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.
Mr. Baylor proposes to add the phrase “as established in the American Revolution” after the words “The people of Virginia recognize the American principle.” He will not vote for the resolution without this phrase. Mr. Wise asks if it matters where the principle was established. The CFR avoided defining the right as revolutionary or sovereign. “Let us agree to disagree on those points and come to the principle.” Baylor says he has never “believed any State has the right peaceably to secede, of its own will and pleasure.” If they do, “we have no Government at all. … We all believe in the revolutionary right, and my object is simply to draw that distinction.” Mr. Wise says the distinction is “not between the Constitutional right and the revolutionary right, but sovereign right and the revolutionaryright.” Mr. Baylor’s amendment is voted down 29 – 101. (Proceedings, vol. III, Pg. 259).
Mr. Rives of Prince George and Surry Counties: “I will remark, however, that when I sign that ordinance of secession, I shall sign it as an act of revolution. I tell you that the passage of this ordinance is the inauguration of revolution; and I tell you that in less than thirty hours afterwards, there will be acts done in the Convention that no man would now regard as possible. I tell you I go into this fight, and look every man in the face, and say, I did what I deemed best for my country, meanwhile believing that in signing the ordinance, I was helping to inaugurate revolution." (Proceedings of the Virginia Convention of 1861, vol. IV, Pg. 111).
Sorry about so many posts, but the body of literature is large. Respectfully, John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
Last edited by JohnTaylor; 05-31-2006 at 02:05 PM.
"As I said before, perhaps the Constitution is silent on the "right of secession" because it does not exist."
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Originally Posted by russ_aukerman
First, I wouldn't get too caught up in any distinction between 'right' and 'power.' John has put forth a distinction, and may be correct. I think the word 'power' may be a little better, but for myself, I'm using the two words interchangeably.
Rest assured, I am not. I do not think the "power of secession" was ever established to exist either.
In any case, suppose I am correct and the Constitution simply does address this power or right because it does not exist. Then what? How do we see the acts of the Southern states then?
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Originally Posted by russ_aukerman
A simple definition of power or right would be ANYTHING upon which a government could regulate or act upon. Any topic capable of being the subject of an ordinance or statute is a topic capable of being regulated. There is no limit upon which state governments may regulate, subject only to that state's own constitution and the US Constitution. Regulation of electricity awaited the invention of electricity; regulation of secession awaited the desire to secede. The question comes back to which sovereign - the state or the fed - had the power or right to regulate or act upon secession. As the Constitution does not delegate the power to regulate secession to the fed, nor prohibit it to the states, the power of secession is one upon which the states may lawfully act.
I disagree strongly. If tomorrow the state of NJ decided it had a sovereign right or power to regulate smokestack emissions in Ohio because of the resulting pollution here (real-life example: more air pollution here can be traced to sources in midwestern states than to sources in NJ, and state regulation there is much weaker than here), I would have sympathy for the desire and reject the right or power to do so. I do not think states exist in a vacumn, and that their acts and powers exist without reference to the other states in the Union. There are limits on everything involved.
The states (or at least the first 13) had joined in a Union that dates to 1774. They had, through the Articles of Confederation and Perpetual Union, professed that this Union would be perpetual. They had adopted the Constitution to make that a "more perfect Union". They might well have been able to leave that Union, but they do not have a right to do so unilaterally, in the abusive manner the states tried in 1860-61.
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Originally Posted by trice
"At least six of the first seven states to secede in particular employed force, the threat of force, and the seizure of property even in advance of the adoption of secession."
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Originally Posted by russ_aukerman
Do you not think that a seceeding state was entitled to its proportionate share of federal property upon secession? Think of it as a divorce - each party retains that which they brought to the marriage and their proportionate share of assets obtained during the marriage. State seizures of fed property were just the states retaining their proportionate share of assets obtained by the fed while that state was in the Union.
