Removal of Confederate statues and flags?

Feb 2015
3,584
Caribbean
Before I respond any further, I just want to clarify where you're coming from. Are you saying the federal government possesses no authority other than what is expressly delegated by the text (i.e. states retain the ability to do any and all things not explicitly assigned to the federal government or prohibited to them by the written text)? That seems to be the factor your entire argument rests upon.
This is a specific case. Was Jefferson Davis, as you claim, a traitor, or was he, as he claimed, an enemy combatant? To answer that, i have to determine his allegiance obligation. And to determine his allegiance obligation, I have to determine the lawfulness of states "resuming" their "delegated power" (or seceding), as they had done to get out of the Articles of Confederation.

Now, is you opinion that these resumptions powers were "subjugated" by the Constitution is mostly 1) subjective or emotional, or 2) there is legal text and other documents to cite to show that is indded the "law of the land" (and Jefferson Davis is thus, guilty). Now, if it is #2, then you have knowledge that I don't have, and I would like to have it, and to clarify, that is exactly where I am coming from.

Is your question a tacit acknowledgement that federal authority to preempt States reclaiming delegated power is NOT in the Constitution?





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Feb 2013
4,193
Coastal Florida
This is a specific case. Was Jefferson Davis, as you claim, a traitor, or was he, as he claimed, an enemy combatant? To answer that, i have to determine his allegiance obligation. And to determine his allegiance obligation, I have to determine the lawfulness of states "resuming" their "delegated power" (or seceding), as they had done to get out of the Articles of Confederation.

Now, is you opinion that these resumptions powers were "subjugated" by the Constitution is mostly 1) subjective or emotional, or 2) there is legal text and other documents to cite to show that is indded the "law of the land" (and Jefferson Davis is thus, guilty). Now, if it is #2, then you have knowledge that I don't have, and I would like to have it, and to clarify, that is exactly where I am coming from.

Is your question a tacit acknowledgement that federal authority to preempt States reclaiming delegated power is NOT in the Constitution?
It's not a tacit acknowledgement of anything. I merely asked you to clarify the basis of your argument so that we can dispense with the superfluous nonsense and get down to brass tacks but you've ignored my query. If you read the question I asked, a simple yes or no would suffice for an answer. It's a mystery why you seem to be avoiding answering it.
 
Feb 2015
3,584
Caribbean
It's not a tacit acknowledgement of anything. I merely asked you to clarify the basis of your argument so that we can dispense with the superfluous nonsense and get down to brass tacks but you've ignored my query. If you read the question I asked, a simple yes or no would suffice for an answer. It's a mystery why you seem to be avoiding answering it.
FWIW, I referred to just about every relevant historical document starting with the KG3 response to the Olive Branch Petition in 1775, and ending with a summary of secession documents from 1861 - which is, I take it, "superfluous nonsense." When I told you I wanted to see some citations that establish the guilt of Davis, you posted, "Good luck with that." There is no one between you and any brass tacks. So get tacking. I'd love to see all the facts, law and historical documents that are not "superfluous." Make the case, the Attorney General was afraid to try.

If your excuse for not getting down is that I didn't give in to your demand, OK, then the answer to your question is NO.
 
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Feb 2015
3,584
Caribbean
It's not a tacit acknowledgement of anything. I merely asked you to clarify the basis of your argument
To clarify further, it may have seemed like I was dodging your question, but the truth is, I don't see it as MY argument. It is someone else's argument, and I am just repeating it.

"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."
--James Madison, Federalist No. 39, January 1788
 
Feb 2013
4,193
Coastal Florida
FWIW, I referred to just about every relevant historical document starting with the KG3 response to the Olive Branch Petition in 1775, and ending with a summary of secession documents from 1861 - which is, I take it, "superfluous nonsense." When I told you I wanted to see some citations that establish the guilt of Davis, you posted, "Good luck with that." There is no one between you and any brass tacks. So get tacking. I'd love to see all the facts, law and historical documents that are not "superfluous." Make the case, the Attorney General was afraid to try.
I don't really get why you appear to keep asking for court records that don't exist. No one even claimed he was found guilty. He simply meets the dictionary definition of a traitor.

If your excuse for not getting down is that I didn't give in to your demand, OK, then the answer to your question is NO.
Then why do you appear to keep asking for a written passage from the Constitution declaring that states don't have the right to secede?

To clarify further, it may have seemed like I was dodging your question, but the truth is, I don't see it as MY argument. It is someone else's argument, and I am just repeating it.

