The meaning of “We the People”
over whether America is a fully sovereign nation, or merely a confederation of sovereign states allied for the purposes of common defense and foreign policy, did not begin with the Civil War, or, for that matter, with the quixotic challenge to American unity mounted by paleo-libertarians and neo-Confederates in more recent years, but goes back to the earliest years under the Constitution. As Henry Adams writes in his massive History of the United States of America during the Administrations of Thomas Jefferson
, in the period preceding the election of Jefferson in 1800, Americans, particularly in the South and New England, were convulsed over the question “whether the nature of the United States was single or multiple, whether they were a nation or a league.”
Seeing the issue stated as baldly as that, and realizing that even back then people were asserting that the United States was nothing more than a “league,” instantly brought to my mind the opening words of the Constitution: “We the People of the United States …” “We the People” clearly signifies that the United States are one people, i.e., one nation.
If the Founding generation had thought of themselves as an alliance of separate nations they would probably have described themselves as “We the Peoples of the United States.” But they did not do that.
The same can be said for another key phrase in 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; …
“Supreme Law of the Land” conveys the idea that this is one land
, one country
, not a league
of separate countries.
It is thus self-evident that the drafters and ratifiers of the Constitution intended to create a sovereign, unitary nation, though of course with many important powers reserved for the states. Those who opposed the formation of that nation, or who, after supporting its formation, became suspicious of it, sought to weaken the nation by retroactively re-interpreting the Constitution. This was done by the Jeffersonian Republicans in the 1790s, by the Southern secessionists in the 1850s and 1860s, and by today’s neo-Confederates and paleo-libertarians. But their attempt to alter the plain meaning of the Constitution is, if I may paraphrase the paleo-libs’ arch-villain, Abraham Lincoln, “a specious and fantastical arrangement of words, by which a man can prove a horse-chestnut to be a chestnut horse.”
Posted by Lawrence Auster at September 09, 2003 09:19 AM | Send
Rather than parrot someone else’s remarks (even though I could restate them more politely than he does), I will just refer anyone interested in this topic to a thorough and concise examination of state sovereignty from the Declaration of Independence, to the Articles of Confederation, to the Constitution, with noteworthy references to Federalist #39 by Madison:
Mr. Coleman’s appeal to the intellectual authority of Thomas DiLorenzo shows the paleo-libertarians’ self-created dilemma. DiLorenzo is a ranting rancorous ideologue (as can be seen, for example, in the article linked below). Yet it is to such sources that paleo-libs must perforce appeal, somehow expecting that people who don’t already share their views will be persuaded.
I’ve read the DiLorenzo article recommended by Mr. Coleman, and (1) it’s not relevant to the specific point I made in my article, and (2) for the most part, it’s a typical DiLorenzo rant. (I could go through the article point by point to back this up but don’t have the time.) It is also odd that Mr. Coleman would, in citing the furious and overwrought DiLorenzo of all people, boast of his superior “politeness”!
However, to be fair, I just want to point out that Mr. Coleman may have honestly misunderstood my drift. The DiLorenzo article he cites is aimed against Lincoln’s view that sovereignty is vested in the American people as a single undivided whole. That was not my point, and if Lincoln said it, I do not agree with it. The United States was founded as a republic. The essence of a republic is that sovereignty is not located in any one person or any one body, but is distributed in a variety of persons and bodies. This was what made the ancient Roman republic (the first republic and the model for all others) a republic. Similarly, under the United States Constitution, power is separated and distributed in an intricate and delicate balancing act. Nevertheless, while sovereign power is distributed and divided in its operation, the United States as a whole remains still a single, sovereign nation. This is what the Jeffersonians (echoed by today’s paleo-libertarians) denied, and what George Washington (echoed by me) affirmed.
In this connection, see my recent article on Washington’s Farewell Address:
Mr. Auster, I think that there is some profit from reading Brutus, no. 15 from the anti-Federalist papers:
But regardless, I think, however that Madison’s points in Federalist No. 39 are relevant here. He examines the Constitution to see whether it is National or Federal. His conclusion is that:
“The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”
The entire essay is quite worthwhile reading, but in the interests of space I will not quote any more of it. In Madison’s view, the Constitution is mixed on the character of the Union. It is neither a national nor a federal body, but in fact is a little bit of both.
Though they never fully answered the question of the sovereignty of the states in the Constitution, I think that the Founders did give a partial answer in the Second Amendment. The Second Amendment was expressly created to defend the States from the standing army of the Federal Government.
I think that the debate on the Second Amendment from the House of Representatives illustrates the point quite well:
“The House again resolved itself into a committee, Mr. Boudinot in the chair, on the proposed amendments to the constitution. The third clause of the fourth proposition in the report was taken into consideration, being as follows: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.”
Mr. Gerry.—This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown.”
The Founders never meant to give the military power to the Federal Government that would be required to coerce the States. The Federalist papers are quite clear on this. They meant for the powers of coercion over the States by the Federal Government to be administrative in nature and never military.
I rather think you should make time in the not-too-distant-future to refute Mr. DiLorenzo. You have referred to him as an “ideologue” and other such terms on several occasions now and I have yet to see any reasoned critique of his position.
Mr. Auster writes:
“It is also odd that Mr. Coleman would, in citing the furious and overwrought DiLorenzo of all people, boast of his superior “politeness”! “
I was stating that I could have lifted the essential and educational quotations from the Declaration of Independence, the Articles of Confederation, the Constitution, the treaty with Britain to end the war, and Federalist #39, while leaving out the various ad hominem remarks by DiLorenzo, and the result would have been more polite —- but that would have taken a lot of cutting and pasting of his column on my part, so I just posted a link. Every reader can decide for himself what to think about DiLorenzo’s caustic style, which I was not recommending. I do not think it impolite of me to post the link, which you seem to be saying, especially since I provided a disclaimer about impoliteness.
Let me take this opportunity to clarify my use of quotations from paleolibertarians and paleoconservatives. When I first became exposed to their contrarian views about Lincoln, the Civil War, etc., my reaction was, “Get over it! The war is over!” I was honestly not sure if they were tring to defend slavery or not. Over the years, I became convinced that such writers were primarily defending state sovereignty against centralized power. On that score, I sympathize with them. I have no sympathy for slavery, no sympathy for the Southern congressmen who imposed a “gag rule” on abolitionist talk from the floor of the House, etc.
What interested me was that (1) one of the turning points in the growth of central government power was the Civil War, (2) Lincoln was an advocate of centralized power in contexts other than preserving the union or abolishing slavery, (3) our K-12 textbooks are full of a sort of national mythology concerning Lincoln, the Civil War, etc., and (4) certain writers are brave enough to write about it. I would think that EVERY reader on this board would be interested in the topic: How did the central government grow so much in size and power from 1789 to today? I hardly think that the Lincoln era can be skipped over in honestly addressing that question.
lewrockwell.com is not even in my bookmarked pages. I don’t appreciate the ad hominem style of many of their writers, and I don’t agree with libertarian political philosophy in general. However, when the discussion turns to repeating the old mythologies surrounding Lincoln, that is a handy site because they have an archive devoted to that topic (most of which is junk, but some of which is very informative).
If there is a better site for this purpose, less vituperative and more civil, I would be glad to hear about it.
“lewrockwell.com is not even in my bookmarked pages. I don’t appreciate the ad hominem style of many of their writers, and I don’t agree with libertarian political philosophy in general. However, when the discussion turns to repeating the old mythologies surrounding Lincoln, that is a handy site because they have an archive devoted to that topic (most of which is junk, but some of which is very informative)…
… If there is a better site for this purpose, less vituperative and more civil, I would be glad to hear about it.”
