"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, October 14, 2015

The basis of the Union: judicial doctrine or common agreement of the States?

The wise lawyer from frontier Illinois had a sophisticated and compelling argument, grounded both in history and in legal theory, regarding the nature of the Union. It is often salutary to return to first principles from time to time, and Lincoln's theory of the Union, expressed in his First Inaugural Address, is one that bears close reading. For Lincoln, the embodiment of the nation's character was not a judicially-created reading of the Constitution, but the fundamental agreement of the States themselves, an agreement reflected by the Constitution but one that also pre-existed the current Constitution and the Articles of Confederation that preceded it.
I hold that, in contemplation of universal law and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever—it being impossible to destroy it except by some action not provided for in the instrument itself. Again, if the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak; but does it not require all to lawfully rescind it? Descending from these general principles, we find the proposition that, in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787 one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union." But if the destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.

3 comments:

Tom Van Dyke said...

Now this is the interesting part. When Mr. Lincoln says "Fourscore and seven years ago" in 1863, that dates to 1776--not 1787, the Constitution.

When the sophists ask "Was America Founded as a Christian Nation?" I have to ask them what they mean by "America." I then argue further that a "nation" is more than the sum of its laws [and you can leave out the "Christian" part here].

We must discuss "America" as more than just its government and its laws or all is lost. Men do not and have never lived, fought and died for their government.


"Descending from these general principles, we find the proposition that, in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787 one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

Tim Kowal said...

"Founded as what" van only partly be answered without asking "Founded by whom?" One symbol of the American political tradition -- traced not just to the Declaration, but through the pre-Revolutionary era -- was the virtuous people deliberating under God. The deliberation is key to character of the people who would form the nation and its government. That the answer is not in finding answers but in resisting the urge to give definitive answers -- in the tradition begun in the Mayflower Compact -- to "enact...just and equal laws...from time to time, as shall be thought most meet and convenient for the general good." Even then, in the cramped tavern of the Mayflower among as small and culturally and religiously like-minded men as you're likely to find, there was no pretense to knowledge of what laws would actually work out to be "meet and convenient," let alone for all time.

Mark DeForrest said...

If one looks at the Union, it pre-exists both the Declaration and the Constitution -- the Continental Congress met prior to the Declaration, of course, and the idea of a formal Union of the Colonies was floated by none other than Benjamin Franklin in 1765. With the Declaration, the colonies joined together in the Union set off to create free and independent States, again united in Union. With the current Constitution, that Union was made more perfect still.