"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution."
--James Madison, Federalist #39, 1788

And here I would make this enquiry of those worthy characters who composed a part of the late Federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated Government, instead of a confederation.

That this is a consolidated Government is demonstrably clear, and the danger of such a Government, is, to my mind, very striking. I have the highest veneration of those Gentlemen,--but, Sir, give me leave to demand, what right had they to say, We, the People. My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation.

If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States. -- Patrick Henry

http://press-pubs.uchicago.edu/founders/documents/v1ch8s38.html

Just playing devil's advocate, Dan. :)

Good quote, Veronica. One interpretation of the Madison quote is to indict moderns for so distorting the intentions of men like Madison. Another interpretation of the Madison quote is to indict men like Madison for being so naive about how future generations would distort the Constitution. Henry obviously saw danger on the horizon and falls into this second camp.

For any neo-confederates out there that support the idea of secession, if Texas or some southern state with a large hispanic population decides to secede and join with Mexico, should they be allowed to? or should we try to preserve the union?

Didn't Texas already secede...from Mexico? Didn't Texas already secede...from the United States? Americans generally approve of the first instance of secession but condemn the second. In other words, interests, not principles, generally color one's views of secession.

Madison's Virginia Resolutions have also been used in later generations by those, such as John C. Calhoun, who supported the legality of secession. I think Madison would have been horrified that his words were being used that way.

Madison was a Federalist. I am not sure he (or the Constitution) is entirely innocent of the charges Henry levels at him. Madison suggested a federal veto on state laws at the Constitutional Convention, but was overruled. The Federalist papers were a defense of the Constitution and must be read in that context.

Look at Hamilton's insistence that a Bill of Rights was not needed, because the government only had the powers delegated to it and no more - and then witness the near 180 he did arguing for his National Bank - and Marshall sided with him in McCullough v. Maryland.

In large part, Madison, Hamilton and Jay were saying what they believed they needed to say to encourage ratification.

To Veronica and Patrick Henry and Dan Flynn,

You ask "what right had they (the Framers)to say, We, the People?" They did not say it any more than a lawyer who prepares a will bequeaths anything. They prepared a document that they proposed be ratified by the people of each state. When it was so ratified it became an authoritative document from those people that bound the governments of each state in the ways specified. The people can bind their governments and make covenants with other people which the people themselves are morally bound to uphold.

Madison suggested a federal veto on the laws of the states to avoid a state passing a law that impinged on federal authority. The Supreme Court now does that unilaterally. Madison's system would have been superior and would have removed the temptatin to do this from the courts.

Texas's revolt against Mexican power was effectuated. Its attempt to secede from the U.S. was ineffective. The specifications about when a people may morally break its ties to others and revolt are tolerably well spelled out in the Declaration of Independence. Texas did not have the grounds upon which to revolt in 1861 that met these specifications. Its people claimed that they could secede from the Union on lesser grounds. They were wrong.

Madison, Hamilton and Jay were saying what they could in good conscience say to promote ratification because they understood the alternative would mean that the North American English colonies would turn into just another Europe and the world would be deprived of any hope of an example good, principled, government.

It was all subterfuge, then, Veronica? Madison, Hamilton, and Jay did not beleive what they wrote? If so, do the Federalist Papers then offer no guidance on how we should view the Constitution and its parts? And what should we think of the union that was ratified by the states on their understanding of what the Constitution and the national government entailed, precisely because of what was written in the Federalist Papers - did they not then ratify under false pretenses? And if so, that taken with the explicit qualifications of Rhode Island and others that they were ratifying the Constitution with the understanding that they had the right to secede, does that not validate Calhoun's interpretation of Madison all the more - or at least his interpretation of the principle Madison pronounces in the quote Dan provided?

"...do the Federalist Papers then offer no guidance on how we should view the Constitution and its parts?"

Absolutely none. What is their supposed authority?

Even assuming that the intentions of the Founders are relevant (they are not), why prefer Madison's? Are we to poll the Founders, and go with the majority?

Yes, Ralph, the Federalist Papers possess no authority. But that is not what I asked.

I asked about "guidance": what guidance should they provide to our understanding of the Constitution? Because it is the Constitution that we and our leaders are swornd to uphold. But when it comes to interpreting debated clauses, should we not give greater weight to what the Federalist Papers have to say, rather than what the present majority or Justice Stephen Breyer wishes it means?
I believe this is what George Washington believed, for instance, as I explain in my post from some time ago, "George Washington on Constitutionalism":

That is, the final authority in constitutional disputes must always remain the text of the Constitution itself, not interpretations about what the Founders intended or would have intended. But these documents, including the Farewell Address, are very useful tools for understanding the Constitution and what it actually says. They get at the Constitution’s purpose.

Before anyone accuses me of being some stripe of deconstructionist, I am not denying that the Constitution has an objective meaning. I am denying that the Founders intentions define its meaning.

An extreme illustration of my point: Suppose someone says, "I hate women," but when criticized for his misogyny replies, "I intended that sentence to express my love for women." Did his sentence really express a love for women? Of course not. The words have an objective meaning that is independent of the speaker's intentions.

Now whether the words of the constitution support Madison's interpretation or not is a separate issue. But that matter cannot be settled merely by appealing to Madison's interpretation.

"And if so, that taken with the explicit qualifications of Rhode Island and others that they were ratifying the Constitution with the understanding that they had the right to secede, does that not validate Calhoun's interpretation of Madison all the more - or at least his interpretation of the principle Madison pronounces...." What if I sign my apartment lease with the understanding that I don't have to pay on the first of the month. Surely my landlord is unjust if they insist that I do.

"The words have an objective meaning that is independent of the speaker's intentions."

Yes, we agree here, Ralph. But the fact of the matter is that clauses in the Constitution are debated, and the Federalist Papers are one of the most useful keys to help settle those dispute, precisely because they help us understand the meaning of the words and phrases used in the Constitution by helping us to understand what those words and phrases meant in the context of their time. (You know, like "gay" once meant something different than most understand it to mean today, for example.) Further, the intentions of the Founders do hold weight when a word or phrase can be interpreted multiple ways, in just this same way, because they shed meaning on those very words or phrases in the Constitution. So, the Constitution in its parts in the context of its whole IS the final authority. But the Founders have left tools for us to resolve disputes about its meaning.

As to your other point, I'm not sure I am following you. But if I enter into an agreement with a landlord, and the understanding is I can break the lease under certain circumstances, the fact that he later tries to deny me that right would indeed be unjust. It would help immensely if that agreement was in writing, but even a verbal contract is admissible as evidence in a court of law.

"The words have an objective meaning that is independent of the speaker's
intentions."

Yes, we agree here, Ralph. But the fact of the matter is that clauses in
the Constitution are debated, and the Federalist Papers are one of the most
useful keys to help settle those dispute, precisely because they help us
understand the meaning of the words and phrases used in the Constitution by
helping us to understand what those words and phrases meant in the context
of their time. (You know, like "gay" once meant something different than
most understand it to mean today, for example.) Further, the intentions of
the Founders do hold weight when a word or phrase can be interpreted
multiple ways, in just this same way, because they shed meaning on those
very words or phrases in the Constitution. So, the Constitution in its
parts in the context of its whole IS the final authority. But the Founders
have left tools for us to resolve disputes about its meaning.