Posted by: Clark Coleman on September 9, 2003 02:35 PM
what??? i love their style of attack, it’s both funny and informative
here’s my favorite:>
Thrasymachus’s quote from Elbridge Gerry in the debate on the Second Amendment proves nothing, but only restates the Jeffersonian-Republican view that is at issue here. The Jeffersonians were against a standing military establishment, seeing it (along with other things like taxes, government debt, and a national bank) as the features of centralized government, which they called “monarchy.” Thus when Jefferson became president, he seriously believed that America did not need any military capacity or preparedness to stave off possible war with the European powers; the commercial self-interest of the European nations, he believed (showing all the realism of the liberal that he was) would suffice to prevent their making war on the U.S. On the basis of this utopian notion, Jefferson led the country into a disastrous path that almost caused the secession of New England.
So, the Gerry/Jeffersonian view, which Thrasy quotes as though it represented the _true_ understanding of the founding, in fact represented a utopian Jeffersonian view which the nation—as a result of harsh experience of political reality—soon abandoned.
Furthermore, Thrasy’s comment that the Federal government was never intended to have any military power over the states is disproved by an event that took place under President Washington: the raising of a national army, under Washington’s personal command as Commander-in-Chief, to put down the Whiskey Rebellion.
To Mr. Purdy,
I frankly have read very little of DiLorenzo, but everything I’ve read has been of the nature I’ve described, a mixture of animus and poor reasoning. I’m not saying he has no valid points at all. I will attempt at some point to critique a sample of his work, but I can’t promise that it will be soon.
Washington, I believe, raised the militias from the surrounding states. But even if the “Gerry/Jeffersonian” view is utopian and does not represent the majority of the Founders—of which I am not sure—it still managed to become enshrined in the Constitution through the Second Amendment. Perhaps the rest of the Constitution established that the Federal government could act to keep States in the Union. But the Second Amendment assured at least that there would be a bloody war over it.
I would say to Thrasy that the issue here is not the Second Amendment, which I’m sure we all support. The issue is Gerry’s and Thrasy’s implied interpretation of the Second Amendment as meaning, not only that the federal government should not have the force to coerce the states, but even that the federal government should not have any standing army at all. And the larger issue behind that, with which this discussion began, is whether the United States is a nation with the power to act as a nation. The Second Amendment does not deny American nationhood. It does (like many other constitutional measures) introduce a republican tension into the structure of that nation, a tension which by its nature cannot be formulated simplistically, but which is reflective of the multileveled structure of man’s nature, and of the state as man writ large.
In explaining his interest in lewrockwell.com, Mr. Coleman says that it is one site where he finds intelligent discussion of how government got so big. Of course, the problem of big and unconstitutional government is of central concern to all serious traditionalists. But, in my opinion, to look to lewrockwell.com for illumination on that issue is (excuse the reductio ad Hitlerum, but it’s the only example that comes to mind at the moment) like looking to Mein Kampf for an explanation of liberalism. The contributors at LRC are followers of the anarchist libertarian Murray Rothbard who said among other things that the Founders in drafting the Constitution were engaged in a coup d’etat. Rothbard and his followers are not just opponents of Lincoln, they are opponents of Washington. They don’t just critique the unconstitutional growth of government, they are against the United States itself. Over and over, they evince the mentality of vandals seeking to destroy.
Now, given the disgraceful abandonment by regular conservatives of the central conservative issue of opposing big government, it is understandable that people would look to some other sources for discussion of that issue; and at present the libertarians are more engaged in it than anyone else. But that doesn’t change the essential brutishness and nihilism of lewrockwell.com. So, if I wanted to inform myself on the corruption of our constitution, I would simply look for other and more reliable and sound sources, of which there are plenty.
Of course, people can read whatever they like. But that’s my view of the matter.
“the anarchist libertarian Murray Rothbard who said among other things that the Founders in drafting the Constitution were engaged in a coup d’etat.”
Posted by: Lawrence Auster on September 9, 2003 08:30 PM
i wouldn’t call it coup d’etat, and i don’t recall rothbard using that expression, but i’ll take your word for it that he did. but none the less, we are forced to either conclude that the states are sovereign under the constitution, (contrary to your proposition), or that the states ceased to exist as sovereign at ratification, since they were certainly sovereign prior to ratification.
if the states ceased to be sovereign at ratification, it may not have been a coup d’etat, but it was certainly a complete destruction of the states, and not a reformation into a more perfect union intended to solve minor problems which developed when implementing the articles of confederation.
the problem with rothbard calling it a coup d’etat, is that those who argue for state sovereignty can’t have it both ways. they can’t call it a coup d’etat and still contend the sovereignty of the states, but since those at lew rockwell.com do contend that the states are currently sovereign, then a coup d’etat did not take place.
Mr. Auster writes:
“In explaining his interest in lewrockwell.com, Mr. Coleman says that it is one site where he finds intelligent discussion of how government got so big.”
No, that is not what I said at all. If I wanted analysis of the expansion of government under the Great Society, the New Deal, or the Progressive Era, I could find it at many good conservative sites.
However, there is a fourth era that is just as important as those three in understanding the growth of big government. That is the Lincoln/Civil War era. If I want to find a good discussion of how power was centralized in Washington during that era, I will find nothing but the National Myths of Abraham Lincoln at many conservative sites. Hence, what I actually wrote about lewrockwell.com was: “lewrockwell.com is not even in my bookmarked pages. I don’t appreciate the ad hominem style of many of their writers, and I don’t agree with libertarian political philosophy in general. However, when the discussion turns to repeating the old mythologies surrounding Lincoln, that is a handy site because they have an archive devoted to that topic (most of which is junk, but some of which is very informative).”
I don’t find lewrockwell.com to be my source of information about any other subject (New Deal, Great Society, etc.). But, only mises.org and lewrockwell.com will take on the subject of the irreversible expansion of federal power in the 1860’s. That subject is apparently taboo at many other sites. Even at this site, mentioning it seems to draw more heat than light.
I stand corrected by Mr. Coleman. He was only speaking of the growth of government under Lincoln and the Civil War, not of big government generally. However, given the fact that LRC is a “hate Lincoln” site rather than a “discuss Lincoln” site, is the negative response to LRC elsewhere really surprising or offensive? For some evidence of what I just said, see my article on LRC’s “Hate-Lincolniana”:
As for Mr. Purdy’s question on LRC and George Washington, the below article, dealing with Joseph Sobran’s announced conversion to anarcho-libertarianism, is where I developed that idea, based on Rothbard’s “coup d’etat” remark.
I’ll make just one more comment here about the Rockwellites then hope to let this subject go. The reason I seem to stand out in my criticism of them, is that everyone else simply ignores them. The Rockwellites, on a much smaller scale, play a role in relation to conservative politics somewhat like the role that the black political leadership plays in relation to the liberal mainstream. The black leaders and organizations routinely come out with the most absurd, vicious, anti-American comments (for example, their various charges about the post-election crisis in Florida), and the liberal mainstream neither refutes these charges nor exactly endorses them either. Instead, the blacks are just allowed to hang out with their own “truth” in their own little multicultural sphere, where no one else bothers with them. The liberal mainstream allows them to speak their views, then without comment goes on to the next subject. To agree with them would be too absurd, and to disagree with them would mean getting into an ugly fight with them, which wouldn’t be worth it, given the fact that they are wholly irrational.
The Rockwellites play an analogous role on the right. No one actually agrees with them, but it’s too costly to disagree with them either, because one would just get involved in an endless wrangle with people who at bottom are hate mongers. I’ve taken them seriously enough to disagree with them, which then puts me in the position of having to defend my criticisms, which beyond a certain point, for the reasons I’ve stated, simply isn’t worth it, especially as I am just one person and the Rockwellites and their defenders are many.
“the problem with rothbard calling it a coup d’etat, is that those who argue for state sovereignty can’t have it both ways. they can’t call it a coup d’etat and still contend the sovereignty of the states, but since those at lew rockwell.com do contend that the states are currently sovereign, then a coup d’etat did not take place.”
This point about the Rockwellites and state sovereignty reminds me of the way the left presents the position of blacks and women. On one hand, the left says blacks and women have been oppressed throughout human history, artificially forced into an invisible, powerless position. On the other hand, the left re-writes history to portray blacks and women as playing a central dominant role in every chapter of history. These two contradictory portrayals would seem to correspond with Matt’s contradictory-sounding notion of the “oppressed übermenschen,” with the first portrayal showing blacks and women in their oppressed aspect, and the second showing them in their übermenschen aspect. Thus the left gets to “have it all.”
