Judge Napolitano: the 17th Amendment is Unconstiutional

[AxisMundi]

I'm beginning to wonder if you even read the source I provided. The missing records are primarily in the state archives.

Without the records, you don't have proof that the amendment was actually passed.

Don't count on it. This was almost 100 years ago; it was much easier to do things under the cover of darkness. For example, look at how the Federal Reserve Act was passed.

You have still not offered compelling evidence, or even evidence at all.

This is completely incorrect. You lack a fundamental understanding about early American history and the political theory that was held by the founders and the population at large. What you are describing is the a-historical nationalist theory of the Union, largely invented by people like Daniel Webster and Supreme Court Justice Joseph Story and based upon the flawed and largely-rejected beliefs of Alexander Hamilton.

I have been an informal student of the Constitution since the days when we were required to do such studies in libraries, as the interenets hadn't been invented yet.

Your attempts at empty insult are simply void. of course, you can try to prove my statements wrong.

Wrong again; the states maintained their sovereign nationality even after the Constitution was ratified. Alexis de Tocqueville made that very observation in his famous visit to the early United States.

Citation please.

However, if one actually reads the document, one sees that all other rights and powers not lsited within the Constitution are reserved for the States.

Simple English should tell you that you are wrong.

The preamble originally read, "We the States." The change to "We the People" was made by the Committee on Style, indicating that it was a change in rhetoric and not in the nature of the document. Once again, the incorrect conclusions you're drawing are based upon the a-historical nationalist theory of the Union.

The Preamble, as ratified and passed, reads We the People, that is the only prelevant matter in this debate.

In addition to Thomas DiLorenzo's Hamilton's Curse and The Real Lincoln, you should also read Kevin Gutzman's The Politically Incorrect Guide to the Constitution and Tom Woods' Nullification. When you see the mountains of historical evidence in those books, hopefully you'll see how mistaken you really are.

Thomas DiLorenzo is an economics professor, not a history or even political professor. He, as is Woods, are involved with such organizations as the Legue of the South and their motivations, and opinions, are questioanble.

While Kevin Gutzman's credentials are indeed in pertinent areas, I find some of his work questionable, impacted by the neocon ideology.

At this point, I don't take you seriously.

Such is the burden of blindness brought on by political partisanship.

Not only have you demonstrated a fundamental lack of understanding about early American history and political theory, but you actually think that Judge Napolitano, one of the best allies the freedom movement has, is a neocon along the lines of Coulter and Limbaugh? Unbelievable.

What I ahve "displayed" is an opinion contrary to your opinions, your opinions which are guided, appearently, by partisan politics and not plain history.

 

[RPgrassrootsactivist]

You have still not offered compelling evidence, or even evidence at all.

I've provided a page that explains some of the problems with the ratification process of the 17th (with documented evidence in support), as well as an argument based on Article V and the contractual foundation of the Constitution. Just because you don't accept the evidence doesn't make it non-existent or invalid.

I have been an informal student of the Constitution since the days when we were required to do such studies in libraries, as the interenets hadn't been invented yet.

What's your point? This doesn't make you any less wrong.

Your attempts at empty insult are simply void. of course, you can try to prove my statements wrong.

I didn't insult you; I said you don't properly understand the subject matter, which is a fact. It may offend you (which was not my intent), but that doesn't make it an insult.

Also, it's not my job to prove you wrong; it's your job to prove yourself correct. I have asserted both that Judge Napolitano is correct and that there were problems with the ratification of the 17th, and I provided arguments and evidence in support of those conclusions. You may disregard them, but you haven't successfully refuted them. For example, it was in your attempt to refute the contractual argument that you demonstrated you don't understand the nature of the Union.

Citation please.

http://quotes.liberty-tree.ca/quote/alexis_de_tocqueville_quote_6452

However, if one actually reads the document, one sees that all other rights and powers not lsited within the Constitution are reserved for the States.

What does this have to do with the 17th amendment, and/or how does it support your argument in any way?

Simple English should tell you that you are wrong.

Please explain how "simple English" somehow proves your nationalist theory of the Union. The Constitution never says that the Union is a national union.

The Preamble, as ratified and passed, reads We the People, that is the only prelevant matter in this debate.

No, what's relevant is what the intended meaning of the phrase was, not just what literal words are on the page.

Thomas Jefferson said, "On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed."
http://etext.virginia.edu/jefferson/quotations/jeff1020.htm

You would have us separate the words from their historical context. And the contextual history is that the change from "We the States" to "We the People" was rhetorical. It cannot be taken to prove your nationalist theory.

Thomas DiLorenzo is an economics professor, not a history or even political professor.

So DiLorenzo doesn't count because his degree is in economics, but your opinion does count because you've done independent research (as you said above)? How is that not a double standard? How do you know DiLorenzo hasn't done independent research (and he has; that's why he's able to write books on historical issues)?

Furthermore, I will point out that DiLorenzo is a specialist in economic history.

He, as is Woods, are involved with such organizations as the Legue of the South and their motivations, and opinions, are questioanble.