"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."
--James Madison, Federalist No. 39, January 1788
Again, you misunderstand what is being said. Madison is merely stating that each state is a sovereign, independent body which is making it's own decision on whether to ratify the Constitution rather than some other entity (or group of entities) making the decision on its behalf...and afterwards, the state will be bound by its own action. There's no indication here that a state can later back out. While Madison is speaking generally here, it's also interesting to note the distinction he makes between the terms federal and national. What he's speaking to is the concern of anti-federalists over the concept of consolidation and the supposed destruction of states as political entities under the proposed Constitution. He goes to great lengths to show how the new government will be only partially consolidated and that states will still possess an identity unto themselves. He also explains how this is reflected in representation: the power underpinning the House of Representatives is described as the consolidated power of "the people of America" (national), whereas the Senate would derive it's power from individual state governments (federal)...this was because senators were originally appointed by state legislatures rather than being elected by the people. See how he puts it all together in the summary at the end:

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 partial consolidation represented by these "national" aspects of the new government is actually another indication that states were irrevocably bound to the union.

I agree. My sentence didn't say what I was trying to say.

Yes, federal courts declare enactments unconstitutional (at least they started to with Dred Scott). However, in the case of secession, the state legislature is not passing an enactment. The State is repealing an enactment. I am not sure that is authority ever claimed. Has a court ever struck down an appeal? Isn't that what the court did in White V Texas? But without admitting it.
I don't think this passage is what you're trying to say either. I assume you meant to ask if a court had ever struck down a repeal. The answer is yes, many times, beginning in 1812 with New Jersey v. Wilson (1812):

Syllabus

A legislative act declaring that certain lands which should be purchased for the Indians should not thereafter be subject to any tax constituted a contract which could not be rescinded by a subsequent legislative act. Such repealing act being void under that clause of the Constitution of the United States which prohibits a state from passing any law impairing the obligation of contracts.
A little research shows that, in the abstract, there's nothing unusual about courts striking down statutory repeals. Although, I'd question whether secession was a legislative repeal anyway.

They had already created something permanent in 1781, "the perpetual union."
Except the union created by the Articles wasn't actually permanent because the states weren't irrevocably bound and couldn't be compelled to meet their obligations under it. That's the primary reason it was jettisoned in favor of the Constitution.

No matter how much one beats around the bush, one cannot credibly make terms of surrender out of thin air, supposition and whimsy.
I'm just the messenger. You'll have to blame the framers for describing delegations of authority as surrenders.

Not the way you use it to defeat and ignore the rest of the Constitution. Misconstruction of that clause to exaggerate the power of the general government is called "sophistry" by Alexander Hamilton in Federalist 27. And if any Framer was going to be on your side of this...
What I've asserted is no different from what Hamilton said in Federalist 27. As for the sophistry he mentioned, he was talking about hyperbolic claims of anti-federalists in regard to the impending doom of state governments. I never said state governments ceased to exist. Rather, I merely asserted states subordinated themselves to federal authority under the Constitution.
 
Feb 2013
4,193
Coastal Florida
Continued... ok, that word limit has got to go...

It is the law of the land:
- under Article VII, a state has to ratify the Constitution for it to be established in that State; and
In a practical sense, Article VII was meaningful only to the original 13 states. It was not necessary for future states to ratify the Constitution.

- under Article 1 Section 10 and Article IV that the power, right, privilege or option to withdraw ratification not forbidden to the States; and
(for those who refuse to adhere to the canon - expressio unius est exclusio alterius - the States insisted on a Bill of Rights that preempted your misconstructions)
- under Amendment 10, "powers not prohibited" to the States are reserved by the States
If one considers that passages of the Constitution carry the meanings assigned to them by the framers, this actually appears to be a misconstruction on your part. Your position on it is rather extreme and, in actuality, it's not even consistent with the plain text:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Clearly, it doesn't say non-delegated and non-prohibited powers are "reserved by the States." The Articles of Confederation said that but the Constitution does not. Rather, it says such powers "are reserved to the states respectively, or to the people." The people are a different entity from the states respectively and it doesn't specify that a particular power is reserved to either entity. More importantly, however, it also doesn't say all unmentioned powers are reserved to the states or the people either. We know this because the framers explicitly said so when they were composing what would become this amendment. In fact, they debated and rejected what they saw as an attempt to use the 10th amendment to limit the delegated powers to what was explicitly specified in the text of the Constitution. They justified the rejection of this proposal by reasoning that, for a federal government to be effective and practicable, implied powers which were not specifically mentioned must and were intended to exist (Annals of Congress, House of Representatives, 1st Congress, 1st Session, 790).

The 10th Amendment has been interpreted in wildly different ways since it was ratified. This is because the vagueness of its language lends itself to pretty much any interpretation one wants to give it. However, an examination of its compositional history reveals that its final form was an amalgamation of several different abstract ideas and it was never intended as anything but a statement affirming the collective agreement about the general nature of our government and the ultimate source of all political authority (i.e. the people). While philosophically deep, it's non-specific about any particular matter of policy. This was by design as it was not seen as a change to anything already in the Constitution. Rather, it was merely meant as a sop to mitigate the concerns of those who were uneasy about the new government. The fundamental ideals expressed within its final form faced no opposition in any of the constitutional conventions or the 1st Congress. The debates over placing these ideas in the Constitution were generally over whether they were necessary to ward off an unrealized future threat or redundant because they were already implied by the rest of the document.