As to your other point, I'm not sure I am following you. But if I enter
into an agreement with a landlord, and the understanding is I can break the
lease under certain circumstances, the fact that he later tries to deny me
that right would indeed be unjust. It would help immensely if that
agreement was in writing, but even a verbal contract is admissible as
evidence in a court of law.

I agree that any document which sheds light on the meaning of words and phrases in 18th-century America is useful for interpreting the Constitution. A contemporary American dictionary would be of the most use, but I'm not sure if there is such a dictionary (was Webster's in 1828 the first?).

"Further, the intentions of the Founders do hold weight when a word or phrase can be interpreted multiple ways...." With this I disagree. If to hold weight is to possess some authority, the extra-Constitutional writings of the Founders do not hold any weight.

"So, the Constitution in its parts in the context of its whole IS the final authority. But the Founders have left tools for us to resolve disputes about its meaning." And if the Constitution is ambiguous on some specific matter, do the writings of the Founders become the final authority?

In my state, Texas, verbal contracts regarding real estate are non-binding. So if I sign a lease, and my understanding of the terms (whether verbally confirmed by the landlord or not) conflict with or are underdetermined by the language of the lease, my understanding is legally irrelevant. By extension, e.g., Rhode Island's understanding that it has the right to secede is irrelevant if it is not supported by the Constitution itself. And no amount of editorializing by Madison et al. changes that.

So you disagree - why?

No, they do not become the final authority, for my said reasons. What is your alternative to disputes? Is the Supreme Court then the final authortiy? Majority rule? The whims of the moment?

The Declaration of Independence had proclaimed that the original 13 colonies "are, and of Right ought to be, Free and Independent States." It didn't say anything about "a new nation" or a monolithic "Union." This meant that each of the colonies was claiming full statehood. Rhode Island and South Carolina were now sovereign states, just as much as France or Russia. But who today would call them "Free and Independent States?" Does that phrase describe your state?

Several states ratified the Constitution on the express condition that they retained the right to secede later. Nobody objected. How could they? The states were still states, in the full sense, and it went without saying that a state could withdraw from a mere federation of states. Nor could a state bind its descendants to remain in a federation forever. Since these conditional ratifications were accepted as valid, it's obvious that secession was recognized as a legitimate option of any state.

It's sometimes objected that the Constitution doesn't speak of a right of secession. True enough, but to say this is to get things backwards. Given the nature and the very definition of a state, the Constitution couldn't forbid secession. Nor does it give the Federal Government any power to prevent it. A social club may have strict rules for members, but it can't forbid them to quit the club; in which case the rules cease to bind them.

Some opponents of the Constitution warned that ratification would lead to the loss of the states' sovereignty. But they didn't argue that the Constitution denied that sovereignty; only that this would probably be the practical result of ratifying it. If they were here today, they'd surely claim that history has proved them right.

-- Joseph Sobran, excerpt from "More Than a Slogan," Sobran's newsletter, January 2003.

Why do I disagree? If parties enter into a legal contract, and one of the parties publishes his interpretation of that contract in a newspaper, that interpretation has no legal effect on the contract, i.e., it has no legal authority. The language of the contract is all that matters.

And so, if by some weight you mean some legal authority, I disagree.

"What is your alternative to disputes?" This is a difficult question. It amounts to the question, "Whose interpretation of the Constitution is definitive?" My own opinion (though I'm open to being persuaded otherwise), is that "the people" are the ultimate interpreters. And the people express their interpretation through elections, etc.

It should be noted that whether or not the Confederacy had a "right to secession" was not particuarly relevant to the Civil War. The Confederate States of America was an imminent national security threat to the United States of America. It attacked American military installations, destroyed American government property, and captured and held American soldiers. The United States was perfectly justified in invading and neutralized the imminent threat that had manifested in the south.

Oh man, look what I started. 17 comments!??!

Remember way back when on this blog you all were lamenting the lack of female posters? I was this close to introducing myself then. ;)

Eric, I was just playing a little devil's advocate there. Of course the Federalist Papers have weight, but they were persuasive documents, even "propaganda" one might say. They have to be read with that fact in mind.

Subtrefuge is a strong word and not one I'd use (though Henry might have). I'd say more like, selective, well-chosen arguments to appeal to a certain audience. In this case, a big part of that was southern states who wanted to preserve the institution of slavery.

I am not here to say that Calhoun was *way* off in his reading - just that Madison wouldn't have liked it. (That, and that Henry had a point. When he said "Your President will become King," he was right on when it came to divining Federalist intentions: Hamilton had indeed proposed a president who would hold office for life!)

Madison saw great potential for the majority of citizens to abuse the rights of the minority. His desire for a federal veto over state law speaks louder than most anything else in this regard, imo.

And that expressed desire (albiet within the confines of the secret Convention), contrasts starkly with his expressed/insisted vision of the federal Constitution that Dan featured.

PS who cares about Rhode Island???!!!

Veronica: I can't speak for Eric, but the reason, I suspect, he references Rhode Island, is that the state ratified the Constitution with the written caveat that they reserved the right to leave the union. Virginia, if memory serves, was another state that ratified with a similar provision. Rhode Island is invoked in these arguments for an obvious reason: either Rhode Island ratified the Constitution under a false pretense, or Rhode Island really does have a right to withdraw from the Union.

Yes, Dan is exactly right, and that is the point I am trying to get across about secession and the character of our Union; or as the Founders would much more often put it, our "confederacy." Members of a "confederacy" are by definition free to withdraw from it.

Three states - Virginia, New York, and Rhode Island - ratified the Constitution on the express condition that they reserved the right to "resume" or "reassume" the powers they had delegated to the federal government - that is, to withdraw from the Union. The other ten states accepted this condition as valid, even while re-joining the Union (which was temporarily disbanded as a legal entity when the Articles of Confederation were dissolved).

Some will object that the Constitution does not explicitly say that the states have the right to secede. Two points here. First, as just said, the Constitution was ratified with that understanding in mind. This was so entrenched as an idea in the American mind (see the Declaration of Independence and the nature of the Articles of Confederation, for examples), that even the most bitter opponents of the Constitution and the national government, like Patrick Henry, never protested that the right of secession was being taken away. Isn't that remarkable? Don't you think they would have worried about that? So, it was simply assumed, and the Constitution was naturally silent where there was not controversy.

The second point then is related to the first. The U.S. Constitution does not expressly forbid a state from leaving the Union. Why is this important? Because of the expectation, it would have to expressly deny it for the states to understand that they no longer had that right. And more importantly, the concept of enumerated powers, explicitly reaffirmed in the Tenth Amendment, that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Ben,

I largely agree with you. The proximate reason for the Civil War was the South's absolutely idiotic firing on Fort Sumter and the other offensive actions they took. It would have been very hard for Lincoln to have mustered the political capital to launch such a long, bloody war on the South if the CSA wasn't then looked upon as a blood-thirsty aggressor.

Ralph,

In practice you are right: the "constitution" is whatever the people say it is. But, as you would agree, that doesn't change the words of the Constitution. So, what do we do? We call the country back to the Constitution. It is written for our appeal! We educate people about what the Constitution actually does say and why it says that. And part of that is teaching what the Founders said about the Constitution. But the lesson starts and ends with the actual text of the Constitution.

