  137. Larry:

    I could get into a rather complicated discussion of jurisprudence with you about how perspectives matter and from the point of view of the British, the American colonists were treasonous. Or how from the American perspective, it was simply a matter of declaring independence from tyranny. Law is, in large measure, enforced from the perspective of the society in which it exists. In this society, efforts at secession are acts of treason as the Civil War made evident, and as even the defeated Confederates acknowledged when they swore a loyalty oath to the Union as a a condition of restoration of rights.

    In all candor, Larry you need to get to an objective source of information (not just DeLorenzo, who represents a distinctly minority point of view) and learn before you wade into these waters. Whether you realize it or not, there are some very accomplished and thoughful political scientists, lawyers, miltary personnel, educators, medical professionals, historians, and public servants around here. Their depth of knowledge is impressive and you can learn quite a bit (as I do here every day) without launching into categorical statements or untenable positions based on cursory readings of disparate documents and authors.

    No condescension intended, just a thought.

  138. There was a big difference between the revolution in 1776 and the attempted, so-called secession in 1861.

    In 1776, one slogan was No Taxation Without Representation. The colonists had absolutely no voice in the selection of the government that imposed taxes on them. The King was hereditary. The House of Lords consisted of hereditary nobles, all in Britain. Commons was elected from a small percentage of the people, based on property and income.

    What was different in 1861? The slave states were fully represented in the national government, even over-represented. They had two Senators for every state, even though northern population was growing. They had an extra 3/5th vote in the House for every person held to service, even though those persons could not vote.

    Most of the Presidents had been from the south, or were doughface northerners like Pierce and Buchanan who favored the slave owners.

    The Supreme Court was led by the arch-racist Taney, and many justices favored the slave states in the Dred Scott decision.

    The north did nothing to provoke the south, except to lawfully elect a President on a free soil platform. The north said it would not, because it could not, interfere with slavery where it existed.

  139. I do have an Original Dick and Jane Book…..for sale…surprise its from the Texas School Repository 1954….Blue Edition….

  140. http://www.columbiatribune.com/news/2009/apr/25/states-have-historical-right-to-secede/

    “When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

    On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

    On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

    As demonstrated by the ratification documents of New York, Rhode Island and Virginia, they made it explicit that if the federal government perverted the delegated rights, they had the right to resume those rights. In fact, when the Union was being formed, where the states created the federal government, every state thought they had a right to secede…”

  141. “In this society, efforts at secession are acts of treason as the Civil War made evident”

    WRONG—–that LINCOLN made evident. The war was unconstitutional an extremely unnecessary.You are still dancing around the fact that this country came into being from the act of secesssion. Why do you keep ignoring this?

    Why do you keep bashing DiLorenzo but yet continue to IGNORE my posts that Ive posted and re-posted?? You say his views are in the “minority” yet you fail to debunk them.

    Let me ask you this: Was the NORTHERN newspapers in the minority as well?

    Here are just a FEW headlines/editorials from NORTHERN newspapers prior to the outbreak of the war:

    “Lincoln’s latest speech contained “the arguments of the tyrant—force, compulsion, and power” “Nine out of ten people of the North” are opposed to forcing South Carolina to remain in the Union. “The great principle embodied by Jefferson in the Declaration is….that governmnts derive their just power from the consent of the governed.” Therefore, if the southern states want to secede, “they have a clear right to do so”
    [New York Tribune—-2-5-1861]

    “The leading an most influential papers of the union believe that any State of the Union has a right to secede”
    [Davenport Democrat and News—-11-17-1860]

    “We believe that the right of any member of this Confederacy to dissolve its political relations with the others and assume an indepedent position is absolute”
    [Cincinnati Daily Press—-11-21-1860]

    “If tyranny and despotism justified the Revolution of 1776, then “we donot see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861″
    [New York Tribune—-12-17-1860]

    “Like it or not, the cotton states will secede”, and southerners will regain their “sense of independence and honor”
    [Chicago Daily Times—-11-21-1860]

    “”WE sympathize with and justify the South because their rights have been invaded to the extreme.” If thy wish to secede, “we would wish them God-speed.”
    [Albany Atlas and Argus—-11-1-1860]

    I could go on and on. These excerpts were in NORTHERN newspapers. Before 1860———NO ONE talked about secession as treason. It was ALWAYS understood that it was a permitted, constitutional act. Only AFTER Lincoln was secession deemed “treason”.

    The founders had just fought a war [Revolutionary war] against a highly centralized state [Britian] –they were not about to turn around and create one of their own. The federal Union did NOT precede the states–and the states have always been free an independent—-that is, until Lincoln came along.

    The United States was founded by secessionists. The Declaration justified secession of the STATES. The Jeffersonian philosophy that governments derive their just powers from the consent of the governed and that whenever a government becomes destructive of the rights of life, liberty, andproperty, citizens have a right to secede from that government and form a new one, was the basis of America’s 2 wars of secession, 1776 and 1861.

    You can get all the educated people you want mespo—-but that still would not supercede the words and actions of the founders—who advocated and PRACTICED secession.

  142. Vince, what you just dont get is the fact that it does NOT MATTER if the representatives in the states are VOTED in by the people. The Declaration CLEARLY says that:

    “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.

    This means if the PEOPLE are NOT represented [in this case, the South, who were NOT] it is the right of the PEOPLE to alter or abolish that government and institute a NEW one [in the south’s case, they did EXACTLY that—the NEW government headed by Jefferson Davis]. The Constitution was NOT being followed and it was being IGNORED, so the South instituted a NEW government who abided by the Constitution. What do you morons NOT understand about this?