In regard to the Bill of Rights as a whole, it was largely thought of as being redundant and unnecessary. However, I think time has shown us that it was wise to include it.

To the larger question of secession, the Constitution simply implies that it's not permitted and that the federal government is empowered to prevent it unless it occurs through the amendment process. Like the reasoning articulated in Texas v. White, itself an example of a Constitutional implication, "What can be indissoluble if a perpetual Union, made more perfect, is not?"

When SC seceded the Constitution was not revoked - only their relationship with it. Arguing that one state can revoke the relationship between 2 or more other States is ridiculous. The moment after SC left, the rest of the union was sitting there, with a Constitution in place pursuing happiness and enjoying domestic tranquility. I would think a lot more domestic tranquility without the loud mouth trouble-making sons of Calhoun.
I never asserted that an attempt to revoke the Constitution in one state caused the union to dissolve.
 
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Feb 2015
3,584
Caribbean
I don't really get why you appear to keep asking for court records that don't exist. No one even claimed he was found guilty. He simply meets the dictionary definition of a traitor.
Davis also simply meets "the" dictionary definition of a foreigner.

But if you are claiming he is NOT a traitor under the Constitution, only in a dictionary - it would certainly be a benefit to clarity for you to say so. You did argue for a time that he was guilty because he was pardoned, but I don't recall if you relented on that.

Then why do you appear to keep asking for a written passage from the Constitution declaring that states don't have the right to secede?
Are you actually asking the question of why I'd like to see you substantiate your claim about what is in the Constitution by quoting it? I ask you for substantiation, because it is the only way I can know that you claim is not fabricated out of the wind.

Again, you misunderstand what is being said. Madison is merely
I merely quoted him. You are the one who spent 100+ words imposing your understanding on it.

II don't think this passage is what you're trying to say either. I assume you meant to ask if a court had ever struck down a repeal. The answer is yes, many times, beginning in 1812 with New Jersey v. Wilson (1812):
That's a good general example. I couldn't think of one.

But this is different than ratification enactments. In NJ v Wilson, the court can quote the Constitution saying "Such repealing act being void under that clause of the Constitution of the United States which prohibits a state from passing any law impairing the obligation of contracts." With the repeal of the ratification statutes, there is no Constitutional impediment. This is why I say that the court in White v Texas doesn't to state that it is striking down these resumption statutes, even though, in effect, it is - because there is no impediment to the repeal of the ratification statutes in the Constitution for the court to quote.

I'm just the messenger. You'll have to blame the framers for describing delegations of authority as surrenders.
If it were their message, it would be in their text - instead of your extrapolations and speculations. If this one power were surrendered, then exactly where? Yes, and there I go again, as in the second quoted question of this post - asking for written documents.

Does it occur to you that many of the same founders and framers who wrote the US Constitution, and the Papers, also wrote the ratification notices. So, the statesmen of Virginia wrote these words, "the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will..." are at least as much evidence of intent, of the lack of words from which you speculate.
 
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Feb 2015
3,584
Caribbean
Implied? From what? The wind?
And how can implication rule in the face of express text and facts to the contrary?

implied powers which were not specifically mentioned must and were intended to exist
Article 1 Section 8 (to use your word) "expresses" that there is a power for Congress to make a Navy. It is not expressed that Congress can buy ships, but if you wish to argue that the power to buy ships is implied by the clause that Congress may do that which is "necessary" to fulfill the express power, you'd have a substantiated argument.

That would be very different than arguing it is "implied" that States cannot repeal their ratification. Because now, you cannot cite any express delegated power, unless it came out of the wind.

To the larger question of secession, the Constitution simply implies that it's not permitted
Implied by what? Surely not the phrase that the powers not delegated are reserved - a clause you exert considerable effort trying to repeal with speculation.

Clearly, it doesn't say non-delegated and non-prohibited powers are "reserved by the States.
Is that a triple negative?
Nor does it say these non-delegated powers - which you create out of the wind - are delegated. Or alternatively, you could take these invented powers and give them to the States or the Martians - but that would not get to the conclusion you want.

If one has to keep arguing that something is implied by nothing, one ought to recognize the foolishness of the exercise and stop. This would be a capital case, and Davis' jury might want evidence.

What the Constitution DOES say is that powers are 1)"delegated" or 2) "reserved" by the States. There is no third category. I'd ask for citation to where you get this third category, but I am getting used to the idea that the answer is blowing in the wind. :)
 
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Feb 2015
3,584
Caribbean
Sorry, I just can't help it. :)

"A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it "
--James Madison

(Notice, I don't offer my "understanding" of that sentence).
 

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