A Book With No Credibility–Chapter Twelve

Here Adams takes his historical disinformation campaign to the case of United States vs. Jefferson Davis.

He claims, “The New York Times ran this editorial on the captured leader of the South.  He was ‘a murderer, a cruel slave owner whose servants all ran away, a liar, a boaster, a fanatic, a confessed failure, a hater, a political adventurer, a supporter of outcasts and outlaws, a drunkard, an atrocious misrepresenter, an assassin, an incendiary, a criminal who was gratified by the assassination of Lincoln, a henpecked husband, a man so shameless that he would try to escape capture by disguising himself as a woman, a supporter of murder plots, an insubordinate soldier, an unwholesome sleeper, and a malingerer.’ ”  [p. 177]  He doesn’t cite an actual Times editorial.  He cites Edward Eckert, Fact Distorting Fiction.  There’s a reason for that.  He incompetently flubs the reference.  What his reference actually says is, “From 1863 to the end of the war the New York Times depicted Davis” using those terms. [Edward Eckert, Fact Distorting Fiction:  The Prison Life Annotated by Jefferson Davis, p. xiv]  That means that it was in several stories and editorials for two years, not in one editorial as Adams said.  Eckert’s source, by the way, is Grady McWhiney, “Jefferson Davis–The Unforgiven,” an article In the Journal of Mississippi History’s May, 1980 edition.

Adams claims, “The federal government dropped the case because it became increasingly clear that it could not win.  As time passed and reason replaced war passion, it became obvious that Jefferson Davis had a formidable defense, both in the substance of his defense and perhaps, even more important, in the great criminal defense lawyers who would defend him.”  [p. 178]  This is untrue.  The basic problem regarding getting a guilty verdict is given to us by Roy F. Nichols, in what is the standard for the history of this incident:  “Their decision raised the question which those who advocated the ‘constructive presence’ theory had wished to avoid, namely, could a jury be procured in Virginia or any state of the late Confederacy which would find Davis guilty?”  Roy F. Nichols, “The United States vs. Jefferson Davis, American Historical Review, Vol. 31, No. 2, January, 1926, p. 267]  There were certainly other difficulties for the prosecution, and Nichols details them.  They had nothing whatsoever to do with the feeling that secession was in any way legal.  Adams’ claims to the contrary simply hold no water.  The basic difficulty was the fear that any jury in a former confederate state would not vote to convict no matter what the facts were and no matter what the law was.

Adams writes, “The case against Jefferson Davis had to be examined in the light of history, and upon legal precedents and procedures.  And it might show that secessionists weren’t traitors at all.” [p. 180]  I may not be a lawyer, but it seems to me the case against Jefferson Davis had to be examined in the light of the law, such as United States Laws declaring various states to be states of the United States, and the Constitution’s Supremacy Clause, detailing that the Constitution and Laws of the United States remain supreme law of the land, no matter what any state may say.  And since by the Constitution and those laws all the confederate states remained states in the United States, their act of fighting a war against the United States was treason, making the confederates traitors.

Adams continues, “Maybe a state and its people, acting through democratic processes, did have the right to withdraw from the Union.  What had the Founders said?  Jefferson had said while president that if any of the states, alone or in combination, wanted to withdraw, then they should go in peace, as brothers and friends.”  [p. 180]  Jefferson never said anything as President that said there was such a possibility that a unilateral secession would be legal.

Let’s see what some of the Founders said:

Elbridge Gerry of Massachusetts asserted, “We never were independent States, were not such now, and never could be.” [Records of Federal Convention, Vol 1, p. 467]

Several delegates of the Massachusetts convention maintained the federal government under the Constitution would be able to protect the Union from the acts of “designing and refracting states.”  [Elliot’s Debates, Vol II, p. 35, Vol IV, pp. 59-60]

In South Carolina, Charles Cotesworth Pinckney urged his colleagues to “consider all attempts to weaken this Union by maintaining that each state is separately and individually independent as a species of political heresy.”  [Elliot’s Debates, Vol IV, p. 301]

In North Carolina, Samuel Johnson said, “The Constitution must be the supreme law of the land; otherwise it would be in the power of any one state to counteract the other states and withdraw itself from the Union.” [Elliot’s Debates, Vol IV, pp. 187-188]

“Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure.”  [James Madison to Nicholas Trist, 15 Feb 1830]

Since Adams brought up Thomas Jefferson, let’s see what he had to say:

“After plunging us in all the broils of the European nations, there would remain but one act to close our tragedy, that is, to break up our Union; and even this they have ventured seriously & solemnly to propose & maintain by arguments in a Connecticut paper. I have been happy, however, in believing, from the stifling of this effort, that that dose was found too strong, & excited as much repugnance there as it did horror in other parts of our country, & that whatever follies we may be led into as to foreign nations, we shall never give up our Union, the last anchor of our hope, & that alone which is to prevent this heavenly country from becoming an arena of gladiators. Much as I abhor war, and view it as the greatest scourge of mankind, and anxiously as I wish to keep out of the broils of Europe, I would yet go with my brethren into these, rather than separate from them.” Thomas Jefferson to Elbridge Gerry, 13 May 1797

“Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusets [sic] & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others.”  Thomas Jefferson to John Taylor, 4 Jun 1798.

“I regret that I am now to die in the belief, that the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be, that I live not to weep over it. If they would but dispassionately weigh the blessings they will throw away, against an abstract principle more likely to be effected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves, and of treason against the hopes of the world. To yourself, as the faithful advocate of the Union, I tender the offering of my high esteem and respect.”  Thomas Jefferson to John Holmes, 22 Apr 1820.

Jefferson, in fact, believed secession to be an “error of opinion:”  “We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”  Thomas Jefferson, First Inaugural, 4 Mar 1801.

Adams continues, “More recently, on 30 April 1839, there had been a great celebration on the fiftieth anniversary of the inauguration of President Washington.  Former president John Quincy Adams gave the jubilee address.  He ridiculed the claim by South Carolina to nullify a federal law, as had recently been attempted, but then concluded, ‘If the states ever lost their fraternal affection, gave way to cold and indifference, or a collision of interests should foster hatred, and the bonds of political association should sever, it would be far better for the people of the disunited states to part in friendship from each other than to be held together by constraint.’ ” [p. 180]

The speech is called the Jubilee of the Constitution Speech and Charles Adams quotes a part of John Quincy Adams’ speech.  Here’s a more expanded quotation:  “The Constitution had already ‘formed a more perfect union’ of the people of the United States; but it was not yet consummated or completed. The people of Rhode Island had taken no part in the formation of the Constitution, and refused their sanction to it. They had virtually seceded from the Union. North Carolina had been represented in the Convention at Philadelphia, but her people had refused to ratify their constitutional act.