  143. Larry,
    I suppose anything can be justified and a case made, even for treason and for the support of enslaving other humans in the name of making a buck.

  144. Larry:

    Every traitor can rationalize his act using some bend of history, some out-of-context (or just plain misunderstood) words of a great man, or some interpretation of a past event which supports his cause. That one can race confidently into the direction of the buzzsaw assured by every cherry-picked fact in creation that the saw will not cut, will not alter by one iota the inevitable result. At some point it boils down to the opinion of the majority as to whether one’s actions are virtuous or damnable. That’s the way every democracy functions and every important decisison therein is made. Ultimately, every idea lives or dies by decree of the court of public opinion. Very few appeals there, and even fewer reversals.

  145. Larry, the white southerners were in fact represented in the government, and no amount of denial by you will change that historical fact. The white southerners elected Presidents, Vice Presidents, Senators, and Representatives, and Justices of the Supreme Court were appointed from their number, including Taney.

    It was the four million southern people of African descent who were not represented. Instead, they were enslaved, put to forced labor, and tortured.

    Governments are instituted among Men, and do derive their just powers from the consent of the governed.

    The four million persons held to service in the southern slave states never gave their consent to be governed by the white southerners.

    Please re-read the quotation. It provides that “Governments are instituted among Men,” not that governments are instituted among “white” men.

    Many slaveowners signed the Declaration and the Constitution. They should have been more careful about the words they signed.

  146. Larry says that “The Constitution was NOT being followed and it was being IGNORED.”

    Well, which particular provision of the Constitution was not being followed by the United States in 1860 when it lawfully elected Lincoln President?

  147. I love all of this constitutional argument….You know who did not have the right to vote was White Women….Susan B. Anthony was the only person that never paid a fine which went all the way up to the US Sct…she still owes $100.00 fine for trying to Vote….Hmmmmm…..

  148. Anonymously Yours
    1, September 30, 2010 at 5:42 pm
    I love all of this constitutional argument….You know who did not have the right to vote was White Women….Susan B. Anthony was the only person that never paid a fine which went all the way up to the US Sct…she still owes $100.00 fine for trying to Vote….Hmmmmm…..

    ========================================================

    Does that mean we may secede as we are npw a recognized “people”?

  149. Mespo, good job once again AVOIDING my specific posts with a generalized sermon meant to divert away from the specific things I said. It doesnt fool me, but I think it fooled everyone else here.

    “suppose anything can be justified and a case made, even for treason and for the support of enslaving other humans in the name of making a buck.”

    Mike, so the answer to the CONSTITUTIONAL Dred Scott decision was to murder 250,000 soldiers and thousands of innocent civilians to stop secesssion—-an act that formed our country?

    Mespo—-next time you post, SPECIFICALLY address things I said—attempt to debunk it—-no more generalized speeches meant to divert, deflect and ignore.

    “Every traitor can rationalize his act using some bend of history, some out-of-context (or just plain misunderstood) words of a great man”

    lol—so the headlines and editorial excerpts I posted from NORTHERN newspapers were “bent history” and “out of context”??? LOL–I love it! By the way, who’s the great man you’re referring to???

  150. Mespo—-address these NORTHERN newspaper quotes:

    “Lincoln’s latest speech contained “the arguments of the tyrant—force, compulsion, and power” “Nine out of ten people of the North” are opposed to forcing South Carolina to remain in the Union. “The great principle embodied by Jefferson in the Declaration is….that governmnts derive their just power from the consent of the governed.” Therefore, if the southern states want to secede, “they have a clear right to do so”
    [New York Tribune—-2-5-1861]

    “The leading an most influential papers of the union believe that any State of the Union has a right to secede”
    [Davenport Democrat and News—-11-17-1860]

    “We believe that the right of any member of this Confederacy to dissolve its political relations with the others and assume an indepedent position is absolute”
    [Cincinnati Daily Press—-11-21-1860]

    “If tyranny and despotism justified the Revolution of 1776, then “we donot see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861″
    [New York Tribune—-12-17-1860]

    “Like it or not, the cotton states will secede”, and southerners will regain their “sense of independence and honor”
    [Chicago Daily Times—-11-21-1860]

    “”WE sympathize with and justify the South because their rights have been invaded to the extreme.” If thy wish to secede, “we would wish them God-speed.”
    [Albany Atlas and Argus—-11-1-1860]

    BEFORE 1860—the act of secesssion was seen as the RIGHT thing to do—NOT treason.

  151. So Larry,

    If I asked you to delineate the chain of sovereign title entitling the south to secede for such reasons as stated in A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union would you regale me with something a tad more legally concrete than a dumb ass bunch of newspaper clippings?

    You’re so full of shit you’re gonna float away.

  152. Bob, Esq.

    I cannot speak for the rest of the Nation but I think Texas’s reasons are fairly clear for arguments sake…..I will state again that I am not for secession….NOT AT ALL…this is purely academic…..However, on some other parts of this thread I am waiting for a reasonable answer from one I held in esteem…..Apparently his debating tactic when he has not an answer is to tear the opponent apart and calling what they are saying illogical or unclear…..But then again….we all do get on our tangents….reasonable or unreasonable as they may appear…..