Fair and reasonable division of assets in a divorce is agreed upon in advance of the final decree, and is not decided by how much one of the parties can lay hands on or grab by force and the threat of force. You go to law for that if you cannot come to an amicable agreement. If you want to really apply this divorce example, the states would have to negotiate the terms before seceding -- which they did not even attempt, choosing to grab what they could lay hands on, to use force and the threat of force, and finally to attempt the destruction of Federal forces by bombardment.
If you really want to follow this analogy down the line, you'll fall into a series of pits. The Louisiana territory was purchased by the nation as a whole, as were large chunks of territory elsewhere in the South. The nation fought a war for Texas and the acquisitions from Mexico, as well as purchasing some of that. Florida did not pay for the purchase of Florida; Louisiana did not pay for the Louisiana Purchase. Alabama and Mississippi did not come into existence by themselves, nor Arkansas. They are the creations of the Federal government, as are Tennessee and Kentucky and all the states outside the original 13 with the exception of Texas, a creature of revolution like the original 13.
How far back should this be rolled? If KY only becomes sovereign and independent by becoming a US state, what powers does it have to reclaim? If KY is no longer a US state, does it become again a US territory? Or do we roll it back to VA if VA also secedes? Or do we let it go back to the great hunting ground of the Native Americans? Who gets to decide, and why?
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Originally Posted by russ_aukerman
Secession is not a matter of fed law. Therefore, the USSCt had no jurisdiction to rule upon the issue.
US Constitution Article III Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
You don't think that applies? You don't think the existence of the "right of secession" would qualify as a controversy between the states, or between states and the United States?
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Originally Posted by russ_aukerman
Personally, I don't think an amendment would pass (not that one was necessary) because there weren't 3/4 of the states who'd have agreed to it.
Maybe yes, maybe no. It seems reasonable to assume most or all of the 15 slave states would vote for it. I have seen one study that claimed NJ was the most likely of the five Mid-Atlantic states to secede in 1861 (more so than MD or DE) and they were always very closely associated with the South. Probably difficult to say what CA and OR would do, isolated on the other side of the country. Many Northerners were on top of the fence, maintaining there was no "right of secession" and ALSO no right to compel a state to remain in the Union in early 1861 (same as Robert E. Lee) and other Southerners.
That opinion, BTW, is clearly expressed in the early 1861 Supreme Court decision in Dennison v. Kentucky. In that, they ruled it was the duty of the governor of OH to extradite a fugitive slave when asked by the governor of KY -- but that the Federal government had no power to compel him to do so. The SC voted 8-0 for that. I could easily see another split-the-baby decision on secession from them: no such right being found to exist but the Federal government having no power to do anything about it. Probably not 8-0, though.
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Originally Posted by russ_aukerman
I'm not sure whether southern people thought their constitutional argument weak or strong. It really doesn't matter; its what the Constitution says that counts, not what any one person thinks it says or ought to say.
This would indicate unilateral secession as claimed by the Southern states was in the wrong. They have no judicial power here.
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Originally Posted by russ_aukerman
I agree that southerners (and northerners for that matter) kept "fanning everything to a fever pitch." It just shows that propaganda is not new.
It is my personal opinion that the major difference in 1860 between the extremists of the North and the South is that they attained enough power and control in the South to push through their program of secession and in the North they did not attain a comparable level of power on the question of Abolition in the nation. As a result, you had a violent war, but it is secession that is the cause.
Mr. Baylor proposes to add the phrase “as established in the American Revolution” after the words “The people of Virginia recognize the American principle.” He will not vote for the resolution without this phrase. Mr. Wise asks if it matters where the principle was established. The CFR avoided defining the right as revolutionary or sovereign. “Let us agree to disagree on those points and come to the principle.” Baylor says he has never “believed any State has the right peaceably to secede, of its own will and pleasure.” If they do, “we have no Government at all. … We all believe in the revolutionary right, and my object is simply to draw that distinction.” Mr. Wise says the distinction is “not between the Constitutional right and the revolutionary right, but sovereign right and the revolutionaryright.” Mr. Baylor’s amendment is voted down 29 – 101. (Proceedings, vol. III, Pg. 259).
