Was the civil war constitutional

[mobile_96]

Anyone hear of any attempts by the southern states to submit the question of legality of secession, to the Surpreme Court before the election of 1860??, expecially while the south had more than a 50 control of the Court, and the Congress?. Or were they still afraid they might lose the ruling?

[tamaroa]

I heard that the supreme court dealt with secession after the war but I have heard nothing about before the war.

[unionblue]

Ron & Bill, please! Ron for using that tired old argument that somehow the Union was doing some kind of incredible wrong by trying to keep it's forts and property from being stolen and Bill for making Lincoln out to be some kind of monster who couldn't wait to tear into the southern states. It was the South that couldn't wait to tear away from the Union and mainly because slavery was the institution they thought was going to be abused. Not wanting to be insulting or hurtful, but how can the Union "invade" a country that does not exist? Ron, we have had this talk many a time in our frequent car-trips to reenactments. The South/Confederacy was NEVER recognized by anyone, not Lincoln, not England, not France, etc. The south was in rebellion, not a nation at war with another nation. And Bill, I must say I honestly think the war would have never come, except for the fact the south thought it could force it's way out by the use of the sword. After having it's way for so long with southern Presidents in the White House, control of the House and Senate and the Supreme Court, it decided not to play by the "rules" anymore since they were no longer all stacked in their favor. Arrogance and pride brought on the war, not Lincoln.

[jgallagher109]

Bravo Neil. McPherson makes this point brilliantly in Battle Cry of Freedom. And Bill, I'm curious why you haven't responded to my post on your "Similarities to 9/11" question from yesterday. I confess now that I just read the above thread for the first time this morning, so my praise of Lincoln in my response wasn't some kind of reaction to anything I knew about your viewpoint towards him. How can you say "Lincoln had no principles"? He had one very critical principle: winning the War of the Rebellion. Can't you see, as he did, that any other principle, or vision, or dream he or the Union may have wished for itself could never have reached fruition if the South had been successful in its attempts to secede?

Neil
You know, and I know as I have so often told YOU, (God I LOVE THIS!) the south did not invade the North. The south fired on a fort that was being held, by their lights, by a foreign power. Is this any different than the men forming on the green at Lexington to take on foreign soldiers in red-coats? Or any different than men taking and trying to hold two old missions in Texas against what they considered was a foreign country invading their soil?
The south asked, even begged Anderson to leave Sumter. Even as the artillery was being placed, Beauregard and Governor Pickens extended every courtesy to Anderson, even allowing him to use the telegraph to wire Lincoln and keep him informed. Lincoln knew in March that he was going to send men-at-arms to Sumter and Fort Pickens (actually he had already sent an armed armada toward Pickens by March 15). The south asked nothing more than to be allowed to depart in peace. Not like the colonists who fired on the king's soldiers, not like the texicans who fired on the emperor's soldiers, but asked to be left alone. It was not until armed ships of war arrived outside of Charleston harbor and Pensacola harbor that the forces in South Carolina opened fire. If the South was so fired up to start a war, why wait from March 4, 1861 (Lincoln takes office) until April 7, 1861(firing on Fort Sumter). And don't give me that old saw that the states were confiscating Federal properties before firing on Sumter. Those were the actions of individual states, not the actions of a unified force of Soldiers under the flag of a country (that Lincoln did not recognize anyway, by your lights.)

Bill, I can find no reference to the US Supreme Court hearing any case that would relate to secession pre- or post-WSI (War for Southern Independence) except the Dred Scot case.

Here is the ruling on that case, in the event readers of this post have forgotten:

"Dred Scott first went to trial to sue for his freedom in 1847. Ten years later, after a decade of appeals and court reversals, his case was finally brought before the United States Supreme Court. In what is perhaps the most infamous case in its history, the court decided that all people of African ancestry -- <u>slaves as well as those who were free</u> -- could never become citizens of the United States and therefore could not sue in federal court. The court also ruled that the federal government did not have the power to prohibit slavery in its territories."

There it is, in a nutshell. John Marshall had made the Supreme Court the most powerful of the three branches of the Federal government.

Justice Marshall, whose most famous decision, "Marbury v. Madison," established the doctrine of judicial supremacy, making the Supreme Court and not Congress the final arbiter of the law. Marshall did more to establish the power of the Supreme Court than any other Justice did.

And the Supreme Court never, ever ruled or heard any case for the right of Sucession, pre- or post-WSI.

Well, that should keep things rolling for awhile.

my best to you all,
oldreb

[tamaroa]

Neil and anybody else who doesn't care for my dislike of Lincoln, I want to say this for starters. I do not dispute the fact that it was a great thing that the country remained unified. I do not dispute the fact that he wanted to pull out all stops to win the war. What I dispute is this. Was there a legal reason why the war was fought? I say no, there was not. There was no clear cut message in the Constitution that either allowed or disallowed secession.

What happened to "all men are created equal" except if you are Black or Red or do not own land or you are a woman.