  153. Larry:

    Pretty poor argument when you have to rely on some ad populum examples to prove your point. That some NORTHERN newspapers adopted your delusion before the shooting began proves only that your psychosis isn’t limited to know-nothings of our time. BTW you don’t get to dictate how I argue my points or rebut yours there mass’ar.

  154. Anonymously Yours
    1, September 30, 2010 at 6:46 pm
    Blouise,

    Women are one of the wonders that has God created for mans bewilderment…..

    =============================================================

    Nothing quite like a smooth talking southern gentleman … if I secede, I’m taking you with me.

  155. Mespo—good job with yet ANOTHER generalized sermon that didn’t address one specific thing I said. I have not seen ONE wingnut on here yet address my statement that why would anyone be against sesession when our country was formed from the act of secession. By the way Bob, what restrictions are you referring to? The original 13 states were indepedent free states that entered a VOLUNTARY union. Shall I post quotes from our founders?

    Oh, and mespo, nearly ALL northern newspapers adopted the “delusion”—this is why Lincoln shut down over 300 newspapers and impriosoned many editors. Why would he do that if the papers were merely false statements? Also, why did Lincoln change many southern state constitutions to say that secession was treason after the war? Why the need to change a constitution in a state if you have full confidence that secession is not permitted in the United States constitution??? Got an answer for that mespo??

  156. I have not seen ONE wingnut on here yet address my statement that why would anyone be against sesession when our country was formed from the act of secession.

    I won’t speak for the wingnuts.

    In 1775, while a military force was occupying Boston to enforce laws imposed on Americans, the British marched against Americans to seize weapons legally owned by the Americans. In late 1775 King George declared the colonies in rebellion, and no longer under the protection of the crown. The Declaration of Independence, and the resolution that enacted it, were not secessions from any sort of republican union. Rule under a monarchy is not the same as having joined a compact under a constitutional government.

    Even so, about 40% of the colonists remained loyal to the crown, many even after independence was declared.

    I think you may want to make a review of history on some of these points.

  157. Larry: “By the way Bob, what restrictions are you referring to? The original 13 states were indepedent free states that entered a VOLUNTARY union.”

    In the summer of 1776, a group of delegates, duly authorized by the people of 13 colonies (hereinafter “The Planning Board”) convened in Philadelphia, PA. Intending to subdivide the aforesaid 13 colonies from their tyrannical King, Jefferson and the Planning Board set out to take the King’s land by indicting him for tyranny. In so doing, they Declared the People’s intent to dissolve the Political Bands connecting with the English Crown by letting facts be shown to a candid world why their King was a tyrant, THUS impelling the subdivision of the King’s land into 13 sovereign colonies via a Declaration of Covenants and Restrictions Against Tyranny dated July 4, 1776 (hereinafter “The Declaration”); prohibiting tyranny from all land comprising the 13 aforesaid colonies.

    N.B. Privity of contract regarding the aforesaid C&R trumps any predicates concerning a “union.”

  158. “Mike, so the answer to the CONSTITUTIONAL Dred Scott decision was to murder 250,000 soldiers and thousands of innocent civilians to stop secesssion—-an act that formed our country?”

    Larry,
    Let’s cut to the chase on this. Were it not for the Civil War African Americans and perhaps others would still be held in slavery today. No amount of historical legerdemain can wipe away the fact that at base this war was about the rights of the secessionist traitors to maintain the institution of slavery. Had the war been avoided, or had they won there is no logical argument that slavery would have been discontinued by today. Your position therefore in effect supports the enslavement of human beings for profit. you might deny this, or perhaps admit it, but you can’t escape the logic of it.

    I happen to believe that slavery in any form is vicious inhumane and immoral. It should be vigorously opposed wherever it occurs. You on the other hand probably do not feel that is the case. If this is so, which I strongly suspect it is, then you could at least be honest with us as to your basic agenda. Instead you use stale argumentation and faulty interpretation to cobble together an argument that deflects from the real basic issue. Please don’t respond with the historical speculation that Lincoln was pro-slavery, or that this was a war of Northern Industrialization versus Southern Agrarianism. Even if those arguments are true, which I would dispute, the fact remains that continued enslavement of Afro-Americans was the most important aspect of the southern agenda. If you’re okay with that it’s your right, but if that’s the case you certainly don’t have the courage to reveal your real convictions.

  159. Bob,Esq.,

    Please clarify … the need for clarification is not due to your explanation but to my ignorance:

    If The Declaration is a privity of contract and privity of estate, do the 13 colonies retain the right to bring suit against each other for breach of contract?

  160. Blouise: If The Declaration is a privity of contract and privity of estate, do the 13 colonies retain the right to bring suit against each other for breach of contract?

    Blouise,

    Actually, it’s far more an issue of privity of estate than privity of contract.

    A regular everyday covenant that runs with the land, if left left unaltered by subsequent declaration or court action, can run in perpetuity. In the case of the DOI, it defines the very nature of sovereign title as it passed from the Crown to the 13 original colonies. The one condition precedent to the very existence of the 13 original colonies is “no tyranny.”

    Since feudal times up to today sovereignty has always run with the land. A declaration of covenants and restrictions running with the land, defining said sovereign title, exists regardless of whether the predecessors in interest ever acted on said covenant.

    Do you see what I’m getting at here Blouise?

