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.
"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."
----------------------------------
Not relevant, since the qualification to vote was not taken away by any court.
Your claim is essentially that Congress (not the courts, as noted above) has the right to determine which state gov't to recognize.
--------------------------
I hope your reading for your clients is better than this. Chief Justice Taney is the one who said Congress and the President have the right to determine which state government to recognize, and what you noted above has nothing to do with recognizing a government.
I repeat what Chief Justice Taney held:
"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]
Additionally, Chief Justice Taney held:
"So, too, as relaters to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfil this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the federal government to interfere. But Congress thought otherwise, and no doubt wisely; and by the act of February 28, 1795, provided, that, 'in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to sufficient to suppress such insurrection.'
"By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress." [48 U.S. 1, 42-43]
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.
-------------------------
Wrong again.
Virginia had a body in Richmond that claimed to be the legislature and a body in Wheeling that claimed to be the legislature. By the Constitution, the United States has the authority to determine which one is a republican form of government and which is the legitimate government of the state. Since the body in Richmond was constitutionally unqualified to hold office, they cannot possibly be a republican government under the US Constitution.
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."
--------------------
Actually, that's found on page 47, not 48. The political power here is the President of the United States and the Congress of the United States, because of their Constitutional obligation and power to ensure a republican form of government.
The people of Va. decided which legislature was theirs by proper election.
--------------------
But then that body went into rebellion and became constitutionally unqualified to hold office.
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.
----------------------
You're absolutely wrong about that. A body of men who are unqualified to hold office by the Constitution cannot constitute a state legislature, because the US Constitution is the supreme law of the land.
Thus, the fed had no right to determine the propriety of the existing Va. legislature.
----------------------
Wrong again. See the above.
"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.
---------------------
At that time there was no legislature in Virginia that was qualified to hold office according to the US Constitution.
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.
---------------------
It was completely open, and any citizen of Virginia who wished to travel to Wheeling was free to do so, as long as they were not in the confederate army.
"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.
-----------------------
But the body in Richmond was disqualified by the US Constitution from holding office.
"Virginia has accepted the legitimacy of West Virginia." Officially, by acquiesence, or by default?
-----------------------
Officially.
"Not relevant, since the qualification to vote was not taken away by any court." What about "nor has it the right to determine what political privileges the citizens of a State are entitled to." I would think it a poliltical privilege for the People to determine their own elected officials and legislature. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const, Art. IV, Section 2, Clause 1. It is therefore the privilege of the citizens of a state to determine their own legislature, with those exceptions intersecting with the fed that I've noted in a prior post.
"If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government." Va. lawfully seceeded. It was a separate sovereign - all of it. Luther v. Borden is not on point in that regard. There was no Va. legislature other than the one duly elected by Va.'s citizenry.
"The political power here is the President of the United States and the Congress of the United States, because of their Constitutional obligation and power to ensure a republican form of government." A "republican government" is "A government in the republican form; a government of the people; a government by representatives chosen by the people." Blacks Law Dictionary, p.1171. The Va. legislature was chosen by the people of Va. - all of them.
"But then that body went into rebellion and became constitutionally unqualified to hold office." No, Va. lawfully seceeded; its people, legislature and territory together. The Va. legislature may have then become unqualified to hold fed office, but not for the Va. legislature. While the fed did, in fact, split the baby, it could not do so constitutionally.
"At that time there was no legislature in Virginia that was qualified to hold office according to the US Constitution." The Constitution no longer applied to any of Va. after it seceeded. "But the body in Richmond was disqualified by the US Constitution from holding office." Again, the Constitution no longer applied to any of Va. after it seceeded.
May our gov't never adopt the same definition of "open" as you have.
"Virginia has accepted the legitimacy of West Virginia." "Officially." I suppose that Va. would no longer want any part of those people disloyal to it.
I think your best argument for the legitimacy of W.Va. is that Va. was a separate sovereign, that 40 (?) of its counties exercised their natural right to rebel against Va. (with the help of big brother), and that W.Va. was thus a separate sovereign in itself and qualified as such to apply for statehood. Moreover, I think that's what really happened. As you probably know, the sectional differences between those parts of Va. east and west of the Appalachains started well before the CW. The CW just gave western Va. the opportunity to cut the cord. Of course there are 2 reasons why I don't think you'll adopt this theory. First, you'd have to recognize Va. as a separate sovereign upon secession, and I don't see you thinking outside of Lincoln's box. Second, there are several of those 40 or so counties that didn't want to rebel, but were carried along for the ride without their consent.
