This thread is a continuation of a discussion that was OT on another thread, so it's being moved to here.
I'm not going to bring across the related posts, but they start here: http://thehighroad.org/showthread.php?s=&threadid=103311&perpage=25&pagenumber=11
This is the remark that started the discussion:
In response to posts containing quotes from the Articles of Confederation and comments from Founders during the Constitutional convention and state constitutional conventions mentioning either the rights of a state or the national government, insidious_calm wrote:
That model requires that the Founders, many of whom were lawyers (and one I guoted became a Supreme Court justice), were mistaken. Not only that, but below are quotes from constitutional commentators (published in the early 19th century), who were contemporaries of the Founders,
stating that states and the national government have rights. From the Founding period to our time, legal commentators refer to states and nations having rights. It is clear from their writings that regardless of whether a nation's charter is a constitution, a confederation, or some other form of government, governments possess rights. This is somewhat analogous to the fact that people have rights regardless of the form of government they are subject to (regardless of whether the government unjustly restrains people from exercising those rights). Also, as with people and government, positive rights can be created/delegated by the compact.
If I understood your post correctly you believe that the rights of states alluded to in the Articles of Confederation arose from the AOC and a misapplication of contract law. However, as mentioned in the previous paragraph, some of the Founders speak of the rights of government, independent of the type of national charter.
You claim states don't have rights. Can you show any contemporary documents or framers that explicitly say that the states do not have rights?
I think part of the reason this myth has arisen is the Constitution is read out of its historical context. Surely a concept can exist WITHIN the context of creating a document even if it doesn't appear explicitly. As I'm sure you know, most of the Federalists felt a Bill of Rights was unnecessary. Without the Bill, reading the Constitution, one might conclude that governments have powers and individuals have no rights! ("Right" is used only once in the unamended Constitutition and it only refers to securing the publishing
rights of inventors and authors.) There was a demand for a Bill of Rights, so it was added, however, nobody was asking for a statement of government rights, for what I hope are obvious reasons.
In fact, the second article from the AOC clearly supports the contention that the Founders believed that states had rights:
That wording indicates that framers believed states had rights PRIOR to the AOC's conception, so those rights obviously did not arise as the result of a national contract.
I.C. wrote:
I believe it is you, rather than the Founders, who is confusing powers and rights. As mentioned previously, without a grant of power, a right couldn't be executed. Using the Constitution as an example, the Founders granted the right to coin money to the national government. They delegated that power to a specific branch of government, and as a result that branch of government had the right AND power to coin money.
Your explanation requires that the framers and constitutional commentators who were talking about the rights and powers of states and national governments were continuously confused about the distinction, right on through 40 years beyond the ratification of the Bill of Rights. It further requires that the misunderstanding persists today, because law review articles and constitutional texts continue to mention the rights and powers of states and the national government.
Below are quotes from three JURISTS, who were contemporaries of the founders, and published constitutional commentaries in th early 19th century. The quotes here are only a SAMPLE. These commentaries are sprinkled with references to rights and powers of governments.
To assert all of these folks were confusing rights and powers (especially when they were lawyers and judges), when the model I described above comports to the contemporaneous evidence, is to strain credulity. (Unless of course some evidence of contrary writings from the time is provided, or some scholarly work today shows strong evidence that all of these lawyers and judges were confused.)
The commentator's below are referenced by date published.
St. George Tucker (source: http://oll.libertyfund.org/Texts/LFBooks/Tucker0257/Constitution/HTMLs/0023_Pt05_View.html):
"The state governments not only retain every power, jurisdiction, and RIGHT not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government"
"it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their RIGHTS by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror."
"From the moment of the revolution they became severally independent and sovereign states, possessing all the RIGHTS, jurisdiction, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess."
"Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent RIGHTS of a state may be drawn in question."
"The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the RIGHTS of a state or of the people, either collectively, or individually, may be drawn in question."
William Rawle:
"A high function also appertains to the judiciary in the EXCLUSIVE RIGHT to expound the Constitution, and thereby to test the validity of all the acts of the legislature."
"The natural inclination of those who possess power, is to increase it. History shows that to enlarge the description of treason has often been resorted to as one of the means of increasing power. To have left to
the legislature an unlimited RIGHT to declare what should amount to this crime would have been less consistent with public safety, than to fix, by common consent, its plain definition and exact limits."