    Legally speaking, did it matter that Jefferson removed references to slavery within the Declaration? Did it matter that no predecessor in interest chose to enforce the covenant against the slave holding states or declared to be doing so during the Civil War? The answer is no. This is a big part of the reason why we do title searches and buy title insurance before purchasing real property. A covenant running with the land does not vanish simply because it lay dormant or unenforced by the predecessors in interest for a few centuries; especially when the covenant defines said land as much as a property description (see schedule “A”) eh hem–parenthetical property joke–Mespo and Buddha probably got it.

    Jefferson cobbled together a ‘long train of usurpations’ that he held out to being equivalent to tyranny.

    But slavery is tyranny per se.

    http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161517

    Accordingly, whether the North knew it or not, under the equal footing doctrine (and privity of estate), a certain Declaration of Covenants and Restrictions Against Tyranny legally entitled them to banish all slavery in all land situate within the 13 original colonies and the land later merged therewith.

  161. Mike S:

    “Let’s cut to the chase on this. Were it not for the Civil War African Americans and perhaps others would still be held in slavery today.”

    From what I have read slavery was on the way out and would probably not have lasted another generation. Please dont misunderstand, I think slavery is an absolute evil.

    “A very readable and remarkable new book that has just been published — “Bury the Chains” by Adam Hochschild — traces the history of the world’s first anti-slavery movement, which began with a meeting of 12 “deeply religious” men in London in 1787.

    The book re-creates the very different world of that time, in which slavery was so much taken for granted that most people simply did not think about it, one way or the other. Nor did the leading intellectuals, political leaders, or religious leaders in Britain or anywhere else in the world.

    The dozen men who formed the world’s first anti-slavery movement saw their task as getting their fellow Englishmen to think about slavery — about the brutal facts and about the moral implications of those facts.

    Their conviction that this would be enough to turn the British public, and ultimately the British Empire, against slavery might seem naive, except that this is precisely what happened. It did not happen quickly and it did not happen without encountering bitter opposition, for the British were at the time the world’s biggest slave traders and this created wealthy and politically powerful special interests defending slavery.

    The anti-slavery movement nevertheless persisted through decades of struggles and defeats in Parliament until eventually they secured a ban on the international slave trade, and ultimately a ban on slavery itself throughout the British Empire.

    Even more remarkable, Britain took it upon itself, as the leading naval power of the world, to police the ban on slave trading against other nations. Intercepting and boarding other countries’ ships on the high seas to look for slaves, the British became and remained for more than a century the world’s policeman when it came to stopping the slave trade.”

    The civil war brought slavery in our country to an abrupt end but there is no evidence to suggest that it would have continued into the 20th century. The south would not have been able to compete against the industrial north and would have had to transition to machinery or remain a comparative economic back water.

  162. Bob,Esq.,

    Believe it or not the last paragraph in your answer was the one with which my subconscious/intuition was tickling my conscious mind …

    “Accordingly, whether the North knew it or not, under the equal footing doctrine (and privity of estate), a certain Declaration of Covenants and Restrictions Against Tyranny legally entitled them to banish all slavery in all land situate within the 13 original colonies and the land later merged therewith.”(Bob,Esq.)

    How much weight, if any, is given to the fact that counts drafted by Jefferson which condemned the slave trade were omitted? Does it matter at all, legally speaking?

    In agreeing to omit those counts without also adding language recognizing slavery, did Thomas Jefferson and his committee (Adams, Franklin, Sherman, and Livingston) put one over on the delegates from South Carolina and Georgia who had objected to the counts that condemned slavery or … is that something “never to be known”?

    Since the DOI is viewed by most as the foundation of our constitutional order … is that why Lincoln relied so heavily upon it?

  163. It is a very interesting theory that the correspondent endeavors to describe, but it comes to me as a complete surprise, because I cannot recall that I ever wrote any Document entitled Declaration of Covenants and Restrictions Against Tyranny, nor that I ever wrote any document that could be fairly so described.

    I cannot locate anywhere in the Declaration that I did write the words “privity of estate,” “privity of contract,” “contract,” “estate,” “covenants and restrictions,” “covenant,” “restriction,” “land,” “sovereign title,” “condition precedent,” “property,” or “equal footing.”

    I do not think I ever wrote any words that could reasonably be interpreted in a manner that “legally entitled them to banish all slavery in all land situate within the 13 original colonies and the land later merged therewith.”

    I did not intend to write words that would carry any such meaning or import, nor did any of the other signers known to me approve of any words to the same or similar effect. Nor does such an interpretation comport with the customary and reasonable meaning ascribed to the words that I and the Committee did write by all who then deliberated on and approved of them.

    Thomas Jefferson, Esquire

  164. Hello in there I am not Thomas Jefferson…..or Jessie Jackson or Emmanuel Raham….

    I am still AY….

  165. “Were it not for the Civil War African Americans and perhaps others would still be held in slavery today”

    What a ridiculous and asinine comment. Do you realize that just about EVERY country between 1800 and 1860 ended slavery without a war?? They ended it through compensated emancipation. You think the war was over slavery? How many times do I have to say that Lincoln could NOT end slavery through a war ANYWAY—it needed a CONSTITUTIONAL amendment—it took CONGRESS to end it! Are you really that dumb??

    “Your position therefore in effect supports the enslavement of human beings for profit. you might deny this, or perhaps admit it, but you can’t escape the logic of it.”

    NOPE! MY position is that it became CONSTITUTIONAL in 1857. I do NOT support slavery [although LINCOLN did]—but slaves were treated with respect and had homes and food. After they were “free” [NOT by Lincoln] they were scared and had no place to go. You REALLY need to read books!

