The problem with using this line of reasoning is Article VII of the Constitution, relating to ratification:
What would have happened if only nine states had ratified the Constitution in the first place? Then according to the language of Article VII, the Constitution would only be binding upon those nine states, and the other four, presumably, would have been left out of the new Union.
This leads one to the conclusion that the Constitution did not represent a continuation of the union created by the Articles of Confederation, but was intended as a new union. Obviously, in the hypothetical I have given, the union created by the Articles of Confederation would not have been “perpetual” at all, since the four states which failed to ratify the Constitution would have been left out of the union created by the other nine.
“Every time you think, you weaken the nation!” --M. Howard (addressing his brother, C. Howard).
Not necessarily. The “Union” under the Articles of Confederation could have continued perpetually, while only nine of the 13 states in the “Confederation” could have chosed to adopt the more federal Constitution. This would have a created a situation similar to the member states in the Holy Roman Empire, how, for example, a province of the Austrian Empire could be a part of the HR Empire, but the rest of Austria might not be.
The fact that all 13 states ratified the Constitution made reliance on the Articles unnessecary as superceded. It did not necessarily mean that the concepts within the Articles were not incorporated into the new document.
I admit its a tenuous argument, but it is the one upon which the U.S. Supremes hung their collective hat. Thus, not unlike the barely discernable “penumbras” of Griswold v. Connecticut, it is the law of the land.
SoxFan59
“Its fiction, but all the facts are true!”
Come on, now. You know that’s not the way it would have worked. The states were fed up with the Confederation. It wasn’t working. That was the reason for the Constitutional Convention. It was a “do over” pure and simple. Once the Constitution was adopted, the Articles of Confederation were no longer in force. If not, why don’t we have two separate governments today (one under the terms of the Articles of Confederation and one under the terms of the Constitution)?
Let’s face it. The Supreme Court was struggling to justify in legal terms what was a fait accompli after the Civil War: the principle that a State could not leave the Union. I actually agree with that principle, only for different reasons. (See my post above.) I just think that reliance upon the Articles of Confederation is a very weak (not to say utterly untenable) argument).
SoxFan59 wrote:
I’m not trying to pick a fight here, but I don’t think those penumbras are “barely discernable” at all. Though the Constitution does not spell out any right of privacy, do you really dispute that such a thing exists? The framers of the Constitution were very careful to point out that the Bill of Rights was not an exhaustive list of our “natural rights”. That principle is embodied, quite clearly in the Ninth Amendment:
In fact, one of the stated reasons the Federalists did not want a Bill of Rights appended to the Constitution was that they thought it would be impossible to create an exhaustive list of rights, and thought that a Bill of Rights might be read as an exclusive list.
But then, I suppose all of this belongs in another thread on just how goofy Constitutional “strict constructionists” really are.
“Every time you think, you weaken the nation!” --M. Howard (addressing his brother, C. Howard).
According to this article at a decidedly pro-Grant web site, both Grant and his wife, Julia owned slaves. (Julia’s father owned 18 of them.)
It says, among other things, “Incredibly, Julia brought along one of her slaves on all of her visits to Grant’s headquarters during the civil war. When Julia was with Grant, their youngest son, Jesse, was in the charge of ‘black Julia,’ the slave that Julia had used since her girlhood.”
The site cites her memoirs: “It is claimed in the footnotes of her Memoirs that they were not freed until December, 1865, with the passage of the Thirteenth amendment, but this doesn’t concur with other primary sources of the period and Missouri’s slaves were freed in January, 1865.”
Lee surrendered on April 9, 1865. Depending on who’s right, Julia or “other primary sources”, the story is true.
I’m not trying to pick a fight here, but I don’t think those penumbras are “barely discernable” at all. Though the Constitution does not spell out any right of privacy, do you really dispute that such a thing exists?
In the same way that DSYoung and you were both critical of the strength of the legal reasoning of Texas v. White, I believe that Griswold and its progney were based on just such a tenuous argument. I do not dispute that the right to privacy exists. I have difficulty finding it in the text of the Constitution, just as you have difficulty finding the “perpetual union” concept.
Griswold’s dissenter (Justice Black? I don’t have it at my fingertips) came to the conclusion that the law in question (ban on sale of contraceptives to married couples) was “silly.” One might even be able to strike it down on the basis of having no rational relationship to a legitimate governenment purpose. But the creation of the federal right to privacy (which has evolved into a federal right of autonomy) has no more basis in the consitutional text than Justice Chase’s “perpetual union.”
My point in raising the Texas v. White case in the first place is regardless of the wisdom or logic of the Court’s reasoning, any ruling the Court makes on point regarding the subject of secession is the law of the land. As Justice Burger supposedly once said, the Supreme Court can do whatever it wants, and that decision is the law, absent a constitutional amendment or revolution overthrowing the government.
And the reason I raise the Griswold issue is not to argue privacy rights, but to bring the criticism of its “tenuous argument” into perspective. If you argue via a strict constructionist methodology to discredit Justice Chase, be prepared to do the same with Justice Douglas in Griswold. We can’t have it both ways.
SoxFan59
“Its fiction, but all the facts are true!”
The states were fed up with the Confederation. It wasn’t working. That was the reason for the Constitutional Convention. It was a “do over” pure and simple. Once the Constitution was adopted, the Articles of Confederation were no longer in force. If not, why don’t we have two separate governments today (one under the terms of the Articles of Confederation and one under the terms of the Constitution)?