"The United States, therefore, justly reserved to themselves the RIGHT to punish this high offence, and the state courts, since the adoption of the
Constitution, have abstained from intermeddling with prosecutions on account of it."
Joseph Story (appointed to the Supreme Court by James Madison.)
"The first resolution adopted by the convention on this subject of the powers of the general government, was that the national legislature ought to be empowered to enjoy the legislative RIGHTS vested in congress by the confederation, and moreover..."
"Nor can any power be inferred in the states to regulate commerce from other clauses in the constitution, or the acknowledged RIGHTS exercised by the states."
"While this sheet was passing through the press, President Jackson's Proclamation of the 10th of December, 1832, concerning the recent Ordinance of South-Carolina on the subject of the tariff, appeared. That document contains a most elaborate view of several questions, which have been discussed in this and the preceding volume, especially respecting the supremacy of the laws of the Union; the RIGHT of the judiciary to decide upon the constitutionality of those laws; and the total repugnancy to
the constitution of the modern doctrine of nullification asserted in that
ordinance. As a state paper it is entitled to very high praise for the clearness, force, and eloquence, with which it has defended the RIGHTS and POWERS of the national government. I gladly copy into these pages some of its important passages, as among time ablest commentaries ever offered upon the constitution."
[the following are selective quotes from Jackson within the above passage]
'"The constitution has given expressly to congress the RIGHT of raising revenue, and of determining the sum the public exigencies will require. The states have no control over the exercise of this RIGHT, other than that, which results from the power of changing the representatives, who abuse it, and thus procure redress. Congress may undoubtedly abuse this discretionary power, but the same may be said of others, with which they are vested.'
"What are they? Every law, then, for raising revenue, according to the South-Carolina Ordinance, may be rightfully annulled, unless it be so framed, as no law ever will or can be framed. Congress have a RIGHT to pass law for raising revenue, and each state has a RIGHT to oppose their execution, two rights directly opposed to each other; "
"No one, fellow citizens, has a higher reverence for the reserved RIGHTS of the states, than the magistrate, who now addresses you."
Again, as in all cases, Jackson's comments as relayed by Story are only a sampling of the instances in which the RIGHTS of states or the national government are referred to.
I'm not going to bring across the related posts, but they start here: http://thehighroad.org/showthread.php?s=&threadid=103311&perpage=25&pagenumber=11
This is the remark that started the discussion:
In response to posts containing quotes from the Articles of Confederation and comments from Founders during the Constitutional convention and state constitutional conventions mentioning either the rights of a state or the national government, insidious_calm wrote:
That model requires that the Founders, many of whom were lawyers (and one I guoted became a Supreme Court justice), were mistaken. Not only that, but below are quotes from constitutional commentators (published in the early 19th century), who were contemporaries of the Founders,
stating that states and the national government have rights. From the Founding period to our time, legal commentators refer to states and nations having rights. It is clear from their writings that regardless of whether a nation's charter is a constitution, a confederation, or some other form of government, governments possess rights. This is somewhat analogous to the fact that people have rights regardless of the form of government they are subject to (regardless of whether the government unjustly restrains people from exercising those rights). Also, as with people and government, positive rights can be created/delegated by the compact.
If I understood your post correctly you believe that the rights of states alluded to in the Articles of Confederation arose from the AOC and a misapplication of contract law. However, as mentioned in the previous paragraph, some of the Founders speak of the rights of government, independent of the type of national charter.
You claim states don't have rights. Can you show any contemporary documents or framers that explicitly say that the states do not have rights?
I think part of the reason this myth has arisen is the Constitution is read out of its historical context. Surely a concept can exist WITHIN the context of creating a document even if it doesn't appear explicitly. As I'm sure you know, most of the Federalists felt a Bill of Rights was unnecessary. Without the Bill, reading the Constitution, one might conclude that governments have powers and individuals have no rights! ("Right" is used only once in the unamended Constitutition and it only refers to securing the publishing
rights of inventors and authors.) There was a demand for a Bill of Rights, so it was added, however, nobody was asking for a statement of government rights, for what I hope are obvious reasons.
In fact, the second article from the AOC clearly supports the contention that the Founders believed that states had rights:
That wording indicates that framers believed states had rights PRIOR to the AOC's conception, so those rights obviously did not arise as the result of a national contract.
I.C. wrote:
I believe it is you, rather than the Founders, who is confusing powers and rights. As mentioned previously, without a grant of power, a right couldn't be executed. Using the Constitution as an example, the Founders granted the right to coin money to the national government. They delegated that power to a specific branch of government, and as a result that branch of government had the right AND power to coin money.