And this is exactly what Veronica and I do at the Bill of Rights Institute. (And, btw, she has raised some really *great* points in this discussion, but I thought they needed some more fleshing out). I help raise the money so Veronica and others on the education team can teach the teachers and their students what the Founding documents actually say, and why they say what they do. In this way, it is hoped, future generations will be much more sensitive and loyal to the words and principles of the Constitution, and our limited, federal system of government, as envisioned by the Founders.

Sincerely,
--Eric

So Eric has "outed" me as someone who sits 30 feet away from him. :)

I respectfully disagree with you, Eric, that the Founders would have refered to the Union post 1789 as our "confederacy." The Constituton was written precisely to create a stronger central government than was provided under the Articles of Confederation. Maybe you can find dozens of sources where they do just that - and if that's the case, fine, I just haven't seen them thus far.

As to this "false pretense" idea, well, I am just not sure that you can ratify a compact while imposing your own unique conditions of ratification. Several states did indeed ratify under the condition that a Bill of Rights be added - which Madison did promise to do. And one was indeed added. In this case, the condition was acknolwegded and delivered upon by both sides. That's why I am not sure this is the same thing.

PS I apologize for the RI joke - it was a reference to something a BRI scholar often says but this was not the forum for it.

The federal government accepted the states into the new union under the terms with which the various states ratified the Constitution. All of the states explicitly approved the whole of the Constitution, and said that they ratify on their understanding, which included the right to take back the power they were then delegating to the federal government. If the central government did not like those terms, they could have rejected the ratification documents of the various states, and insisted that they ratify on different terms. It did not. And as I laid out in my last post, it didn't even occur to any one to deny the right to secede - of course states could do this. The states preceded the nation, and they were loathe to give up any more sovereignty - read, delegate their powers - than what was expressly laid out (enumerated) in the Constitution.

Re: the Founders understanding of the new Union as a confederacy, see numerous Federalist Papers, including numbers 9, 13, 18, 20, 43, 45.

I'll just give one quote to emphasize my point:

I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. ~Alexander Hamilton, Federalist 9

Actually, this one from the same Federalist #9 is even better and more to the point - esp. since it is in the context of Hamilton arguing why the new Union is not to be confused with a consolidation:

The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy.

Yes - and see my initial comments re: the Madison quote Dan began this thread with.

What I mean by my last comment is that you're going to have to find something that is a) clear and persuasive and b) NOT from the Federalist papers if you're going to convince me that the Founders, as a whole, understood the Union as a Confederacy and that approval of the Constitution just meant approval "until we don't want to approve it anymore." In other words, something that is not in the context of placating the Anti-Federalists, of persuading and convincing. The Constitution had been in fact ratified by the requisite numner of states but VA and NY had not approved it. How embarassaing. I want something offhand uttered by a Founder, even non-chalant. That would go a longer way toward convincing me.

Because otherwise, I have to wonder why James, Alex, and John didn't just write, "Dudes, come on, just approve the Constitution, you can always leave if you don't like it."

"Because otherwise, I have to wonder why James, Alex, and John didn't just write, 'Dudes, come on, just approve the Constitution, you can always leave if you don't like it.'"

They didn't say anything like that because of the reasons stated before - no one in their wildest dreams thought that it was even necessary to say. See my post timestamped: May 17, 2006 09:56 PM.

I'm embarrassed that you would empty the Federalist Papers of any meaningful content. Why teach them at all if the only lesson we take from them is that the existed only as a marketing campaign, and a devious one at that?

The conclusion from such a stance is that the states ratified the Constitution unders false pretense, which would only strengthen the contention that they reserved the right to secede. New England certainly beleived they had that right - and nearly did as a result of the Alien and Sedition Acts, long before the South actually went through with it.

For post-1789 thinking from the Founders on this subject, see esp. the Kentucky and Virginia Resolutions.

A quick diversion here back to an earlier conversation (though it relates to the present debate, as well):

The Founders certainly believed that original intent, including the Federalist Papers, carried great weight concerning constitutional interpretation. To give just four examples:

"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." ~James Wilson, signer of the Constitution and an original Justice on the Supreme Court, from "Of the Study of Law in the United States, circa 1790

"On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
~Thomas Jefferson, letter to William Johnson, June 12, 1823

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.
~James Madison, letter to Henry Lee, June 25, 1824

"I cannot but highly approve the industry with which you have searched for a key to the sense of the Constitution, where alone the true one can be found: in the proceedings of the Convention, the contemporary expositions, and above all in the ratifying Conventions of the States."
~James Madison, letter to Andrew Stevenson, March 25, 1826

I can't help but note that each of these quotes came after 1789.

"The Founders certainly believed that original intent, including the Federalist Papers, carried great weight concerning constitutional interpretation."

And do their claims to weight themselves have weight? Doesn't this beg our question?

Cocerning "the terms with which the various states ratified the Constitution": "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (Article 6)

10th Amendment Ralph?

I have already addressed the issue of secession logically and completely in my letter to Daniel Webster of March 15, 1833. http://press-pubs.uchicago.edu/founders/documents/v1ch3s14.html

The highlights: "But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy."

"It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others."

"It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism."

Ralph, again, you and I agree on the fundamental issue of authority. We disagree on interpretation, and you have yet to engage my points, esp. regarding the resolution of disputes about interpretation and my post timestamped May 17, 2006 10:16 PM.

You seem to have this Gnostic-like view that the Constitution descended from heaven. But the fact is that there is historical and philosophical context to our governing document. The Founders understood this, as seen in my last batch of quotes.

Should we go with your "whatever the majority decides the Constitution means at the moment" hermeneutic, which is what you have essential admitted, of should we say that present majorities and courts, etc. can get it wrong?

"They" point to a clause meaning one thing. "We" point to the same words and say they mean something else. They want to go on precedent or current preferences. We say current whims and precedent can be wrong, have been overturned in the past, and the way to help resolve our disputes is to look at what the Founders actually meant when they wrote what they did. And if we don't like what they meant, the Founders recognized that might happen and devised an orderly mechanism by which to amend the Constitution accordingly.

In the end, popular opinion does indeed decide which way we will go on any given issue. All we say is that that opinion can and should be swayed, and the way to preserve the Founding principles that established this country in freedom and has resulted in our great prosperity and respect for individual rights is to educate and persuade people about what America's Founding principles were, how the Constitution was set up to protect those principles, and why they are worth valuing and preserving today.

Sincerely,
--Eric

I agree completely with "Madison's Ghost." Fantastic and perfectly relevant quote on all counts.

Thank you.

Thank you, Mr. Madison, for going through your files and finding that letter, I found it very enlightening.

I will definitely use that in a future primary source activity!

Now correct me if I'm wrong (and MG surely knows more about this than me), but doesn't that quote from Madison speak against secession as a Constitutional right (i.e., a right implicitly granted to the states in the context of the Constitution)? On my initial reading, it seems that Madison is endorsing only the right to "secede" qua revolution.

