Civil War History - General DiscussionFor Discussions on Civil War Era Personalities, Politics, Issues, Campaigns, Battles, and more. Serious Civil War Discussions Only Please! All other posts will be deleted.
Your basic point seems to be that the duly elected legislature of Va., because they voted to secede, were no longer qualified as the duly elected legislature of Va. I understand your point, but I don't think it leads to your conclusion. You're the 'People' person here, right? So how do you exclude the most populous areas of Va. from representation in your legislature? How do you square this with the privileges and immunities clause, Art. IV, Section 2, Clause 1? If, as the north maintained, Va. was always in the Union, then its citizenry still had the right to elect its legislature.
"Loyal People of Virginia" You mean those disloyal TO Va., right?
"the Federal Government, by the Constitution, has the power to determine which of those two bodies is the legitimate government of that state." Where in the Constitution does it say that? (I'm really asking - it may say that, but I haven't seen it).
"Do you understand that the US Constitution requires state legislatures and state officials to be loyal to the Constitution?" Yes. "And do you understand that since they seceded they were no longer loyal to the US Constitution?" Yes. And your point would be? I don't see how that makes the state of Va. any smaller. All of Va. voted to secede by its duly elected legislature. But I do understand the 'enemy of my enemy is my friend' mentality that seems enough for you to justify forcible annexation of a portion of Va. into the Union. It's still hypocritical cherry-picking.
The Constitution still says that secession is legal. You still don't get it.
There are none so blind as those who will not see.
The simple fact of the matter is the majority of the people of the United States, the ones who are the true power and not the states, decided secession was nothing but rebellion. There was enough legal and historical precedent to confirm this in their minds, hence the putting down of an illegal rebellion, supported by the Supreme Court. Saying it ain't so don't make it so.
The feeble argument advanced at the time of secession and at this late date, the one of 'now I am in the Union, now I am not,' didn't fly. Even Hal's favorite Supreme Court Justice, Taney, said the federal government maintained the right to support the government's right to force in maintaining a state government. WV was recognized and its creation legal. Yes, there were arguments against the idea, but in the end, they were overcome and the creation of WV took place will full complience of the Constitution and the law.
If not, why doesn't the League of the South jump right in, file suit with the Supreme Court, and reverse the act? Because it can not as it would have no basis in law or argument. As long as West Virginia remains a State of the Union, Yours and Hal's objections to its creation and the legality of its creation are not only moot, but unsupportable.
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
Last edited by unionblue : 06-23-2005 at 08:05 PM.
Cash tried something similar to the "There are none so blind as those who will not see" line. Don't feel bad; it doesn't work for him either. But I expect more originality from you. :-)
Under the Constitution, the will of the majority of the country is irrelevant to a state's exercise of its sovereign powers, including the power to secede. Unless, of course, you could get 3/4 of the states to amend the Constitution to prohibit secession. Good luck on that. It hasn't happened yet.
For precedent to exist there must be a prior case addressing the same legal or factual question. That's what precedent is. BTW, Cash has already conceded this point. He now calls his pretty language 'authority.' But that's inaccurate as well. It was and remains just pretty language. There was NO precedent from the courts regarding the state's exercise of its sovereign power to secede. The question had NEVER been considered. Further, fed courts have NO subject matter jurisdiction to consider a state's exercise of its sovereign powers. U.S. Const., Art. III, Section 2.
I don't really care what Taney, or any other individual, says. Individual opinions are not the Constitution.
The arguments against the creation of W.Va. are correct. IIRC, Lincoln approved W.Va.'s creation on the grounds of "expediency." Funny, I can't find that ground in the Constitution.
What is the 'League of the South?' Sounds like an interesting group, but only Va. would have legal standing to challenge the creation of W.Va. Va. was the party harmed, and the only party capable of being redressed by a favorable verdict. I disagree that the question is moot. So long as W.Va. exists, the issue remains ripe for adjudication.
Therein lies the difference, I think, between us. Individuals make up the states, the nation, and the Constitution.
Type in 'League of the South' in your search engine and see if they are willing to take up the legal challenge of WV.
In the meantime, I'll try to think up something more original.
How about that old song, 'Nothing from nothing leaves nothing?'
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
Last edited by unionblue : 07-02-2007 at 01:40 AM.
Your basic point seems to be that the duly elected legislature of Va., because they voted to secede, were no longer qualified as the duly elected legislature of Va. I understand your point, but I don't think it leads to your conclusion.
--------------------
My conclusion is that because of that the state government was vacant of anyone qualified to hold office according to the US Constitution.
You're the 'People' person here, right? So how do you exclude the most populous areas of Va. from representation in your legislature?
----------------------
Those who do not attend an open convention are subject to the results of that convention.
How do you square this with the privileges and immunities clause, Art. IV, Section 2, Clause 1? If, as the north maintained, Va. was always in the Union, then its citizenry still had the right to elect its legislature.
----------------------
Yes, they did, as soon as elections could be held. And at the time there were combinations at work too powerful for loyal law enforcement to overcome which were in rebellion and would not allow an election to take place.
"Loyal People of Virginia" You mean those disloyal TO Va., right?
-----------------------
No. They were loyal to Virginia and to the United States, and events proved they were most loyal to Virginia, since the actions of those who were disloyal to the United States were devastating to the state of Virginia.
"the Federal Government, by the Constitution, has the power to determine which of those two bodies is the legitimate government of that state." Where in the Constitution does it say that? (I'm really asking - it may say that, but I haven't seen it).