Establishing that most of those voting on this in Virginia rejected the contention that they were engaging in revolution? Supporting my contention that secessionists rejected the idea that they were revolting?
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Originally Posted by JohnTaylor
Mr. Rives of Prince George and Surry Counties: “I will remark, however, that when I sign that ordinance of secession, I shall sign it as
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Originally Posted by JohnTaylor
an act of revolution. I tell you that the passage of this ordinance is the inauguration of revolution; and I tell you that in less than thirty hours afterwards, there will be acts done in the Convention that no man would now regard as possible. I tell you I go into this fight, and look every man in the face, and say, I did what I deemed best for my country, meanwhile believing that in signing the ordinance, I was helping to inaugurate revolution."
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Originally Posted by JohnTaylor
(Proceedings of the Virginia Convention of 1861, vol. IV, Pg. 111).
Mr. Rives is perhaps one of the 29 voting above, and would agree there was no "right of secession"?
Mr. Carlile, quoting Madison, “But this dodges the blow of confounding the right to secede at all, with the right to secede from intolerable oppression. The former answers itself, being a violation without a cause of a faith solemnly pledged. The latter is another name for revolution, about which there is no rhetorical controversy.” (Proceedings of the Virginia Convention of 1861, vol. 1, Pg. 482)
As I have been saying for quite some time: the Founding Fathers had no doubt at all about the "natural right of revolution". Men as varied as Robert E. Lee, Abraham Lincoln, and Andrew Jackson would all support that in later days. But the "natural right of revolution" is nothing but trial by combat and makes no claim to being a legal "right".
It is the pretense that a legal and constitutional right of unilateral secession existed that is the issue. I know of no such right ever being recognized by any nation before that time.
Mr. Rives is perhaps one of the 29 voting above, and would agree there was no "right of secession"?
Rives did not record a vote on the Baldwin amendment.
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
"In any case, suppose I am correct and the Constitution simply does address this power or right because it does not exist. Then what? How do we see the acts of the Southern states then?" The statute books of the several states are FILLED with law on subjects that aren't addressed in the Constitution but nevertheless exist. The Constitution only enumerates fed powers. The remaining powers - numerous and "indefinite" as Madison called them - remain for the states. If the Constitution attempted to enumerate all state powers, it would be hundreds of volumes long and would need an amendment for every new invention; like an amendment to allow states to pass traffic laws when the automobile was invented. There is no need for a constitutional amendment for a state to pass traffic laws, even though there were no cars and no traffic at the time of ratification. Just because there was no OCCASION to exercise a power at the time of ratification doesn't mean the power doesn't exist should the occasion arise. To answer your question - if the Constitution enumerated all state powers and secession was not one of them, then secession would be unconstitutional. That's just not the way it is, though.
"Fair and reasonable division of assets in a divorce is agreed upon in advance of the final decree, and is not decided by how much one of the parties can lay hands on or grab by force and the threat of force." Sounds like you've never been a divorcee or a divorce lawyer. ;-) If I read correctly, you're agreeing that seceeding states had a right to their proportionate share of fed assets accumulated during the Union, but are disagreeing with the method used by them for 'property division.' That's an entirely reasonable position, and has my personal support. I'd have rather had the two gov'ts - fed and whatever state - agree to some sort of accounting and method for division of property. But agreement was not the emotional state of the time. A war was fought before such could happen, and rendered the happening of such meaningless.
I know that Art. III does NOT apply to the question of secession. Looking at the areas you've highlighted, you'll note that NONE of them propose to extend jurisdiction to a state's exercise of a state power - like secession. Further:
- state powers do not "arise under this Constitution," but existed before the Constitution was ever contemplated. State powers are the ones won during the Revolution; a few enumerated of such were delegated by the states when the states decided to create a fed under a constitution;
- The US is not a party to a state's exercise of a state power;
- Secession was not a controversy between two states, but rather one state's own exercise of its own powers;
- Secession is not a "case" in the legal sense. There is no cognizable 'dispute' because a state is the only 'party' to the exercise of its own rights. The Constitution gives no one - state or fed - the power or authority to interfere with a state's exercise of state powers.
