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.
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.
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…..
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.”
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.
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).”
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…..
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!
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.
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.
Correction, 4th para, “… my point was that the Republican Government Clause WAS aimed at the states….”
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.
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.
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…..
Be a man and apologize Vince.
Say goodnight, Bob.
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.
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…
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.
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.
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.