“Recent events in our history, to which I wish to make no unnecessary allusion, but to which the rising generation of our country cannot and ought not to close their eyes, have brought again into discussion questions, which, at the period to which we are now reverting, were of the deepest and most vital interest to the continued existence of the Union itself. The question whether any one state of the Union had the right to secede from the confederacy at her pleasure, was then practically solved. The question of the right of the people of any one state, to nullify within her borders any legislative act of the general government, was involved in that of the right of secession, without, however, that most obnoxious feature of the modem doctrine of nullification and secession–the violation of the plighted faith of the nullifying or seceding state.”


“The questions of secession, or of resistance under state authority, against the execution of the laws of the Union within any state, can never again be presented under circumstances so favorable to the pretensions of the separate state, as they were at the organization of the Constitution of the United States.  At that time Rhode Island and North Carolina might justly have pleaded, that their sister states were bound to them by a compact into which they had voluntarily entered, with stipulations that it should undergo no alteration but by unanimous consent.  That the Constitution was  a confederate Union founded upon principles totally different, and to which not only they were at liberty to refuse their assent, but which all the other states combined, could not without a breach of their own faith establish among themselves, without the free consent of all the partners to the prior contract.  That the confederation could not otherwise be dissolved, and that by adhering to it, they were only performing their own engagements with good faith, and claiming their own unquestionable rights.”


“The right of a single state, or of several of the states in combination together, to secede from the Union, the right of a single state, without seceding from the Union, to declare an act of the General Congress, a law of the United States, null and void, within the borders of that state, have both been at various times, and in different sections of the Union, directly asserted, fervently controverted, and attempted to be carried into execution. It once accomplished a change of the administration of the General Government, and then was laid aside. It has occasionally wasted itself in abortive projects of new confederacies, and has recently proceeded to the extremity of assembling a Convention of the people of one state in the Union, to declare a law of the United States unconstitutional, null, and void. But the law was nevertheless executed; and in this, as in other instances, a temporary turbulent resistance against the lawful powers of Congress, under the banners of State sovereignty, and State rights, is now terminating in a more devoted adherence and willing subserviency to the authority of the Union.

“This has been the result of the working of the Institution, and although now, as heretofore, it has been effected by means and in a manner so unforeseen and unexpected, as to baffle all human penetration, and to take reflection itself by surprise; yet the uniformity of the result often repeated by the experience of half a century, has demonstrated the vast superiority of the Constitution of the United States over the Confederation, as a system of Government to control the temporary passions of the people, by the permanent curb of their own interest.

“In the calm hours of self-possession, the right of a State to nullify an act of Congress, is too absurd for argument, and too odious for discussion. The right of a state to secede from the Union, is equally disowned by the principles of the Declaration of Independence.”

As we see, John Quincy Adams rejects the notion that a state could secede on its own without the consent of the people of the other states.

Adams claims, “The procedure for joining the Union also applied to withdrawing from the Union.”  [p. 180]  If that’s the case, then Adams just sunk his own case, since no territory can be part of the United States without the approval of the other states.

As we’ve already determined, there is no right to unilaterally secede.

Adams writes, “In October 1861, a Southern privateer, Savannah, was captured and its crew put on trial in New York for piracy.  If it was a war that was being waged, they would be prisoners of war; if it was only an insurrection or a rebellion, they were guilty of treason and could be tried, convicted, and hanged.  Lincoln believed this, as would be expected, but a jury in New York acquitted the crew because to them, this was a war, and the members of the crew were indeed prisoners of war, not pirates.  The treason charge failed.”  [p. 184]  Adams apparently forgets he charged there were no trials by jury under Lincoln.

Adams is wrong about the charge.  They were tried on a charge of piracy.

“The officers and men of the Savannah and the prize crew from the Albatross were put on trial in Philadelphia and New York for piracy, a crime for which the only prescribed punishment was death by hanging.  Jefferson Davis wrote to Lincoln in protest, claiming that the men were entitled to be treated as prisoners of war, and warning that for every privateersman hanged in the North, he would execute one Union prisoner of war.  In the end, the threat proved effective, for despite a guilty verdict in one of the trials, all of the privateersmen were transferred from the Judiciary to the War Department, and eventually they were quietly exchanged.”  [Craig L. Symonds, The Civil War at Sea, p. 79]

Here’s another account:

“On July 16, a federal grand jury in New York indicted as pirates twelve crew members from the Charleston privateer Savannah.  In August, a grand jury in Philadelphia did the same for five men from the privateer Jefferson Davis.

“The trials that ensued in October were national spectacles.  The nation’s most prominent lawyers argued before packed courtrooms.  National political figures sat in the galleries.  Supreme Court Justice Benjamin Grier presided in Philadelphia, where the first piracy trial started on October 22.  After just three days of argument in the courtroom, the jury took a half hour to return a verdict of guilty against William Smith, the captain of the prize crew from the Jefferson Davis.  The court sentenced him to death by hanging.  In the subsequent days another Philadelphia jury returned guilty verdicts against three more men from the same crew.

“The New York trial of the officers and crew of the Savannah began a day after the commencement of the Philadelphia trial.  It had all the same pomp and circumstance.  Supreme Court Justice Samuel Nelson presided.  But the New York trial produced a very different outcome.

“For the defense, the renowned criminal defense lawyer John Brady teamed up with the dean of the New York bar, Daniel Lord, and a rising young lawyer named Algernon Sullivan.  They squared off against the government’s hired gun, William Evarts, whose mentor Lord was now his adversary in one of the biggest cases of their careers.

“From the start, the case proved to be a bitter fight.  Even before the trial began, secretary of State Seward threw the defense lawyer Algernon Sullivan into prison for seditious contact with the enemy.  (Sullivan had corresponded with Confederate officials in Virginia on behalf of his clients.)  Daniel Lord represented John Harleston (the first mate of the Savannah and the son of one of Lord’s Yale College classmates) and insisted that the government’s position was hypocrisy through and through.  Right down the hall in the very same courthouse, Lord spluttered, federal judge Samuel Betts was condemning Confederate vessels captured by a Union blockade force that presupposed a state of war between North and South.  But if the confederacy was capable of carrying on a war, then it ought to be able to commission privateers, too.”  [John Fabian Witt, Lincoln’s Code:  The Laws of War in American History, pp. 161-162]  The jury did not acquit the crew.  Adams is wrong again.  The jury failed to reach a verdict.  Prosecutors could have retried the crew, but that’s when the Lincoln administration intervened and had them quietly released due to Jefferson Davis’ threat.

