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.
"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.
Because you were saying that most people were illiterate. That isn't accurate. To the extent it was, it is much, much more true of the South than the North. Your statement pointed to secessionists more than anyone else.
Tim - "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?
Your opinion would be wrong. If you look at my opinions posted frequently on this board, you will see that I have said repeatedly that the existence of any "right of secession" was very debatable in 1860. You will also see that I think there was about a 50% chance the Supreme Court would have recognized it as existing.
But all your arguments flow from your insistence that the state does have a right or power of secession (and apparently with no participation or voice for the other parties to the agreement -- the unilateral kind) and you will resent any attempt to seriously consider that they might not. If they do not, of course, any act they might pass is simply meaningless and no one who wants to argue for secession can accept that.
So who gets to DECIDE? One state cannot decide such an issue about an agreement between many states: self-interest alone disqualifies them. The US Constitution provides a method: the Supreme Court, which has jurisdiction over all such controversies among the states. ALL of them. No one else has that jurisdiction.
If the state doesn't like it, there is another route: Constittutional amendment. Work to get one passed. Make it clear that a state has the right in the Constitution, and then the Court is bypassed on the issue. Only the details would be subject to review.
And if you can't get it done, and don't like what the Court says, there is always the "natural right of revolution". That's just insurrection, rebellion, revolution, trial by combat. Even Lincoln was on record about the existence of that. It is what the South did anyway. They just decided to skip over the legal and peaceful methods to go right to violence and war. The only problem is that you can't present the fiction of acting peacefully and legally if you try the other methods first.
Tim -
"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.
Nope. State legislatures are also limited by their membership in the Union and have been ever since they became states, even before the Constitution was adopted.
I have never been able to grasp why secessionist arguments assume that the states are not bound by the agreements they sign. Do you go through your life suddenly deciding to renounce and rescind agreements signed many decades back? Do other people let you get away with such stuff if you do?
Suppose the descendants of the family that sold the land on Billy Goat Hill where my father bought his new house in 1954 decide they want it back? Do they get to just show up and tell the current owners they have to leave? I'd say no -- but then the agreements also have specific clauses about such things.
So suppose you were in an association of mutual interest, originally because your grandparents had helped start it, on the assumption it would be perpetual. Let's say you are unhappy with how things are being run. Heck, you're mad about it. So you get your folks together, round up some friends, and change all the locks on the company buildings in your area. You show up armed, just in case the employees give you any trouble. You grab all the funds in the local accounts, and take all the revenue from business in the area going forward. You find a few employees lock you out when you try show up, so you blockade them and try to starve them out. You engage in intrigue to get more of the association members to do the same. When the rest of the company gets upset and sends food/assistance to the blockaded employees, you open fire on them.
Do you really think that's peaceful and legal? Yet it is a close analogy as to how the secessionists acted from December 1860 to April 1861. I think any court would find the actions above illegal, and that you had no right or power to act as described. Yet you insist that the states have the equivalent abusive power. I do not agree at all.
"My personal opinion?" I agree that division of property would have been better accomplished by prior negotiation. But the question was: "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 point is that prior negotiation would have been futile given the emotional/political climate of the times. It is, as you say, possible that some agreement could have been reached. I wouldn't like the odds, though.
"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." Because secession is not a fed enumerated power, the fed has no say on what terms were for secession. The terms are up to the individual state by the 10th Amend. Correct me if I'm wrong, but you seem to believe that one state needed the permission or consent of the fed or the other states to secede. If that is your opinion, please point to me that provision in the Constitution which requires such. I respectfully submit that you'll find no such provision. Even had the states followed your suggestion and put it to Congress, the states would not have been bound by any 'terms' Congress set because the Constitution does not give Congress the authority to set 'terms' regarding state secession.
I'm not sure what the most prevalent opinion was regarding the legality of secession. What I am sure of is that opinions are irrelevant; its what the Constitution says that counts.
I agree that you've listed some of the more important topics of property division, although state borders I think would have necessarily reverted to pre-ratification boundaries. I disagree that the south, or the north, was any better or worse negotiators. I think it possible, but unlikely, that an agreement could be reached before Lincoln took office. I agree that "...Jefferson Davis did not believe the Confederacy was viable without VA-NC-TN because of their numbers and industrial potential." I think it particularly true of Va.
"Because you were saying that most people were illiterate." I think that's true, but I don't have census figures or stats to back me. If you do, please share.