To disregard someone's scholarship solely based on their associations is fallacious. The factual historical evidence in their work is objectively true regardless of what you think of their associations.

While Kevin Gutzman's credentials are indeed in pertinent areas, I find some of his work questionable, impacted by the neocon ideology.

I don't think you know what "neocon" even means. After all, you called the libertarian Judge Napolitano a neocon: a conclusion which I'm sure the overwhelming majority of people on this forum would consider incorrect.

Such is the burden of blindness brought on by political partisanship.

So because I don't take you seriously after you've demonstrated your lack of understanding regarding the material and have called one of the liberty movement's most significant leaders a "neocon," that makes me a political partisan?

What party would that be, exactly?

What I ahve "displayed" is an opinion contrary to your opinions, your opinions which are guided, appearently, by partisan politics and not plain history.

No, what you've displayed is historical error. Historical truth is not a matter of opinion. Your nationalist theory is objectively incorrect. It's derived from a false Hamiltonian view of American history and political theory which the majority of the population did not adhere to.

And again, what party are you referring to that is supposedly influencing my statements? Are you just throwing words around?

 

[Live_Free_Or_Die]

This may or may not be true. I've thought about this issue before. The first question is, did "perpetual" in the Articles mean that a State couldn't secede from it, or did it simply mean that there was no established sunset provision for the expiration of that union? I don't know; I've heard it argued both ways, and I never researched it thoroughly enough to make a determination.

It is not reasonable to take a position on a thing when relevant facts on the same thing may or may not be true.

I do believe that some time ago, though, I was reading in some book (I think it may have been written in the 19th century) which explained the theory that the Constitution was able to contractually supplant the Articles because it was an exercise of popular sovereignty, i.e., the people of the states, acting via popularly-elected ratifying conventions, choosing to abolish the existing governmental structure and institute a new one.

It is not reasonable to change the nature of a thing without action so let's analyze the facts:

Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.

If the Articles of Confederation can only be altered by the legislatures of every State and congress, the following questions must be answered to determine if 1) We The People supplanted the AoC or 2) If the perpetual objection raised is even relevant:

1. Did any state legislature propose secession from the AoC before adoption a new constitution with a fundamental change such as We The People versus We The States?

2. Did the congress of the united States propose to dissolve the AoC?

3. Was the Constitution put to We The People for ratification or was it ratified by State legislatures?

I also want to say something about the use of the phrase "original intent" in this debate. If we take "original intent" to mean the format and power delegation of the Constitution when it was first ratified, then of course an amendment can and does alter original intent; that's the entire point of an amendment.

The argument here, though, is that an amendment cannot fundamentally undermine the contractual basis upon which the Constitution was enacted. I don't really call that "original intent."

Any contract can be easily modified in any way if the parties are in agreement. I find no logic in your assertion.

 

[AxisMundi]

I've provided a page that explains some of the problems with the ratification process of the 17th (with documented evidence in support), as well as an argument based on Article V and the contractual foundation of the Constitution. Just because you don't accept the evidence doesn't make it non-existent or invalid........?

Our quotes are getting overly long, so I will address those items we have not already discussed ad nauseum...

You have offered nothing in the way of evidence. That is to say, you have only offered opinions, unrelated facts, and out-of-context quotes all strung together. It is no better than any 9/11 conspiracy theory.

 

[RPgrassrootsactivist]

It is not reasonable to take a position on a thing when relevant facts on the same thing may or may not be true.

If that's the case, then your position is also unreasonable, because your position also cannot be definitively proven. Or, there may indeed be evidence of a definitive conclusion of the meaning of "perpetual" in the Articles, but apparently neither of us is aware of it at this same.

Furthermore, I wasn't even affirmatively disputing your position; I was saying that it is something which cannot be determined.

Also, I actually believe that the Articles were superior to the Constitution, but that's not really relevant to the issue.

It is not reasonable to change the nature of a thing without action so let's analyze the facts:

The quote you provided from the Articles seems to have likely referred to amendments to the Articles within the context of that union, and not in reference to the dissolution of said union. After all, the colonies were fighting a war of secession from England, and each colony seceded independently; it's unlikely that they would have at the same time entered into a union (under the Articles) which affirmatively banned secession.

If the Articles of Confederation can only be altered by the legislatures of every State and congress, the following questions must be answered to determine if 1) We The People supplanted the AoC or 2) If the perpetual objection raised is even relevant:

1. Did any state legislature propose secession from the AoC before adoption a new constitution with a fundamental change such as We The People versus We The States?

2. Did the congress of the united States propose to dissolve the AoC?

3. Was the Constitution put to We The People for ratification or was it ratified by State legislatures?

Seeing as secession is a natural right, even if the perpetual clause did affirmatively ban secession (which, as discussed above, is probably unlikely), it wouldn't have been able to deprive the people of their right of secession.

Any contract can be easily modified in any way if the parties are in agreement. I find no logic in your assertion.

I don't think you understand my assertion. At what point did the parties to the Constitution, i.e., the people of the several States, agree to alter the fundamental nature of the Constitution and remove state sovereignty from the structure of the federal union? That never happened. And seeing as it didn't happen, it would be impermissible for a mere amendment to change that structure, especially considering the prohibition of Article V and the fact that not every State consented to the ratification of the 17th.