Adams next brings up the propaganda piece by Albert Bledsoe called, Is Davis a Traitor?  Adams calls Bledsoe “a law professor from the University of Virginia.” [p. 184]  Once again, Adams shows his lack of credibility.  Bledsoe was a former lawyer who was a professor of mathematics at the University of Virginia and an official in the confederate war department.  This is what Adams tries to pass off as a constitutional expert.

Adams next writes, “Shortly after Bledsoe’s book came out in 1866, the attorney general decided to bring in outside, independent counsel to try Davis (as in the Watergate case more than a century later).  They needed someone of great stature to stand up to the lawyers defending Davis.  They chose as their leading trial prosecutor John J. Clifford.  But after reviewing the case, Clifford withdrew, arguing that he had ‘grave doubts’ about the case and that the government could ‘end up having fought a successful war, only to have it declared unlawful by a Virginia jury.’ ”  [pp. 185-186]  Adams again shows a lack of honesty and credibility.  First of all, there were three special counsels:  William M. Evarts, John H. Clifford, and Lovell H. Rousseau.  [Nichols, op. cit., p. 267]  Clifford did withdraw from the case, but not after he reviewed the case.  He was the one who argued that a jury in a former confederate state couldn’t be trusted to deliver a guilty verdict no matter what the law or the evidence.

Adams writes, “A year passed after the withdrawal of John J. Clifford.  another special counsel was appointed to handle the case, the famous author and lawyer Richard Dana of Boston, who had written the great novel Two Years Before the Mast.  But he too decided the case was a loser.”  [P. 186]

Nichols writes, “With reorganization accomplished, Evarts and Dana went over the case.  Evarts’s state of mind is best illustrated by a statement in his letter to Dana asking him to be his associate:  “It may be that the trial will take place at the end of November, more likely in May next, as likely as either, not at all.”  This letter, written October 17, indicates uncertainty which may or may not have been dispelled by the Attorney General’s words of October 25.  At any rate Evarts and Dana came to the conclusion that before a trial could be brought on a new indictment must be found and that no trial should take place except before Chase.  These difficulties did not seem insuperable.  Chandler and Wells busied themselves about the indictment and the Chief Justice offered to hold court two weeks earlier than the date set, in order that the trial might be held before his Supreme Court duties called him back to Washington.  O’Conor was unwilling to accept this earlier date, presumably because it would mean a hurried trial, or one which might have to be finished before Underwood if Chase had to leave, and also because of the fact that the letter of the Chief Justice got into the papers and its tone offended Davis’s friends.” [Nichols, op. cit., p. 276]  That doesn’t sound like someone who thought the case was a loser to me.

Nichols continues, “Thus spurred on, Chandler and Wells finished their work and Evarts and Dana came to Washington.  They reviewed all the evidence and testimony taken and Dana drew up an elaborate document detailing many overt acts and covering many pages.  The Richmond grand jury made this an indictment against Davis on March 26, 1868.  It had taken the United States legal force nearly three years to make the first formal move toward prosecution.” [Nichols, p. 278]

Dana did share the concern that a jury in Virginia would not convict no matter what the facts or the laws were, so he did give a letter to Evarts on “the advisability of closing the case without further proceeding.”  [Nichols, p. 281]

Adams describes the letter:  “He wrote a lengthy brief, given to the president, taking Clifford’s position.  Dana argued that ‘a conviction will settle nothing in law or national practice not now settled … as a rule of law by war.’  Thus, as Dana observed, the right to secede from the Union had not been settled by civilized means but by military power and the destruction of much life and property in the South.  The North should accept its uncivilized victory, however dirty its hands might be, and not expose the fruits of its carnage to scrutiny by a peaceful court of law.”  [p. 186]  Again, Adams shows a despicable lack of integrity.

Here’s what really happened:

“Shortly after this episode Evarts took over his duties as attorney general.  He had not been long in office before Dana called his attention to the advisability of closing the case without further proceeding.  In order to facilitate this step Evarts asked his associate for another ‘spontaneous’ letter setting forth the reason for stopping the prosecution.

“When the fall term approached he sent Dana’s letter to the President for his private consideration.  After the election there was no need for secrecy and on November 6 Evarts read the letter to the Cabinet.  The communication contained an opinion similar to the one Clifford had given nearly three years before; an opinion which had been bothering the government legal force ever since.  Dana summed up this argument as follows:

” ‘. . . by pursuing the trial, the Government can get only a re-affirmation by a Circuit Court . . . of a rule of public law settled for this country in every way in which such a matter can be settled [i.e., by war], only giving to a jury drawn from the region of the rebellion a chance to disregard the law when announced It gives that jury a like opportunity to ignore the fact that Jefferson Davis took any part in the late Civil WarAnd one man upon the jury can secure these results.  The risks of such absurd and discreditable issue of a great state trial are assumed for the sake of a verdict which, if obtained, will settle nothing in law or national practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.’ ” [Nichols, p. 281]  As we can see, what Adams would like us to believe is quite different from what is the actual truth.

Adams continues, “President Johnson then appointed a new attorney general but he wanted no part of the case and left it to the staff already working on it.”  [p. 186]  As we’ve seen, the new AG was Evarts, who was appointed BEFORE this, and who was working very closely with Dana on the prosecution.  Adams lacks credibility again.

In every situation, Adams has proved he has no credibility in what he claims happened.  He next brings up the issue of secession of Quebec and the Canadian Supreme Court, as if that has any bearing on the United States Constitution.  It’s another Adams red herring fallacy and further shows Adams’ lack of seriousness as a scholar.




    (#3.) – “The future inhabitants of the Atlantic & Missipi States will be our sons. We leave them in distinct but bordering establishments. We think we see their happiness in their union, & we wish it.

    ****Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Missipi descendants?

    ****It is the elder and the younger son differing.

    ****God bless them both, & keep them in union, if it be for their good, but separate them, if it be better.”

    THOMAS JEFFERSON to JOHN BRECKENRIDGE (Monticello, Aug. 12, 1803)
    Original Letter (Image): http://memory.loc.gov/master/mss/mtj/mtj1/028/1000/1043.jpg http://memory.loc.gov/master/mss/mtj/mtj1/028/1000/1044.jpg
    Transcription: http://etext.virginia.edu/etcbin/toccer-new2?id=JefLett.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=156&division=div1

    (#3.) – “The dénoument has been happy; and I confess I look to this duplication of area for the extending a government so free and economical as ours, as a great achievement to the mass of happiness which is to ensue.