Something similiar may be at work with the paleo-libertarian notion of a state sovereignty which is simultaneously suppressed and supreme.
When the first full draft of the Constitution was presented by Mr. Rutledge at the Convention, the Preamble read as follows:
“We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and Our Posterity.”
This Preamble was approved the following day, per Mr. Madison’s Notes. No discussion of it is recorded. But 2 days later, a note of uncertainty was struck over just how many of the States were likely to ratify. As this was a voluntary Union of _States_ being formed, the question was raised as to how many should be necessary to ratify. A couple States, notably Rhode Island were unlikely to do so.
The Notes evidently reveal tactical considerations being weighed. It was thus that under Samuel Adams’s Committee on Style and Arrangements that the Preamble was amended to the one we have today. The change from “we, the people of [certain named] States,” to “we, the people of the United States,” is not recorded as having caused any debate.
But the change did not escape the eyes of others. In Virginia’s Convention of 1788, Patrick Henry protested loudly: “I have the highest veneration for 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 authorized 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 agents of this compact, it must be one great consolidated national government, of the people of all the States.”
Proponents of the Constitution rose to assuage Mr. Henry’s concerns, assuring him that no such enterprise was being put forward, including Edmund Pendleton, Col. Henry Lee, and Mr. Madison, who stated plainly that the people mentioned in the Preamble were “not the people as composing one great body,” but were understood to be “the people composing thirteen sovereignties.” It was, after all, the States who would individually ratify the Constitution; it was not to be voted on in a national referendum.
In 1937, the U.S. Senate approved a Resolution that read in part:
“In the adoption of the Federal Constitution, the States acted severally as free, independent and sovereign States. Each for itself, by its own voluntary assent, entered the Union with a view to its increased security against all dangers, domestic as well as foreign, and the more perfect and secure enjoyment of its natural and social advantages.
“In delegating a portionl of their powers to be exercised by the Federal government, the States retained, individually and respectively, the exclusive and sole right over their own domestic institutions and police, and are alone responsible for them.”
Now the concerns which I think motivate the Paleos, (excluding of course their shameful tendency toward anti-Israelism,) are of a Federal monstrosity that is bloated, presumptuous, and out of control. It is no longer constrained in any reasonable sense by the limitations imposed on it by the Constitution, but violates it at will and with reckless abandon, no adequate check any longer in place. Mr. Hamilton’s prediction in Federalist #17, that the States would be more likely to encroach on the Federal power than vice-versa, has turned out to be erroneous.
It is understandable that they would focus so intensely on Mr. Lincoln and the Civil War, after which, it is said, we went from being the United States, plural, to the United States, singular. But I wonder if engaging the argument here too strongly might not be a strategic waste of time? All of us agree that the Federal Government has transgressed its proper, legal boundaries. It behooves us all to identify the common points of agreement we have, and try to find where a consensus lies.
We argue for original Federalism. Is this not what the Paleos argue for? I suspect that the disagreements over what this entails are miniscule compared to the agreement we all share over how far apart the present political realities are from what the Founders intended to construct. Why split hairs over an increasingly distant past when we face the prospect of an increasingly totalitarian future?
A worthwhile post by Joel. I think the answer to his final question is as follows: Just as the anti-war paleocons are more passionate about hating Israel and the neocons than they are about defending American nationhood, some paleocons are more passionate about hating Lincoln than they are about finding common ground with other conservatives in opposing the encroachments of the state. I suspect that in both cases the motivation has to do with a kind of cultural despair; they no longer think it’s possible either to defend the nation or to turn back the Leviathan state, so their energies becomes purely reactive against the perceived triumphant oppressors whom they hate but feel they can no longer effectively oppose.
As for Joel’s discussion of the origin of the phrase “we the people,” I think that the very fact that the possible unitary meaning of the phrase was criticized, but that the Convention went ahead and adopted the phrase anyway, suggests that there was something other at work here than what Joel sees: that the Founders, though they of course saw the United States of America as separate states, also saw them as constituted by ONE PEOPLE. And if they were one people, then they were one nation.
Thanks to Mr. Auster for a poignant response. This again just underscores for me how the Traditionalist perspectives articulated so well on this site show the only real way out — if not a way that can lead to a successful reclaiming of our moral, cultural, and political heritage, (in which case I doubt there is any way,) at least the one that is truly worth keeping in view and fighting for to the very last.
Regarding Mr. Auster’s latter comment, I don’t see a real disagreement here. What I do see, increasingly, is a contradiction between the way the Founders saw the Federal/State relationship, and the way it’s typically understood today.
This original conception must be properly understood — and I think you have expressed original Federalism well — before a correct understanding of what defines the _nation_ can be had. AND it is necessary in engaging the arguments of those who deny the significance of our nationhood.
I’ve just read the magnificent first chapter of Joseph Ellis’s book on the 1790s, Founding Brothers. It is the perfect compliment to this discussion. Ellis gets everything right, the tension of opposite conceptions upon which America was based, and the way they played out in the 1790s. I’ve felt for a long time that the 1790s are the most interesting (and unknown) decade in our nation’s history.
It’s a good thing the United Nations preamble doesn’t begin with “We the People of the World” or Lawrence would be arguing we are all part of a one-world government. It’s interesting to note that several states, New York and Virginia among them, ratified the Constitution with the express proviso that they could deratify it at anytime in the future should it become injurious to their peoples. Those who argue that the states were not sovereign and did not have a right to secede will ultimately lose the argument, because the truth is simply not on your side.
Is Mr. Waltrip seriously going to deny that, alongside the multiple or federal character of the United States, the Founding generation did not also think and speak of America as a single entity, a single nation, a single people?
given lawrence auster’s post on September 10, 2003 09:06 AM, i ask this question in all seriousness
in order for something to change from this to that there must be a cause, with the cause being relative to the change affected.
since the states are known to have been sovereign prior to the ratification of the u.s. constitution, what is the cause in the constitution per se which caused the various states to cease to exist? and after ratification, to have existence exclusively through the will of the federal government?
Mr. Waltrip’s arguement concerning certain provisos in the various ratifying conventions doesn’t hold water.
The Constitution, basically viewed, is an incorporation document, the creation of a ‘fictitious person, that was endowed by it’s creators with it’s enumerated powers. We tend to forget that corporations can only do what their charters say they can do since the modern corporation is generally endowed with all the rights and powers of real people. This wasn’t true in the past, corporations were usually created with specific purposes in mind and only given rights and powers pertaining to that purpose. In short, the Constitution is a contract. Since the provisos of the contract that the various state conventions put in were not ratified, or agreed to, by the other state conventions they simply speaking do not count. Try going to court with a proviso in a contract that you entered into that wasn’t agreed to by the other party(s) to the contract and see how far you’ll get.
The thing about the ‘We the People’ phrase carrying weight is that it is a statement of who the parties to the contract known as the Constitution in fact are, and the various state governments are not listed.
Last, but not least, you might dispute my whole ‘contract’ reasoning, but the Founders did in fact view government as a contract, or an agreement between men. That’s what government with consent of the governed, or a government of laws not men, means.
The thing about the UN is irrelevant of course, since the UN charter doesn’t say ‘The people of the world’, and doesn’t because the creators of the UN weren’t creating a world government. If that’s what they meant to do, they would have put it in there, and the US membership wouldn’t have been ratified as an ordinary treaty, as it was.
“Try going to court with a proviso in a contract that you entered into that wasn’t agreed to by the other party(s) to the contract and see how far you’ll get.”
Posted by: j mct on September 10, 2003 10:54 AM
likewise, try going to the state of virginia at the time of ratification and telling them that their proviso is without value, and see how far you’ll get.
just as in marriage, the intent of those entering a contract does matter.