Ralph: Odd thing to quote... The Supremacy Clause has no content that conflicts, or is even in tension, with the express terms that R.I. and Va. put on the ratification that they retained the right to drop out. If there were text in the constitution that did conflict with this condition (in the legal ratification documents) then you would be right-- the constitution would bar secession. But then, by the same token, we would say that the ratifications of R.I. and Va. were invalid and there would be, legally speaking, only 47 states in the union.

In other words, your argument against their terms fails, but even if it worked, it would force you into a bad spot.

Skeptic,

I am not arguing that the Constitution does deny (implicitly or explicitly) the States' right to secede. That is a separate question; one that I am not quite decided on.

I'm arguing against the claim that the terms of the States in ratifying the Constitution have any authority over the terms of the Constitution itself.

The legality of secession concerns the language of the Constitution alone.

Concerning your last point -- "...by the same token, we would say that the ratifications of R.I. and Va. were invalid and there would be, legally speaking, only 47 states in the union." -- I disagree.

Consider a parallel case. If you and I sign a contract, and two parts of the contract contradict each other, the contract is void. However, if one of those parts contains the following language "...anything else in this contract notwithstanding," then that part supersedes the other part.

Ralph:

"On my initial reading, it seems that Madison is endorsing only the right to "secede" qua revolution."

I tend to agree. After all, it was the philosophy on which the Declaration of Independence was based.

The question as to how Madison would have felt about Calhoun's invoking of the VA resolutions rests in large part on whether he thought that Congress's alleged encroaching on states' "rights" to traffic in human beings constituted "intolerable oppression" similar to the long train of abuses listed in the DOI.

Ralph-- your argument works only if there were conflicting language between the supremacy clause and another part of the original consitution or with the terms of Va. and R.I. So your appeal to the Supremacy clause is utterly a red herring-- you'd first have to show a contradiction between "the
two parts of the contract." Besides, suppose someone expressly adds at the end of the contract: "My signing of this contract shall be construed to deny me the right to go to the store Monday." Now, either this is consistent with the contract, or it isn't. If it is consistent, the contract is valid. If it isn't, then it isn't.

I have not been able to find or remember these "secession conditions" referred above. Indulge and old man and give the exact wording, please. Also, as I recall, there were no Congressional encroachments on the internal workings of states powers to allow traffic in human beings prior to 1862 and the alleged "encroachments" on trade matters were shown not to be encroachments in the speech by Webster that I was praising in my 1833 letter.

I agree that secession should be an action only taken after a "long train of abuses," as per the Declaration of Independence. But "revolution" is not synonymous with "secession." A revolution entails the overthrow of one government and the institution of a replacement. Secession is merely leaving the political orbit of one government and retaining full autonomy over your own affairs. This being the case, the "American Revolution" is a misnomer. The other term, "War for Independence" is more accurate.

Further, secession need not require military conflict. A recent example of this was the former Soviet-controlled states in the Balkans and Eastern Europe. We applauded their secessions, and rightly so. Concerning the many secessions and threats of secession of the American states in our history, it is clear, per my earlier argumentation, that secession was and is a legal prerogative of the States. That is not the same as saying, however, that they were right in their rationales for doing so (that's another debate), nor is it the same as saying that the federal government recognized that right when push came to shove. Obviously, it didn't. But the British crown refused to recognize the colonists' rights as Englishmen, too.

On another note, I take it from Ralph's silence on the interpretation issue that my argument is conceded.

Madison's Ghost: Alas, my copies of Jefferson Davis's Rise and Fall of the Confederate Government sit in a distant state. It contains block quotes from Rhode Island, Virginia, and New York (I believe those were the states), with one of the states, if memory serves, simply plagiarizing the verbiage of the ratification contingency of another state. In spite of its title, Davis's two-volume set is really more of a discussion of the Constitution than the Confederacy. Jeffrey Rogers Hummel's Emancipating Slaves, Enslaving Free Men also, if memory serves, discusses these ratification caveats as well.

To me, a much more interesting question than subtraction is addition, and how adding states altered the original agreement. In other words, if Ralph, Skeptic, and I entered into an agreement, and then, Skeptic and Ralph added you and Eric and Veronica into the agreement against my will, because they would take your side in disputes, does not that alter the initial agreement? Many Northerners thought just that with regard to the addition of states not provided for in the Constitution, and wondered if that did not invalidate the initial agreement. Some might think this too theoretical a discussion, but, I would argue, discussing secession doesn't have much to do with contemporary politics either. From 2006, it's all pretty abstract.

If Dan, Ralph, and Skeptic, entered an agreement and then Skeptic and Ralph added me, Eric and Veronica against Dan's will, whether the agreement would still be valid would depend on the nature of the agreement. Article IV section 3 of the Constitution starts "New States may be admitted by the Congress into this Union . . ."

The secession debate is still vital because it goes to the heart of the most important assertion made in the letter to Webster "It must not be forgotten, that compact, express or implied is the vital principle of free Governments . . ." This assertion, if accepted, would settle the Constitutional interpretations questions debated above as well as destroy judicial supremacy and help us better understand the conditions under which freedom could thrive here and elsewhere.

One more question. Might it be that Jefferson Davis was interpreting words that I would think of as affirming the uncontroversial right to revolution as a secession condition?

Skeptic:

I am NOT making any claim about the Constitutionality of secession. I AM claiming that any claim made by the Constitution on secession (implicitly or explicitly), supersedes any claim made by State law on secession.

The States' ratification documents (which have the status of State law) agree to the Constitution, and therefore, agree that it supersedes any contrary State law. Therefore, IF the Constitution does not grant the right to secede, any State claim to the contrary is irrelevant.

Finally, if someone expressly adds at the end of a contract: "My signing of this contract shall be construed to deny me the right to go to the store Monday, any other provision of this contract to the contrary notwithstanding," then the addition is necessarily consistent with the rest of the contract.

Eric:

"...I take it from Ralph's silence on the interpretation issue that my argument is conceded."

It is not. I thought I had answered this. The objective meaning residing in the words of the Constitution and the authoritative interpretation residing in the will of the people are not equivalent. The people can wrongly interpret the Constitution. Nonetheless, they possess the authority to do so.

If the people are incorrect in their interpretation, then they must be convinced otherwise. And the language of the Constitution is the sole measure of correctness.

On another point: "'revolution' is not synonymous with 'secession.'" Contra Madison, right? Madison: "...the right of seceding from intolerable oppression ... is another name only for revolution."

Dan:

"...if Ralph, Skeptic, and I entered into an agreement, and then, Skeptic and Ralph added you and Eric and Veronica into the agreement against my will, because they would take your side in disputes, does not that alter the initial agreement?"

Not if the initial agreement provided for the addition of new members.

Question: Are the Madison quotes (the one from Federalist 39 and the other from his March, 1833 letter to Webster) consistent? They are separated by half a century, and a girl can change her mind, but it seems that they are at odds.

Ralph,

A girl can change her mind, and I do disagree with Madison on his latter equation of "revolution" with "secession." This is why I, like you, believe that the Constitution is the objective authority.