 

[RPgrassrootsactivist]

You have offered nothing in the way of evidence. That is to say, you have only offered opinions, unrelated facts, and out-of-context quotes all strung together. It is no better than any 9/11 conspiracy theory.

I believe my prior statements speak for themselves, so it appears that we have nothing further to discuss.

 

[Live_Free_Or_Die]

If that's the case, then your position is also unreasonable, because your position also cannot be definitively proven. Or, there may indeed be evidence of a definitive conclusion of the meaning of "perpetual" in the Articles, but apparently neither of us is aware of it at this same.

Furthermore, I wasn't even affirmatively disputing your position; I was saying that it is something which cannot be determined.

The quote you provided from the Articles seems to have likely referred to amendments to the Articles within the context of that union, and not in reference to the dissolution of said union. After all, the colonies were fighting a war of secession from England, and each colony seceded independently; it's unlikely that they would have at the same time entered into a union (under the Articles) which affirmatively banned secession.

Seeing as secession is a natural right, even if the perpetual clause did affirmatively ban secession (which, as discussed above, is probably unlikely), it wouldn't have been able to deprive the people of their right of secession.

I don't think you understand my assertion. At what point did the parties to the Constitution, i.e., the people of the several States, agree to alter the fundamental nature of the Constitution and remove state sovereignty from the structure of the federal union? That never happened. And seeing as it didn't happen, it would be impermissible for a mere amendment to change that structure, especially considering the prohibition of Article V and the fact that not every State consented to the ratification of the 17th.

There is no way for you to dismiss the argument.

1. You have no evidence congress or the legislatures of the several states proposed any measures to dissolve or secede from the AoC.

Since that is the case you are essentially arguing a state can supplant an existing contract simply by amending or adopting a new one. But then you argue except for the Constitution. There is an inconsistency you have not resolved or provided no evidence in your favor.

Apply your whole argument to the Amendment process. Don't states have a right to secede and adopt a constitution with a new amendment? Since you can not present an objection your same argument applies in reverse.

When a state ratified the 17th amendment it seceded and adopted a new constitution that was worded exactly the same as the previous one except for the fundamental changes provided for in the new amendment.

Since you have no argument against the AoC, applying your logic, the states do not need to deliberate secession.

 

[nemt4paul]

Just amazing how psychic everyone is on the Internets when it comes to talking about a perrson's political ideology after only a few posts.

Just to clear the air, I am indeed small government, not the "either/or" non-existant government you and your fellows advocate in the usual political hackery fashion. Some government is neccessary to provide basic civil services.

Also, considering the complete and utter lack of knowledge on the Constitution exhibited by many here, this part of your comment is also laughable.

And no, I am no fan of neocon media talking heads like the Judge, thank you.


Then feel free to explain why I wrote in the name of a man I "don't support" on my ballot, as opposed to voting for McSame or BHO?



Good, means people are listening.

So now the judge is a Neocon huh? You lost all credibility on that one.

 

[RPgrassrootsactivist]

1. You have no evidence congress or the legislatures of the several states proposed any measures to dissolve or secede from the AoC.

This is not technically true, seeing as the legislatures did call for the assembly of popular conventions to debate and vote on the formation of a new union by ratifying the Constitution (and hence, withdrawing from the union governed by the Articles).

However, even if what you are saying were correct, it wouldn't matter, because as I said, secession is a natural right which supersedes established governments, and it was popular conventions of the people that chose to secede from the Articles and form a new union under the Constitution. However, you may possibly be able to argue that the popular conventions were an invalid method of popular secession because such secession would have to be approved via a free plebiscite.

Since that is the case you are essentially arguing a state can supplant an existing contract simply by amending or adopting a new one. But then you argue except for the Constitution. There is an inconsistency you have not resolved or provided no evidence in your favor.

That is not what I'm arguing. I'm simply affirming that the people can withdraw themselves from an existing government and form a new one (or none at all, if they choose). This is largely the same argument made in the Declaration of Independence, although I would argue that an existing government need not be tyrannical in order for peaceful secession to rightly be allowed.

Also, I disagree with your contention that an amendment to the Constitution makes it a new contract. That is not the case; the amendment process is part of the Constitution and hence is governed under its authority.

Apply your whole argument to the Amendment process. Don't states have a right to secede and adopt a constitution with a new amendment? Since you can not present an objection your same argument applies in reverse.

When a state ratified the 17th amendment it seceded and adopted a new constitution that was worded exactly the same as the previous one except for the fundamental changes provided for in the new amendment.

This is incorrect. Your argument would require the co-existence of two rival contracts (constitutions), both claiming supremacy: one affecting states which ratified the 17th, and one affecting states which didn't. However, there is only one union, not two. An amendment does not supplant the contract; it alters one or more provisions of it in a method agreed to by the parties when they originally formed it. The ways in which it may be altered are limited by the foundational principles of that contract.

Who were the parties? The people of the several States.

Since you have no argument against the AoC, applying your logic, the states do not need to deliberate secession.