“Since the states are known to have been sovereign prior to the ratification of the u.s. constitution, what is the cause in the constitution per se which caused the various states to cease to exist? and after ratification, to have existence exclusively through the will of the federal government?”
Abby displays a type of misconception common to intellectuals who take words in too literal a fashion, and so she fails to appreciate the fundamental ambiguity with which words such as sovereignty were used in the founding period. Yes, the states were spoken of as sovereign. But this was never literally and completely true. From the moment of the Declaration of Independence, the states, though spoken of in the plural, were acting as a UNITY. Thus the Declaration concludes that “these United Colonies are and of Right ought to be Free and Independent States.” Now, if we were to stop there, it would sound as if the Declaration were creating thirteen fully sovereign nation-states. But then the Declaration continues: “And that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent states may of right do.” Nothing is more fundamental to sovereignty than the making of war, peace, and alliances. But the states, AS SEPARATE STATES, never levied war, concluded peace, or established alliances. Such power of making of war, peace, and alliances was only claimed by the United States as a whole. The states, as states, never possessed, never exercised, and never claimed, these fundamental aspects of sovereignty. From the very beginning of the United States, these aspects of sovereignty resided in the United States, not in the separate states.
So, from the beginning, even before the United States acquired truly effective sovereignty in the 1787 Constitution, the “sovereignty” of the states meant, not a literal and effective sovereignty, but a partial sovereignty, in balance with the sovereignty of the whole.
likewise, try going to the state of virginia at the time of ratification and telling them that their proviso is without value, and see how far you’ll get
Patrick Henry, IIRC did in fact tell the ratifying convention exactly that in so many words but Virginia ratified it anyway. In contracts, the intentions of the parties are supposed to be put in the contract and ratified by all parties. Departures from strictly reading contracts as written generally have to do with unwritten but presupposed agreements that are ‘customary’ too, and this case doesn’t apply here.
Patrick Henry was right about the Constitution in that he saw it for what it actually was and IIRC voted no on ratifying it. He was in the minority, however.
Abby also writes:
just as in marriage, the intent of those entering a contract does matter.
One can write up a pre-nuptual agreement and sign it yourself, and tell your future spouse about it too, but if she doesn’t sign it, even if she knew about it, I don’t think you’ll get very far in court. I also think pre-nups, even if signed legally, don’t count in states that don’t allow amending of the ordinary marriage contract (which of course includes the laws of divorce), matter at all. A judge might be guided by it, but is not legally compelled.
Another point all these freepers bring up on the whole question is interesting in that they always bring up the Articles of Confederation. I don’t know if any historical personages like Lincoln or Daniel Webster brought up this arguement (Lincoln’s arguement about the Declaration of Independence is Daniel Webster’s “Liberty and Union, Now and Forever, One and Inseparable” arguement restated), but this seems valid.
The Articles of Confederation did actually ‘embody’ the principle of a league of sovereign states. The members of Congress represented the state governments, not the people directly. None of it’s officials were directly elected. It couldn’t tax the people directly, it could only tax parties to the articles, the state governments, which is as it should be. Because of its unaminous consent voting method, it was legally impossible under the articles for the sovereign state of Georgia to be taxed against its will. The unaminous consent was there precisely because each state was sovereign. The Articles of Confederation established a government that was what a league of sovereign states, which is in actuality a treaty or an alliance, looks like. It was like the UN or NATO.
The government under the Articles of Confederation, a league of sovereign states, however, is exactly what the convention in 1787 was called to abolish. The first part of the Federalist papers is a long arguement for a national government rather than a league of sovereign states. That’s what the arguement between that Federalists and the anti-Federalists, which the anti-Federalists lost by the way, was about. The last thing all these freepers argue about citing anti-Federalists for what the constitution meant, is absurd, they were against ratifying it precisely because it did wipe out state sovereignty.
To illustrate, Madison proposed during the convention that the national legislature have plenary power to nullify state laws. It didn’t pass because the other members thought it was a bad idea. Note it wasn’t ruled out of bounds because it would violate the principle of state sovereignty though, replacing the Articles of Confederation, i.e. abolishing absolute state sovereignty, was the whole point of the convention !
Last but not least, that is why the Constitution wasn’t ratified by the various state governments, but by conventions in the states. Each ratifying convention was in effect a Constitutional Convention for each state because they were amending each state constitution when they entered the union, abolishing sovereignty. The thing to remember is that each state government wasn’t ‘organic’, nations are ‘organic’, governments aren’t, they too were contracts or bargains between the citizens of the states. Each convention abolished the old bargain, sovereign states, and entered into a new one. The new bargain was between all the citizens of all the states, directly between people who lived in Virginia and people who lived in New York, that the state governments were now under.
The states now held their powers under the new bargain,i.e. the Constitution, not from their citizens directly as it was before.
Thanks to Mr. Mct for his illuminating comment. What he says about the Articles of Confederation may force me to modify somewhat my previous point about sovereignty. If every vote of Congress under the Articles had to be unanimous, then no state could be carried along by some sovereign act (say, a declaration of war) against its will. Therefore, rather than sovereignty (or at least sovereignty relating to acts such as war and peace) residing in the whole at the expense of the separate states, which is the way I described it earlier, it’s as though the sovereignty of the separate states and the sovereignty of the whole were bound into one unity.
The problem, of course, is that such an arrangement is unworkable. An entity that requires a unanimous vote to do everything cannot function.
Also, Mr. Mct’s point is well taken about appeals to the authority of the anti-Federalists on the meaning of the Constitution, when the anti-Federalists opposed the Constitution.
By the way, can’t people use more ordinary, human-sounding screen names instead of names like “j mct”? If you don’t want to use your real name, that’s fine. But at least use something that sounds like a real name, not a meaningless collection of letters.
The Founders never meant to give the military power to the Federal Government that would be required to coerce the States. The Federalist papers are quite clear on this. They meant for the powers of coercion over the States by the Federal Government to be administrative in nature and never military.
They did too ! Administrative coercion is an oxymoron, I think.
The Constitution specifically mentions the possibility of rebellion against the government established by it and is not specific as to who or what is rebelling.
I think that you’re not being Machaiavellian enough in a political theory sense to wholly see the motivation behind the 2nd amendment was and as to why it is worded as it is. The 2nd amendment doesn’t bar the Feds from denying a state from raising a militia, if it were for that it would have said that. As written, it bars the states from denying the right to bear arms too, it is an absolute right held by the citizenry that cannot be infringed by anybody, states included. The militia, so defined, is just the armed citizenry not necessarily organized by a state.
It embodies an essential, sort of ‘natural law’ fact, when the people have the means at their disposal to resist force from the government, a government that can put down a rebellion is by definition a government by consent of the governed taken as a whole. Washington put down the Whiskey rebellion precisely because it wasn’t ‘general’, if it were, he would have failed. This may not be true now, given the state of modern weaponry, but it was true in 1790. If the government lost the consent of the governed, given that the governed were armed, it would be successfully overthrown. If the rebellion did not succeed, it wouldn’t be expressing the will of the people as a whole, since if it did the government would fail to put down the rebellion. There’s nothing ‘legal’ about this, it’s a raw fact.
One last point, I think citing what Madison or some other Federalist said during the ratifying period is somewhat irrelevant. If Madison said this or that during the political hurly burly that is quite frankly in contradiction to the Constitution as written one can just say that Madison, a politician, lied. Politicians do do that.
Mr. Mct said, “The government under the Articles of Confederation, a league of sovereign states, however, is exactly what the convention in 1787 was called to abolish.”
I don’t think that’s correct. As I understand it, the Convention was only legally empowered by the Congress to amend the Articles of Confederation and nothing more. The first thing the delegates did when they shut the doors to the proceedings was to throw the Articles out and start over, thus exceeding the legitimate scope of their mandate in any legal sense.
Mr. Madison as much as admitted this in the Federalist, No. 40, and asked the reader to overlook this fact and judge the proposed Constitution on its own merits.