    ****Whether we remain in one confederacy, or form into Atlantic and Mississippi confederacies, I believe not very important to the happiness of either part.

    ****Those of the western confederacy will be as much our children & descendants as those of the eastern, and I feel myself as much identified with that country, in future time, as with this; and did I now foresee a separation at some future day, yet I should feel the duty & the desire to promote the western interests as zealously as the eastern, doing all the good for both portions of our future family which should fall within my power.”

    THOMAS JEFFERSON to JOSEPH PRIESTLEY (Washington, January 29, 1804)
    Original Letter (Image): http://memory.loc.gov/master/mss/mtj/mtj1/029/0900/0998.jpg http://memory.loc.gov/master/mss/mtj/mtj1/029/0900/0999.jpg
    Transcription: http://etext.virginia.edu/etcbin/toccer-new2?id=JefLett.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=158&division=div1

    1. Thanks for commenting, Mr. Johns. There are two types of secession. One of these is a unilateral secession as defended by Mr. Adams and as tried by the confederates in 1860 and 1861. The second of these is a secession with the consent of the other parties to the Constitution, i.e., the other states. You’re conflating the two. Nowhere does Jefferson claim the first method is legitimate. Jefferson is in favor of the second method. I will agree that the second method would be a legal, constitutional way of secession. This is supported in the Supreme Court’s decision in Texas v. White. Adams would have us believe Jefferson believed a unilateral secession was legal and constitutional. That position can’t be supported by the record. Jefferson believed our strength was to be found in our Union, but in the event a part of the United States wished to separate, he would, however reluctantly, give his consent. Those last three words, “give his consent,” are important. Unilateral secession, i.e., secession without consent, is an unconstitutional, illegal act. It goes against the Constitution’s Supremacy Clause as well as going against Article I’s granting of the power of determining the makeup of the Union to the Congress. A state enters the Union with the consent of the other states, so it must leave the Union with the consent of the other states. Nothing in Jefferson’s writings contradicts this position.

      1. Texas vs. White has absolutely no impact on ANYTHING…if a Sovereign State decides to leave the Union, the final result will either be settled peacefully, or through War. Courts don’t settle those kinds of decisions. The People of the States do. The Constitution is not a suicide pact.

        (#3.) – “You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

        Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

        The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

        If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him.

        They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the president or legislature may issue orders to the judges or their officers.

        Betrayed by English example, and unaware, as it should seem, of the control of our constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs.

        The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.

        The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Pardon me, Sir, for this difference of opinion.

        My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence on each other it may last long, but not so if either can assume the authorities of the other. I ask your candid re-consideration of this subject, and am sufficiently sure you will form a candid conclusion. Accept the assurance of my great respect.”

        THOMAS JEFFERSON to WILLIAM CHARLES JARVIS (Monticello, September 28, 1820) http://hdl.loc.gov/loc.mss/mtj.mtjbib023901
        PIC: http://memory.loc.gov/master/mss/mtj/mtj1/052/0200/0275.jpg http://memory.loc.gov/master/mss/mtj/mtj1/052/0200/0276.jpg
        TRANSCRIPT: http://archive.org/stream/jeffersonsworks12jeffuoft#page/161/mode/1up
        http://archive.org/stream/jeffersonsworks12jeffuoft#page/163/mode/1up http://archive.org/stream/jeffersonsworks12jeffuoft#page/164/mode/1up

        (#3.) – “Dear Sir, — I have received through the hands of the Governor, Colonel Taylor’s letter to you. It is with extreme reluctance that I permit myself to usurp the office of an adviser of the public, what books they should read, and what not. I yield, however, on this occasion to your wish and that of Colonel Taylor, and do what (with a single exception only) I never did before, on the many similar applications made to me.

        On reviewing my letters to Colonel Taylor and to Mr. Thweatt, neither appeared exactly proper. Each contained matter which might give offence to the judges, without adding strength to the opinion.

        ****I have, therefore, out of the two, cooked up what may be called “an extract of a letter from Th: J. to —;” but without saying it is published with my consent (emphasis added). That would forever deprive me of the ground of declining the office of a Reviewer of books in future cases. I sincerely wish the attention of the public may be drawn to the doctrines of the book; and if this self-styled extract may contribute to it, I shall be gratified. I salute you with constant friendship and respect.


        (#3.) – “I have read Colonel Taylor’s book of Constructions Construed, with great satisfaction, and, I will say, with edification; for I acknowledge it corrected some errors of opinion into which I had slidden without sufficient examination. It is the most logical retraction of our governments to the original and true principles of the constitution creating them, which has appeared since the adoption of that instrument.

        ****I may not perhaps concur in all its opinions, great and small; for no two men ever thought alike on so many points. But on all its important questions, it contains the true political faith, to which every catholic republican should steadfastly hold.

        ****It should be put into the hands of all our functionaries, authoritatively, as a standing instruction, and true exposition of our Constitution, as understood at the time we agreed to it.

        ****It is a fatal heresy to suppose that either our State governments are superior to the federal, or the federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries.

        ****These they have made co-ordinate, checking and balancing each other, like the three cardinal departments in the individual States: each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself, or to its coparcenor in government.

        ****As independent, in fact, as different nations, a spirit of forbearance and compromise, therefore, and not of encroachment and usurpation, is the healing balm of such a constitution; and each party should prudently shrink from all approach to the line of demarcation, instead of rashly overleaping it, or throwing grapples ahead to haul to hereafter.

        ****But, finally, the peculiar happiness of our blessed system is, that in differences of opinion between these different sets of servants, the appeal is to neither, but to their employers peaceably assembled by their representatives in Convention. This is more rational than the jus fortioris, or the cannon’s mouth, the ultima et sola ratio regum.”

        THOMAS JEFFERSON to JUDGE ROANE (Monticello, June 27, 1821) with Extract
        http://hdl.loc.gov/loc.mss/mtj.mtjbib024099 (Extract containing Jefferson’s Review on the other side of the Paper) http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page052.db&recNum=830
        PIC: http://memory.loc.gov/master/mss/mtj/mtj1/052/0800/0830.jpg
        PIC containing Jefferson’s Review: http://memory.loc.gov/master/mss/mtj/mtj1/052/0800/0831.jpg

        see John Taylor’s “CONSTRUCTION CONSTRUED” http://archive.org/details/constructioncon01taylgoog


        1. Your claim that Texas v. White has no impact removes any credibility you might have previously had. The Supreme Court decides constitutional questions. If you don’t understand that, you aren’t qualified to comment.