- The USSCt has appellate jurisdiction in the cases "before mentioned," and the before mentioned cases do NOT include a state's exercise of a state power.
I don't claim that all southerners - or northerners for that matter - saw the issue the same or consistently. At that time most peoply couldn't read, let alone understand the Constitution. One's opinion on the legality of secession, including mine, is irrelevant to secession's legality under the Constitution. Its what the Constitution says that counts.
Your opinion that a USSCt decision on secession would fall out like the Dennison case is interesting. Personally, I don't know. I'd have to study the make-up of the Court as it then existed. I'd also have to know whether all the Justices would vote, unlike Dennison where it appears that one Justice recused himself or was otherwise unavailable.
"This would indicate unilateral secession as claimed by the Southern states was in the wrong. They have no judicial power here." I'm sorry. I just don't know what you mean here in the context of the statement of mine which you quoted.
It seems to me that slavery was the root of secession.
"In any case, suppose I am correct and the Constitution simply does address this power or right because it does not exist. Then what? How do we see the acts of the Southern states then?"
The statute books of the several states are FILLED with law on subjects that aren't addressed in the Constitution but nevertheless exist. The Constitution only enumerates fed powers. The remaining powers - numerous and "indefinite" as Madison called them - remain for the states. If the Constitution attempted to enumerate all state powers, it would be hundreds of volumes long and would need an amendment for every new invention; like an amendment to allow states to pass traffic laws when the automobile was invented. There is no need for a constitutional amendment for a state to pass traffic laws, even though there were no cars and no traffic at the time of ratification. Just because there was no OCCASION to exercise a power at the time of ratification doesn't mean the power doesn't exist should the occasion arise. To answer your question - if the Constitution enumerated all state powers and secession was not one of them, then secession would be unconstitutional. That's just not the way it is, though.
I did not say that the Constitution enumerated all the state powers. What if there was simply NO power or right of secession at all?
The power does not exist because it was not mentioned. It is not denied because it was not mentioned. It is merely a theory, a possibility, until it is determined whether it does or does not exist.
The only body established to determine such a thing in the United States is the Supreme Court and it has jurisdiction on ALL such controversies arising between the states, or involving the United States as a whole. Not just some. Not just the ones the states would like to see them decide. ALL of them.
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Originally Posted by russ_aukerman
"Fair and reasonable division of assets in a divorce is agreed upon in advance of the final decree, and is not decided by how much one of the parties can lay hands on or grab by force and the threat of force."
Sounds like you've never been a divorcee or a divorce lawyer. ;-)
Not personally. Many years ago, I wrote software to manage cases for personal injury lawyers in NYC. I remember sitting in one lawyer's office while he had his clients with him (Spanish-speaking), as he discussed settlement on the phone with the city attorney (English). My boss, was with me, and since my Spanish isn't all that good I asked him if I'd understood the translation correctly. He laughed all the way down in the elevator because it sure seemed to us that about $5,000 more than we could figure out disappeared between the English conversation and the Spanish one. Since our software was supposed to be calculating fees, we found that interesting.
But what you are talking about is the difference between the law itself and the practice of the participants. Do you really want to be saying the secessionists were OK because they acted like a bunch of shyster lawyers and/or thugs?
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Originally Posted by russ_aukerman
If I read correctly, you're agreeing that seceeding states had a right to their proportionate share of fed assets accumulated during the Union, but are disagreeing with the method used by them for 'property division.'
Nope. I think they may have had a claim to a share and that the way to find out was to sit down and work the details out in advance. I note the seceeding states made no attempt to do so. I also don't see any attempt by the seceeding states to take any share of the debts and responsibilities -- only the money, the revenue, and the assets.
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Originally Posted by russ_aukerman
That's an entirely reasonable position, and has my personal support. I'd have rather had the two gov'ts - fed and whatever state - agree to some sort of accounting and method for division of property. But agreement was not the emotional state of the time. A war was fought before such could happen, and rendered the happening of such meaningless.