  166. Lincoln swore up and down in his first inaugural address that he would NOT disturb slavery—which he couldnt do anyway, because it was CONSTITUTIONAL.

  167. Bob Esq.,

    Please excuse my re-asking a question you had already answered:

    “How much weight, if any, is given to the fact that counts drafted by Jefferson which condemned the slave trade were omitted? Does it matter at all, legally speaking?”

    “Legally speaking, did it matter that Jefferson removed references to slavery within the Declaration? Did it matter that no predecessor in interest chose to enforce the covenant against the slave holding states or declared to be doing so during the Civil War? The answer is no.”(Bob Esq)

    I was waxing rhetorical so as to lead in to my next question and am writing this post to explain so that you don’t think I was engaging in selective memory.

  168. Thos. Jefferson, Esq.: “I did not intend to write words that would carry any such meaning or import, nor did any of the other signers known to me approve of any words to the same or similar effect. Nor does such an interpretation comport with the customary and reasonable meaning ascribed to the words that I and the Committee did write by all who then deliberated on and approved of them.”

    Thomas, Thomas, Thomas; surely you don’t mean that your a priori principles are limited to your words alone…

    MEPHISTOPHELES: To sum up all—To words hold fast!
    Then the safe gate securely pass’d,
    You’ll reach the fane of certainty at last.

    STUDENT

    But then some meaning must the words convey.

    MEPHISTOPHELES

    Right! But o’er-anxious thought, you’ll find of no avail,
    For there precisely where ideas fail,
    A word comes opportunely into play
    Most admirable weapons words are found,
    On words a system we securely ground,
    In words we can conveniently believe,
    Nor of a single jot can we a word bereave.

    “The title company” doesn’t care so much about the nexus between your words and what you intended, rather it’s concerned with the legal consequences necessitated by virtue of how you took title.

    Now put down that pamphlet and pay attention to how all those words with which you’re not familiar aren’t really foreign at all:

    Kant: “In all judgments wherein the relation of a subject to the predicate is thought . . . this relation is possible in two different ways. Either the predicate B belongs to the subject A, as something which is contained (covertly) in this concept A; or the predicate B lies completely outside the concept A, although it stands in connection with it. In the first instance, I term the judgment analytic, in the second, synthetic. Analytic judgments. . .are therefore those in which the connection of the predicate with the subject is thought through identity; those in which this connection is thought without identity, are called synthetic judgments. [Analytic judgments add nothing through the predicate to the concept of the subject, but merely break it up into those constituent concepts that have all along been thought in it, although confusedly, and therefore can also be entitled explicative. Synthetic judgments, on the other hand, add to the concept of the subject a predicate which has not been in anywise thought in it, and which no analysis could possibly extract from it; and may therefore be entitled augmentative.] For example, when I say, [“All bachelors are unmarried”], this is an analytic judgment. For I need not go beyond the concept of “bachelor” in order to find “unmarried” connected with it, but merely analyze the subject, that is, become conscious of the manifold properties which I think in that concept, in order to discover this predicate in it: it is therefore an analytic judgment.“ (Critique of Pure Reason, Kemp Smith ed., p. 48)

    All those words with which you’re unfamiliar are merely the result of analytic judgments of the principles upon which you relied while taking sovereign title to those 13 original colonies at closing of title with the Treaty of Paris.

    Ya see Thomas, any assurances, warranties or representations you made regarding, oh, let’s say slavery, failed to survive closing. Like it or not, you got what you asked for necessarily by definition of the terms you laid down as your condition for taking title; NO TYRANNY.

    Your courtesies in connection with this mater are greatly appreciated.

  169. “The Declaration was and is a legal instrument, a juristic act of ultimate solemnity, effecting the most fundamental constitutional change, a change in the very source and foundation of law. It is par excellence constitutional. It is our one legal document on which all else rests. It enunciates the theory of law, of ultimate constitutional law, on which the signers based their claim of power and right to effect this great legal-constitutional change. The force and thrust of the [the Second Paragraph], as a permanent commitment of the nation, must be appreciated in that light.” (Charles L. Black, One Nation Indivisible, 65 S.J. Law Rev. 27 (1991))

  170. Bob,Esq.
    1, October 1, 2010 at 9:27 pm
    Blouise,

    I’m not sure I understand your question.

    ===============================================================

    That’s alright … I was looking for clarification and you provided it.

    I believe I have a much better understanding today of the questions and debates that surround(ed) the problems Lincoln faced than I had when this thread was first introduced.

    You have been generous with your time and I thank you.

    (I do wish someone would address the Texas issue.)

  171. “You think the war was over slavery? How many times do I have to say that Lincoln could NOT end slavery through a war ANYWAY—it needed a CONSTITUTIONAL amendment—it took CONGRESS to end it! Are you really that dumb??”

    ***************************

    Turn the light off when you go Larry. The adults are leaving now.

  172. Ahhhh yes Mespo, failure to debunk me yet again.

    Why do you post a portion of my post yet do not even debunk it???

    Will you debunk at least ONE of my posts??

  173. Mespo—I love how you COMPLETELY IGNORED the line I posted before the one you posted [but still didnt debunk]:

    “What a ridiculous and asinine comment. Do you realize that just about EVERY country between 1800 and 1860 ended slavery without a war?? They ended it through compensated emancipation.”

    Address THAT!

  174. Larry said “What a ridiculous and asinine comment. Do you realize that just about EVERY country between 1800 and 1860 ended slavery without a war?? They ended it through compensated emancipation.”

    Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.

    That addresses the point and rebuts it.

  175. “You think the war was over slavery? How many times do I have to say that Lincoln could NOT end slavery through a war ANYWAY—it needed a CONSTITUTIONAL amendment—it took CONGRESS to end it!”

    The war was over the expansion of slavery to the territories. As I wrote in 1820, the desire of the northern states to ban the slave trade from the territories was a “firebell in the night.” Although I had hoped at one time that the strength of slavery would be diluted by spreading to new lands, my successors acquiesced to the Missouri Compromise.

    It is clear to nearly all historians that the civil war was, indeed, waged over the issue of slavery. The immediate issue in 1860-61 was the issue of its expansion to the territories.

    As a lawyer, I must correct the impression about the Dred Scott case. I think it is fair to say that Taney assumed that slavery had been constitutional every since 1789.

    He made two new rulings. First, he ruled that a former or freed slave of African descent could never be a citizen of a State or of the United States.

    Second, he ruled that the federal government had no power under the Territories Clause, or any other Clause, to interfere with the rights of slaveowners to take their slaves to the territories, and, moreover, that the Fifth Amendment prevented this since no slaveowners could be deprived of property without due process of law. Taney added in dictum that a territorial legislature was also without power to ban slavery.

    So Larry was wrong factually and historically when he stated that slavery “became CONSTITUTIONAL in 1857.”

  176. “Thomas, Thomas, Thomas; surely you don’t mean that your a priori principles are limited to your words alone…”

    Squire Bob hath taken a rude and mocking tone to my earnest query and observation.

  177. “Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.”

    ***********************

    Darn you TJ. We knew that and you had to go and educate Larry just when his braying was its funniest. Spoilsport!

  178. Larry:

    Mespo is a Virginia gentleman, I am a transplant and have lived in Virginia for about 25 years so I have learned to speak the language.

    What I think Mespo [I think because I am not privy to Mespo’s silent reveries] is saying in his very best Virginia gentlemanly way is that you are full of shit and he doesnt want to engage with a dolt.

    I may be wrong since it takes a life time in a place to catch the subtle nuances of the language.

  179. So far we have had many deceased signors of the DOI appear. I am waiting for the rest of the signors to appear including but not limited to Sammy Clemens…..

  180. Jimmy Madison II:

    Consider yourself Virginia-ized. Have a sip of your favorite libation from your pewter Jefferson cup and join the reveries. Mind you, there are some hard and fast rules: no drinking to excess at Strawberry Hill races, no enjoyment claimed at golf anywhere besides CCV, no considering anywhere north of Fredricksburg as the “real” Virginia, and no dinner before 8:30 p.m. or without peanuts, Smithfield ham, or a decent whiskey. If this works for you, consider yourself sworn-in and last, but not the least, learn the Good Ole Song, buy some Duckhead khakis (they’re back), and, when in Richmond, get a limeade at Phils Continental Lounge plus a sailor sandwhich ,too.

  181. “What I think Mespo [I think because I am not privy to Mespo’s silent reveries] is saying in his very best Virginia gentlemanly way is that you are full of shit and he doesnt want to engage with a dolt.”

    Of course that’s what he’s saying, because intelligent debate [where he actually attempts to REFUTE things I say] isn’t working.

  182. “Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.”

    The above statement makes absolutely NO SENSE WHATSOEVER. You’re saying that states had FULL rights when it came to compensated emancipation [to turn Lincoln down over it] but they had NO rights when it came to secession?? You’re basically saying that the Southern states could not secede without an invasion of their states and Lincoln killing 250,000 soldiers and thousands more innocent civilians—–BUT when it came to compensated emancipation, the states had FULL POWER to turn Lincoln down and he [Lincoln] just walked away with his tail between his legs like a 10 year old boy who just got his lunch money stolen from bullies and did NOTHING about it??

    Why didn’t Lincoln invade those states [in which you say “turned Lincoln down” over compensated emancipation] and capture the slaves and pay the slave owners off to free their slaves?? The BIG reasons he did not do that is because 1.) slavery was constitutional and he vowed “not to disturb slavery” in his first inaugural and 2.) So he could use slavery as the excuse for the war when the REAL reasons was to eliminate states rights by calling the Constitutional issue of secession “treason” and to centralize government

    So, you’re saying the great “emancipator” OBEYED the border states’ refusal to free their slaves by way of compensation—–but he completely IGNORED the South’s constitutional right to secede and invaded them and killed a quarter of a million of them, plus thousands more civilians? Why did Lincoln cower and walk away from one group of states and invade a murder hundreds of thousands in another group of states? Why didn’t Lincoln issue an Emancipation Proclamation [which freed no slaves, by the way] the day after being sworn in and avoid a long bloody war if he was so against slavery?

    I cant wait for the bullshit responses

  183. For all correspondents, I think the statement issued by the Virginia Governor is well worth reading. I think that his admonition that the Civil War “be discussed with civility and responsibility.”

    This is very apropos in light of Professor Turley’s observation that he has “long complained about the uncivil nature of discourse on blogs. Anonymity seems to unleash mean and petty impulses among some people.” The Professor noted on another thread his hope “that people will show a level of civil restraint in participating in this and other debates.”

    I think that the Governor has issued a very thoughtful and perceptive statement, that clearly resulted from long and hard thought and reflection. We can all learn from his words.