Mr. Mct’s response to a statement of Abby’s was to note that Mr. Henry DID explain to the ratifying committee the central nature of the proposed Constitution but they ratified it anyway. Yes they did — with an express provision that the people of the State retained the right to reclaim the limited powers they were surrenduring to the Federal government. (I still do not understand how a conditional ratification on the part of Virginia, and New York, should have been considered valid unless the conditions themselves were considered valid.)
Also, I’m not clear what Mr. Mct meant when he referred to the States all changing their own Constitutions by ratifying the Federal Constitution. (There was a related question raised in the dissents of certain Justices in the Bush v. Gore case, who had suddenly and conveniently discovered Federalism and States’ rights.)
But I think it’s incorrect to say that the States “abolished the old bargain, sovereign states.” This is where terminology becomes a stumblingblock, as I think Mr. Auster was inferring. It’s not that they surrendured their sovereignty per se, they voluntarily handed over certain powers associated with the concept of sovereignty, thus redefining in a way what sovereignty means. But it was also clear that the States fully expected that those rights they had not turned over remained under their own absolute purview. They did not give the Federal government permission to encroach, at its whim and caprice, on the powers that they had withheld.
The tension in the Federal/States relationship very quickly became evident, most notably in the Alien and Sedition Acts, which provoked certain States, especially Virginia and Kentucky, to issue resolutions reasserting their own prerogatives and declaring frankly that any such laws passed that exceeded the Federal government’s express Constitutional authority were not valid and would not be regarded by them as such.
Mr. Mct said, “The 2nd amendment doesn’t bar the Feds from denying a state from raising a militia, if it were for that it would have said that. As written, it bars the states from denying the right to bear arms too, it is an absolute right held by the citizenry that cannot be infringed by anybody, states included.”
This is simply not correct. The Bill of Rights were not written as limitations upon the States and were not seen as such until early in the 20th Century. The 2nd Amendment was entirely a limitation on the Federal Government’s power to disarm the citizens, thus denying the States the capacity of maintaing a well-regulated militia — citizens proficient in the use of firearms.
My last post went through before I saw Mr. Auster’s request. j mct is short for James Patrick McTernan so it does have something to do with my real name. Since James Patrick McTernan is such a grand sounding name and I don’t want to intimidate anybody, I will now post under ‘Jimbo’ :) .
“I think it’s incorrect to say that the States “abolished the old bargain, sovereign states.” This is where terminology becomes a stumblingblock, as I think Mr. Auster was inferring. It’s not that they surrendured their sovereignty per se, they voluntarily handed over certain powers associated with the concept of sovereignty, thus redefining in a way what sovereignty means. But it was also clear that the States fully expected that those rights they had not turned over remained under their own absolute purview. They did not give the Federal government permission to encroach, at its whim and caprice, on the powers that they had withheld.”
Posted by: Joel on September 10, 2003 02:04 PM
i find this notion of a duel sovereignty to have real merit. its appeal is both that it conforms to the principle of subsidiarity as well as the aristotelian polis. both of which are required for a state to be an organic whole. the organic whole is maintained while meeting the needs of the modern state.
of course a federation like the e.u. accomplishes the same task, sans the underlying pantheistic/materialist principles which have gripped europe dating back to descarte and implemented from the french revolution and the enlightenment.
Thanks to Jimbo for providing a more pronouncible name. :-)
“Mr. Madison as much as admitted this in the Federalist, No. 40, and asked the reader to overlook this fact and judge the proposed Constitution on its own merits.”
Thanks to Joel for bringing Federalist 40 to our attention. However, Madison doesn’t simply say: “We broke the rules in discarding the Articles of Confederation, but it was worth it, so please understand.” Rather, he skillfully justifies that act under the Convention’s mandate from Congress, as below:
From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.
Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment of the convention, be affected by ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed.
Responding to Joel:
You’re right that the original resolution of Congress establishing the Convention didn’t allow them propose an entirely new government, especially one that dispensed with state sovereignty, and indeed it couldn’t since Congress wasn’t allowed to pass such a resolution under the articles. However, everyone that went to convention did so with exactly that in mind and just as importantly, everyone who didn’t go knew that that’s what they were going to do.
That the whole enterprise was fundamentally extra legal is also the reason why it was so important that the original GW went, as well as Ben Franklin. Since the convention wasn’t going adhere to its ‘charter’, no state would be legally compelled to even consider the new Constitution, let alone pass it, it had to be carried by the prestige of the participants as private persons, which in fact they were. Since the two most respected men in the US thought it was worth considering, that would be why the various states were to be compelled by public opinion to at least have a ratifying convention, which they weren’t legally compelled to do. But once each state, without any legal compulsion to hold a ratifying convention did so of its own free will, as it were, the whole thing became ‘legal’ since states were sovereign.
As far as the necessity of ratifying conventions in each state rather than one big one, that was necessary since the only people who could abrogate the bargain that a state government was is the actual parties to the bargain. This meant that the state of Rhode Island had to ratify it since a majority of the citizens of Rhode Island were necessary to dissolve the sovereignty of the state of Rhode Island. Since in ratifying the constitution, a majority of every participating state was necessary since only a majority of a state specific to that state could abolish it as a sovereign entity, and a majority of each part adds up to a majority of the whole, a national ratifying convention wouldn’t be necessary.
Again, proviso’s put in by individual states when they ratified the Constitution simply don’t count since they weren’t agreed on by everyone. Many anti-federalists wanted to redo the convention with these proviso’s in there but were voted down. I think I am correct that the Bill of Rights is a result of these provisos but the Bill of Rights was passed as ordinary amendments brought forth by the political process established by the Constitution, i.e. the Constitution was in force before the Bill of Rights, and ‘caused’ it, the Bill of Rights did not ‘cause’ the Constitution to come into effect.
The Constitution held that the national government had the powers that were enumerated in the Constitution and the powers of the states were plenary, not enumerated. Some argued that a Bill of Rights would be a bad thing since some idiot judge in the future might say that the Congress could pass any law not banned by the Bill of Rights, rather than within its enumerated powers only. A bit prescient no ? The fact that the powers were enumerated was to protect the states, and did so. The only ‘state right’ that was at issue in the Civil War was right of secession itself, one must remember.
As far sovereignty is concerned and what that meant to states versus the Feds this is a complete explanation methinks. In the US the people are sovereign (In the UK Parliament is). The people establish government by agreement amongst themselves as ‘natural persons’. Originally, and under the Articles of Confederation, the state governments were agreements among ‘natural persons’ and the US government was created by the state governments through the powers delegated to them by the people. The structure of the US under the Articles reflected this, the US couldn’t tax or order around individual citizens, it could only deal with parties to its creation, i.e. state governments, just like the UN does today. A state government could do this, since people were parties to its creation, it was a bargain between ‘natural persons’. The adoption of the Federal government changed all this. Now, the compact between ‘natural persons’ creates the Federal government, and the states held the considerable powers that they do under this bargain, rather than as before. The Federal government can now write laws affecting individuals in the various states over the opposition of the state governments if it wishes in some circumstances, unlike before, since that’s what the new bargain says. Where the initial bargain between ‘natural persons’ occurs is I think the crux of the matter. The adoption of the Constitution clearly changed where this occurs versus the Articles of Confederation.
To illustrate this thought, in the CSA’s constitution, they did change the preamble, getting rid of every mention of the word ‘people’ and substituting ‘people of the several states’, changing who the parties to the contract creating the CSA were. They wouldn’t have changed it if they were in the right on ‘sovereignty’.
I’d better stop now before Mr. Auster bans me for using up to much of his disk space.
“It is understandable that they would focus so intensely on Mr. Lincoln and the Civil War, after which, it is said, we went from being the United States, plural, to the United States, singular. But I wonder if engaging the argument here too strongly might not be a strategic waste of time? All of us agree that the Federal Government has transgressed its proper, legal boundaries. It behooves us all to identify the common points of agreement we have, and try to find where a consensus lies.