        ALEXANDER HAMILTON (Federalist #33) – “The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State?

        ****But it is said that the laws of the Union are to be the SUPREME LAW of the land. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.

        ****These will be merely acts of usurpation, and will deserve to be treated as such.***

        ****Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government.

        ***It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

        ***Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.”

        -Alexander Hamilton, Federalist #33

        ALEXANDER HAMILTON (FEDERALIST #78) – “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.

        ****No Legislative act, therefore, contrary to the Constitution, can be valid.

        ****To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the Representatives of the People are superior to the People themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

        ****If it be said that the Legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the Representatives of the People to substitute their will to that of their constituents.

        It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the Courts.

        A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body.

        ****If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the People to the intention of their agents.

        Nor does this conclusion by any means suppose a superiority of the Judicial to the Legislative power. It only supposes that the power of the People is superior to both; and that where the will of the Legislature, declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the former.

        ****They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental….whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former.”


        1. The only limitation to the Supremacy Clause is included in the clause itself, that the laws and treaties of the United States must be made in accordance with the Constitution, so that only constitutional laws and treaties are supreme. That has no effect on the Supremacy Clause’s effect of preventing any ordinance of unilateral secession from ever taking effect. And since you’re using Hamilton as an authority, he directly contradicts your view of the relations of states to the National Government as written by Sam Adams.

        2. You are going to have a very bad day trying to rewrite the interpretation of the Constitution to fit your ideology. You’re trying to use Hamilton against himself. You can do that with Jefferson. He contradicted himself all the time, but Hamilton was pretty steady. It looks like you want a state’s rights interpretation. The Constitution was deliberately created to place the states beneath the federal government. What Hamilton said in The Federalist is that as long as the state law did not contradict the federal law then the Supremacy Clause was not in play. However, he gave an example of how a state law could be in violation of the Constitution and thus the Supremacy Clause.
          You are trying to give a definition of the Supremacy Clause that doesn’t exist.

    2. Not according to James Madison he didn’t. Madison wrote in 1832 that Jefferson was the victim of slander regarding secession. As for nullification, once Jefferson was President he did not believe in nullification. The Kentucky Resolutions are seen as being a political act with no real meaning meant to cause voters to vote for candidates for Jefferson’s followers. It actually backfired rather badly.

  2. Without the ascent of Samuel Adams, Massachusetts would have refused to sign the document, and the process would have likely died, so his opinion matters…A LOT. And his opinions on the subject of the compact theory of government and secession are very different than yours, Sir.

    SAMUEL ADAMS to ELBRIDGE GERRY (fully sourced w/ original) – “I wrote to you hastily two days ago, & as hastily venturd an Opinion concerning the Right of Congress to controul a Light-house erected on Land belonging to this sovereign & independent State for its own Use & at its own Expence.

    ***I say sovereign & independent, because I think the State retains all the Rights of Sovereignty which it has not expressly parted with to the Congress of the United States–a federal Power instituted solely for the Support of the federal Union.

    ***The Sovereignty of the State extends over every part of its Territory. The federal Constitution expresses the same Idea in Sec. 8, Art. 1.

    ***A Power is therein given to Congress “to exercise like Authority,” that is to exercise exclusive Legislation in all Cases whatsoever, “over all places purchased by the Consent of the Legislature in which the same shall be, for the Erection of Forts, Magazines, and other needful Buildings,” among which Light-houses may be included.

    ***Is it not the plain Conclusion from this Clause in the Compact, that Congress have not the Right to exercise exclusive Legislation in all Cases whatsoever, nor even to purchase or controul any part of the Territory within a State for the Erection of needful Buildings unless it has the Consent of its Legislature.

    ***If there are any such Buildings already erected, which operate to the General Welfare of the U S, and Congress by Virtue of the Power vested in them have taken from a State for the general Use, the necessary Means of supporting such Buildings it appears to be reasonable & just that the U S should maintain them; but I think that it follows not from hence, that Congress have a right to exercise any Authority over those buildings even to make Appointments of officers for the immediate Care of them or furnishing them with necessary Supplies. I wish to have your Opinion if you can find Leisure.”

    SAMUEL ADAMS to ELBRIDGE GERRY (August 22, 1789).
    http://brbl-dl.library.yale.edu/vufind/Record/3440873?image_id=1125742 http://brbl-zoom.library.yale.edu/viewer/1125742
    ORIGINAL LETTER (IMAGE): http://brbl-media.library.yale.edu/images/1125742_quarter.jpg
    TRANSCRIPTION: http://archive.org/stream/writingssamuel04adamuoft#page/330/mode/1up http://archive.org/stream/writingssamuel04adamuoft#page/331/mode/1up http://archive.org/stream/writingssamuel04adamuoft#page/332/mode/1up

    GOVERNOR SAMUEL ADAMS – “We have solemnly engaged ourselves, fellow citizens, to support the Constitution of the United States, and the Constitution of this Commonwealth.

    ****This must be reconcileable in the mind of any man, who judiciously considers the sovereign rights of the one as limited to federal purposes, and the sovereign rights of the other, as acting upon and directing the internal concerns of our own Republic.”

    SAMUEL ADAMS to the LEGISLATURE of MASSACHUSETTS. (January 16, 1795)

    1. Thank you for this, Mr. Johns. I hope you won’t take offense if I don’t take your word for it that it was Samuel Adams’ assent to the Constitution that allowed Massachusetts to ratify the Constitution. As his opinion, and that’s all it is, is in contradiction to the ruling of the Supreme Court, I’d say that his opinion does not matter “a lot.” Also, let me point you to page 373 of the writings you were so kind to provide, to wit: “It is with pain that I mention the insurrection which has lately taken place in a sister state. It was pointed more immediately at an act of the Federal Government. An act of that government, as well as of the governments in the Union, is constitutionally an act of the people, and our Constitutions provide a safe and easy method to redress any real grievances. No people can be more free under a Constitution established by their own voluntary compact, and exercised by men appointed by their own frequent suffranges. What excusse then can there be for forcible opposition to the laws? If any law shall prove oppressive in its operation, the future deliberations of a freely elective Representative, will afford a constitutional remedy. But the measures adopted by The President of the United Stats, supported by the virtue of citizens of every description, in that, and the adjacent states, have prevailed, and there is an end of the insurrection.” It looks as though Mr. Adams would not support a unilateral secession of the type Charles Adams, in his book, supports.