Whoa! The state then has a responsibility to negotiate with the Federal government -- or the other states -- BEFORE seizing property, revenue, etc. BEFORE using armed force. BEFORE threatening Federal troops. Note that they did this first in all cases, in many of them before the state even passed an ordinance of secession.
A war was fought because the seceding states forced it upon the rest of the nation and in all cases acted illegally even by their own state laws.
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Originally Posted by russ_aukerman
I know that Art. III does NOT apply to the question of secession. Looking at the areas you've highlighted, you'll note that NONE of them propose to extend jurisdiction to a state's exercise of a state power - like secession.
Suppose no state has any power of secession. This was a highly debatable issue at the time and many people, North and South, felt no such right existed or was intended to exist. Then what?
My point is the ONLY body that is empowered to decide whether or not the "right of secession" exists IS the Supreme Court. Not the states. Not the Congress. Not the President. Not you, not me. Only the Supreme Court.
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Originally Posted by russ_aukerman
Further:
- state powers do not "arise under this Constitution," but existed before the Constitution was ever contemplated. State powers are the ones won during the Revolution; a few enumerated of such were delegated by the states when the states decided to create a fed under a constitution;
Again, suppose the state "right of secession" does not exist. Then what?
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Originally Posted by russ_aukerman
- The US is not a party to a state's exercise of a state power;
Again, suppose the state has no such power. Then what?
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Originally Posted by russ_aukerman
- Secession was not a controversy between two states, but rather one state's own exercise of its own powers;
- Secession is not a "case" in the legal sense. There is no cognizable 'dispute' because a state is the only 'party' to the exercise of its own rights.;
I submit that there was a great controversy between the states and also between the United States and several states over whether or not the "right of secession" existed or not. The Constitution gives jurisdiction in ALL such "controversies" to the Supreme Court.
Again, suppose the state has no such power. Then what?
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Originally Posted by russ_aukerman
The Constitution gives no one - state or fed - the power or authority to interfere with a state's exercise of state powers.;
Again, suppose the state has no such power. Then what?
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Originally Posted by russ_aukerman
- The USSCt has appellate jurisdiction in the cases "before mentioned," and the before mentioned cases do NOT include a state's exercise of a state power.
Again, suppose the state has no such power. Then what?
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Originally Posted by russ_aukerman
I don't claim that all southerners - or northerners for that matter - saw the issue the same or consistently. At that time most peoply couldn't read, let alone understand the Constitution.
This is a bad place for anyone arguing secession to go. Literacy rates in the South were much lower, largely as a result of decisions made by Southern governments on education spending. You can easily find editorials in ante bellum Southern papers arguing that the average poor white farmer shouldn't be taught to read because he didn't need to know it. Northern literacy rights were much, much higher because public education was stressed in the North.
This also extended, BTW, to average West Point experience in those days. Northerners usually got by far the best grades because they entered the academy with a much better educational background. Southerners and Westerners generally trailed, particularly early on.
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Originally Posted by russ_aukerman
One's opinion on the legality of secession, including mine, is irrelevant to secession's legality under the Constitution. Its what the Constitution says that counts.
My opinion is that ONLY the Supreme Court has the standing to DECIDE whether secession is or is not a power or right of the states under the Constitution. No one else qualifies, including any individual state, state legislature, or a vote of the people of a state.
...
It seems to me that slavery was the root of secession.
Russ, I started a new thread on the Supreme Court issue to get it out of the clutter. Please look there for my response.
Like you, I believe that slavery was at the root of secession and all major issues mentioned. Nothing else rose to the level of justifying such an act.