We argue for original Federalism. Is this not what the Paleos argue for? I suspect that the disagreements over what this entails are miniscule compared to the agreement we all share over how far apart the present political realities are from what the Founders intended to construct. Why split hairs over an increasingly distant past when we face the prospect of an increasingly totalitarian future?”
Posted by: Joel on September 10, 2003 01:54 AM
i tend to agree, but are all in agreement with the underlying principles espoused by the paleos? and if not, i wonder where is common ground to be found. where is our common ground?
I agree that what is needed, instead of endless complaining about the Civil War, is to articulate a traditionalist platform on the Constitution that we can all more or less agree on. Of course, such a manifesto would have no chance of being enacted in any foreseeable future. But enunciating it would provide a focus for showing what is wrong with our current constitutional order (e.g., the Incorporation Doctrine), the way it ought to be (e.g., get rid of the Incorporation Doctrine), and how to get there (e.g., pass a Constitutional amendment saying the Bill of Rights does not apply to the states).
I agree with your assessment on the 1787 Convention. The country was obviously facing an exigency that demanded a new approach. Hence, General Washington’s exclamation to Mr. Madison — “We are fast verging to anarchy and confusion!” following Shay’s rebellion. I don’t question the ultimate decision, but no reason to misstate the facts. ;-)
I still see your comments on the States abolishing their own sovereignty as overstatement. Your remark that ‘the powers of the states were plenary, not enumerated’ I think is correct, but can’t be said to qualify a contention that is not correct. The Constitution itself is a creation of the States, with each one having agreed to cede specific powers they would otherwise have enjoyed, and retaining ALL OTHERS. This is just not the same thing as ‘abolishing sovereignty.’ There are, to wit, certain limitations on State powers in the Constitution, (Art. I, Sec 10) but sovereignty in the Republican scheme need not be considered an all-or-nothing proposition, else the Federal government itself would not be ‘sovereign.’
Political power is distributed ideally between States as being competent to administer the affairs of their own territories, and the Federal government as touching matters that are of national significance — international treaties, war, a national currency, interstate commerce.
The crux of the matter comes down to what prerogative the States have when and if the Federal Government clearly acted in a way that exceeded the scope of its Constitutional authority. What is the meaning and extent of the Doctrine of Interposition as originally raised in the Virginia Resolution of 1798, and “Mr. Madison’s Report” of a year later? To what extent can the States stand between their citizens and a government that begins to effect a despotic and unconstitutional pose? What check do the people ultimately possess over Federal encroachment?
I am unsure from reading your remarks whether your definition of ‘sovereignty’ is incompatible with the very definition of a Constitutional Republic of States, but perhaps rather than splitting hairs over definitions, we ought to focus more closely on that practical question. If there is no real check, then the concept of Constitutional (and Republican) government is a farce.
Applying the Bill of Rights to the States, by pure judicial fiat, is one example. There was no Amendment passed to effect this. And it stretches the word ‘interpretation’ to justify the Supreme Court’s extraordinary turnabout. The Court itself amended the Constitution, casting aside all previous and clear decisions on the matter like so much straw.
I think you would agree in any case that we are far removed from the Federal/State relationship the Founder’s envisioned. Charting a course back and clarifying it is the task before us. To continue on our present course is not acceptable if the aspirations in the Preamble are to be fulfilled to future generations.
More hairsplitting given Mr. Auster hasn’t banned me for using up his disk space, so with his forbearance I would continue with Joel.
Getting back to the 2nd amendment, I think just from reading it that it did and does apply to the states by its very wording. ‘The right of the people to keep and bear arms will not be infringed.’ That statement clearly applies to the states in that the right to bear arms is held by the people against all governments, not just the federal government. The sentence’s plain meaning wouldn’t be changed if ‘by anybody’ were added to the end, it doesn’t say ‘Congress shall make no law infringing the right to bear arms.’, which if it only applied to the Feds, like the 1rst amendment, would of course be what it would say. I also think its in there for the reasons I stated earlier, it’s physically impossible to rule without the consent of the governed when the governed are armed. It’s almost a law of physics.
Also, there were no court cases on this because I believe the very first law on the topic of bearing arms did not occur until the Sullivan Act in New York State in 1911. By then, the Constitution was showing signs of ‘life’ as it were.
I’m also chuckling because of one thing you wrote. You are the first and only person I have ever encountered that agrees with me that ‘well regulated’ in 1790 meant ‘proficient in the use of firearms’, and a lot of present confusion is caused by not taking into account the meaning shift that has occurred regarding the word ‘regulated’ over the past 200 years.
I also disagree with regard to the Supreme Court applying the Bill of Rights to the states by a judicial fiat. In the debates over the 14th amendment, the participants, for and against, plainly do say that’s exactly what the ‘privileges and immunities’ clause in it was designed to do. Unlike many of the things said by Madison and his fellow federalists during the ratification of the Constitution, these statements were not contradicted by the document being debated, in fact, the ‘privileges and immunities’ clause makes absolutely no sense without thinking so, because then there are no ‘privileges and immunities’ to apply. I’d say that the Court was getting the law wrong in the 2nd half of the 1800’s and corrected the error in the 20th century. Salmon P. Chase was a rather obtuse individual, he declared some of his own acts as secretary of the Treasury to be unconstitutional when he was a Supreme Court Justice.
With regards to the Virginia and Kentucky resolutions, they just cannot work, and in fact didn’t ‘go anywhere’. If taken seriously, then the powers of the national government vary depending on what state one lives in. This state of affairs plainly will not do, as was noted by many people at the time, and acted on by them, the Feds in fact ignored state courts ruling on constitutionality as the last word, as they should have. Jefferson and Madison both disavowed them in deed if not in word. Cheap political posturing is not a recent invention and Jefferson himself was an ardent practitioner of it. He was extremely good at it to boot.
With regards to the whole sovereignty thing, I think we broadly agree on what the divisions of powers between the national govt and the states should be, but disagree as to why. I don’t think any theories about sovereignty are necessary, the Constitution itself is perfectly adequate to arrive at the correct answer.
Noone has ever said that the Fed govt set up by the Constitution was created by the states, as was the fed govt under the Articles of Confederation. The Constitution was not ratified by the states, i.e. the state governments, but by conventions in each state that were held to be stand ins for the people of each state as a whole. The state governments were not sovereign either, under the Articles of Confederation, the people of each state as citizens of their states, were sovereign and the states’ powers were delegated by the people of each state to their respective state govts state by state. The arguement about sovereignty was not about states being sovereign, they clearly were not, but was the Constitution a bargain between Virginians, New Yorkers… as Virginians, New Yorkers… or as individuals ? That’s why the ‘We the people’ in the Constitution was so important. The legality of Lincoln’s actions in the Civil War hinged on it.
When the southern states seceded, they did so not by through their state governments, but by conventions that were like the original ratifying conventions that represented the people, the sovereign entity, as a whole. Since the secessionists said that the contract known as the Constitution was a bargain between the peoples of the various states, between the ‘tribes’ of Virginians, New Yorkers… voting by ‘tribe’ as it were, the ‘tribes’ could withdraw their consent individually. This is John C. Calhoun’s doctrine of a name I should but cannot remember. (I thinks it’s something like concurrent sovereignty). They obviously couldn’t do so if the parties to the Constitution were the whole people of the US, since a convention that dissolved the Fed govt would need represent all the parties to the contract, and the Fed govt would then be an ‘all or none’ proposition, either everyone seceded or no one did. The question did matter a great deal at the time. Was secession, as it was actually accomplished, legal or not ?
I’d better stop and wait for Mr. Auster to hook up a new disk drive :-) .
Sorry I missed this thread. I don’t have much time to devote to these matters these days, and as the example of Mr. Auster himself demonstrates, debate about it is pretty much a waste of time. Minds are set about these matters, and that is that. Such an attitude leaves no room for education and/or correction, but since I don’t personally care what others believe (having long understood now that the game is well over), it’s no skin off my back that people refuse to listen, or to even contemplate the possibility that these things they’re so sure about just may not be so.