    [quoting]
    April 07, 2010

    Statement of Governor Bob McDonnell

    RICHMOND – Governor Bob McDonnell issued the following statement today regarding the proclamation of Confederate History Month in the Commonwealth:

    “The proclamation issued by this Office designating April as Confederate History Month contained a major omission. The failure to include any reference to slavery was a mistake, and for that I apologize to any fellow Virginian who has been offended or disappointed. The abomination of slavery divided our nation, deprived people of their God-given inalienable rights, and led to the Civil War. Slavery was an evil, vicious and inhumane practice which degraded human beings to property, and it has left a stain on the soul of this state and nation. In 2007, the Virginia General Assembly approved a formal statement of “profound regret” for the Commonwealth’s history of slavery, which was the right thing to do.

    When I signed the Proclamation designating February as Black History Month, and as I look out my window at the Virginia Civil Rights Memorial, I am reminded that, even 150 years later, Virginia’s past is inextricably part of our present. The Confederate History Month proclamation issued was solely intended to promote the study of our history, encourage tourism in our state in advance of the 150th Anniversary of the beginning of the Civil War, and recognize Virginia’s unique role in the story of America. The Virginia General Assembly unanimously approved the establishment of a Sesquicentennial American Civil War Commission to prepare for and commemorate the 150th Anniversary of the War, in order to promote history and create recognition programs and activities.

    As Virginians we carry with us both the burdens and the blessings of our history. Virginia history undeniably includes the fact that we were the Capitol of the Confederacy, the site of more battlefields than any other state, and the home of the signing of the peace agreement at Appomattox. Our history is perhaps best encapsulated in a fact I noted in my Inaugural Address in January: The state that served as the Capitol of the Confederacy was also the first in the nation to elect an African-American governor, my friend, L. Douglas Wilder. America’s history has been written in Virginia. We cannot avoid our past; instead we must demand that it be discussed with civility and responsibility. During the commemoration of the Civil War over the next four years, I intend to lead an effort to promote greater understanding and harmony in our state among our citizens.”

    In addition the Governor announced that the following language will be added to the Proclamation:

    WHEREAS, it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history…

    **This section will be added between the 3rd and 4th Sections**

    Source: http://www.governor.virginia.gov/news/viewRelease.cfm?id=111

  184. Vince,

    I think you are missing the point…I for one do not think that slavery should have been legal to start with….But since it was and was even a bargained for event….then what they were doing whether legally correct but morally incomprehensible does not affect or taint the arguments that have been made based upon the information provided….No more than prohibiting racial marriages…. Just answer the questions and you since are as guilty as anyone on this thread for assaults and insults….But I agree that this site should remain civil….

  185. I cant wait for the bullshit responses

    ***********************

    Like Adlai Stevenson, you’ll await my substantive reply “until Hell freezes over.”

  186. A rhetorical question does not call for an answer, inasmuch as the questioner knows the answer to his question, which is posed only for the sake of argument, not for information, and the questioner can answer the question himself and move on with the argument.

    According to wiki, “A rhetorical question is a figure of speech in the form of a question posed for its persuasive effect without the expectation of a reply (e.g.: “Why me?’)”

    http://en.wikipedia.org/wiki/Rhetorical_question

  187. So then you acknowledge that Texas does in deed have the right independent to withdraw from the Union based upon a breach of contract or a failure of consideration…I think a few others have asked you to elaborate and you seem to not do that either….I would like to know what your opinion is based upon your thoughts and please do not rely on Texas V White as it is not applicable to this discussion….It dealt with money and notes if I recall….

  188. So then you acknowledge that Texas does in deed have the right independent to withdraw from the Union based upon a breach of contract or a failure of consideration

    No, Texas does not have a right to withdraw from the union, especially not after the Civil War and readmission during reconstruction, if the right existed at all prior to the war. It’s a Rural Texas Legend — but interesting history for anyone not looking for some reason to pull Texas away from the U.S., nor dump Texas into the Gulf. I wrote about it last year, here.

  189. Mespo, your response was what I was expecting—a complete ignoring of my excellent questions. I also noticed that NO ONE replied to my questions. That can only mean one thing: that I can’t be refuted.

  190. Exactly why is Texas the only state that can fly its Flag the same height as the USA Flag? I am not a fan of the ideal of secession….but….you appear to have the answers and I would like to know…..

    No state has special privileges for flag flying. If there are two flagpoles of equal height, the U.S. flag goes on the pole to the flag’s right. (That’s according to the Flag Code.)

    Hawaii was annexed in 1898, for one; made into a territory later, and named a state in 1959. Hawaii is the only state which had to change its government to meet the Article IV standard of “republican form of government,” I think; Hawaii had been a monarchy.

  191. Having caught up on this thread over my coffee, I’d like to second mespo’s opinion on the Bob v. Vince question. Both sides make valid persuasive arguments. However, both sides also have flaws and mespo’s summary almost exactly mirrors my thoughts when I last brought up quality of evidence and the hierarchy of judicial legal interpretation of case law. Being that precedent is important in the law and that both sides have valid persuasive arguments, I’m just going to cut to the historical chase on why I tend to favor Bob’s assertions: The Battle of Hastings and the Magna Carta.

    There’s a reason every attorney knows the date 1066. The Battle of Hastings was not just a decisive Norman battle, it set in motion the end demise of feudalism and created the covenants and title system we still use in real estate today.

    The Magna Carta is quite simply the origination of the constitutional form of government. Although it was the first time an English monarch had ever had a legal document forced on them by the citizens, the first Great Charter wasn’t signed until 1215.