      1. Oppressing? Spare me of the French Sophistry. The Shays Rebellion was a gang of dupes, Jacobin wannabes. Their influence was profound due to their paper money fraud. In regards to what the understanding was…

        (#3.) – “It may be impracticable to lay down any general formula of words which shall decide at once, and with precision, in every case, this limit of jurisdiction. But there are two canons which will guide us safely in most of the cases.

        ***1st. The capital and leading object of the constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States: to make us several as to ourselves, but one as to all others.

        In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the States in the former, if possible to be so construed.

        And indeed, between citizens and citizens of the same State, and under their own laws, I know but a single case in which a jurisdiction is given to the General Government. That is, where anything but gold or silver is made a lawful tender, or the obligation of contracts is any otherwise impaired.

        The separate legislatures had so often abused that power, that the citizens themselves chose to trust it to the general, rather than to their own special authorities.

        ***2d. 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.

        Let us try Cohen’s case by these canons only, referring always, however, for full argument, to the essays before cited.

        1. It was between a citizen and his own State, and under a law of his State. It was a domestic case, therefore, and not a foreign one.

        (#3.) – “Can it be believed, that under the jealousies prevailing against the General Government, at the adoption of the constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties and restraining vice, within their own territory?

        And this is the present case, that of Cohen being under the ancient and general law of gaming.

        Can any good be effected by taking from the States the moral rule of their citizens, and subordinating it to the general authority, or to one of their corporations, which may justify forcing the meaning of words, hunting after possible constructions, and hanging inference on inference, from heaven to earth, like Jacob’s ladder?

        Such an intention was impossible, and such a licentiousness of construction and inference, if exercised by both governments, as may be done with equal right, would equally authorize both to claim all power, general and particular, and break up the foundations of the Union.

        Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything mean everything or nothing, at pleasure.

        It should be left to the sophisms of advocates, whose trade it is, to prove that a defendant is a plaintiff, though dragged into court, torto collo, like Bonaparte’s volunteers, into the field in chains, or that a power has been given, because it ought to have been given, et alia talia.

        (#3.) – “The States supposed that by their tenth amendment, they had secured themselves against constructive powers…I ask for no straining of words against the General Government, nor yet against the States. I believe the States can best govern our home concerns, and the General Government our foreign ones.

        ***I wish, therefore, to see maintained that wholesome distribution of powers established by the constitution for the limitation of both; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market.

        ***But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States.

        ***Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.

        ***But our general objects are the same, to preserve the republican form and principles of our constitution and cleave to the salutary distribution of powers which that has established. These are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering. To my prayers for its safety and perpetuity, I add those for the continuation of your health, happiness, and usefulness to your country.”

        THOMAS JEFFERSON to JUSTICE WILLIAM JOHNSON (Monticello, June 12, 1823)
        ORIGINAL LETTER (PIC): http://memory.loc.gov/master/mss/mtj/mtj1/053/1000/1001.jpg http://memory.loc.gov/master/mss/mtj/mtj1/053/1000/1002.jpg http://memory.loc.gov/master/mss/mtj/mtj1/053/1000/1003.jpg http://memory.loc.gov/master/mss/mtj/mtj1/053/1000/1004.jpg

        TRANSCRIPT: http://etext.virginia.edu/etcbin/toccer-new2?id=JefLett.sgm&images=images%2Fmodeng&data=%2Ftexts%2Fenglish%2Fmodeng%2Fparsed&tag=public&part=270&division=div1

        1. If you’re going to contradict your own authorities, then you can sit in the corner and argue with yourself and let us know when you’ve figured out what authorities you’re going to use.
          And you should read the references before assuming what they’re talking about. Shay’s Rebellion is not part of this. You quite obviously didn’t comprehend what was written.
          You keep trying to quote Jefferson. You do realize, don’t you, that Jefferson is not authoritative regarding the Constitution?

  3. SAMUEL ADAMS – “But should we continue distinct sovereign States, confederated for the Purposes of mutual Safety and Happiness, each contributing to the federal Head such a Part of its Sovereignty as would render the Government fully adequate to those Purposes and no more, the People would govern themselves more easily, the Laws of each State being well adapted to its own Genius & Circumstances, and the Liberties of the United States would be more secure than they can be, as I humbly conceive, under the proposed new Constitution.

    You are sensible. Sir, that the Seeds of Aristocracy began to spring even before the Conclusion of our Struggle for the natural Rights of Men, Seeds which like a Canker Worm lie at the Root of free Governments. So great is the Wickedness of some Men, & the stupid Servility of others, that one would be almost inclined to conclude that Communities cannot be free. The few haughty Families, think They must govern. The Body of the People tamely consent & submit to be their Slaves.

    This unravels the Mystery of Millions being enslaved by the few ! But I must desist – My weak hand prevents my proceeding further at present. I will send you my poor Opinion of the political Structure at another Time….”

    SAMUEL ADAMS to RICHARD HENRY LEE (December 3, 1787)

    1. You’ll note that earlier in that same letter he states that the Constitution is providing “a National Government, instead of a Federal Union of Sovereign States.” So he recognizes that under the Constitution there will be one national government whose laws are supreme over the states. In the section you quoted he makes a prediction. He’s not describing the US Government under the Constitution.

      1. You’re playing word games in order to try and distort one word, because the body of his words and speeches show he believed in the Compact Theory of Government…as did Mr. Hamilton…
        GOV. SAMUEL ADAMS – “We have solemnly engaged ourselves, fellow citizens, to support the Constitution of the United States, and the Constitution of this Commonwealth.

        ****This must be reconcileable in the mind of any man, who judiciously considers the sovereign rights of the one as limited to federal purposes, and the sovereign rights of the other, as acting upon and directing the internal concerns of our own Republic.”

        SAMUEL ADAMS to the LEGISLATURE of MASSACHUSETTS. (January 16, 1795)

        ALEXANDER HAMILTON (FEDERALIST #85) – “The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations….

        ****The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State…

        ****Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest….

        ****Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act….

        ****We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority….”

        ALEXANDER HAMILTON (FEDERALIST #85). “Concluding Remarks.”

        1. I’m not playing word games. I’m simply using the plain language of your own source. If you don’t understand your own source, it’s not my fault. Sam Adams, also, is not authoritative when it comes to the Constitution.


