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PROOF THAT THE UNION WAS SUPPOSED TO BE VOLUNTARY

From: mtgriffith1@yahoo.com

None other than President James Buchanan admitted in his last inaugural address that the founding fathers rejected the idea of allowing the federal government to use force to compel the obedience of a state:

“The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State.

After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not “necessary and proper for carrying into execution” any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.

It appears from the proceedings of that body that on the 31st May, 1787, the clause “authorizing an exertion of the force of the whole against a delinquent State” came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed:

“The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: “Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,” evidently meaning the then existing Congress of the old Confederation.

Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. (State of the Union Address, December 3, 1860)”

The founding fathers’ fears about the federal government using force against a state can be seen in Article IV, Section 4 of the Constitution itself, wherein they stipulated that there could be no federal intervention in a state to “protect” the state against “domestic violence” unless the state’s legislature or governor requested such intervention:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

So the federal government can’t “protect” a state against “domestic violence” unless the state’s legislature or governor request such “protection.”

Constitutional scholar and former law professor John Remington Graham discusses the framers’ refusal to allow the federal government to use force against a state and the reflection of this refusal in IV:4:

“It is an historical fact that, on two occasions during their deliberations, the framers in the Philadelphia Convention voted to deny Congress the power of calling forth military forces of the Union to compel obedience of a state, and on two further occasions they voted to deny Congress the power of sending the Federal army or navy into the territory of any state, except as allowed under Article IV, Section 4 of the United States Constitution–to repel a foreign invasion or at the request of its legislature or governor to deal with domestic violence. (A Constitutional History of Secession, Gretna, Louisiana: Pelican Publishing Company, 2002, p. 287)”

None other than the great Justice Joseph Story, who was certainly no staunch advocate of states rights, acknowledged that IV:4 required state application before the federal government could intervene in the state to suppress domestic violence:

It may not be amiss further to observe, (in the language of another commentator,) that every pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence, is taken away by that part of the provision, which renders an application from the legislature, or executive authority of the state endangered necessary to be made to the general government, before its interference can be at all proper. (Commentaries on the Constitution of the United States, 1833, volume 3, sections 1808, 1819; see also http://press-pubs.uchicago.edu/founders/documents/a4_4s14.html) ”

In commenting on IV:4, early American legal giant George Tucker, known as the “American Blackstone,” noted that the clause was a protection against the federal government using the pretext of providing “protection” as an excuse for unjustified intervention in a state:

“It may not he amiss further to observe, that every pretext for intermeddling with the domestic concerns of any state, under color of protecting it against domestic violence is taken away, by that part of the provision which renders an application from the legislative, or executive authority of the state endangered, necessary to be made to the federal government, before it’s interference can be at all proper. (Tucker, editor, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States, Volume 1, Appendix: Note D, Section 17:6)”

Another highly esteemed early American legal giant, William Rawle, not only agreed but added that IV:4 does not provide any authority for the federal government to use force against a state that has left the Union:

“Hence, the term guarantee, indicates that the United States are authorized to oppose, and if possible, prevent every state in the Union from relinquishing the republican form of government, and as auxiliary means, they are expressly authorized and required to employ their force on the application of the constituted authorities of each state, “to repress domestic violence.” If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.

Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States.

The principle of representation, although certainly the wisest and best, is not essential to the being of a republic, but to continue a member of the Union, it must be preserved, and therefore the guarantee must be so construed. It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.

This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood, and the doctrine heretofore presented to the reader in regard to the indefeasible nature of personal allegiance, is so far qualified in respect to allegiance to the United States. It was observed, that it was competent for a state to make a compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; and it was further observed, that allegiance would necessarily cease on the dissolution of the society to which it was due. (A View of the Constitution of the United States, 2nd Edition, 1829, pp. 295-304, 305-307; see also http://press-pubs.uchicago.edu/founders/documents/a4_4s13.html)”

To make the case even more concrete, we find the following explanation of IV:4 by James Madison in the Records of the Federal Convention, where Madison specified that state application was necessary before the federal government could intervene to protect a state against “internal commotion”:

“2. The guarantee [of IV:4] is

1. to prevent the establishment of any government, not republican

3. to protect each state against internal commotion: and

2. against external invasion.

4. But this guarantee shall not operate in the last Case without an application from the legislature of a state. (Records of the Federal Convention, 2:182, 188; Madison, 6 Aug. 1787)”

The “last case” is item 3, “to protect each state against internal commotion” (which was Madison’s alternative term for “domestic violence”), although the list is out of order (2 and 3 are in reverse order). So Madison said this could not be done “without an application from the legislature” of the state.

Lincoln had no legal right to invade the Southern states, even under his bizarre claim that they were still in the Union. They still had republican forms of government and they had not requested any federal intervention to put down “internal commotion” (as Madison phrased it). Furthermore, as we’ve seen, the founding fathers rejected the idea of allowing the federal government to use force to compel the obedience of a state.

Mike Griffith
Civil War website

http://ourworld.cs.com/mikegriffith1/id163.htm

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