But you still have not resolved the interpretation issue. If person A and person B look at the same words and come up with different meanings, and thousands upon thousands line up on either side, Webster's dictionary is only going to get you so far. To repeat:

"They" point to a clause and say it means one thing. "We" point to the same words and say they mean something else. They want to go on precedent or current preferences. We say current whims and precedent can be wrong, have been overturned in the past, and the way to help resolve our disputes is to look at what the Founders actually meant when they wrote what they did. And if we don't like what they meant, the Founders recognized that might happen and devised an orderly mechanism by which to amend the Constitution accordingly.

In the end, popular opinion does indeed decide which way we will go on any given issue. All we say is that that opinion can and should be swayed, and the way to preserve the Founding principles that established this country in freedom and has resulted in our great prosperity and respect for individual rights is to educate and persuade people about what America's Founding principles were, how the Constitution was set up to protect those principles, and why they are worth valuing and preserving today.

Before I left your mortal coil I did change my mind on one issue--the constitutionality of the national bank. The people of that generation consistently elected people who said it was constitutional, so it must have been.

But there is no inconsistency between Federalist 39 and the Webster letter. The key quote is "In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution." The Paper presents other relations in which it is said the new Constitution will be national, not federal. This is perfectly consistent with the Webster letter's statement that the people of the states could "as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others."

Madison's Ghost: You referred to yourself in the third person in an earlier post and now you are referring to yourself in the first person. Are you really Madison's Ghost?

Eric:

Let's leave the metaphor of "greater weight" aside. What precisely do you mean? What legal status do the interpretations of the Founders have? What is the difference between theirs and those of other Americans?

Are we really disagreeing? We agree that the people are the rightful interpreters of the Constitution. We agree that the Constitution has an objective meaning, and therefore, that the rightful interpreters can nonetheless err. We agree that persuasion should be used to combat error. And we agree that the words of the Founders can be useful tools of persuasion.

My main point boils down to this: if after a careful, educated and honest reading of the Constitution (assuming certain commitments about the objective meaning of the text, etc.), my interpretation differs from Madison's (e.g.), Madison's interpretation is not more authoritative than my own.

I guess sometimes I'm Madison's ghost's ghostwriter.

Ralph: Madison wrote part of the Constitution. You didn't. Other than you, who, really, would, or should, give equal weight to his and your interpretations? "Madison's interpretation is not more authoritative than my own." Think about the words you just wrote. The author isn't authoritative. Hmmm.

Ralph,

I think I've been pretty clear, and what I've written so far more than answers your question.

It is note-worthy that this is the first time you've said anything like "And we agree that the words of the Founders can be useful tools of persuasion." We are getting somewhere! Your earlier posts amount to a casual dismissal of anything the Founders wrote about their own creation, the Constitution.

As for the rest, Dan said it very well. Nothing else needs to be said.

Ralph,

If after a careful, educated and honest reading of the Constitution your interpretation differs from Madison's you should go back and reread. It is almost certain you have missed something. Madison was wrong, at one time or another, about the national bank but the difference in his familiarity with the original meaning of the compact (and the context of the times)and your familiarity is likely so great that you must doubt yourself many times before you would doubt him once.

The author's interpretation can be authoritative depending on the "genre" of the text, e.g., if Tolkien says that Lord of the Rings is not an allegory for World War II, it's not an allegory for World War II. Though even here, there are limitations to the author's interprative authority, e.g., if Tolkien says that he intended Gollum to be understood as a Golden Retriever, we wouldn't accept his interpretation.

With a law, however, the matter is different. The words of the law and no others are what is agreed to.

Aside from that, two points: the legislator is a representative, and there are many legislators (and it is impossible that their interpretations coincide).

MG,

My point is adequately made if I replace myself with a non-Founder citizen with constitutional understanding equal to that of Madison. Let's call him Mr. X. Is Madison's interpretation more authoritative than Mr. X's? If so, why?

Just letting you all know that I'm leaving on vacation until 5/29 and will not be back until then - you know, lest Eric misconstrue my future silence as conceding his points. ;)

Eric, earlier you accused me of emptying the Federalist Papers of all meaning. I did no such thing! And now you make a charge that Ralph's writings are a "casual dismissal of anything the Founders wrote about their own creation." In both cases you're either intentionally overstating or misreading.

See you all next month. :)

Eric,

It is also note-worthy that you didn't answer my question concerning "weight."

Dan and "Madison's Ghost" answered that question well enough. And my previous posts more than covered that. They are there for everyone's reference. As said in my last post, nothing more needs to be said.

So, if Madison's quotes are consistent, and the latter rejects the Constitutionality of secession, then does the former?

Presumably Dan posted the former quote to make the case for secession. In the light of the latter, doesn't it do the opposite? And so, if Dan believes the interpretation of the Founders is authoritative, shouldn't he exchange his Grey for Blue?

If there were (the subjunctive here certainly is intended to mean that this is contrary to fact) a non-founder citizen with Constitutional understanding equal to Madison's, and I had the same high confidence in this citizen's sincerity and truthfulness that I have in Madison's, I would consider that citizen's opinions about the Constitution as authoritative as Madison's. The authors of the document (in the sense of "the group that gives it authority") were the people of the United States who ratified it.

Ralph: I posted the comment because it was "worth repeating." That's all. Readers used it to argue for secession. Don't presume something based on nothing. I posted a quote without comment and yet you insert your own theory of why I posted it. I find this ironic since you argue for the irrelevance of text outside the Constitution for understanding the Constitution. Anyhow, I'm more stuck in 2006 than 1861, and I figured the readership is too, which is why I find readers debating secession and not federalism a bit surprising.

Eric,

I believe Dan's and GM's responses are inadequate and I've said why.

Let use an even better example than Mr. X. The actual language of the Constitution was written by a few of the delegates. The rest of the delegates accepted or rejected what was written by others. Thus, the delegates who did not write the language were not "authors" of the Constitution. Is there intepretation of the Constitution less authoritative than the delegates who wrote the Constitution?

Dan,

My fault. I retract the question.

Ralph,
See above and esp. my comments time-stamped "MAY 17, 2006 09:56 PM" and "MAY 18, 2006 08:23 AM."

Veronica,
My question was rhetorical, and meant to point out the logical consequence of the argument you seemed to be forwarding at the time. Sorry for the offense. Esp. since I know your view on the weight the Founders' writing should have in informing our interpretation of the Constitution is much closer to mine than it is to Ralph's.

Have a nice trip.

Your comments you refer to are not relevant to my recent comments. If you wish to discontinue the discussion, say so.

I agree that the initial Madison quote has much more to do with federalism than secession - esp. given the context of the letter if came from. I do believe that the right of secession provides "tee-th" to the federalism doctrine, though. (It is noteworthy to look at the government's growth curve after that right was emphatically squashed - and with it, the idea of enumerated powers - with the Civil War, and how more and more power has thus flowed from the states to the national government. The Founders would be horrified.)

Anyway, this discussion became two: one about secession, and the more important overreaching conversation about constitutional interpretation, which is vital if federalism will ever be reclaimed as a workable doctrine.

For the record: though I believe secession is a right the states have always possessed by their nature under our federal republic, I think the South in seceding - and especially in preemptively launching the Civil War - was unconscionably stupid. It goes without saying that slavery was a disgusting trade that had to end sooner or later, and it is too bad it took the blood of at least 618,000 Americans to end it.