And therein lies the weakness of the legal-secession argument. If a state can secede from the union, a county can secede from a state. It follows that a township can secede from the county and I can secede from the township. Lot 35, Arrowhead Hills, population 2. Then I could make a constitution allowing me to launch lead objects at those who drive by and throw beer bottles and other assorted trash on my soverign lot.
If secession, at will, is permissible, there is no reason for government, laws, order, continuity, et al., to exist. Legal or not, secession at will makes the rule of law irrelevant.
Eleven states abandoned that principal. Legally separated or in rebellion doesn't apply. Whatever protection they enjoyed as part of a union was rejected. When the remaining 22 states turned on them, they could expect only the bitter fruit of their planting. Right or wrong, they reaped the whirlwind. No legal argument can make up for that result.
No argument about slavery, Sherman's depredations, southern industrial disadvantage, northern population/emigration, Bobby Lee, US Grant, Stonewall, or any other contention can explain the incredible stupidity in declaring war on a nation that picked its teeth with railroad ties -- a nation that had more factories than the contenders had factory-workers.
Bottom line? I enjoy the debates and intellectual stimulation, but I don't really care about the result -- that is a given. I choke on the costly defiance and the equally costly insistence. Where did this go wrong? What human trait pressed the trigger? Pride? Power? Complaisence? Status quo? Legalities aside, what human failures laid that horrendous price on our country?
When the dogs of war are set loose, rules adapt themselves to the contestant -- "all's fair" comes to mind. Who did what to whom (which reminds me of a ribald limerick that I might try later to get by the censors)?
There occurred a total meltdown between 1860 and 1865. (Good grief, I'm lapsing into platitudes!) The question is: why? I suspect human frailty. On both sides. So many died for nothing.
"If a state can secede from the union, a county can secede from a state. It follows that a township can secede from the county and I can secede from the township."
No. Please go back and read my post comparing sovereigns with political subdivisions.
"Not relevant, since the qualification to vote was not taken away by any court." What about "nor has it the right to determine what political privileges the citizens of a State are entitled to."
----------------------------
Still irrelevant, since that's not what happened.
"If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful government." Va. lawfully seceeded. It was a separate sovereign - all of it. Luther v. Borden is not on point in that regard. There was no Va. legislature other than the one duly elected by Va.'s citizenry.
----------------------------
If it is your position that secession was legal and Virginia was a separate nation, then nothing in the Constitution applies to it and West Virginia can be added to the United States constitutionally as conquered territory. The only reason we get into the constitutional argument here is by considering secession to be unconstitutional, and thus Virginia was not separate from the United States and thus Luther v. Borden applies, the Richmond legislature was constitutionally unqualified to hold office, and West Virginia was admitted constitutionally. Either way, you lose.
"The political power here is the President of the United States and the Congress of the United States, because of their Constitutional obligation and power to ensure a republican form of government." A "republican government" is "A government in the republican form; a government of the people; a government by representatives chosen by the people." Blacks Law Dictionary, p.1171. The Va. legislature was chosen by the people of Va. - all of them.
-----------------------
The legislature in Richmond was no longer qualified to hold office according to the US Constitution.
"But then that body went into rebellion and became constitutionally unqualified to hold office." No, Va. lawfully seceeded; its people, legislature and territory together.
------------------------
Once again, you lose either way. If secession is constitutional, then West Virginia can be legally added to the United States as conquered territory. If secession is not constitutional, then the Richmond government was in rebellion and constitutionally unqualified to hold office.
The Va. legislature may have then become unqualified to hold fed office, but not for the Va. legislature.
----------------
Wrong. Read the Constitution. They were unqualified to hold office as a state legislature.
I think your best argument for the legitimacy of W.Va. is that Va. was a separate sovereign, that 40 (?) of its counties exercised their natural right to rebel against Va. (with the help of big brother), and that W.Va. was thus a separate sovereign in itself and qualified as such to apply for statehood.
