Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
Have recently acquired the Amar book and am stimulated to start it immediately. What intrigues me is that Mr. Amar's family was likely not present in this country at the time, his view will be free from the baggage that those of us from "older" families carry with us at all times.
An assumption that just passed my mind is that the framers and signatories and ratifiers of the constitution knew full well what they were doing and buying into. It was later that differing, more convenient interpretations began to emerge.
This will be a most interesting read to be pulled from the shelves and added to that appalling stack of "must read real soon."
Thanks so much for the discussion. May your tribes increase!
Ole
__________________ I never knew a man who wished to be himself a slave. Consider if you know any good thing that no man desires for himself. A. Lincoln
May I ask what the Ninth and Tenth Amendments mean to you and how they impact on the Civil War?
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
My study is ongoing, but I don't think at this point that either provision is particularly relevant to the War. I'm going to split this up and discuss the Tenth Amendment briefly -- the meaning of the Ninth is more controversial.
As background, the Federalists argued that a Bill of Rights was unnecessary because the Constitution granted only limited, enumerated powers to the federal government. For example, in Federalist 84, Hamilton argued, "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
When the Federalists relented, adding the Bill of Rights, the concern arose that the Bill of Rights would create the implication that the original Constitution had granted the federal government the power to legislate on those unenumerated topics in the first place. For example, sticking to the First Amendment, would the prohibition on abridging the freedom of speech not suggest that the original Constitution had granted the federal government the power to abridge speech in the first place? The federalists did not think so.
Hence the Tenth Amendment. The Amendment was designed to eliminate the suggestion that the Bill of Rights altered the original scheme of enumerated powers. If, for example, Congress was not originally delegated power to regulate speech or the press, no such power is granted or implied by adoption of the First Amendment.
The Tenth Amendment is, in effect, a reaffirmation of the role of the federal government as one of defined, limited powers. But in itself, I don't think the Amendment sheds any light on issues such as the permanence of the Union, nullification, secession or the like.
I still have not yet read the papers listed in my prior email, which may challenge this interpretation in whole or in part. I therefore reserve the right to change my mind.
While I'm at it -- since the title of the thread includes the Second Amendment -- here's Professor Barnett's excellent article on the original understanding of the meaning of the Second Amendment. Again, not really relevant to the War, but fascinating stuff nonetheless. As with the others, it's downloadable for free.
My guess is that at some point the Supremes are going to have to reconsider their Second Amendment jurisprudence.
In an earlier post in this thread, No. 259, Unionblue nicely summarized some of the evidence cited by Yale Law Professor Akhil Reed Amar in his book, The Constitution: A Biography, demonstrating that the Constitution did not permit secession.
Later in the book, Professor Amar turns to the Treason Clause (Article III, Section 4) ("Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.") and discusses a further piece of historical evidence of which I was unaware:
"Anti-Federalist Luther Martin called attention to the issue [that in the event of a war between a State and the United States, those who fought for the State would be 'traitors'] during the ratification process. In remarks delivered to the Maryland House of Representatives and later expanded into a widely read pamphlet, Martin reported that at Philadelphia, he had proposed an alternatively worded treason clause, which he paraphrased as follows: In a 'Civil War' between 'any State . . . [and] the General Government . . .no Citizen . . . of the said State should be deemed guilty of Treason, for acting against the General Government, in conformity to the Laws of the State of which he was a member.' Yet the Philadelphia delegates had rejected his alternative, said Martin, who thereby reminded Americans that the treason clause as finally worded made no exception for unilateral state secession or civil war. With evident understanding of these words, the American people ratified the document as a whole."
Akhil Reed Amar, America's Constitution: A Biography, p. 242.
Personally, I think most discussions on the U.S. Constitution and secession are flavored much too strongly by opinion rather than sound legal arguments. And what is the legal training of those who attempt to dissect the meaning of the Constitution. Meagre at best.
How many could match legal wits with Abraham Lincoln?
In retrospect, we know Lincoln thought secession was unconstitutional, destroyed that secession, cost the slaveholders their slaves without compensation, and in the end the U.S. Supreme Court decided secession was an illegal act.
So much for anyone disagreeing with the constitutional thoughts of Abraham Lincoln from 1860 to 1870.
"Anti-Federalist Luther Martin called attention to the issue [that in the event of a war between a State and the United States, those who fought for the State would be 'traitors'] during the ratification process.
At the risk of being redundant:
Document 16 Luther Martin, Genuine Information 1788Storing 2.4.96--98
"By the principles of the American revolution, arbitrary power may and ought to be resisted even by arms if necessary-- The time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the general government, to have recourse to the sword--In which case the proposed form of government declares, that the State and every of its citizens who act under its authority are guilty of a direct act of treason; reducing by this provision the different States to this alternative, that they must tamely and passively yield to despotism, or their citizens must oppose it at the hazard of the halter if unsuccessful--and reducing the citizens of the State which shall take arms, to a situation in which they must be exposed to punishment, let them act as they will, since if they obey the authority of their State government, they will be guilty of treason against the United States--if they join the general government they will be guilty of treason against their own State.
To save the citizens of the respective States from this disagreeable dilemma, and to secure them from being punishable as traitors to the United States, when acting expressly in obedience to the authority of their own State, I wished to have obtained as an amendment to the third section of this article the following clause: "Provided that no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States under the authority of one or more of the said States, shall be deemed treason, or punished as such; but in case of war being levied by one or more of the States against the United States, the conduct of each party towards the other, and their adherents respectively, shall be regulated by the laws of war and of nations."
But this provision was not adopted, being too much opposed to the great object of many of the leading members of the convention, which was by all means to leave the States at the mercy of the general govenment, since they could not succeed in their immediate and entire abolition."
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