Yes, Ralph, I rest my case - on both issues. They have now wrapped around into each other (as your question does, too), and I've really said all I can or care to say.

Thanks to all for an invigorating, and I think helpful, conversation.

To add to Eric's implied (I think) point about the current linkage between slavery and secession, it's worth noting that many committed abolitionists were also advocates of secession. William Lloyd Garrison, for instance, advocated that THE NORTH SECEDE to escape the moral taint of slavery. Mary Gove Nichols and Thomas Low Nichols found the Civil War so disgusting that they fled to England and never returned. Although slavery played a huge part in the actual decision for the Southern states to secede, many people who hated slavery also hated the Civil War and advocated secession. This comment may be unecessary here on FlynnFiles, as I see no evidence of readers calling other readers racists or haters for their advocacy of the right to secede, but I think it's worth putting out there.

Yes. Thank you, Dan.

I want to add a couple things.

First, there is not a significant difference between a "confederation" and a "federation." Any research on the terms, either common definitions or their etymologies reveals this. The prefix "con" derives from the Latin "cum" and means "with, together with." The common root term of both is "federation" (of course) derived from Latin "foedus" which means "covenant, league" and later "foederationem" from the Latin verb "foederare" which means "league together." So "confederation may be a redundancy if anything.

The term "Federalism" was coined, by all people, by Edmund Burke. I have often noticed that when I am arguing with a liberal and I say I am a proponent of the original "federal" republic (that I support "Federalism") they invariably take this to mean I support the "nation" state and am opposed to state's rights. I think this same confusion might be seen in some of the above comments and is derived from misconstruing the change from an "Articles of CONfederation" into the "Constitution" of a "Federal Republic" as being an extreme break, even in language, when the terms are actually almost interchangeable.

Second,

This is for Ben-T but also for Eric who just above claims that the South "preemptively" launched the so-called Civil War. (I say so-called b/c just as you correctly term the American "Revolution" as really a war of independence it is misleading to call the war of southern secession a civil war since they did not at any time attempt to overthrow the existing government).

Look carefully at the timeline of events and actions taken leading up to the firing on Ft. Sumter. After Lincoln was elected seven southern states seceded from the Union before his taking office in March of 1861, starting in Dec. of 1860. So at the time that Ft. Sumter was fired upon (April 12th) there were more slave states in the Union, eight, then had seceded from it. Beginning with the first secession of South Cackilacki (as they like to call it although I have no idea of the spelling) all of the seven seceded states ordered the federal customs houses, federal forts, even post offices to be vacated . . . and they were. President Buchanan believed that the states had no right to secede but he also believed that he had no constitutional authority to coerce them into staying (as is often mentioned how can a "federation" be a coerced one?) and he acquiesced in the vacating of federal buildings. His Attorney General also agreed and general public opinion in the North agreed as well. Abolitionists in particular were quite vocal in saying good riddance to the seceded states. Also, the seceded states sent diplomatic emmissaries to Washington to discusss a peaceful compromise with Lincoln to ensure that no greater conflict arose over secession. He refused to meet with them.

So lets get to Sumter. What happened is that Lincoln, against the advice of almost his entire cabinet (including his entire arsenal of military advisers, Seward, Scott, Cameron, Welles) ordered that Fort Sumter be reprovisioned. This was a ridiculous decision as Fort Sumter was not even a real military post, it wasn't intended as an encampment but simply as a point from which to fire on ships entering the harbor. The Union soldiers had already abandoned the other Charleston military outposts to hole up in the fort. When this was announced, South Carolinians (being hard-nosed Scotch-Irish Presbyterians) saw this as a provocation and so fired on the fort. Lincoln would then write to his Assistant Secretary of the Navy, Gustavus Fox, on May 1, 1861: "You and I both anticipated that the cause of the country would be advanced by making the attempt to provision Fort-Sumpter [sic], even if it should fail; and it is no small consolation now to feel that our anticipation is justified by the result." So here Lincoln acknowledges that he was deliberately goading the southerners into firing the first shot as a pretext for engaging in war with them, as a fig-leaf with which to claim that it was justified self-defense of the Union. Ironic, such bold hypocricy from a man who as a legislator had opposed "Polk's War" with Mexico by asking the president to show him just where the supposed "spot of blood" was proving that Mexico had attacked the U.S. Of course, by now we are quite used to Presidents provoking or staging pretexts for wars or goading their enemies into firing the "first shot."

Anyway, after Sumter, as I noted there were still more slave states in the Union than in the Confederacy. The remaining slave states that seceded (four: VA, NC, TN, AR) only did so after Licoln called for 75,000 volunteers for a militia to invade and subjugate the rebellion in the deep south. This was an unconstitutional move on Lincoln's part, he had no authority to call up the militia. Also, in order to invade the seceded states he had to (obviously) pass through the states which had not yet seceded such as VA/NC/TN . . . something they could unsurprisingly not stomach. And so, in response to this action by Lincoln they too seceded.

So, the conclusion is that the war happened b/c Lincoln wanted it to happen, or was too stupid or incompetent to avoid having it happen. The firing on Ft. Sumter, I agree, was a bad move on the part of the South Carolinians, but it was not in itself a justification for the war and was also the result of a provocative and stupid action by a man determined to start a horrendous war.

I should have added that I was culling my facts from a quick source, a handy back issue of Chronicles Magazine devoted to the topic of the presidency's evolution. However, they are golden, look them up. Any good history of the Civil War (whatever its spin on it) gets the timeline and chain of events correct. The arguments over whether the states could justly secede and whether or not the Union (a kinda misleading term in itself for what was a federation) could or must have been preserved by coercion is what differentiates the Whiggish standard view of the conflict from my southern sympathizing interpretation. I think the southern view better coincides with the facts, though.

Brian,

It was Eric, not me, that pointed out Fort Sumter as the casus belli of the Civil War. I simply stated that the South was an imminent threat. Fort Sumter is only the most well known, not the only, situation, in which the United States was attacked by Confederate forces.

Also, if the Confederacy so desired to avoid warfare, it would have behooved them to keep a cooler head in negotiating the transfer of military property between the government. Regardless of whether the existence of Fort Sumter should have continued or not, it is not relevant to the issue at hand: The Confederate military opened fire on the military of the United States of America. In so doing, the government of the south knew exactly what action it was taking, one that would lead to warfare between the two countries.

If tomorrow the German military were to roll up to Ramstein Air Force base and demand it be immediately vacated, and, if this request was not immediately affirmed, opened fire on the base, there is no doubt what this would constitute: An act of war on the part of Germany against the United States of America.

The base at Fort Sumter may or may not have remained in the hands of the United States as a result of any negotiable proceedings. However, the Confederate States of America chose to supercede these proceedings, and in doing so make them irrelevant, by instead committing an act of military aggression against the United States. Whether this is what Lincoln wanted them to do or is again, irrelevant. They still made perfectly clear that they were a threat to the security of the United States of America, and the United States of America was justified in defenidng itself against the Confederacy's act of military aggression.