"It is merely a theory, a possibility, until it is determined whether it does or does not exist." The power to regulate exists if there is a subject upon which the state legislature wishes to pass a law. Congress is more limited because it can only regulate upon the enumerated subjects in the Constitution. State legislatures are limited only by state constitutions; and state constitutions generally place few limits (other than bills of rights which generally mimic the Constitution's Bill of Rights) on the subjects upon which that state's legislature can regulate. Look at it this way, would you be so reluctant to have a state regulate mad cow disease - even if the power to regulate mad cow disease hasn't been identified in any constitution to exist? Would you be satisfied if your state legislature debated the existance of the power to regulate mad cow disease instead of actually doing something about it by passing a law? I submit that your resistance in the case of secession is only because it is secession, you don't like secession, and you're looking for a way to find it unconstitutional. I further submit that, from a legal perspective, you're looking in the wrong place.
"The state then has a responsibility to negotiate with the Federal government -- or the other states -- BEFORE seizing property...." What you say makes common sense. I would agree that such was a moral requirement, but would disagree that there's any legal basis for such a requirement. Out of curiosity, what do you think the fed would have said had a seceeding state approached the fed and said 'We want to negotiate the return of out proportionate share of fed property?'
"This is a bad place for anyone arguing secession to go." Why? My point is that most people - north and south - got their opinion on the legality of secession from propaganda, not from reading the Constitution. I'm not arguing for or against the issue of education spending. Nor, for that matter, am I arguing that secession is good or bad, or that southern policies are good or bad. All I'm saying is that, under the Constitution, state secession is legal.
"My opinion is that ONLY the Supreme Court has the standing to DECIDE whether secession is or is not a power or right of the states under the Constitution. No one else qualifies, including any individual state, state legislature, or a vote of the people of a state." I respectfully submit that you'll find no support in the Constitution for your opinion. I suspect that you studied secession first, found you thought it a bad idea, and are looking for a legal basis to suppress it. I studied the Constitution first, and found that secession was constitutional later. I just plugged the issue of secession into the standard legal tests, objectively, and have decided that I must live with that result whether I like it or not. If I'm correct that secession is a state right, doesn't it make sense for the state legislature to pass a law for or against the issue?
"The state then has a responsibility to negotiate with the Federal government -- or the other states -- BEFORE seizing property...." What you say makes common sense. I would agree that such was a moral requirement, but would disagree that there's any legal basis for such a requirement. Out of curiosity, what do you think the fed would have said had a seceeding state approached the fed and said 'We want to negotiate the return of out proportionate share of fed property?'
My personal opinion? I think you negotiate secession before you secede, you don't declare it, grab everything, and then attempt negotiation.
If I had been trying to get this done in 1860-61, I would have formed a common block with other like-minded states (say the original 7 in the Confederacy) and introduced a bill in Congress on the terms by which a state could secede. (I also might have started a test case by 1 state in the group for the Court.) Instead of saying "We have seceded! !@#$%^&* you!", I would have presented a date in the future on which we wanted to secede and proceded to the terms.
As I have said many times, the most common opinion in the North at the time was that there was no "right of secession" and also no power of the Federal government to compel a state to remain -- just as men like Robert E. Lee felt. I think this approach would have played to that strength.
I can't tell you what the detailed settlement would have been. I think the South would have been able to negotiate something if they really tried, particularly if they used their own votes. The 1861-62 Congress could have been deadlocked until this issue was resolved. I think it would even be possible (not likely) that a deal might have been reached and signed before Lincoln took office.
But that deal would have involved a number of things the South didn't like -- such as assumption of a large portion of the national debt, specific borders, free passage rights, etc., etc. It would have required compromise and negotiation -- things Southern politicans of those days proved very bad at. It might have left the Upper South still in the Union -- and men like Jefferson Davis did not believe the Confederacy was viable without VA-NC-TN because of their numbers and industrial potential.
To a large extent, I think some deal was workable. I also think Southern leaders of 1850-65 were incapable of dealing with it (and most Northern leaders not far behind them in lacking the capability). Too many extremists, too many men determined that only their way was acceptable, seeing pebbles as boulders and boulders as mountains.
But in order to even try this route, the Southern extremists would have had to be restrained. There could be no seizures of property, no use of force, and finally no assault on the Federal government. But the secessionists did all that as soon as possible. Very practical if you want to fight a war. Very dumb if you want a negotiated peaceful solution.
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