I don't think a state legislature has the authority to secede under the Constitution; only the people of a State do. This was probably the theory adhered to during the War of Northern Aggression; secession was typically conducted by popular conventions, and in some case(es) by a popular vote to ratify the decision of a convention.

And I do believe that the people of the several States can and should debate peaceful secession as a modern solution.

 

[Live_Free_Or_Die]

This is not technically true, seeing as the legislatures did call for the assembly of popular conventions to debate and vote on the formation of a new union by ratifying the Constitution (and hence, withdrawing from the union governed by the Articles).

No it is true, technically and in every other sense of the word true. States ratified it not We The People. Feel free to cite any legislative record of any state to demonstrate We The People not state legislatures ratified it.

Again you argue the ratification of a thing = replacement. You try to tip toe around the issue and there is no wiggle room. If ratification means the AoC can be replaced ratification also means the Constitution can be replaced.

However, even if what you are saying were correct, it wouldn't matter, because as I said, secession is a natural right which supersedes established governments, and it was popular conventions of the people that chose to secede from the Articles and form a new union under the Constitution. However, you may possibly be able to argue that the popular conventions were an invalid method of popular secession because such secession would have to be approved via a free plebiscite.

When facing the fact states ratified a thing you rebut... well the states had popular conventions therefore We The People ratified it. It's not true. States ratified it not We The People.

Congress has regular public hearings on the Federal Reserve (including one with Tom Woods) so when the FED prints up $600 billion We The People ratified it.

That is not what I'm arguing. I'm simply affirming that the people can withdraw themselves from an existing government and form a new one (or none at all, if they choose). This is largely the same argument made in the Declaration of Independence, although I would argue that an existing government need not be tyrannical in order for peaceful secession to rightly be allowed.

Also, I disagree with your contention that an amendment to the Constitution makes it a new contract. That is not the case; the amendment process is part of the Constitution and hence is governed under its authority.

It is not my contention an amendment to the Constitution makes it a new contract. This is your contention regarding the AoC and I am applying your logic to amending the Constitution. You are unable to defend against it.

If ratifying the Constitution = 1) a state secedes and 2) adopts a new constitution
Then ratifying an Amendment = 1) a state secedes and 2) adopts a new constitution

What I am saying is the word "ratify" means the same thing. You are trying to change the word ratify to mean two wholly different things.

It could also be argued secession can not occur until people have sought remedy by petition for a redress of grievances which wouldn't help your secession argument.

This is incorrect. Your argument would require the co-existence of two rival contracts (constitutions), both claiming supremacy: one affecting states which ratified the 17th, and one affecting states which didn't. However, there is only one union, not two. An amendment does not supplant the contract; it alters one or more provisions of it in a method agreed to by the parties when they originally formed it. The ways in which it may be altered are limited by the foundational principles of that contract.

Who were the parties? The people of the several States.

Your one union argument does not hold up to the historical record. The first president of the United States of America was elected before all of the parties to the Articles of Confederation ratified the Constitution.

So yes, concurrent contracts are not some new concept. Are you going to suggest the first president had jurisdiction over states that had not ratified the Constitution and did not participate in the election?

According to your logic if you "ratify" a thing such as an Amendment it does in fact create a new contract because ratification = 1) a state secedes and 2) adopts a new constitution.

Your argument a contract can not be modified in any way when the ratifying parties are in agreement is still absurd despite raising it again.

I don't think a state legislature has the authority to secede under the Constitution; only the people of a State do. This was probably the theory adhered to during the War of Northern Aggression; secession was typically conducted by popular conventions, and in some case(es) by a popular vote to ratify the decision of a convention.

And I do believe that the people of the several States can and should debate peaceful secession as a modern solution.

I can't help but chuckle at that argument. Above you said secession is a natural right! Let me see if I got this correct... Popular conventions held by state legislatures on secession/adopting a new confederate constitution is not an act by We The People but popular conventions held by state legislatures on ratifying a constitution is an act by We The People?

There seems to be a major contradiction in your argument considering the southern States adopted a new constitution.

For the other obvious problem with your argument. Since the AoC and Constitution are both void of a secession clause your opinion on authority to secede is subjective and inconsistent considering both constitutions were ratified by states.

 

[RPgrassrootsactivist]

No it is true, technically and in every other sense of the word true. States ratified it not We The People. Feel free to cite any legislative record of any state to demonstrate We The People not state legislatures ratified it.

Are you even paying attention to what you're debating? You claimed that there is no evidence that the legislatures ever "proposed any measures" (your words) to "dissolve or secede from" the union formed by the Articles. I responded by showing that your claim is inaccurate because the legislatures called for popular conventions which voted on whether or not to ratify the Constitution, hence leaving the old union and joining a new one. That's a fact, thus, your statement was inaccurate.

Furthermore, I don't see why you're trying to make the point about "We the People" and "We the States." If you'd read my other posts here, you'd see that throughout this entire thread I have continually opposed the nationalist theory of the union in defense of the compact theory. In fact, the essential reality of state sovereignty and its fundamental place in the framework of the constitutional contract is a principle reason why the 17th amendment cannot be considered valid; that was, it seems, Judge Napolitano's whole point.

