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.
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.
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.
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?
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.
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.”
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?
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.
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….
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.
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.
mespo, (and all others)
Please keep it coming … I am in seventh heaven!
Professor Turley,
I am presently reading Rakove’s “Original Meanings” … this particular thread is a serendipitous gold mine … thank you!
@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.
@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.
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.
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.
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.
My apologies.
For those unfamiliar with the terminology, a “C&R” is short for a ‘Declaration of Covenants and Restrictions’
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.’
@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.