In the Shadow of Our Founders

» BuckyRea - "On shaky ground"

Lincoln was clearly stretching by claiming that the perpetuity of the Union preceded the Union itself by either 2 or 14 years (depending on whether you want to use the start date of 1776 or 1788 when the Constitution was ratified). But he was justifying a political position, not offering a legal argument. I agree that we need to look into the Constitution to see if secession was constitutional.

But I'd also argue that the Constitution doesn't claim to inventory the whole number of rights that American humans have. It specifically allows that there are other rights with the reserve clause. While the positive right to quit the Union is no where to be found in the Constitution and was specifically rejected by the leading "law-givers" of 1787, it isn't specifically rejected in the wording of the document. And there were a number of law-givers in the state conventions who stated explicitly that they did have that right. This wording was part of the approval process in Rhode Island, Virginia, and New York, I've read.

I have always failed to see then how it does not then fall under the rubric of a reserved right. I trust you'll cover this in part two.

Among these reserved rights obviously falls the right to resist tyranny. In 1861, the law of the land--altho I do not agree with it--explicitly held that a certain class of people were to be legally considered as property and that that form of property received special consideration in matters of interstate transport. It follows perfectly, I think, that threats of deprivation of that property would be a form of tyranny if the life, liberty, pursuit of happiness, general welfare, or domestic tranquility of citizens were affected by that deprivation.

The question then, as I see it, is that of who gets to decide where tyranny leaves off and simply "an inconvenient commercial regulation" takes up. It would be an absurdity to allow that the alleged tyrant, in this case Lincoln, gets to make that call. It makes more sense to say the decision lies in the sovereign people, acting in the aggregate.

Of course this all leads eventually to a "might makes right" argument. This was, after all, the principle established at a separate "constitutional convention" at Yorktown in 1781 and ratified in Paris two years later. Under that standard, as you point out, Lincoln was definitely in the right and Davis in the wrong. But I suspect you don't wish to rely on that precedent. :o)

This is where I break with Davis: the same right to resist tyranny invested in the white Southerners and exercised through their instruments in the states also existed among the black Southerners. And further, that the Union had a right to assist their neighbors or countrymen in the assertion of their rights to resist tyranny. The inherent sense in this--or at least, the better marketing concept of this rationale--certain dawned on Mr Lincoln. By the start of his 2nd term he was justifying the war mostly in the name of ending slavery.

These are just my instinctive reactions to this debate. I don't necessarily see the precedential value of the Founders' writings outside of the Constitution on this question. While I think their thoughts are enlightening and worthy of great consideration, their personal opinions do not hold the same force as the legal codes they left us with. I know you've studied this matter more than I have, so I'm really looking forward to part two. This is the central problem that I have with Lincoln's early defense for opposing secession. I think it's significant that at first he chose to stand and fight not over secession but over the federal property confiscated by the Confederates.

Here's a cool link I found, by the way.

-- posted by BuckyRea

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» Brian Tubbs - Re: "On shaky ground"

In response to message posted by BuckyRea:

Good points, Bucky. You might be disappointed, because I don't really get into the state ratifying conventions until Part Three. But I hope you'll find Part Two at least somewhat interesting, as I cover the first two tenets of Davis's position: 1) That the states are "sovereign," and 2) That the Constitution is indeed a "compact" between the states, and not a national law passed by the "people" in the aggregate. Part Three rounds out the discussion by zeroing in on whether the states reserved the right to secede from the Constitution at a later date, and that's where obviously we'll have to delve into the state ratifying conventions.

I strongly (though, as always, most respectfully) disagree with your implication that the intentions of the Founders don't or shouldn't weigh heavily in our understanding of the Constitution. Since I won't have time to get into that aspect of this debate anymore than I did in Part One, I'll address it some here.

One of the most significant debates over the meaning of the Constitution took place over the proposed Bank of the United States in the Washington administration. As you know, Thomas Jefferson took a position against the Bank, arguing from a "strict constructionist" perspective. According to Jefferson, the Constitution delegated no such power to the federal government, therefore for it to erect such an insitution would exceed its enumerated powers. Alexander Hamilton disagreed, taking a "loose constructionist" angle. He argued that the Bank would help the government fulfill some of the powers that were enumerated in the Constitution, thus it was "necessary and proper" for the country to have such a Bank at that time.
George Washington ultimately sided with Hamilton, and the rest is history.