---------------------------
Article IV, Section 4. How does it do this, you might ask? Let's ask Chief Justice Roger B. Taney:
"The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal." [48 US 1, 42]
"Do you understand that the US Constitution requires state legislatures and state officials to be loyal to the Constitution?" Yes. "And do you understand that since they seceded they were no longer loyal to the US Constitution?" Yes. And your point would be?
---------------------
That the people in Richmond were not qualified, according to the Constitution, to hold office.
The arguments against the creation of W.Va. are correct.
---------------
No, they are in no way correct. They are very much incorrect.
IIRC, Lincoln approved W.Va.'s creation on the grounds of "expediency." -----------------
You recall incorrectly. Expediency was a secondary factor.
What is the 'League of the South?' Sounds like an interesting group, but only Va. would have legal standing to challenge the creation of W.Va. Va. was the party harmed, and the only party capable of being redressed by a favorable verdict.
----------------
Virginia has accepted the legitimacy of West Virginia.
As an aside to you, did the US Supreme Court ever have cause to rule on the creation of West Virginia as to the Constitution?
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
"Therein lies the difference, I think, between us. Individuals make up the states, the nation, and the Constitution." Perhaps; perhaps not. To clarify, it's not that I disregard people, or the 'People,' but its manifest that they've already spoken through ratification of the Constitution. What I disregard is what any one individual says about what the Constitution means. I'd disregard my own opinion, and have, when it does not square with the Constitution. As I've said, it's what the Constitution says that counts, not what any one person thinks it says. Yes Niel, that includes me. :-)
Maybe I'll look up the League of the South. But in the end, they're probably just another group with an agenda. Most such groups, north or south, aren't interested in the Constitution but in how they can use it to further their agenda. I lose patience too quickly with such nonsense. As I've told you, I'm a born and bred northerner. I have no vested interest in the legality of secession. But I've read my Constitution, and been taught constitutional law outside the context of secession. I've simply applied the rules of law to the question of secession, and found it a question left to the states.
"Nothing from nothing leaves nothing." True enough as a mathematical formula. But it's like 'more perfect Union,' what does it mean??????????????????????? :-)
"My conclusion is that because of that the state government was vacant of anyone qualified to hold office according to the US Constitution." In that regard, I find the following language from Luther v. Borden, 48 U.S. 1, 40-41 (1849) instructive:
"And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision."
Your claim is essentially that Congress (not the courts, as noted above) has the right to determine which state gov't to recognize. Under the Constitution, I see 2 circumstances where that could be proper - 1. in deciding which of 2 competing state gov'ts is a republican form (but not to include which 1 to recognize if both are a republican form), and 2. in determing which of two groups claiming seat(s) in Congress is the proper to seat. W.Va. is niether of those situations.
Further instructive language from Luther, 48 U.S. at 48, is that:
"No one, we believe, has ever doubted the proposition, that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it."
The people of Va. decided which legislature was theirs by proper election. The creation of W.Va. has nothing to do with guaranteeing a republican form of gov't (which Va. probably still had) or choosing representatives to be seated in Congress. Thus, the fed had no right to determine the propriety of the existing Va. legislature.
"Those who do not attend an open convention are subject to the results of that convention." At first blush, this seems a reasonable proposition. But on closer examination it has 2 fatal flaws. First, the Va. legislature did not authorize the convention, so its results should have been meaningless. Second, as a practical matter, I think the convention was anything but "open" to the majority of Virginians, considering that W.Va. was Union occupied territory in a foreign country.
"Yes, they did, as soon as elections could be held." Of course, we all know that elections had already been held, and a Va. legislature duly elected by the citizenry of ALL of Va.
That's the basic problem I have with W.Va. However you characterize it, the majority of the citizens of Va. had no opportunity to choose with respect to W.Va.
"Virginia has accepted the legitimacy of West Virginia." Officially, by acquiesence, or by default?
As an aside to you, did the US Supreme Court ever have cause to rule on the creation of West Virginia as to the Constitution?
Sincerely,
Unionblue
-------
Neil, not directly. Because Virginia accepted the legitimacy of West Virginia the question never came before the Court.
After the war, there were two cases that touched on it that did come before the Court.
The first was in 1870, State of Virginia v. State of West Virginia, 78 US 39.
This case dealt with the border of West Virginia and specifically the legality of including Berkeley and Jefferson Counties as part of West Virginia. The Court ruled in favor of West Virginia and said that including those two counties was legal.
The second case involved the apportionment of Virginia's debt up to the time of the partition. This started out as Commonwealth of Virginia v. West Virginia, 220 US 1, decided in 1911, continued in Commonwealth of Virginia v. West Virginia, 222 US 17, decided in 1911, continued in the case of Commonwealth of Virginia v. State of West Virginia, 231 US 89, decided in 1913, continued in Virginia v. West Virginia, 234 US 117, decided in 1914, followed by Commonwealth of Virginia v. State of West Virginia, 238 US 202, decided in 1915, and concluded with Commonwealth of Virginia v. State of West Virginia, 241 US 531, decided in 1916. As you can tell, this was a very convoluted situation and is covered in an article by James G. Randall called "The Virginia Debt Controversy" in the Political Science Quarterly, Vol XXX, Number 4, December, 1915, and in a series of articles by Elizabeth J. Goodall called "The Virginia Debt Controversy and Settlement" in West Virginia History from the end of 1962 through the beginning of 1964.
In all that time, neither Virginia nor the Court ever once intimated even remotely that West Virginia's creation was unconstitutional.
CivilWarTalk.com -
A free and friendly Civil War community. 
Linear Mode
