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Discussion of research and writing about Virginia history <[log in to unmask]>
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Mon, 10 Mar 2003 08:13:01 EST
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        Based on the best evidence it seems clear that the founding fathers
considered the Union established by the Constitution to be an experiment in
government, and like any experiment was subject to modification or even
termination.  Washington indicated this was the fact.  Madison appeared to
agree, as did any number of others in the group.  However, there's no doubt
that the Civil War ultimately decided this point, right or wrong, and here we
are.

       The theory of the perpetual nature of the Union only became popular in
the early 1800's when Joseph Story published his Commentaries, which were
then used by Webster and became the siren's call of the Federalists and the
abolitionists in the north.  This theory was that the Constitution wasn't a
compact or confederation of the states, but was a document established by all
the people of the Union (the "one people" theory), and that the states had
never been sovereign bodies for the purposes of the Constitution, and
therefore had no ability to withdraw.  However, anyone with any background in
Washington, Madison, or even Hamilton knows that they all considered the
states to have been sovereign entities when each adopted the Constitution and
that it was a compact entered into by sovereign states, not by "the people."
Lincoln picked up this Story theory in his first inaugural address (since
otherwise he had just been elected the president of 1/2 of the United States)
noting that "perpetuity is implied, if not expressed, in the fundamental law
of all national governments."  (as we have seen, Lincoln was big on asserting
that things were implied in the Constitution whenever it served his purpose
and there was no express power given to him to pursue his predetermined
course of conduct.  Cf the suspension of habeas corpus, invading the South,
and emancipation).

JDS

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