    I submit that the Magna Carta could not have happened when it did without the prior erosion of state sponsored oppression that happened when William the Conqueror’s actions (and those of some of his son’s) led to the demise of feudalism.

    If the issue is tyranny, both analyses have roots in anti-tyrannical acts (ending feudalism and the limitations on state power created by the Magna Carta).

    Although constitutionalism is important and our Constitution does have safeguards against tyranny in some ways, it is not comprehensive. As we have a society that has opted for the English title system, we should not loose sight that it not only rests earlier in time than the constitutional form as a matter of precedent, but that it too offers anti-tyranny features beyond just the obvious.

    While Vince’s argument rests in constitutionalism and Bob’s in property law, Bob’s traced back to something with deeper roots into the soil of jurisprudence and I think possibly more critical than the constitutional form. Governments in part serve to protect property rights, but even more fundamental than the form of governance is the form of ownership that is being protected.

  192. Larry:

    “. I also noticed that NO ONE replied to my questions. That can only mean one thing: that I can’t be refuted.”

    **************************

    No. Larry, it could mean two things: you are omniscient or more likely, you are utterly and hopelessly alone.

  193. LOL—-I’m “alone”—-hilarious. I have found on this blog time and time again that when one person thinks the other is wrong, they dont miss the chance to attempt to refute that person. I’ve seen extremely long posts from people attempting to debunk others. I see it over and over again—and even on this thread. BUT, yet when it comes to ME, you havent refuted one thing I have said, so your ONLY recourse outside of admitting I’m right is to make up bullshit escapism reasons why I’m not refuted [or even attempted to be refuted] like I’m “alone” on this thread. Just like the OTHERS on this thread who you staunchly disagreed with but yet was able to at least RESPOND and counter their views??? But, since you cannot counter MINE, you resort to bullshit, made-up excuses…like I’m “alone”.

    If I’m so alone in my views, then enlighten me where I’m wrong! Stands to reason that if I’m “alone” then you’d be interested luring me into your textbook Lincoln cult club…right? BUT….you CAN’T refute me on anything I’ve said, so your only tactic now is to make it appear as if I’m “not worth your time”…I’m a “lost cause” because I’m “alone” in my views. LOL. ENLIGHTEN ME THEN Mespo!! Refute or even ADDRESS anything I’ve said! You can’t..because you’re too chickenshit…because you KNOW I have the FACTS.

  194. I’m still waiting for an acknowledgement of this post of mine:

    Thos. Jefferson, Esq said:
    “Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.”

    The above statement makes absolutely NO SENSE WHATSOEVER. You’re saying that states had FULL rights when it came to compensated emancipation [to turn Lincoln down over it] but they had NO rights when it came to secession?? You’re basically saying that the Southern states could not secede without an invasion of their states and Lincoln killing 250,000 soldiers and thousands more innocent civilians—–BUT when it came to compensated emancipation, the states had FULL POWER to turn Lincoln down and he [Lincoln] just walked away with his tail between his legs like a 10 year old boy who just got his lunch money stolen from bullies and did NOTHING about it??

    Why didn’t Lincoln invade those states [in which you say “turned Lincoln down” over compensated emancipation] and capture the slaves and pay the slave owners off to free their slaves?? The BIG reasons he did not do that is because 1.) slavery was constitutional and he vowed “not to disturb slavery” in his first inaugural and 2.) So he could use slavery as the excuse for the war when the REAL reasons was to eliminate states rights by calling the Constitutional issue of secession “treason” and to centralize government

    So, you’re saying the great “emancipator” OBEYED the border states’ refusal to free their slaves by way of compensation—–but he completely IGNORED the South’s constitutional right to secede and invaded them and killed a quarter of a million of them, plus thousands more civilians? Why did Lincoln cower and walk away from one group of states and invade a murder hundreds of thousands in another group of states? Why didn’t Lincoln issue an Emancipation Proclamation [which freed no slaves, by the way] the day after being sworn in and avoid a long bloody war if he was so against slavery?

  195. I’m astonished by the level of ignorance on this issue, not only on the part of the Unionsts, but the secessionists as well.

    Each state is sovereign, i.e. a sovereign nation unto itself; this was made official on September 30, 1783 in the Treaty of Paris. That made them sovereign nations, by law. Period, end of story.

    And as anyone knows, sovereign nations do not LOSE their sovereignty by failing to expressly retain it,…or by any fancy construction of “fine print” by a conqueror or other charlatan or cretin– like the type we see in plenty in defense of Lincoln. Nobody asks whether the sovereign states can quit the UN, NATO, the EU etc; that would be a stupid question, since anything else is OUT of the question.

    But Americans have been brainwashed into believing that somehow this is “different” with the states of the American union, or AU; and they’ve done logical gymnastics to support their arguments of how Lincoln invading the states was “different” from Hitler invading Poland. In any event, they are just plain ignorant of the facts.

    And likewise, Appomattox is no more “binding” than Hitler’s occupation of Warsaw, or Saddam Hussein’s occupation of Kuwait; simply occupying a sovereign state by military invasion does NOT fork over the country to your sovereign ownership– IT DON’T WORK THAT WAY!

    A sovereign state REMAINS sovereign under the law, unless there is a shift in recognition as with the 1783 Treaty of Paris. So far, there hasn’t.

    This is simply a case of myth vs. fact, and it’s time the truth came out.

Comments are closed.