-----------------
Thanks for your opinion, but it's wrong.
Moreover, I think that's what really happened.
------------------
And you think incorrectly. The process for application for statehood all the way through admission followed the Constitution.
"If it is your position that secession was legal and Virginia was a separate nation, then nothing in the Constitution applies to it and West Virginia can be added to the United States constitutionally as conquered territory." I said that - "I think your best argument for the legitimacy of W.Va. is that Va. was a separate sovereign, that 40 (?) of its counties exercised their natural right to rebel against Va. (with the help of big brother), and that W.Va. was thus a separate sovereign in itself and qualified as such to apply for statehood." It's you who wrongfully maintains that Va.'s secession was unlawful, and thus Va. was still a state.
In arguing that W.Va.'s admission was unconstitutional if Va. were still a state, I've stated that you can't create a state from another state's jurisdiction, per the Constitution, without the other state legislature's consent. In this case, you didn't have that consent. You said that the Va. legislature was unqualified because it was no longer a republican gov't. I showed that it was still a republican gov't. Now you say that the Va. legislature "was no longer qualified to hold office according to the US Constitution," because it was in rebellion. In the end, the Constitution does not recognize you or the fed to determine the qualification of Va.'s legislature for the purpose of consenting to the creation of W.Va. If the "consent" to which you refer, and which is constitutionally required, came from anyone other than the Va. legislature duly elected by the citizenry of all of Va., then it is no consent at all and W.Va.'s admission is unconstitutional. But then you've already shown that you're willing to accept 'consent at the point of a gun' by approving the constitutionally unauthorized forcible repatriation of the southern states. I, OTOH, prefer consent to be voluntary.
Forgive me, Russ, but the horse is still twitching. If a state can declare itself a soverign power, a political subdivision can declare itself a soverign power. That's the problem with secession -- there's no end to it.
Now you are going to say that the states had soverignty, but I buy that the people were the soverigns and that the state was a political entity providing a voice for the people. If a state can separate itself from a solemn agreement, then a county can.
You've heard 'follow the money,' while here it is 'follow the power.' The best analogy I can think of is that of the Colonies to the King. The King had all the power prior to the Declaration of Independence and the Revolution. The King could subdivide - create political subdivisions - his territory in any manner he chose, and change that division at his will. He was the King, he had the power. The Colonies were originally, IIRC, land grants to conquerors and nobility who'd won the King's favor. The conquerors and nobility owned the land, but were subjects of the King's rule and taxation. The King had the power. If a conqueror or nobleman lost the King's favor, he could lose his land. After so many years of acquiesing in the King's 'taxation without representation,' the Colonies had had enough, and rebelled. They had no right to self-determination; the King had the power. The Colonies won their power of self-determination - or sovereignty - at the point of a gun. They had to take the power away from the King.
Note that I said above that the King had the power until the Declaration of Independence AND the Revolution. Standing alone, the Declaration of Independence was nothing but a statement of intention. The King had the power. The power didn't go to the Colonies until after successful prosecution of the Revolutionary War. In other words, the Colonies had no legal right to secede - the King had the power. The Colonies were thus required to exercise their natural right to rebel. The Declaration of Independence was not enough, the Colonies had to enforce it at the point of a gun or it was meaningless.
After defeating the King, though, the power did go to the Colonies. They became sovereign, with the power to rule over their territory and to determine their own destiny. The Colonies, then states, did create political subdivisions - counties, cities, townships, etc. But the Colonies, then states, had the power. Counties don't have the power. So to separate from a state, they must rebel and, like the Colonies, they can declare their independence. But they have no legal right of secession. They must enforce their declaration at the point of a gun or, in W.Va.'s case, the point of someone else's gun.
I think your best argument for the legitimacy of W.Va. is that Va. was a separate sovereign, that 40 (?) of its counties exercised their natural right to rebel against Va. (with the help of big brother), and that W.Va. was thus a separate sovereign in itself and qualified as such to apply for statehood. Moreover, I think that's what really happened. As you probably know, the sectional differences between those parts of Va. east and west of the Appalachains started well before the CW. The CW just gave western Va. the opportunity to cut the cord. Of course there are 2 reasons why I don't think you'll adopt this theory. First, you'd have to recognize Va. as a separate sovereign upon secession, and I don't see you thinking outside of Lincoln's box. Second, there are several of those 40 or so counties that didn't want to rebel, but were carried along for the ride without their consent.
