State Sovereignty Question

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GwilymT said:
How can one say that states retain their full sovereignty upon joining the Union when by joining, they give up the ability to choose which type of government they desire? The ability to chose a type and form of government is the first act of sovereignty. Under the constitution, this is denied to the states. The constitution states that the federal government guarantees the states a republican form of government, thus a different mode of government would be illegal. How can a body politic claim sovereignty when they cannot even choose which type of government they would like to form?
More than that, in Luther v Borden SCOTUS decided that Congress and or the President decided which was the proper government of a States. Reconstruction affirmed that and Texas v White ruled that also.
Article 10 forbids a number of powers that independent sovereign have.
SECTION 10
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
 
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jgoodguy

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JeffBrooks said:
Because they did not retain "full" sovereignty. When their citizens ratifying the Constitution, the state governments were compelled to surrender a large chunk of their sovereignty to the federal government.

Moreover, the states did not join the Union, per se. The Union was created by "We The People" of the entire republic and not by the individual states. The states we the logical vehicle to deal with the process of ratification by the people, but the authority of the federal government derives directly from the American people and not the pleasure of the states.
Good point.
 

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Paterson said:
When the states ratified the Constitution, created the federal government, and voluntarily joined the union they created, they demanded that the federal government perform certain tasks. And one of the tasks that states demanded of the federal government was ensuring that each state would adhere to a republican form of government. It's a relatively simple idea.
The States demanded nothing from the Federal government because they did not create the Federal government.
 

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Paterson said:
Then what was all that hubbub in Philadelphia in 1787 all about?
All the States' representatives were meeting in New York. So it seems the States were cut out of whatever was happening in Philadelphia.
 

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Paterson said:
Actually, the credentialed state delegates were meeting in Philadelphia (except the delegates of Rhode Island) in order to create a federal union of states and a corresponding federal government.

PS- The Confederation Congress failed to even achieve a quorum most of that summer.
So these 'delegates' usurped the authority of State representatives in Congress?
 

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Paterson said:
One of the more interesting episodes concerning the discussion and debate regarding mode of ratification occurred on July 23, 1787. On that date Pennsylvania delegate Gouverneur Morris "moved that the reference of the plan be made to one general convention chosen and authorized by the people". More specifically, Morris actually advocated that "We the People" of the entire republic, rather than the thirteen separate and individual states, should be empowered to ratify the Constitution. The idea was treated with such scorn, contempt, and derision, that not only was the idea flatly rejected, but not even a single delegate moved to second the idea. Not so much as a single delegate in convention supported the idea.

So in the end, thirteen independent, separate, and sovereign states ratified the Constitution. And each state ratified for itself, and for itself only.
Why not list the names of the States like the AOC did. For that matter why all the song and dance of a Consitution when the AOC was already in place with sovereign independent States?

Madison Debates July 23 Looks to me that the governments of the independent sovereign States were cut out of the process and in doing so ended the independent sovereignty of the States.

Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. [url=http://avalon.law.yale.edu/18th_century/debates_723.asp#12][FN12][/url] A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. [url=http://avalon.law.yale.edu/18th_century/debates_723.asp#12][FN12][/url] The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.[/center]

Mr. Govr. MORRIS moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, amend, & establish the same. -Not seconded . On [FN13] question for agreeing to Resolution 19. [FN16] touching the mode of Ratification as reported from the Committee of the Whole; viz, to refer the Constn. after the approbation of Congs. to assemblies chosen by the people:[/center]
N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN17][/center]​
 

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Paterson said:
Federalist 39 (Madison)

"this assent and ratification is to be given by the people, NOT as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, WILL NOT BE A NATIONAL, but a FEDERAL act."

So that settles that.
Not it does not, all this is, is a quote perhaps out of context. Please translate to simple English with a paragraph or two. Thanks.
 

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To facilitate discussion here are 2 paragraphs from The Federalist #39, which is neither law nor constitution, but political discourse, part of a debate over ratification of the Consitution. A federation as I understand it is not an organization of fully sovereign states, but an organization where sovereignty is shared and in sharing sovereignty with the federation, the individual States lose independent sovereignty.

These paragraphs imply that the people as ultimate sovereigns are ending the former relations of States as independent sovereigns and making the States part of a federation ending their independent sovereignty.

I hope the poster in his response will explain this completely.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.[/center]

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. 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.​
 

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Paterson said:
"the act of the people, as forming so many INDEPENDENT States, NOT as forming one aggregate nation, IS OBVIOUS from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the SEVERAL States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. . , in ratifying the Constitution, IS CONSIDERED AS A SOVEREIGN BODY,, and only to be bound by its own voluntary act. In this relation, then,
From this, I see independent sovereign States surrender by their voluntary act their sovereign independence and are bound to a federal Consitution by the will of the people.
 