But the fact is that the Constitution was ratified by the people of the several States assembled in popular conventions, hence making it at the foundation an act of sovereign groups of peoples, not primarily an act of state governments.

Again you argue the ratification of a thing = replacement. You try to tip toe around the issue and there is no wiggle room. If ratification means the AoC can be replaced ratification also means the Constitution can be replaced.

Of course the Constitution can be replaced. It just cannot be replaced by a mere amendment. An amendment to the Constitution is just like an amendment to the Articles. It amends certain provisions of the contract according to procedure set out when the contract was initially enacted; it does not supplant the contract.

The decision by the sovereign people of the several sovereign States to enact a new union under the Constitution supplanted the Articles. In like manner, in order for the Constitution to be supplanted, something above and beyond a mere amendment would have to take place, such as the people choosing to discard the Constitution and enact a new form of government (or, if they prefer, none at all).

When facing the fact states ratified a thing you rebut... well the states had popular conventions therefore We The People ratified it. It's not true. States ratified it not We The People.

The states did have popular conventions which were called into meeting by the legislatures. The people elected delegates, the delegates debated and voted on whether to ratify the Constitution. That's historical fact.

You seem to misunderstand the fact that the term "state" has multiple meanings. It can mean a geographic territory, it can mean a government, or it can mean a sovereign body politic. It is in this third sense that the States (i.e., the people of the several States) ratified the Constitution. See Gutzman's The Politically Incorrect Guide to the Constitution.

Congress has regular public hearings on the Federal Reserve (including one with Tom Woods) so when the FED prints up $600 billion We The People ratified it.

What are you even talking about? This statement is ridiculous and doesn't represent my position at all.

It is not my contention an amendment to the Constitution makes it a new contract. This is your contention regarding the AoC and I am applying your logic to amending the Constitution. You are unable to defend against it.

Wrong. The Articles were not amended when the Constitution was ratified; they were replaced entirely. When the sovereign people of a sovereign State chose to remove themselves from the government under the Articles and place themselves under the government of the Constitution, the Articles ceased to be in effect for those states once the new union was created (with the ratification of nine states).

If ratifying the Constitution = 1) a state secedes and 2) adopts a new constitution
Then ratifying an Amendment = 1) a state secedes and 2) adopts a new constitution

What I am saying is the word "ratify" means the same thing. You are trying to change the word ratify to mean two wholly different things.

That's because it does mean two different things. Approving (or ratifying) an amendment to a document according to terms set forth in that document (and hence governed by said terms) is completely different from discarding the first document and enacting (or ratifying) an entirely new document, an act which is not governed by the terms of the previous document.

It could also be argued secession can not occur until people have sought remedy by petition for a redress of grievances which wouldn't help your secession argument.

I don't see how this is directly relevant to the discussion.

Your one union argument does not hold up to the historical record. The first president of the United States of America was elected before all of the parties to the Articles of Confederation ratified the Constitution.

I don't have a "one union" argument. My statement was that two contracts claiming legal supremacy (i.e., two constitutions) cannot be in effect in a single legal jurisdiction. Any states which did not ratify the Constitution would be in a completely separate union and thus in a completely separate jurisdiction. The example I gave was to refute the idea that some states could enact a new constitution and hence an entirely new contract by choosing to ratify the 17th; they cannot.

Amendments are ratified by state legislatures according to the terms of Article V. State legislatures are not parties to the contract; the people of the several States are the parties, acting as sovereign bodies politic. The parties (i.e., the people of the several sovereign States) delegated to their state governments the right to amend provisions of the contract to the extent allowed by Article V; they (the legislatures) do not have the authority to violate or alter the foundational principles of that contract because they were not the parties to it.

So yes, concurrent contracts are not some new concept. Are you going to suggest the first president had jurisdiction over states that had not ratified the Constitution and did not participate in the election?

I really don't think you've paid much attention to my positions as expressed throughout this thread. Clearly, if any states chose not to ratify the Constitution, they would have remained under the Articles and hence in an entirely separate union from the new one which was created by said Constitution.

According to your logic if you "ratify" a thing such as an Amendment it does in fact create a new contract because ratification = 1) a state secedes and 2) adopts a new constitution.

Your misunderstanding here is based upon your failure to see that ratification means different things in different contexts, as discussed above.

Your argument a contract can not be modified in any way when the ratifying parties are in agreement is still absurd despite raising it again.

That is not what I said. The ratifying parties of the Constitution are the people of the several States. The legislatures called for conventions, the people elected delegates, the delegates debated the Constitution and voted to ratify it. This was an expression of popular sovereignty. It was "states" in the sense of sovereign bodies politic, not state governments, which are the parties.

I can't help but chuckle at that argument. Above you said secession is a natural right! Let me see if I got this correct... Popular conventions held by state legislatures on secession/adopting a new confederate constitution is not an act by We The People but popular conventions held by state legislatures on ratifying a constitution is an act by We The People?