Russ, have you ever noticed how that obviously gerrymandered tea pot handle shaped eastern panhandle got included in WV?
If you believe Cash's posts, it would be because the people in those western VA counties were overwhelmingly unionist in sentiment. The fact is that the majority in only two of the seven counties that made up that portion of VA actually voted against secession. In other words, that area was overwhelmingly secesh in sentiment. But they were unfortunate enough to be the counties that the railroad came through. And heaven knows that had to be kept out of the hands of the evil slavers.
From the West Virginia Division of Culture and History: "One of the most controversial decisions involved the Eastern Panhandle counties, which supported the Confederacy. The Baltimore and Ohio Railroad, which ran through the Eastern Panhandle, was extremely important for the economy and troop movements. Inclusion of these counties removed all of the railroad from the Confederacy."
Cash has contended that VA's acceptance of WV is somehow evidence of its legitimacy. He may be interested to know that according to the Virginia Division of History, up until the below book's printing, VA never had recognized the Restored Government of Virginia in its list of state administrations, or the validity of the secession by West Virginia. Hornbook of Virginia History (Richmond, Virginia: Division of History of Virginia Department of Conservation & Development, 1949), 8.
"If it is your position that secession was legal and Virginia was a separate nation, then nothing in the Constitution applies to it and West Virginia can be added to the United States constitutionally as conquered territory." I said that - "I think your best argument for the legitimacy of W.Va. is that Va. was a separate sovereign, that 40 (?) of its counties exercised their natural right to rebel against Va. (with the help of big brother), and that W.Va. was thus a separate sovereign in itself and qualified as such to apply for statehood."
-------------------
Russ,
You should read over your post again, because you seem to have forgotten what you said. My statement above was in response to this statement of yours:
"Va. lawfully seceeded. It was a separate sovereign - all of it. Luther v. Borden is not on point in that regard. There was no Va. legislature other than the one duly elected by Va.'s citizenry."
Once again, if it is your position that secession was constitutional and Virginia was separate from the United States, then you lose anyway because the United States is not limited to getting Virginia's consent and can add West Virginia constitutionally as conquered territory.
In arguing that W.Va.'s admission was unconstitutional if Va. were still a state, I've stated that you can't create a state from another state's jurisdiction, per the Constitution, without the other state legislature's consent. In this case, you didn't have that consent.
-------------------------
And you're still wrong.
Either you haven't been reading the thread or you don't understand that Virginia's legislature was unqualified to hold office due to its support of secession. This is according to the US Constitution. Therefore, Virginia had no legislature. The Second Wheeling Convention, an open convention of the People of Virginia, with delegates democratically elected, elected a new legislature and a new governor to fill the vacancies until regular elections could be held. This government was recognized, in accordance with the Constitution, by the US Congress and the President, as the legitimate government of the state of Virginia. This government gave its consent for the partition. The Richmond government, because they were constitutionally unqualified to hold office, were usurpers according to the Constitution.
You said that the Va. legislature was unqualified because it was no longer a republican gov't.
----------------------
Once again, I hope your reading comprehension is not that poor when you are serving your clients. I said no such thing.
They were unqualified because of their participation in the rebellion. They were no longer loyal to the US Constitution, and by the US Constitution they cannot be qualified to hold office.
Now you say that the Va. legislature "was no longer qualified to hold office according to the US Constitution," because it was in rebellion.
---------------------
I hope for the sake of your clients you read a lot more carefully for them. This is what I have consistently said from the beginning.
In the end, the Constitution does not recognize you or the fed to determine the qualification of Va.'s legislature for the purpose of consenting to the creation of W.Va.
----------------------
Wrong again. You apparently are still unaware of what Chief Justice Taney held in Luther v. Borden, even though I've gone through it on this thread. The US Constitution, in giving the US Government the responsibility and the power to guarantee a republican form of government gives the Federal government the power to recognize which government is the legitimate government of a state, and it also gives the Federal government the power to say a particular state government is not qualified to hold office.
CivilWarTalk.com -
A free and friendly Civil War community. 
Linear Mode
