But that doesn’t fit the historical circumstances. That principle applies to some agency amending something. The Union of 1788 is seperate from the original. The Federalists didn’t amend the union of the Articles. They ( illegally ) replaced it with a new union of those states which had ratified the Constitution. The 2 unions coexisted briefly as the new government of eleven states was consolidated under President Washington with North Carolina and Rhode Island looking on. Is Attila responsible for the minding the precedents of the governments he overthrows? I think not.
And the Constitution wasn’t merely “pork still with a little change of sauce”. It is a competely different thing than the Articles. Though the Articles are often called America’s first constitution that’s not the case. It wasn’t the basic law of a nation; it was an agreement between nations. It was a treaty.
There is no need for a constitution to deal with secession because it is a whole body instead of a collection of bodies. Why should it note that a hand can’t seperate itself from the body? The new central government didn’t rest solely on the state governments as the old one had. It rested ( and acted upon ) individual people as well as states. This was an important component of the ratification procedure. The Constitution was ratified not just by the states but by the people. In theory at least. See Federalist #39.
Interestingly, it was former “Antifederalists” who first made the Federalist Papers a staple of constitutional interpretation. During the presidencies of Washington and Adams those in power coughHamiltoncough took an expansive view of the powers granted the new government. The opposition, which by this time included Madison, was desperate for a concrete definition of the text to hold the Federalists to.
That the Federalist Papers were intended to put the new frame of government in a positive light tended to moderate its interpretation. It was explicit enough, and acceptable enough, to be used as a blueprint by former opponents of the document it explains. And this was before Thomas ( Meet the new boss. Same as the old boss ) Jefferson and his cohorts came into power and learned the joys of loose construction for themselves.
For this see: The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 by Richard Hofstadter
And especially: The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788-1828 by Saul Cornell
I’m curious about your belief that it’s likely Madison fought for a provision barring secession in the federal convention. What makes you think so?
This reinforced my point that the states are mere constructs for the convenience of the people. I had forgotten this but the framers were careful to make ratification a function of the people in whose name the Constitution was formulated. “We the people …” and all that.
Since the people entered into the agreement, it would seem to me that any attempt at dissolution would have to go directly back to the people.
And I don’t know why I post in the thread. The whole point is moot and has been since 1865.
Ignoring the “legal right” for the moment and focusing more on the other “right”.
My view is there are no rights, ever, for anything.
We agree to things, and then we change our minds, and if we have enough economic/political/military might, we get our way.
So yes, the south had the “right” along with anyone else to do anything at any time that they can get away with.
Hmmm, now I’m asking myself, is this just a cop-out?
Are we really assuming that “Yes of course there are no universal rights and wrongs, but within the context of the rules of our society, did they have the right?”?
2Sense and Little Nemo, you both attempt to refute my argument from contradictory positions. Little Nemo, you argue that the provisions of the Articles of Confederation are relevant to the interpretation of the Constitution, and therefore secession was illegal. 2Sense, you argue that the provisions of the Articles of Confederation are not relevant to the interpretatino of the Constitution, and that secession was illegal. Both of you cannot be right.
Little Nemo the following argument is flawed in two regards:
First, I did not speculate that an absense of evidence implies something. Instead, I applied legal principles to your argument. Your argument was that the inclusion of the ban on secession in the Articles of Confederation necessarily means that the ban was impliedly included in the successor document, the Constitution. As a matter of statutory construction, your argument is dead wrong. You see, when you look at your argument, there is evidence - the FF’s decided to exclude the ban on secession from the successor document. Under principles of statutory construction, that decision to exclude is evidence - and pretty conclusive evidence at that - of the intent of the drafters of the Constitution.
Second, there is gobs of evidence that parties to a contract can dissolve said contract at any time. As an example, unless there is an express provision in your contract saying otherwise, you can quit your job whenever you wish. That is a unilateral dissolution of your employment contract.
2Sense, I suspect we actually agree. You took my dispute with Little Nemo’s argument as meaning that I believe that the South actually had a right of secession under the Constitution. That is not the case - I haven’t done enough research to form an opinion on the South’s right to secession. I merely took the position that Little Nemo’s argument was faulty.
I used to be convinced that the South had no right to secede just because, well as a Yankee that’s what you grow up believing. But I really see no ironclad evidence that joining the United States must be forever. So I want a divorce. Let’s have the Red States of America and the Blue States of America. If the Red States want to start a war and it suits us here in Blue country, we’ll join in. Else not.