    **AMENDMENT TEN (X) was ORIGINALLY KNOWN as ARTICLE 12th of the PROPOSED BILL of RIGHTS. http://www.ourdocuments.gov/doc.php?doc=13&page=transcript




    1. MASSACHUSETTS: Ratification of the Constitution by the State of Massachusetts (February 6, 1788) – “And as it is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government,

    The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

    ****First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised….”

    JOHN HANCOCK President

    WM CUSHING Vice President

    …In Witness whereof We have hereunto set our hands & Seals at Boston in the Commonwealth aforesaid this Seventh day of February Anno Domini, one thousand Seven Hundred & Eighty eight, and in the Twelfth year of the Independence of the United States of America.”

    JOHN HANCOCK President [SEAL.]

    Wm CUSHING Vice President [SEAL.]


    2. NEW HAMPSHIRE: Ratification of the Constitution by the State of New Hampshire; June 21, 1788:

    “And as it is the Opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good People of this State & more Effectually guard against an undue Administration of the Federal Government-
    The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

    ****First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised…”


    3. NEW YORK: Ratification of the Constitution by the State of New York; July 26, 1788:

    “WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common-wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known

    ****That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness;

    ****that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same;

    ****And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution….”

    Done in Convention at Poughkeepsie in the County of Dutchess in the State of New York the twenty sixth day of July in the year of our I’ord One thousand Seven hundred and Eighty eight. By Order of the Convention. GEO: CLINTON President.


    4. SOUTH CAROLINA: Ratification of the Constitution by the State of South Carolina (May 23, 1788):

    ****“And Whereas it is essential to the preservation of the rights reserved to the several states, and the freedom of the people under the operations of a General government that the right of prescribing the manner time and places of holding the Elections to the Federal Legislature, should be for ever inseparably annexed to the sovereignty of the several states.
    ****This convention doth declare that the same ought to remain to all posterity a perpetual and fundamental right in the local, exclusive of the interference of the General Government except in cases where the Legislatures of the States, shall refuse or neglect to perform and fulfil the same according to the tenor of the said Constitution.

    ****This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union….
    Done in Convention the twenty third day of May in the year of our Lord One thousand Seven hundred and eighty eight and of the Independence of the United States of America the twelfth THOMAS PINCKNEY.”

    5. VIRGINIA: Ratification of the Constitution by the State of Virginia; June 26, 1788:
    “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…


    That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following;

    ****First, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

    ****Second. That all power is naturally vested in and consequently derived from the people; that Magistrates, therefore, are their trustees and agents and at all times amenable to them.

    ****Third, That Government ought to be instituted for the common benefit, protection and security of the People; and that the doctrine of non-resistance against arbitrary power and oppression is absurd slavish, and destructive of the good and happiness of mankind…


    ****First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.”


    6. NORTH CAROLINA: Ratification of the Constitution by the State of North Carolina; November 21, 1789: “Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.


    ****1st That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety….


    ****I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

    XII. That Congress shall not declare any state to be in rebellion without the consent of at least two-thirds of all the members present of both houses.

    XXVI That Congress shall not introduce foreign troops into the United States without the consent of two-thirds of the members present of both houses.”


    7. RHODE ISLAND: Ratification of the Constitution by the State of Rhode Island; May 29, 1790: “We the Delegates of the People of the State of Rhode-Island, and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of this State, do declare and make known

    In That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.

    2d That all power is naturally vested in, and consequently derived from the People; that magistrates therefore are their trustees and agents, and at all times amenable to them.

    3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:-

    *****That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.”


    Judge James Wilson: “I am called upon to give a reason why the Convention omitted to add a bill of rights to the work before you. I confess, sir, I did think that, in point of propriety, the honourable gentleman ought first to have furnished some reasons to show such an addition to be necessary; it is natural to prove the affirmative of a proposition; and, if he had established the propriety of this addition, he might then have asked why it was not made.

    I cannot say, Mr. President, what were the reasons of every member of that convention for not adding a bill of rights. I believe the truth is, that such an idea never entered the mind of many of them. I do not recollect to have heard the subject mentioned till within about three days of the time of our rising; and even then, there was no direct motion offered for any thing of the kind. I may be mistaken in this; but as far as my memory serves me, I believe it was the case. A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house, with the greatest indignation.

    Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. In a government possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous and dangerous. Whence comes this notion, that in the United States there is no security without a bill of rights? Have the citizens of South Carolina not security for their liberties? They have no bill of rights.

    Are the citizens on the eastern side of the Delaware less free, or less secured in their liberties, than those on the western side? The state of New Jersey has no bill of rights. The state of New York has no bill of rights. The states of Connecticut and Rhode Island have no bill of rights. I know not whether I have exactly enumerated the states who have not thought it necessary to add a bill of rights to their constitution; but this enumeration, sir, will serve to show by experience, as well as principle, that even in single governments, a bill of rights is not an essential or necessary measure. But in a government consisting of enumerated powers such as is proposed for the United States, a bill of rights would not only be unnecessary, but in my humble judgment, highly imprudent.

    In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people.”


    It seems, however, that the members of the federal convention were themselves convinced, in some degree, of the expediency and propriety of a bill of rights, for we find them expressly declaring that the writ of habeas corpus and the trial by jury in criminal cases shall not be suspended or infringed. How does this indeed agree with the maxim that whatever is not given is reserved? Does it not rather appear from the reservation of these two articles that everything else, which is not specified, is included in the powers delegated to the government? This, Sir, must prove the necessity of a full and explicit declaration of rights; and when we further consider the extensive, the undefined powers vested in the administrators of this system, when we consider the system itself as a great political compact between the governors and the governed, a plain, strong, and accurate criterion by which the people might at once determine when, and in what instance their rights were violated, is a preliminary, without which, this plan ought not to be adopted. So loosely, so inaccurately are the powers which are enumerated in this constitution defined, that it will be impossible, without a test of that kind, to ascertain the limits of authority, and to declare when government has degenerated into oppression.

    In that event the contest will arise between the people and the rulers: “You have exceeded the powers of your office, you have oppressed us,” will be the language of the suffering citizen. The answer of the government will be short–“We have not exceeded our power; you have no test by which you can prove it.”