No, you don't have it correct. What I said is that a state government (i.e., legislature and governor) doesn't have the authority to secede. The people of a State, as a sovereign body politic, have the right to secede their state from the union. Actions of the popular sovereignty in ratifying conventions is how the states joined the union in the first place, and that is generally how states seceded during the War of Northern Aggression.

And seeing as secession is a natural right, I would also argue that even smaller groups of persons, and/or smaller jurisdictions, also have a moral right to peacefully secede if they chose to do so in a freely conducted plebiscite.

There seems to be a major contradiction in your argument considering the southern States adopted a new constitution.

How? They seceded lawfully, they enacted a new form of government under a new contract.

For the other obvious problem with your argument. Since the AoC and Constitution are both void of a secession clause your opinion on authority to secede is subjective and inconsistent considering both constitutions were ratified by states.

The right of secession is implicit in the Constitution; it was almost universally understood and accepted at the time the Constitution was ratified.

And once again, I'll point out that you misunderstand the different uses of the term "state." The Constitution was not ratified by state governments; it was ratified by the states as sovereign bodies politic. Again, I will refer you to Gutzman's book.

This whole debate is very tiring. I don't even see what you're trying to prove. Earlier you cited a link that I myself had cited previously, demonstrating inconsistencies in the ratification process of the 17th, so I assume we are in agreement on that point. My other point is that the 17th is further invalid on historical contractual grounds, which seems to be the same point made by Judge Napolitano (although I argue it in a slightly different way than he has expressed).

 

[Live_Free_Or_Die]

This whole debate is very tiring. I don't even see what you're trying to prove. Earlier you cited a link that I myself had cited previously, demonstrating inconsistencies in the ratification process of the 17th, so I assume we are in agreement on that point. My other point is that the 17th is further invalid on historical contractual grounds, which seems to be the same point made by Judge Napolitano (although I argue it in a slightly different way than he has expressed).

I disagree the 17th Amendment is invalid on historical contractual grounds.

I think your contentions on historical contractual grounds are absurd. First the Constitution was legally originated in the legal process to amend the Articles of Confederation. The legal process to amend the Articles of Confederation required the ratification of all states. The scope of the origination of the Constitution is plain, it was an amendment to the Articles of Confederation but it fundamentally altered the Articles of Confederation. This is your complaint of the 17th Amendment. So what do you argue? You argue the Constitution was ratified by We The People and not the States due to some popular convention theory.

Continental Congress:

Report of Proceedings in Congress; February 21, 1787
REPORT OF PROCEEDINGS IN CONGRESS,(1)
WEDNESDAY FEBy 21, 1787

Congress assembled as before.

The report of a grand comee consisting of Mr Dane Mr Varnum Mr S. M. Mitchell Mr Smith Mr Cadwallader Mr Irwine Mr N. Mitchell Mr Forrest Mr Grayson Mr Blount Mr Bull & Mr Few, to whom was referred a letter of I4 Septr 1786 from J. Dickinson written at the request of Commissioners from the States of Virginia Delaware Pensylvania New Jersey & New York assembled at the City of Annapolis together with a copy of the report of the said commissioners to the legislatures of the States by whom they were appointed, being an order of the day was called up & which is contained in the following resolution viz

"Congress having had under consideration the letter of John Dickinson esqr chairman of the Commissioners who assembled at Annapolis during the last year also the proceedings of the said commissioners and entirely coinciding with them as to the inefficiency of the federal government and the necessity of devising such farther provisions as shall render the same adequate to the exigencies of the Union do strongly recommend to the different legislatures to send forward delegates to meet the proposed convention on the second Monday in May next at the city of Philadelphia "

The delegates for the state of New York thereupon laid before Congress Instructions which they had received from their constituents, & in pursuance of the said instructions moved to postpone the farther consideration of the report in order to take up the following proposition to wit

" That it be recommended to the States composing the Union that a convention of representatives from the said States respectively be held at on for the purpose of revising the Articles of Confederation and perpetual Union between the United States of America and reporting to the United States in Congress assembled and to the States respectively such alterations and amendments of the said Articles of Confederation as the representatives met in such convention shall judge proper and necessary to render them adequate to the preservation and support of the Union "

On the question to postpone for the purpose above mentioned the yeas & nays being required by the delegates for New York.

[yas & nays]

So the question was lost.

A motion was then made by the delegates for Massachusetts to postpone the farther consideration of the report in order to take into consideration a motion which they read in their place, this being agreed to, the motion of the delegates for Massachusetts as taken up and being amended was agreed to as follows

Whereas there is provision in the Articles of Confederation & perpetual Union for making alterations therein by the assent of a Congress of the United States and of the legislatures of the several States; And whereas experience hath evinced that there are defects in the present Confederation, as a mean to remedy which several of the States and particularly the State of New York by express instructions to their delegates in Congress have suggested a convention for the purposes expressed in the following resolution and such convention appearing to be the most probable mean of establishing in these states a firm national government.

Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.

Madison's convention notes:

Monday May 14th 1787 was the day fixed for the meeting of the deputies in Convention for revising the federal system of Government.