I really don’t believe it can be. Inasmuch as rights theory makes sense, it is individuals who have rights, not groups of individuals. Governments are simply means by which the rights of individuals may be efficiently protected.
Southern politicians wanted to secede from the Union specifically so that they could maintain their system of denying rights to black people living in the South. They were working toward a hideously unethical end; their methods for doing so therefore fail the ethical test.
Sua, the argument you put forth is interesting, but my limited understanding of the move from Articles of Confederation to Constitution is that the move generally consolidated power in the federal government. I find it difficult to believe that it was intentionally made easier for states to leave the system.
I take no responsibility for the assertions of Little Nemo. As you say, I have contradicted his argument. Had I been paying better attention I would have done so directly.
And I, in turn, was disputing your use of a legal precedent that doesn’t fit the circumstances rather than arguing the main point. Though my post did stray into the question that is not my concern. Though I have a dim view of the Confederacy whether or not its secession was constitutional doesn’t really matter to me. If I were going to argue that secession was unconstitutional I would point to the loyalty clause. I don’t see how state officials could secede without violating their oaths to protect and defend the Constitution of the United States of America. But I won’t because my concern is the integrity of the arguments from a historic point of view rather than their result.
Georgia held a convention to decide whether to secede. Beforehand, voters in each county elected delegates to the convention, casting votes either for “secession” delegates or “cooperation” delegates.
Despite a majority of Georgia voters opposing secession, a majority of delegates to the convention were in favor of secession. (In much the same way that Gore won the popular vote but Bush won the electoral vote in the 2000 presidential election.)
I’ll then reiterate the point I made earlier. If the FFs intentionally decided to allow secession, then would they not surely have included a provision as to how the seceding state would pay off its share of the national debt? The remaining states wouldn’t want this burden just shifted onto them.
2Sense incorrectly assumes there was no legal connection between the United States as it existed under the Articles and the United States as it existed under the Consitution. The post-Constitutional United States was a legal successor state to the original United States (such as Russia is the successor state to the Soviet Union; the Soviet Union, by contrast, did not ackowledge itself as a successor state to the Russian Empire). The system of government changed but it maintained a continous thread of legal existence, including acknowleging the continuity of its legal precedents. So legal practices which existed under the Artciles of Confederation continued to be valid under the Constitution unless they were specifically overturned.
As I have pointed out, the drafters of the Constitution specifically said it was not their intent. That seems like more conclusive evidence to me.
Simply put, you’re wrong. Most employees don’t have a contract. Of the ones that do, the majority have procedures for quitting. But if you sign a contract stating you will work for a specified period of time and try to quit before that time is completed, you will be sued for breach of contract.
I don’t believe I did. I didn’t assume that one union illegally replaced the other, I concluded it after comparing the amendment clause of the Articles of Confederation and Perpetual Union with the ratification clause of the Constitution. If you do the same you can see for yourself that the former required the consent of every state legislature and the other went into effect ( for those nine states ) after being ratified by popularly elected conventions in nine states. Once that occured on June 21st, 1788 there were 2 distinct United States of America.
My point was that the new government was a usurper. This is the connection between old and new. Going back to my previous analogy, if Attila choses to recognize the precedents of a government he has conquered, then he may do so.
No, a (singular) drafter of the Constitution said that it was not his intent. That is the same as one member of Congress providing his interpretation of a statute. It is evidence of legislative intent, but it is certainly not conclusive. In fact, Madison’s case is less persuasive evidence than the Congressman example: in the case of the Congressman, we can check his vote and see if he voted with the majority. If he voted with the minority, his opinion of the meaning of the statute is pretty meaningless. We don’t know what, if any, discussions of secession occurred during the Constitutional convention, and whether Madison’s position prevailed.
Oh my freaking Christ. Little Nemo, every single employee has an employment contract. The fact that most employees do not have a written contract does not mean that no employment contract exists - when the employer offers you a position, states your renumeration and your duties, and you accept the position, a contract has been formed. There has been an offer, an acceptance, and consideration. And, as I stated before, either party to such an employment contract may dissolve it at any time.
It would be best not to tell an attorney that he is “simply put” wrong on a basic issue of contract law.