Brian,

Lots of great points there, esp. about the definition of federation as essentially synonymous with confederation. The point was proved, but you nailed it shut. And you are right that the war between the North and South was not really a "civil war" - for the reasons you stated. Thanks for correcting my lapse. :o)

I am not nearly well-versed enough to speak knowledgeably of the details leading up to Fort Sumter. We are all in agreement that the CSA's firing on the fort was idiotic and unnecessarily provocative. And I would not be surprised if this did indeed play into Lincoln’s hands. But as Ben-T said, it didn't excuse that or the other preemptive military strikes by the South.

That said, I am looking forward to hearing more of the history of the early part of the conflict, if you and Ben are so inclined to provide it. Better yet, a good and credible source - such as that article you mentioned - would be great. Perhaps you can link to it or another?

Sincerely,
--Eric

Chronicles doesn't seem to have an online archive but I was summarizing facts from several articles contained in the October 1997 issue; articles by Buchanan, Sam Francis, and H. Arthur Scott Trask. Needless to say, these conservatives share the same interpretation of the build-up to war as I do.

I will try and look around the net to see if I can find any article to share but I am fairly certain that most any book on the "CW" will have the same basic timeline. My faves are Shelby Footes books, but even McPherson, who takes a very different view on the war, is perfectly fine with the facts.

Ben-T,

Your example of Germany is an interesting one. The problem with the example is that it admits to the existence of a foreign military base on German soil. If the southern argument was correct then that is ana-logous to the situation of Ft. Sumter. In both cases then the country on which the base is/was could rightfully demand it be abandoned by the foreign country. If they can't then they are not a free and soveriegn country but are simply an imperial outpost for the occupying nation. If in the German case it came to shots being fired on Ramstein then that could be construed as an act of war, but not necessarily a declaration of war or a threat, "imminent" or otherwise, to the integrity of the U.S. The reason being that Germany (or South Carolina) could seek to expell the U.S. from their soil w/o necessarily seeking to then invade the U.S. This was in fact the case as regards the attack on Sumter. It was not a first shot indicating a coming imperialistic invasion of the North by the Rebs, the imperialism flowed the other direction.

Also, the ana-logy would need further similarities to work. In the case of Sumter, Gen. Beauregard spent the months following SC's secession attempting to negotiate the surrender of federal installations in the state. Several posts were turned over and the federal troops in Charleston moved out of all of their posts into the fort. It was while negotiations were still continuing between commanders that Lincoln made his precipitous decision to resupply the fort causing Beauregard to issue his ultimatum and then fire on the incoming ship and bombard the fort. Btw, there were also no casualties which should be somewhat important for judging what a reasonable response to the Sumter attack would have been.

So if Germany went through months of negotiations requesting that the U.S. give up possession of Ramstein . . . and then Bush were to send in a aircraft carrier to reprovision and man the base, what should that action be considered on Germany's part? Wouldn't they be justified in seeing such an act of provocation as being an "imminent" threat to their nation? So how was shelling a fort in the Charleston Harbor such a threat to the government of the United States located 500 or so miles away? I don't mean that to be rhetorical, I understand that the act was taken as a rallying cry for the North and so helped shift opinion in a militant direction and certainly proved, in retrospect, to have been imprudent on the part of the Confederacy. Along with the attack of Ft. Pickens it was a spark that set off the war. However, there is a certain amount of tragedy in the situation, as there would be in your ana-logy of Ramstein as fleshed out by me. I say tragedy b/c SC and Germany would in both cases be just in seeing the actions of the U.S. President as provocative and threatening but in both cases the provocations would be designed to goad the other into firing first and so have horrible consequences. Thus, I put the blame for the event squarely at the feet of the provocateur, Lincoln, in that he was the one who could have chosen a peaceful avenue of resolving the sectional dispute, but his fanaticism (or incompetence or tyrrannical disposition) wouldn't allow for it.

Brian:

Would you further explain the notion of "federalism"? As I understand a "league" of nations, the league itself has no sovereignty (cf. Sobran quote above). Thus, if our "federal republic" is (was) a league of sovereign states, the league itself has no sovereignty.

But consider the following from Madison's letter to Webster: "They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others."

According to Madison, the union established by the Constitution is not a "mere league." The federal republic does possess some sovereignty. It constitutes a nation in some sense.

And though the quote Dan gives from Federalist 39 seems to oppose our federal republic to a sovereign nation, Madison assures us (from the grave, as it were) that "there is no inconsistency between Federalist 39 and the Webster letter. The key quote is 'In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.' The Paper presents other relations in which it is said the new Constitution will be national, not federal."

What comments do you have an the relationshipt between federalism, nationhood, and sovereignty?

That U. Chicago source that MG provided is fantastic. Here's a quote from another Madison letter that is relevant to my last question:

"It has been too much the case in expounding the Constitution of the U. S. that its meaning has been sought not in its peculiar and unprecedented modifications of Power; but by viewing it, some through the medium of a simple Govt. others thro' that of a mere League of Govts. It is neither the one nor the other; but essentially different from both. It must consequently be its own interpreter. No other Government can furnish a key to its true character. Other Governments present an individual & indivisible sovereignty. The Constitution of the U. S. divides the sovereignty; the portions surrendered by the States, composing the Federal sovereignty over specified subjects; the portions retained forming the sovereignty of each over the residuary subjects within its sphere. If sovereignty cannot be thus divided, the Political System of the United States is a chimaera, mocking the vain pretensions of human wisdom."

(James Madison to Nicholas P. Trist, 15 Feb. 1830)

More Madison:

"The compound Govt of the U. S. is without a model, and to be explained by itself, not by similitudes or ana-logies. The terms Union, Federal, National not to be applied to it without the qualifications peculiar to the system. The English Govt is in a great measure sui generis, and the terms Monarchy used by those who look at the executive head only, and Commonwealth, by those looking at the representative member chiefly, are inapplicable in a strict sense."

Those are great quotes Ralph, and although I will try and give my opinion on these issues of sovereignty and the nature of our govt, the direction I have been heading in the last few years is pretty much anathema to conservatives. Basically, I have become unconvinced that the creation of the Constitution was a good thing at all, rather than a time bomb waiting to go off.

First, I have often found that famous Franklin quote to the effect that the Founders had given us a Republic if we could keep it to be disconcerting. Even given the size of trhe U.S. at the time of the drafting of the Constitution what made Franklin think that a Republic could exist over such extensive territory? Not even Rousseau thought that possible. In addition, a "Republic" does not necessarily have to be a federated one.

I think these Madison quotes highlight what I perceive as incoherence at the heart of the founding. And this incoherence specifically has to do with the question of sovereignty or authority. (Am I wrong to collapse the two categories . . . sovereignty and authority into one?). In a federated system it seems to me that sovereignty rests wholly with the individual members of the league. Therefore the states are sovereign. This was clearly the case under the AoC. This also entails at least the permanent right to secession and possibly the right of nullification as well. At the heart of this controversy over sovereignty is whether or not the common good of RI, e.g., is truly the same as that of VA and if it can be adequately determined by the League acting in concert. The principle of subsidiarity, as well as traditional conservative prudence would suggest that it cannot. What can be done is that the League can be granted certain powers or functions in which concerted action between the various member states can be justly undertaken for the good of all.