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Paterson said:
You are most welcome. Still, I do wonder why the name of our country is not "The United People of America". And I also wonder why Article VII does not say "between the people so ratifying". It's mystifying.
Thanks for your comments.
 

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Paterson said:
Actually, the most interesting and revealing aspect of this discussion is that the specific reason we know that no state may have, for example, Monarchy for a state government is that the Constitution explicitly forbids it. And for the same reason we know that no state may coin money; because the Constitution expressly prohibits it. As for secession? Not so much as a single word about it. So there can be no doubt that it is a reserved power of the states. If it wasn't, the power to secede would have been denied to the states. But again, it wasn't. It simply wasn't.
The powers of foobar and wizbang are not in the Constitution eather. Are they reserved powers to the States because they are not mentioned?
 

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Andersonh1 said:
Yes, and since the Federalist papers are essentially a sales pitch, they often contain a good indication of what the various state conventions thought they were buying into. They are useful for determining intent, and where the Congress and the Courts departed from original intent.
Original Intent of the founders included the right for Congress and the Court to depart from Orginal Intent.
 

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Paterson said:
Foobar, whizbang, gronddleswerd, and nononopoke all, quite obviously, fall under the category of unenumrated cases. And, as Madison explicitly explained in Federalists 40, all unenumerated powers remain with the states. So if, circa 1860, Maryland decided to declare, through state legislation, that Whizbang was the Official State religion, the federal government would have had absolutely zero power to do anything about it. You don't like it? Too bad. Petition for a constitutional amendment to outlaw Whizbang.
As long as you assert that anything you can imagine is a reserved power, then it is only an opinion and I am satisfied.
 

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Paterson said:
And as long as you can fool yourself into believing that the framers were just wasting their time by very thoroughly debating and very carefully enumerating exact and specific prohibitions on state power, when under your plan, all they had to do was click their heels three times and presto! a whole new prohibition against state power magically appears! then I too, am satisfied.
Indeed if the framers had prohibited 'secession' all we have to do is click out heels three times call 'secession' huddling and we have a reserved power of huddling same as secession and a State can just huddle out of the Union.
 

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WJC said:
I don't believe anyone has claimed that the states retained their full sovereignty. It is well established that they delegated some of their sovereignty to the Federal government.
The very nature of secesson infers that States retained their full soverignity.
 

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Paterson said:
Indeed, and many scholars rely on them for exactly that purpose (determining intent). But if we must discard with the Federalist for the purposes of this discussion because they are neither law nor constitution, so be it. It still doesn't get you anywhere close to a prohibition against the right of secession.
Indeed, but if secession is not in the Constiution, it is outside of the Constitutional and thus Unconstitutional, outside of law and unprotected by law from someone calling it insurrection and rebellion then calling out the militia to surpress it.
 

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Assuming original intent can be found in the Federalist papers, I note this quote from Federalist 58

The Avalon Project : Federalist No 58 Secession is a baneful practice.

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself, even in states where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.[/center]​
 

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Paterson said:
Inasmuch as Federalist 58 is neither law nor Constitution, and inasmuch as the quoted passage is badly out-of-context, little attention need be paid to it. However, on the merits, Federalist 58 provides one of the strongest possible arguments on behalf of the constitutional right of secession in existence. It is true, of course, that the entire Federalist is little more than a series of noetic arguments designed to persuade the states to secede from the AoC and join a new federal union of states, but again, on the merits, only 45 and 40 provide a more compelling argument justifying the right of secession.

To that end, please note carefully, very carefully, that the language in the look-at-me screaming blue does not include the word "illegal". Rather, the specific word Madison uses is "baneful". And please be fully aware, fully aware, that there are many, many things that are baneful, but not illegal. War is perhaps the most obvious. Indeed, by using the language "baneful", Madison is communicating that the right to secede absolutely, positively exists, is to be feared and avoided, and he urgently cautions against its possible exercise. But he never, never, says it is illegal. If the right of secession simply didn't exist, Madison would have used words like "illegal", "unlawful", "lawless", or "unconstitutional". He used none of those words, because none of those words properly or truthfully describe secession. Nor is that all.

If secession was as awful and "baneful" as Madison describes, and if was to be as dreaded as he proclaims, then surely the Founders would have provided a clear, explicit, direct, and straightforward constitutional prohibition against the right. But they did not. Not so much as a single word in the entire Constitution which bans the right. Once again, as far as arguments justifying the constitutional right of secession go, they really don't get much better than Federalist 58. They most surely do not.
Surely the Founders would have provided a clear, explicit, direct, and straightforward constitutional prohibition against the right to huddle out of the Union, also.
 
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