Your explanation requires that the framers and constitutional commentators who were talking about the rights and powers of states and national governments were continuously confused about the distinction, right on through 40 years beyond the ratification of the Bill of Rights. It further requires that the misunderstanding persists today, because law review articles and constitutional texts continue to mention the rights and powers of states and the national government.
Below are quotes from three JURISTS, who were contemporaries of the founders, and published constitutional commentaries in th early 19th century. The quotes here are only a SAMPLE. These commentaries are sprinkled with references to rights and powers of governments.
To assert all of these folks were confusing rights and powers (especially when they were lawyers and judges), when the model I described above comports to the contemporaneous evidence, is to strain credulity. (Unless of course some evidence of contrary writings from the time is provided, or some scholarly work today shows strong evidence that all of these lawyers and judges were confused.)
The commentator's below are referenced by date published.
St. George Tucker (source: http://oll.libertyfund.org/Texts/LFBooks/Tucker0257/Constitution/HTMLs/0023_Pt05_View.html):
"The state governments not only retain every power, jurisdiction, and RIGHT not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government"
"it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their RIGHTS by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror."
"From the moment of the revolution they became severally independent and sovereign states, possessing all the RIGHTS, jurisdiction, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess."
"Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent RIGHTS of a state may be drawn in question."
"The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the RIGHTS of a state or of the people, either collectively, or individually, may be drawn in question."
William Rawle:
"A high function also appertains to the judiciary in the EXCLUSIVE RIGHT to expound the Constitution, and thereby to test the validity of all the acts of the legislature."
"The natural inclination of those who possess power, is to increase it. History shows that to enlarge the description of treason has often been resorted to as one of the means of increasing power. To have left to
the legislature an unlimited RIGHT to declare what should amount to this crime would have been less consistent with public safety, than to fix, by common consent, its plain definition and exact limits."
"The United States, therefore, justly reserved to themselves the RIGHT to punish this high offence, and the state courts, since the adoption of the
Constitution, have abstained from intermeddling with prosecutions on account of it."
Joseph Story (appointed to the Supreme Court by James Madison.)
"The first resolution adopted by the convention on this subject of the powers of the general government, was that the national legislature ought to be empowered to enjoy the legislative RIGHTS vested in congress by the confederation, and moreover..."
"Nor can any power be inferred in the states to regulate commerce from other clauses in the constitution, or the acknowledged RIGHTS exercised by the states."
"While this sheet was passing through the press, President Jackson's Proclamation of the 10th of December, 1832, concerning the recent Ordinance of South-Carolina on the subject of the tariff, appeared. That document contains a most elaborate view of several questions, which have been discussed in this and the preceding volume, especially respecting the supremacy of the laws of the Union; the RIGHT of the judiciary to decide upon the constitutionality of those laws; and the total repugnancy to
the constitution of the modern doctrine of nullification asserted in that
ordinance. As a state paper it is entitled to very high praise for the clearness, force, and eloquence, with which it has defended the RIGHTS and POWERS of the national government. I gladly copy into these pages some of its important passages, as among time ablest commentaries ever offered upon the constitution."
[the following are selective quotes from Jackson within the above passage]
'"The constitution has given expressly to congress the RIGHT of raising revenue, and of determining the sum the public exigencies will require. The states have no control over the exercise of this RIGHT, other than that, which results from the power of changing the representatives, who abuse it, and thus procure redress. Congress may undoubtedly abuse this discretionary power, but the same may be said of others, with which they are vested.'
"What are they? Every law, then, for raising revenue, according to the South-Carolina Ordinance, may be rightfully annulled, unless it be so framed, as no law ever will or can be framed. Congress have a RIGHT to pass law for raising revenue, and each state has a RIGHT to oppose their execution, two rights directly opposed to each other; "
"No one, fellow citizens, has a higher reverence for the reserved RIGHTS of the states, than the magistrate, who now addresses you."
Again, as in all cases, Jackson's comments as relayed by Story are only a sampling of the instances in which the RIGHTS of states or the national government are referred to.
The original statement triggering this was:
Really it seems to be just common sense seeing as how rights existed long before governments, but I guess I'll just go crawl back under my tiny, shrinking shield of liberty and watch as the youngin's redefine rights, liberties, and happiness. 