Contrary to Mr. Auster’s initial assertions, I, at least, do not draw my arguments or my states’ rights position from DiLorenzo or lewrockwell.com. I don’t even read lewrockwell.com. I draw my arguments and my conclusions from a study of the original texts, as well as the work of certain neglected secondary authors, predominantly from the 18th and 19th centuries. As an example, I will provide links to two rather important (and somewhat obvious) documents that I have yet to see mentioned here. In my view, nobody should presume to even have an opinion on this subject without reading them, and yet everybody does while at the same time nobody has. President Lincoln himself was not the author of the arguments attributed to him in this thread and elsewhere, but rather drew from the first work I’m about to mention (as did all big-government Federalists in those days, not least of all Chief Justice John Marshall):
The first of these is the celebrated Commentaries on the Constitution, by Supreme Court Justice Joseph Story. In it, Story lays out his theory of American unity, which relies on the famous canard (my opinion, of course) that the Union predated the States. The second is the lamentably unknown Brief Inquiry Into the True Nature and Character of Our Federal Government, by Abel Upshur, who was, among many other things, Secretary of the Navy under President Tyler. The Brief Inquiry is a direct, lengthy, and meticulous answer to Story’s arguments and position.
There are many other works that could be cited—the works of John Taylor of Caroline spring to mind—but these two pretty much draw the lines upon which the intellectual battle between the states’ righters and the nationalists is joined. There is much more to be known, of course, both as background and by way of understanding the precise circumstances that surrounded the founding of the country, but unfortunately an entire education can’t be provided in a simple weblog. Hopefully, some here may read these things and be inspired to follow up with a serious inquiry into the actual facts surrounding the founding, rather than relying on the somewhat mythical fairy stories that pass for early American history in most Americans’ minds, including those of many contemporary historians.
Anyway, as I said, I don’t have a lot of time to devote to this stuff these days, so I’ll have to let Mr. Auster and others here have the last word. Mainly, I just wanted to dispel this notion some people evidently have that all paleocons somehow depend upon DiLorenzo and Lew Rockwell. As I said, I don’t read lewrockwell.com, nor have I even read DiLorenzo’s book on Lincoln, although I think I pretty much know what’s in it due to all the controversy. My own conclusions have been reached independent of them, or of Buchanan, or of Fleming, or of anyone else.
Best to everyone. Keep up the good fight, in whatever measure you’re able.
Hey, Bubba, get the chip off your shoulder.
I just have to say that keeping abreast of this thread, created by Joel, Mr. Coleman, Thrasy, Jimbo, Abby, Mr. Waltrip, Mr. Auster, Bubba, Mr. Purdy, and any others I may have left out by accident, has been absolutely, positively one of the most riveting, educational, most enlightening experiences I’ve had on the internet and I thank all the above contributors for the experience! It just doesn’t get any better than this! Thank you!
The following comment, posted by Mr. Auster at 5:34 PM, includes a proposal I’d very much love to see come to fruition:
“I agree that what is needed, instead of endless complaining about the Civil War, is to articulate a traditionalist platform on the Constitution that we can all more or less agree on. Of course, such a manifesto would have no chance of being enacted in any foreseeable future. But enunciating it would provide a focus for showing what is wrong with our current constitutional order (e.g., the Incorporation Doctrine), the way it ought to be (e.g., get rid of the Incorporation Doctrine), and how to get there (e.g., pass a Constitutional amendment saying the Bill of Rights does not apply to the states).”
Would there be some way for those here who are obviously well-informed on constitutional matters and constitutional history (this does NOT include me, though I’ve actually begun such a project myself and put down a few ideas in a file on my other machine at home) to begin writing down the ways the Constitution should be corrected or re-written, profiting from our vantage point’s couple of centuries of hindsight, and guided by the principles of traditionalist conservatism?
As Mr. Auster says, such a manifesto would have zero chance of being enacted in the foreseeable future. But there has to be a beginning to everything. A journey of a thousand miles begins with the first step. Little strokes fell great oaks. And what if the occasion for implementation arose and our side wasn’t ready? “Have thy tools ready. God will find thee work.”
Below is a passage from the introduction to the book by Abel Upshur which Bubba regards as the ultimate authority on the meaning of the Constitution, and which the rest of us are all idiots for not having read and adopted as our own. It’s always like this. Someone grabs you by the lapels and tells you, “You’ve got to read THIS book; if you read THIS book, you will understand the TRUTH.” So you look at this great work, and it turns out to be transparently tendentious, the sort of thing that would only be persuasive to someone who already shared its premises. The core of Upshur and Burr’s thesis is that the national government as nothing more than an “agent” of the states. (But haven’t we heard this argument before, and already responded to it?)
From A BRIEF ENQUIRY INTO THE TRUE NATURE AND CHARACTER OF OUR FEDERAL
GOVERNMENT (1868) by Abel Upshur, Introduction by C. CHAUNCEY BURR
But the tyrannical excesses of [the Federalist] party soon brought it into such odium, that it was driven from power by the election of Mr. Jefferson to the Presidency. Though defeated, its partisans never ceased to labor to drag the Constitution away from its Democratic foundations, by giving the Constitution a construction utterly antagonistic to the intentions of the Convention which framed and of the States which adopted it. The great vice of the Federalists consisted in desiring to clothe the Federal Government with almost monarchical powers; whereas the States had carefully and resolutely reserved the great mass of political power to themselves. The powers which they delegated to the Federal Government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no State imagined it was surrendering when it, adopted the Constitution. Mr. Madison dwelt with great force upon the fact that “a delegated is not a surrendered power.” The States surrendered no powers to the Federal Government. They only delegated them. The powers of the States are original. Those of the Federal Government are only derived and secondary; and they were delegated, not for the purpose of aggrandizing the Federal Government, but for the sole purpose of protecting the rights and sovereignty of “the several States.” The Federal Government was formed by the States for their own benefit. The Federal Government is simply an agency, commissioned by the “several States” for their own convenience and safety.
To Bubba, I agree with you about the practicality about arguing about such thing, but hey its fun to exercise one’s God given right to every American to refight the Civil War (without any actual bullets that is). I agree with you about Story. The second guy, I can’t agree with you about. Story’s story may be bad, but is better than his. The presenters preface states:
The States surrendered no powers to the Federal Government. They only
delegated them. The powers of the States are original. Those of the
Federal Government are only derived and secondary; and they were
delegated, not for the purpose of aggrandizing the Federal Government,
but for the sole purpose of protecting the rights and sovereignty of
“the several States.” The Federal Government was formed by the States
for their own benefit. The Federal Government is simply an agency,
commissioned by the “several States” for their own convenience and
This is perfect hogwash. The States never had ‘original powers’ like the British Parliament does, in American jurispridence, they are derived from and delegated by, their sovereign, the people of the said state. The state of Virginia’s powers were every bit as ‘derived and secondary’ as those of the Federal govt. The reason why the Constitution was ratified by state conventions theoretically representing the people of each state directly, rather than the states themselves (i.e. the state governments), was precisely because the power to enter into a compact like the Constitution, unlike a compact like the Articles of Confederation, was not among any of the powers which the people of the states had delegated to their respective state governments.
In addition, noone at the time believed this either. The state government of South Carolina did not secede from the Union. South Carolina had a convention like the original ratifying convention that was supposed to represent the sovereign of South Carolina, i.e. the people, directly, and the convention seceded. They did this because everyone agreed that the state govt could not legally secede, that wasn’t one of the powers delegated to it by its sovereign, the people. This guy’s thoughts on the topic, if the presenter’s preface is accurate, as you have said, are obscure, even in his own day I’d warrant, and I think that is as it should be and disagree with you about that.
I think the question would hinge on who exactly ratified the Constitution, i.e. who were the parties to that agreement, the people of the US as a whole and in their capacity as individuals, or a collection of ‘tribes’ (I don’t mean to trivialize the distinction by using such a flippant word, but I can’t think of a better one), representing the peoples of the several states. I think the secessionists thought so too, the Constitution of the CSA explicitly replaces ‘We the People’, the stated parties to the agreement, with ‘We the peoples of the several states’. To refer back to the ‘the states created the Federal Government’ arguement, the states in the CSA didn’t create the CSA either, as is clearly stated in the CSA Constitution itself. One can argue as to whether this change removes an unnecessary confusion, the secessionist arguement, or changes the nature of the Constitution itself, the Unionist arguement. I agree with the Unionists as you can see.