The Constitution was a proposed Amendment. It's clear. But to deny this obvious truth you say.... well States have a natural right of secession and the Constitution was ratified by popular convention.

Virginia ratifying convention:

On motion,—

The resolution of Congress of the 28th of September last, together with the report of the federal Convention lately held in Philadelphia; the resolutions of the General Assembly of the 25th of October last, and the act of the General Assembly entitled, "An act concerning the Convention to be held in June next," were read;—

So even though those so called popular conventions were a function of State legislatures and convened for the express purpose of accepting or rejecting a recognized resolution of Congress (not We The People drafting a Constitution mind you)... you say... well that doesn't matter because they were popular conventions by We The People. I mean how intellectually dishonest can we be here? Are you kidding me? The Constitution was ratified by We The People? I don't think so. At no time did the people in the several states spontaneously organize to adopt new constitutions. This happened under the application of legislatures on a resolution of Congress for the purpose of Amending the Articles of Confederation.

When facing these facts you think to yourself... hmmm I have to dismiss these facts because I am making the exact same complaint about the 17th Amendment and the 17th Amendment is unconstitutional because it is a fundamental alteration. You have to dismiss facts the Constitution was an Amendment to the Articles of Confederation. Despite the fact when only nine states ratified the Constitution you have to dismiss the fact there were concurrent contracts. But you can't dismiss them. Your exact points were argued amending the Articles of Confederation.

Patrick Henry during the Virginia ratifying convention:

This, sir, is the language of democracy — that a majority of the community have a right to alter government when found to be oppressive. But how different is the genius of your new Constitution from this! How different from the sentiments of freemen, that a contemptible minority can prevent the good of the majority! If, then, gentlemen, standing on this ground, are come to that point, that they are willing to bind themselves and their posterity to be oppressed, I am amazed and inexpressibly astonished. If this be the opinion of the majority, I must submit; but to me, sir, it appears perilous and destructive. I cannot help thinking so. Perhaps it may be the result of my age. These may be feelings natural to a man of my years, when the American spirit has left him, and his mental powers, like the members of the body, are decayed. If, sir, amendments are left to the twentieth, or tenth part of the people of America, your liberty is gone forever…

Yup, that pretty much sums up your argument. Well guess what? The Anti-Federalists were right because amendments were left to the twentieth, or tenth part of the people of America and your liberty is gone. Why do you make these arguments? Because the right thing to do is stand up to your own government and we are afraid to organize, petition, and stand up to our own government. So instead of recognizing the plain truth of the matter you try to convince people some notion of a long lost Republic that has not existed since the Civil War still exists (and we haven't even discussed or taken into consideration the Civil War fully devastates your arguments because the Civil War fundamentally changed everything forever using force and it has been so ever since).

Opposition to ratification was led by Governor George Clinton; the opposition also suggested that New York reserve the right to withdraw if the Constitution were not amended. Hamilton wrote Madison, as Secretary of the Virginia ratifying convention, and received the reply:

I am sorry that your situation obliges you to listen to
propositions of the nature you describe. My opinion is that a reservation of
a right to withdraw if amendments be not decided on under the form of the
Constitution within a certain time, is a conditional ratification, that it
does not make N. York a member of the New Union, and consequently that she
could not be received on that plan. Compacts must be reciprocal, this
principle would not in such a case be preserved. The Constitution requires
an adoption in toto, and for ever. It has been so adopted by the other
States. An adoption for a limited time would be as defective as an adoption
of some of the articles only. In short any condition whatever must viciate
the ratification. What the New Congress by virtue of the power to admit new
States, may be able & disposed to do in such case, I do not enquire as I
suppose that is not the material point at present. I have not a moment to
add more than my fervent wishes for your success & happiness.

This idea of reserving right to withdraw was started at Richmd. & considered
as a conditional ratification which was itself considered as worse than a
rejection.

The whole nature of reciprocal also sinks your argument about concurrent or perpetual contracts. Just because you enter into a new contract it does not make existing contracts void. Your concurrent argument becomes more absurd when you consider ratification according to your views which are there are two contracting parties 1) AoC ratified by States and 2) Constitution ratified by We The People.

Regarding your secession argument? Where is it mentioned States had any intention of voiding the existing contract the Articles of Confederation that they were seeking to amend? Is it in any of the ratifications? Nope, but when faced with that fact you go back and argue the absurd position these conventions were not part of the legislative process to amend the Articles of Confederation it was some spontaneous organization of We The People.

You laughed at my Federal Reserve reference but you wholly subscribe to a view an elected representative has power of attorney to contract in your name on the most sacred of causes... your individual liberty:

WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that 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: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.

With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification:

We the said Delegates, in the name and in behalf of the people of Virginia, do by these presents assent to, and ratify the Constitution recommended on the seventeenth day of September, one thousand seven hundred and eighty seven, by the Foederal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:

Was it binding on the convention delegates that voted no?
Was it binding on the people that did not vote for a delegate?
Was it binding on posterity?

This sure does not sound like a Republic to me. It sounds like the tyranny of a majority binding the minority. I am confident divine providence will not disappoint those who demand rulers when the blow back resulting from oppressing the minority has run its course.