    Hence, Sir, it will be impracticable to stop the progress of tyranny, for there will be no check but the people, and their exertions must be futile and uncertain; since it will be difficult, indeed, to communicate to them the violation that has been committed, and their proceedings will be neither systematical nor unanimous. It is said, however, that the difficulty of framing a bill of rights was insurmountable; but, Mr. President, I cannot agree in this opinion. Our experience, and the numerous precedents before us, would have furnished a very sufficient guide. At present there is no security even for the rights of conscience, and under the sweeping force of the sixth article, every principle of a bill of rights, every stipulation for the most sacred and invaluable privileges of man, are left at the mercy of government.” http://press-pubs.uchicago.edu/founders/documents/v1ch14s28.html

    “Sir, I think there is another subject with regard to which this Constitution deserves approbation. I mean the accuracy with which the line is drawn between the powers of the general government and those of the particular state governments. We have heard some general observations, on this subject, from the gentlemen who conduct the opposition. They have asserted that these powers are unlimited and undefined. These words are as easily pronounced as limited and defined. They have already been answered by my honorable colleague, (Mr. M’Kean;) therefore I shall not enter into an explanation. But it is not pretended that the line is drawn with mathematical precision; the inaccuracy of language must, to a certain degree, prevent the accomplishment of such a desire. Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will also discover that the general clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted.” http://press-pubs.uchicago.edu/founders/documents/amendXs2.html

    1. And yet most of the requests made by states in their ratification conventions weren’t met and they ratified anyway. Their suggestions are interesting, but not legally germane.

      1. NOT ACCORDING TO JEFFERSON. (#3.) – “I have been blamed for saying, that a prevalence of the doctrines of consolidation would one day call for reformation or revolution.

        ****I answer by asking if a single State of the Union would have agreed to the constitution, had it given all powers to the General Government?

        ****If the whole opposition to it did not proceed from the jealousy and fear of every State, of being subjected to the other States in matters merely its own?

        *****And if there is any reason to believe the States more disposed now than then, to acquiesce in this general surrender of all their rights and powers to a consolidated government, one and undivided?”

        THOMAS JEFFERSON to JUSTICE WILLIAM JOHNSON (Monticello, June 12, 1823)
        ORIGINAL LETTER (PIC): http://memory.loc.gov/master/mss/mtj/mtj1/053/1000/1001.jpg
        TRANSCRIPT: http://etext.virginia.edu/etcbin/toccer-new2?id=JefLett.sgm&images=images%2Fmodeng&data=%2Ftexts%2Fenglish%2Fmodeng%2Fparsed&tag=public&part=270&division=div1

        1. Sorry, but you just don’t understand what Jefferson is saying. He most certainly says that the people can rebel if the national government becomes tyrannical. What you quote here is a completely different subject.

        2. People that like to use Jefferson to support their arguments need to be aware of a few things. One is that Jefferson had absolutely nothing to do with the Constitution. He was in France the entire time. Once it was released to the public he opposed it, but Madison pretty much told him to shut up and pointed out what federalism was which thrilled Jefferson. Jefferson was a big proponent of state’s rights theory right up until he was president and then like most politicians, threw his beliefs out the window when confronted by reality.

          Under Jefferson the power of the federal government was increased and so was the power of the executive branch. His theory of embargo diplomacy, rooted so heavily in the non-importation ideas of the Revolution failed. This should not have been a major surprise to him because non-importation had failed repeatedly as a sustained plan in the Revolution. His vision of strict Constitutionalism also vanished with the purchase of Louisiana.

          What people do not understand about Jefferson is that he was a theorist of politics. He had ideas, but like most people, had to modify them a great deal when he was in a position to implement them. So when you quote Jefferson you have to then compare what he said with what he did. This is why we see Jefferson as being very contradictory. His expression of liberty and ownership of slaves are a perfect example.

  5. When studying the creation of the American government one has to read The Creation of the American Republic by Gordon Wood. It is the go to text for this subject. Wood points out on page 362, “In the contest between the states and the Congress the ideological momentum of the Revolution lay with the states; but in the contest between the people and the state governments it decidedly lay with the people.”

    What many states rights advocates do not understand is that the states were oppressing the people in the Confederation era. In the process, they were destroying the promise of the Revolution. The American Revolution was not started by the elites of the colonies. It was started by the people themselves. The elites or thinking class joined the Revolution after it got underway. They tried to harness it, but that proved to be ineffective. It took on a life of its own and has never ended.

    The people were already rising up just like they had in 1765-1775. The French were not going to aid the state governments. The British and Spanish were waiting for the American government to collapse which it was in the process of doing. Had the people rose up en masse as they had done before there was nothing to prevent them for ousting the state legislatures except bloody force which as we saw in the Shays Rebellion was used against the people.

    That rebellion paved the way for the ratification of the Constitution in Massachusetts too. The voters had began to make changes in how things were done in that state. More and more towns were sending representatives to the state legislature fighting the wealthy men who controlled it. The government that instigated the Shays Rebellion lost the next election and a state government more amenable to the people was in place.

    As Pauline Maier explained in her book Ratification, Samuel Adams started out against the Constitution, but found out very quickly that the people of Boston, the very source of every ounce of his political power were for its ratification. He changed his mind overnight and supported the ratification from then on.

    1. Kind of like, “Let me find out where my people are going so I can lead them there.” 🙂

    2. Mrs. Adams hit the nail on the head in describing the Shay’s Rebellion. ABIGAIL ADAMS to (#3.) – “Ignorant, wrestles desperadoes, without conscience or principals, have led a deluded multitude to follow their standard, under pretense of grievances which have no existence but in their imaginations.

      Some of them were crying out for a paper currency, some for an equal distribution of property, some were for annihilating all debts, others complaining that the Senate was a useless Branch of Government, that the Court of common Pleas was unnecessary, and that the Sitting of the General Court in Boston was a grievance.”

      ORIGINAL LETTER (PIC): http://memory.loc.gov/master/mss/mtj/mtj1/006/1000/1095.jpg http://memory.loc.gov/master/mss/mtj/mtj1/006/1000/1096.jpg http://memory.loc.gov/master/mss/mtj/mtj1/006/1000/1097.jpg
      TRANSCRIPT: http://www.masshist.org/publications/apde/portia.php?id=AFC07d186

      1. You’re the only one talking about Shay’s Rebellion. Do try to keep up, Mr. Johns. I’ve been very patient with you so far, but my patience has limits.

      2. Mrs. Adams was dead wrong. The people in the Shays’ Rebellion were the same ones that shut down the British government in the 1770s in Massachusetts. They were a serious threat and so bad that the state government had to hire a private force to deal with them as the militia didn’t want to fight men with legitimate grievances. These were the people who started the American Revolution and men like Washington and Madison knew this. Jefferson of course responded with his ill advised quote about the tree of liberty, but he had been informed by people like Mrs. Adams. Many of his friends wrote him later telling him that he had been misinformed.

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