I agree that arguing about the Civil War is better done as part of a hobby rather than as part of a serious intellectual discussion (except among historians). (I think it is interesting too.)
The traditionalists do need to work harder at coming up with a platform soon and, equally important, with stories about what life would be like under such a platform. There is no time to ensure the platform will be perfect, which perhaps would be a good thing to admit right at the beginning of any written platform. Platforms are too abstract and boring for the masses. The principles of the platform need to be taught in part through novels, film, and television. So again I repeat my suggestion that traditionalists establish their own media and undock us all from the liberal and commercial media that tears up traditional values.
As Unadorned has said, there is no reason whatsoever to believe we will have to fight for what we want any less than our forefathers fought. Still, I hope we can avoid bloodshed. A possible way to avoid bloodshed is to work very hard toward our goals.
Thanks to Jimbo for some very informative comments which have been helpful. Your argument about ‘original sovereignty’ of the States (or rather, the people of the States,) deserves further thought. For now I’ll deal only with the question of the application of the Bill of Rights to the States, first generally, and then specifically concerning the Second Amendment.
We discussed the Incorporation Doctrine in a recent thread. Further research has given me a little better understanding of this, so I’ll review with additional details over last time. Here’s what I got:
You stated above that: “Some argued that a Bill of Rights would be a bad thing since some idiot judge in the future might say that the Congress could pass any law not banned by the Bill of Rights, rather than within its enumerated powers only.” This was most famously expressed by Mr. Hamilton in Federalist No. 84. But this itself demonstrates that the early statesmen thought of a Federal Bill of Rights only as a restraint on the national power.
We should also note that when the first Congress was assembled and the House submitted 17 amendments for consideration as a bill of rights, the 14th proposed amendment provided that, “no state should infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech or of the press.” This was the only amendment that proposed a restriction on the power of the States, and it was REJECTED by the Senate.
Now a classic case that demonstrates the Bill of Rights only as a check on Federal power, is BARRON v. BALTIMORE 1833, wherein the complainant sought relief under the Fifth Amendment against the taking of property by the State of Maryland without compensation. Here Chief Justice Marshall, in the last constitutional decision in which he participated, wrote the following:
“The plaintiff in error contends that [his complaint] comes within that clause in the Fifth Amendment to the Constitution, which inhibits the taking of private property for public use, without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the Court can take no jurisdiction of the cause.
“The question thus presented is, we think, of great importance, but not of much difficulty.
“… the Fifth Amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested… . Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safeguards to liberty from the apprehended encroachments of their particular governments; the remedy was in their hands, and would have been applied by themselves. A convention would have been assembled by the discontented state, and the required improvements would have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress, adn the assent of three-fourths of their sister states, could never have occured to any human being as a mode of doing that which might be effected by the state itself. Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have … expressed that intention. Had Congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.
… These amendments contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them.”
Comes now the 14th Amendment. After it was passed the Supreme Court determined, in a somewhat complicated case on the Due Process provision in the Fifth Amendment, that the 14th Amendment’s Due Process clause did not require a procedural protection found in the Bill of Rights to apply to state prosecutions. The case was HURTADO v. CALIFORNIA 1884.
Until 1925, only one case deviates from the Hurtado doctrine. In CHICAGO, BURLINGTON & Q.R. CO. v. CITY OF CHICAGO 1897, the Court held that the Fifth Amendment provision that had been at issue in the BARRON case was in fact made applicable to the States under the 14th Amendment’s Due Process clause.
Otherwise, the Court held onto Hurtado. In 1900, the Court took the question of whether the Sixth Amendment right of trial by jury applied to the States. The case was MAXWELL v. DOW, which includes this statement: “In order to limit the powers which it was feared might be claimed or exercised by the Federal government, under the provisions of the Constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first Congress on the 25th of September, 1789. They were intended as restraints and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states. This has been many times decided.”
In TWINING v. NEW JERSEY 1908, the Court likewise rejected the application of the Fifth Amendment right against self-incrimination to State prosecutions.
(In Hurtado, Maxwell, and Twining, Justice John M. Harlan was the sole dissenter, arguing for incorporation of the whole of the Bill of Rights. Justice Brandeis would do so later in GILBERT v. MINNESOTA 1920. Both men would soon have their way.)
As late as 1922, the Court in PRUDENTIAL INSURANCE CO. v. CHEEK that, “neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech.’”
A hint of what was to come was MEYER v. NEBRASKA 1923, wherein the Court struck down a Nebraska statute which forbade the teaching of any language in a private school but English.
The big change, eroding the Hurtado doctrine and bringing us the Incorporation Doctrine, occured in the following cases:
GITLOW v. NEW YORK 1925 — “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”
NEAR v. MINNESOTA 1931 — The Court referred to “the liberty of the press guaranteed by the Fourteenth Amendment.”
DE JONGE v. OREGON 1937 — “Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”
CANTWELL v. CONNECTICUT 1940 — The Court here incorporated the Free Exercise clause in a case involving the so-called Jehovah’s Witnesses.
In MURDOCK v. PENNSYLVANIA 1943, the Court again decided a Free Exercise case involving the Jehovah’s Witnesses. I would note a statement made by Justice Jackson in his dissent: ““It is only in recent years that the freedoms of the First Amendment have been recognized as among the fundamental personal rights protected by the Fourteenth Amendment from impairment by the states. Until then these liberties were not deemed to be guarded from state action by the Federal Constitution. The states placed restraints upon themselves in their own constitutions in order to protect their people in the exercise of the freedoms of speech and of religion.” The cases cited by him in the footnote to his first sentence quoted were Gitlow, Near, and Cantwell.
The Establishment clause was then applied to the States in EVERSON v. BOARD OF EDUCATION in 1947, and has since been distorted beyond all recognition.
As I’ve already made a lengthy post I’ll leave this for now before Mr. Auster kicks ME off, and will deal specifically with the Second Amendment in this context tomorrow, Godwilling, which should be a much shorter post. ;-)
I’m glad that some people, like Unadorned, find the discussion so fascinating, but I don’t think many others will want to read legal brief-length comments, especially when they have no particular connection to the subject at hand. I ask Joel and Jimbo to keep down the length of their remarks.
Mr. Auster’s admonishment is accepted.
Jimbo’s argument on the lack of ‘original sovereignty’ of the States seems very cogent upon further reflection. This is something I hadn’t really considered, and does cast ‘We the people’ in a much more signficant light.
It wasn’t just the Constitution and the federalists who spoke of Americans as a people, but the anti-federalists as well. For example, the Dissent of the Minority of the Pennsylvania Convention, December 18, 1787, begins:
“It was not until after the termination of the late glorious contest, which made the people of the United States an independent nation, that any defect was discovered in the present confederation.”
“The people of the United States.” “An independent nation.” These are curious phrases coming from anti-Federalists who opposed virtually every aspect of the Constitution because they regarded any sovereign power in the national government as a usurpation and a threat. They thought of Americans as one people, one nation, even as they opposed any political expression of Americans as one people, one nation. Thus the very language of the anti-Federalists inadvertently points to the fundamental ambiguity which came into existence at the moment of American independence (in which 13 independent states joined in the existential political act of jointly asserting and defending their existence, independence, and sovereign powers, while simultaenously asserting 13 separate sovereignties—an impossible situation), and which was not resolved until the Constitution was ratified and the United States became a true nation-state with sovereign power to act.
We are but many states confromed to a federal government. If foreign affairs are not involved then there is little in common with every state but mere laws. It takes a disater to happen for unity to occur, so how can anyone claim America to be soverign. I sorry my friends, but I see this debate as pointless because there can be no true emprical evidence to suggest otherwise.