Now getting back to my point about ratification. Ratification identifies the contracting parties.

19th century definition of Ratification:

RATIFICATION, contracts. An agreement to adopt an act performed by another for us.

2. Ratifications are either empress or implied. The former are made in express and direct terms of assent; the latter are such as the law presumes from the acts of the principal; as, if Peter buy goods for James, and the latter, knowing the fact, receive them and apply them to his own use. By ratifying a contract a man adopts the agency, altogether, as well what is detrimental as that which is for his benefit. 2 Str. R. 859; 1 Atk. 128; 4 T. R. 211; 7 East, R. 164; 16 M. R. 105; 1 Ves. 509 Smith on Mer. L. 60; Story, Ag. §250 9 B. & Cr. 59.

3. As a general rule, the principal has the right to elect whether he will adopt the unauthorized act or not. But having once ratified the act, upon a full knowledge of all the material circumstances, the ratification cannot be revoked or recalled, and the principal becomes bound as if he had originally authorized the act. Story, Ag. §250; Paley, Ag. by Lloyd, 171; 3 Chit. Com. Law, 197.

4. The ratification of a lawful contract has a retrospective effect, ana binds the principal from its date, and not only from the time of the ratification, for the ratification is equivalent to an original authority, according to the maxim, that omnis ratihabitio mandate aeguiparatur. Poth. Ob. n. 75; Ld. Raym. 930; Com. 450; 5 Burr. 2727; 2 H. Bl. 623; 1 B. & P. 316; 13 John.; R. 367; 2 John. Cas. 424; 2 Mass. R. 106.

5. Such ratification will, in general, relieve the agent from all responsibility on the contract, when be would otherwise have been liable. 2 Brod. & Bing. 452. See 16 Mass. R. 461; 8 Wend. R. 494; 10 Wend. R. 399; Story, Ag. §251. Vide Assent, and Ayl. Pand. *386; 18 Vin. Ab. 156; 1 Liv. on, Ag. c. 2, §4, p. 44, 47; Story on Ag. §239; 3 Chit. Com. L. 197; Paley on Ag. by Lloyd, 324; Smith on Mer. L. 47, 60; 2 John. Cas. 424; 13 Mass. R. 178; Id. 391; Id. 379; 6 Pick. R. 198; 1 Bro. Ch. R. 101, note; S. C. Ambl. R. 770; 1 Pet. C. C. R. 72; Bouv. Inst. Index, h. t.

6. An infant is not liable on his contracts; but if, after coming of age, he ratify the contract by an actual or express declaration, he will be bound to perform it, as if it had been made after he attained full age. The ratification must be voluntary, deliberate, and intelligent, and the party must know that without it, he would not be bound. 11 S. & R. 305, 311; 3 Penn. St. R. 428. See 12 Conn. 551, 556; 10 Mass. 137,140; 14 Mass. 457; 4 Wend. 403, 405. But a confirmation or ratification of a contract, may be implied from acts of the infant after he becomes of age; as by enjoying or claiming a benefit under a contract be might have wholly rescinded; 1 Pick. 221, 22 3; and an infant partner will be liable for the contracts of the firm, or at least such as were known to him, if he, after becoming of age, confirm the contract of partnership by transacting business of the firm, receiving profits, and the like. 2 Hill. So. Car. Rep. 479; 1 B. Moore, 289.

Have you ratified the Constitution?
Are you bound to the Constitution?

 

[AxisMundi]

I believe my prior statements speak for themselves, so it appears that we have nothing further to discuss.

Indeed. We will have to agree to disagree on this matter.

 

[TheDriver]

For those arguing that the 17th wasn't ratified:


Do you make the same arguments for the 14th?

 

[FrankRep]

For those arguing that the 17th wasn't ratified:

It's in the Constitution Now. That's what important.

We need to Repeal it!

 

[AxisMundi]

So now the judge is a Neocon huh? You lost all credibility on that one.

The fact that you cannot see it eliminated yours immediatly.

 

[FrankRep]

And no, I am no fan of neocon media talking heads like the Judge, thank you.

Judge Napolitano is Not a Neocon.

Negative Rep for you!

 

[AxisMundi]

Judge Napolitano is Not a Neocon.

Negative Rep for you!

Our opinions differ.

And thanks for the neg-rep. That means at least people are reading my posts, even if our views do not coincide.

Ain't America wonderful?

 

[LibertyEagle]

The Founder's Intent is well preserved. Indeed, it has been supported by the 17th, if anything.

We the People now have direct control of both houses of Congress.

Nope. Direct election of the Senate was most certainly NOT the intent of the Founders.

 

[FrankRep]

The Founder's Intent is well preserved. Indeed, it has been supported by the 17th, if anything.

We the People now have direct control of both houses of Congress.

AxisMundi, Wrong!


Wikipedia: 17th Amendment

The Seventeenth Amendment (Amendment XVII) to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which Senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, to be consistent with the method of election. It was adopted on April 8, 1913.​

The Original Constitution said:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.​

The Founder's Intent was for America to be a Republic, not a Democracy.