When I say Lincoln had no principles I am referring to his stand regarding the break away from Mexico of Texas, which he said was fine but he would have no truck with those who would break away from the US. the Lincoln 1847 thread has some very good discourse and rebuttals in it, but it comes down to this. Do you believe him? I do not. Lincoln was a politican first and foremost. He wanted to keep the country together and killed 630K people doing it. BUT it took that war to make secession illegal. Nothing before it convinced me otherwise. BlackIrish has some compelling points that he made, but like many things they are intrepretations of definitions. Intrepretations by their very nature can easily lead you down the wrong path. Lincoln was single minded in saving a country that did not want to be saved. Everything else be ****ed. 140 odd years later, we can say (including me) that it was a good thing. All I have ever been trying to say is that at the time it occurred, the war was illegal because he forced states to stay in the Union that clearly gave evidence upon their ratification of the constitution that they reserved the right to leave it if the government did not operate in their best interest. They elected to use that right per the tenth ammendment. What was illegal about it? Remember we discussed on another thread that the courts tried nobody for treason. If they had been acquited, the reason for fighting the war would have been negated.

I would not have even started this if he had had the guts to stand up and say to everybody (referring to Mexico) look I was wrong. Secession was not a good thing and is not a good thing. But he didn't. I interpret his explanations for his stands in both wars as double talk, talking aout of both sides of his mouth or whatever you want to call it.

I gotta run. Can't complete my thoughts because I'm at work. We will discuus this more if you wish.

Regards,

Bill

(Message edited by tamaroa on June 26, 2002)

Bill, I wish. And don't be too hard on UnionBlue. One day when going to a reenactment, I suddenly discovered that i had left my wallet at home. (I found this out when we stopped at a McDonalds for our evening refreshments). Neil (Unionblue) volunteered to lend me money (nice guy) but I had to swear not to say anything bad about Lincoln for the entire weekend. I **** near exploded! I agree with your stance and statements. Lincoln had a different lean on the concept of secession if it affected the Union. It was good we had rebelled against the crown and become the US. It was good that Texas rebelled against the crown and become a state a few years later. It was bad that the southern states using the obscurity of the Constitution seceded and formed their own country.
To that end, 630,000 men and a few women fought and died. In the end, Lincoln would prove that secession was wrong, but he did it by the sword, not by political means. And it remains today a vague question unsettled in the courts and only remaining a vestige of right/wrong in the country today. Setting any issue by the sword does not actually setting the issue. When the law of the land is settled by cold steel and hot lead, the question will remain, sleeping, until it is roused again.
Or so I see it.

My best, Bill.
oldreb

[minie57]

Reminds a bit of the argument of Designated Hitter rule in Baseball. But I digress.

First of all, I believe that one the "War of the Rebellion" was inevitable. Did the South have a constitutional right. Well they could have cooled themselves and tried the courts. They also did still have Congress to help out. But they knew Lincoln was not a compromise type of person, Of course Lincoln didn't think the south or anyone else had such right to secede. The south knew politically he felt that with him in White House that they didn't want to wait. So the South secedes eventually War starts and there is no way we will find out for sure.


But we fail to realize just how politically savy Lincoln was and how resolute Lincoln was in keeping the Union together. AS much as some dislike Lincoln, There aren't too many presidents before or since that could have done what he did to keep this country together or even dare try the things he did.

Tom.

[unionblue]

I have seen on this thread the idea that the Supreme Court did not rule on State's rights until after the Civil War. May I put these items up for discussion?
The issue of State sovereignty and the integrity of the Union was answered by Chief Justice John Marshall in M'Culloch v. Maryland (1819):

"...In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument NOT AS EMANATING FROM THE PEOPLE BUT AS THE ACT OF SOVEREIGN AND INDEPENDENT STATES. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.

IT WOULD BE DIFFICULT TO SUSTAIN THIS PROPOSITION. ...The Convention, by Congress, and by the state legislatures the instrument was submitted to the PEOPLE. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject-by assembling in convention. It is true, the assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. BUT the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the Constitution dreives its WHOLE AUTHORITY. THE GOVERNMENT PROCEEDS DIRECTLY FROM THE PEOPLE; IS ORDAINED AND ESTABLISHED IN THE NAME OF THE PEOPLE; AND IS DECLARED TO BE ORDAINED IN ORDER TO FORM A MORE PERFECT UNION, ESTABLISH JUSTICE, ENSURE DOMESTIC TRANQUILLITY, AND SECURE THE BLESSINGS OF LIBERTY TO THEMSELVES AND TO THEIR POSTERITY. The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the STATE SOVEREIGNTIES. "...The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, IN ORDER TO FORM A MORE PERFECT UNION, it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, WAS FELT AND ACKNOWLEDGED BY ALL."

THe CHief Justice further stated in Cohens v. Virginia (1821):

"...That the United States form, for many and for most important purposes, a single nation has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects is the government of the UNION. It is their government, and, in that character, they have no other. American has chosen to be, in many respects and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is SUPREME. It can, then, in effecting these objects, legitmately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are ABSOLUTELY VOID."

Looks like the Supreme Court had already decided who was the law of the land, the people of the United States as represented by their government, not the individual States, way before the end of the Civil War.

[minie57]

Neil,

Seems if this as you write is correct, then Lincoln may have well known this and used these opinions as basis for restoring the Union by any and all means necessary.

Tom