Now, with the Constitution much of this really becomes cloaked in doubt. Just take the line ". . . to form a MORE perfect Union." I stress the qualifier b/c a "perfect Union," that is a "Union," was clearly not intended to be formed, only a "more" perfect one then had previously existed. That sounds to me like we still were to have a con/federation (which would also be consistent with the actual mandate of the constitutional congress which was to revise not to replace the AoC). But, as the Patrick Henry quote way above suggested the document avoided making any of this explicit by referring to the "People" instead of the people of the several states.

So then to get to the Madison quotes, I think he is being decidedly unclear about what exactly was created by the Constitution, and he acknowledges that it is a great point of controversy in general: "It has been too much the case in expounding the Constitution of the U. S. . . .".

Madison thinks all of the standard terms affixed to the new govt when taken individually are drastically misrepresentative. He wants to call it a "mixed regime" and one w/ "divided sovereignty" but where there is "divided sovereignty" can their be unified government? Or does that become a better use for Lincoln's misappropriation of the scriptural warning that a "House divided against itself cannot stand"? As Madison says is sovereignty cannot thus be divided than the U.S. govt is a chimera (I assume he means monstrosity or unjust/unnatural arrangement). I think that is actually an open question.

Not having a degree in political theory nor any kind of "buff" interest in politics, I've not had much occasion or inclination to closely examine these issues (FlynnFiles provides a great service in that regard).

What you say about an "incoherence at the heart of the founding" is very interesting. Is it possible to make good sense of divided sovereignty? I've never thought about it.

An ana-logy comes to mind: two partners own a business together. One of them handles the financial side and the other handles the product (or some such relationship). The ana-logy is not quite adequate because each partner could legitimately concern himself with the affairs of the other.

Central to this question is the notion of delegation. I've always understood delegation of some power to concern a superior and a subordinate, e.g., a CEO delegates some tasks to an assistant. Accordingly, the authority that the assistant acts with is CEO's. Obviously, the CEO can reclaim that authority at any time.

If sovereignty is surrendered, on the other hand, it's not clear to me that it could be reclaimed. But isn't that issue confined to the question of secession?

What further incoherence would there be to a separation of powers between two sovereign nations, so long as one does not encroach on the other's sphere of authority?

I was brought back from the grave by the passage Brian wrote: "what made Franklin think that a Republic could exist over such extensive territory? Not even Rousseau thought that possible." The answer is Franklin's great friend, and the paranoid Rousseau's benefactor but perceived enemy, the extraordinary philosopher David Hume turned classical political theory on its head and suggested that not only could a Republic exist in such an extensive territory but it could only thrive in an extensive territory. I believe one of the critical essays in my development was his essay called "That politics may be reduced to a science." (This should be at the U. of Chicago site.)

Of course, all of us who went to College in the 1760s and 1770s were familiar with Hume's ideas. His essays were big sellers (this was before Kant turned philosophy onto the twisted and usually unfathomable path that it still follows today. Back then philosophers could write clearly and accessibly. Kant twisted philosophy in a futile attempt to avoid Hume's anti-elitest insight that unaided reason could not logically answer normative questions. The "smart" people, for example the progressives who beleived in staffing government with experts who would make decisions, have endorsed Kant's twisted philosophy to avoid the logical conclusion that their "intelligence" does not give them any warrant to tell others what to do.)

In the 1830 letter to Nicholas Trist I was explaining "governmental" sovereignty. In other places I explained that true sovereignty remained in the people of the states. One way to think of the problem is "Can sovereignty be divided?" If not the U. S. is a chimera and free democratically based governments will never be able to survive. But at least we tried.

But I still believe sovereignty can be divided, because it can be aggregated. The people of the states can share sovereignty and still act as one through the power of compacts. That is why the "vital principle" of free government is compact. If their solemn words became once again their sacred bond and became the sacred bond of those who came after them, they could, when needed, act as one. Those compacts allow the people to say "Here on this issue one government will rule and here on another issue another government will rule and neither is superior to the other because we are the superior to both of them." (On the sacredness of these compacts see my essay "Charters" ca. 1791 which should also be on the U. of Chicago site.)

OK. What is this foolishness?

It is not fair to Kant to blame Kant for wide-spread bad philosophical writing today. It is not fair to Hume to say that his clarity and word-craftmanship was typical of preKantian philosophy. It is not fair to act as though the main, or even A MAIN, aspect of Hume's philosophy was an "insight" that "reason" couldn't do "normative" questions. It is not fair to say that Kant's philosophy was motivated in reaction to any such position as taken by Hume. It is not fair to blame the progressives on Kant. It is not fair to blame the progressives on people who think that reason isn't morally lame.

Madison's ghost should avoid weird sweeping hisorical statements about the course of ideas, especially the course of ideas after Madison's death. He's much better on the issues he thought and wrote about during his lifetime.

Brian: I must respectfully disagree. While Lincoln's resupplying of the fort was certainly provocative, and probably imprudent, it was not an act of warfare. The Confederacy firing on the foreign bases was an act of warfare.

But assuming for the moment that you are correct, the scenario simply changes: The Confederate States of America is a sovereign nation that wants foreign military bases off of it's soil. Failing in negotiations, it turns to warfare, and attacks those bases. The United States is still justified in defending it's foreign held assets against destruction.

Note: I do not consider there to be as much of a moral high ground in the Civil War as most people do, and am ideologically sympathetic to neither side. I believe slavery was an abhorrent tradition, but it was also a soon to be dead tradition, and ridding it was not worth four years of war and so many hundreds of thousands of lives.

I am simply looking at it in realist terms. From the perspective of the United States, a seemingly threatening entity has manifested in the south, has attacked several forts and carried out other as yet unprovoked strikes, and is threatening to U.S. Naval superiority in the region.

That said, I believe that the fact that the war happened was a tragedy, and the most ideal outcome would have been a peacefully negotiated secession. However, I do not believe that the blame for the war rests on the shoulders of the USA

Ben-T, good points, we are close to agreeing actually and only quibbling over the status of the reprovisioning of Sumter by Lincoln. I think it is a close call myself so I won't push it any further.

MG,

I want to agree with your originalist interpretation of the Constitution. My problem w/ it is first empirical and only then theoretical. I think it is clear that what may have originally been a "federal" republic has become a "national" one. Specifically, the National govt is now the final arbiter of what the national govt can or cannot do, as well as the final arbiter of what the states can or cannot do. Once the Natl Govt became its own arbiter, it wasn't long before the vaunted "separation of powers" (that is the specific difference "peculiar to the system" as Madion would say) meant little to nothing in practice.

So that is my empirical complaint, I don't see our government as functioning with any sense of limitations, it almost always interprets its authority in its favor.

That causes me to wonder about the theoretical issue of whether sovereignty can be successfully divided w/o endangering freedom or the common good. And that is where I remain unconvinced that the Constitution actually resolves this issue. I understand your point about compact being the means to "share" sovereignty by designating certain powers to a central govt but your reference to the "people" being superior to both govts (the state and the federal) reveals the entire problem for me. The "people" can never be sovereign if the end is just govt. This is true even in a direct democracy . . . in that case the "majority" is sovereign. There is a big difference between the "peoples of the states" and the "people." I just see the construct inevitably collapsing on itself, hence my sympathy for Madison's "chimera" reference.