What is fascinating about this debate is that Hamilton and Washington were both present at the Constitutional Convention, and Jefferson was not. To me, this begs a question: Did Washington and Hamilton's "insider" knowledge of the Constitutional Convention give them a superior position when arguing with Jefferson on the constitutionality of the National Bank? Did they know something he didn't? The answer to both questions, in my view, is a resounding "yes."

One may claim that Hamilton was too partisan or too emotionally invested in his "scheme" to care about constitutional technicalities, but that cannot be said of George Washington, who presided over the Constitutional Convention from beginning to end. Had Washington been genuinely swayed by Jefferson's logic (or, more to the point, had seen the correctness of Jefferson's position that no such power was ever intended by the Constitution's Framers to be in the federal government's hands), I think he would've opposed Hamilton's plan.

The Founders' understanding of the Constitution's meaning is extremely relevant to what our understanding should be. I will grant that "personal opinions" don't hold the same force and weight as what is actually written in law. Imagine if our country tried to live according to the many (and often conflicting) opinions expressed in Thomas Jefferson's correspondence alone? But statements and/or decisions made in the context of applicable articles or amendments to the Constitution that they had a hand in should guide our understanding of what those portions of our Constitution mean. This is most honest means of holding our society - including our legal and political institutions - truly accountable to the laws of our land.

-- posted by Brian Tubbs

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» BuckyRea - Re: Re: "On shaky ground"

Part Three?! You're not turning into one of those compulsive serielizers at the Suite, are you?

...your implication that the intentions of the Founders don't or shouldn't weigh heavily in our understanding of the Constitution.

Well, that's not quite what I said. But then what I said wasn't exactly correct either. Partly this hangs on how we define "heavily," but the point I was making (and which you reiterated about Jefferson) was that their opinions, expressed as opinions, don't hold the weight of precedent. Obviously what they had to say deserves serious consideration. What I should have said is that their words and actions outside of positions of legal authority don't hold precedential value, not just what they said outside of the Constitution (which was what I wrote at first). What Washington did as a public servant obviously carries weight.

I am not, however, aware that in his capacity as an officer of government he ever took any actions that touch on the right of secession. I don't doubt that he held strong opinions that states oughtn't to leave the Union—that was a huge motivator for him in championing the Constitution, particularly as regards Kentucky and Tennessee where Spanish agents were afoot. But even that is not the same as saying that state governments didn't have the right to quit the Union. That's the smoking gun in this debate.

Did Washington and Hamilton's "insider" knowledge of the Constitutional Convention give them a superior position when arguing with Jefferson on the constitutionality of the National Bank? Did they know something he didn't? The answer to both questions, in my view, is a resounding "yes."

Patrick Henry, who's nonattendance at the Convention was deliberate and pointed, eventually came to support much of the Washington-Hamilton policies (not sure about the Bank) while Madison (whom your readers should know is probably the single greatest Constitutional theorist in our history) became a leading critic of the Washington administration. Attendance at the Convention, I'd argue, is not a prerequisite, nor even a head start, in understanding Constitutional principles.

Attendance could and should be a big help to an attendee in understanding, utilizing, and arguing Constitutional law. It creates unique expertise, but it does not create special authority. Only the voters and their representatives create that. Altho it's almost axiomatic with me that Washington knew more than Jefferson in the field of governance, I believe Washington beats Jefferson on the merits of his ideas without any reference to what assemblies he served in or documents he signed.

... George Washington, who presided over the Constitutional Convention from beginning to end

When Nathaniel Gorham's kinfolk come gunning for you, I got your back, bro.

But statements and/or decisions made in the context of applicable articles or amendments to the Constitution... should guide our understanding of what those portions of our Constitution mean.

On this point you're right. I was wrong to omit "decisions by officeholders." But I still don't think this moves the ball on Constitutional rights for which they did not render decisions but only offered personal beliefs. Otherwise, such a statement might also negate the value of opinions from men like Gerry and Mason whose fingerprints are all over the Constitution, but who specifically opposed it as organic law.

But even if we are to regard the out-of-official-capacity words of the Framers, or any Founders, as binding, and not just enlightening, in matters of law, we still have to hold them to the same rigorous standards of logic that any other legal rendering must meet. Their opinions alone cannot overrule natural rights of self determination the same way that, say, Roger Taney could overrule the search and seizure rights of Dred Scott.

-- posted by BuckyRea

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