"If you look at my opinions posted frequently on this board, you will see that I have said repeatedly that the existence of any "right of secession" was very debatable in 1860. You will also see that I think there was about a 50% chance the Supreme Court would have recognized it as existing." You've touched two different subjects here. Any political power exists if a state or fed law can be passed on it. The power of state secession exists if any state can pass an ordinance of secession. Whether that ordinance is constitutional is a different question. On your second issue, I still don't know what chance the issue would have had before the Court, assuming the Court had jurisdiction to rule on the issue - which it didn't. I found your post on the various justices interesting. You may be right on the chances.
"But all your arguments flow from your insistence that the state does have a right or power of secession (and apparently with no participation or voice for the other parties to the agreement -- the unilateral kind) and you will resent any attempt to seriously consider that they might not." You're correct that I think that states have a power or right to secede. That is not my insistence, but constitutional law by the terms of the document itself. I don't resent the suggestion that they do not have the power; having seen the ordinances of secession I know that the power exists. Again, whether that power is constitutional is a separate issue - and I think that the issue that deserves debate. Anyone with a pen and a piece of paper can draft an ordinance on any subject, and it becomes law if passed by a legislature and signed by a governor. Whether that 'any subject' ordinance is constitutional, under fed or state constitutions, is answered by reference to that constitution itself.
"So who gets to DECIDE? One state cannot decide such an issue about an agreement between many states: self-interest alone disqualifies them." Yes, the issue can and is left by the Constitution to the states. There's nothing in the Constitution preventing a state from exercising its own powers because of self-interest. OTOH, it is presumed that states WILL pass laws based on their own self-interest - the self-interest of best serving thier own citizenry. The 'agreement' between the states that you refer to is the Constitution, and that agreement tells us who can decide what. If its not an enumerated fed power, nor an enumerated state prohibition, then its a power for the states by the 10th Amend. That's what the Constitution says about who decides. Taking a power away from the states is what would require an amendment, assuming the Constitution is silent on the particular power.
I agree that revolution would be insurrection. Do you agree that secession is not?
"The only problem is that you can't present the fiction of acting peacefully and legally if you try the other methods first." Its not fiction for the seceeding states other than SC; aside from the seizure issue we've discussed. State militias existed in all states, but southerners did not combine them into an army until Lincoln called for troops to mount an invasion.
"State legislatures are also limited by their membership in the Union and have been ever since they became states..." Not so. After the Revolution and before the Articles of Confederation, there was no 'union' or agreement between the states. In fact, each of the states insisted that England surrender to EACH of the colonies sepatately. Until the Articles of Confederation, the colonies were each ENTIRELY separate sovereign countries. These colonies delegated SOME BUT NOT ALL of their sovereign powers to a central gov't, first under the Articles of Confederation and then under the Constitution. Those powers not delegated remained with the states.
"I have never been able to grasp why secessionist arguments assume that the states are not bound by the agreements they sign." No such assumption has been made by me. First, the Constitution is silent on secession. Thus, secession is NOT one of those sovereign state powers delegated to the fed under the Constitution. Accordingly, a state can fully live up to its agreements under the Constitution and still decide to secede. Once seceeded, reciprocal obligations between the seceeded states and the Union are severed. There is nothing in the Constitution which says the Union is perpetual; i.e., that once you join you can never quit. Lincoln believed and said that the Union was perpetual; the Constitution does NOT say that. Its what the Constitution says that counts.
Tim -
"My personal opinion?" I agree that division of property would have been better accomplished by prior negotiation. But the question was: "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 point is that prior negotiation would have been futile given the emotional/political climate of the times. It is, as you say, possible that some agreement could have been reached. I wouldn't like the odds, though.
So they should not have tried to act reasonably and rationally because you assure us it would not have worked? You see the odds as poor, so skip right to violence and war? Suppose you are wrong?
This goes right along with the secessionists refusal to use any other peaceful and legal method. They were pretty sure they had a bad case, you say.
The truth is I am not relying on good feelings here. There was a known split in Northern opinion, and if the seceding states stay in they can tie up the entire nation on the issues. They have 15 slave states and a Republican minority in both houses of Congress. The politicians of the Solid South of another century could have done it with ease. Why do you think the 1860 version was so inept?
Quote:
Originally Posted by russ_aukerman
Tim-"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."
Because secession is not a fed enumerated power, the fed has no say on what terms were for secession.
No? Why not? We aren't talking about a constitutional issue here, we are talking about negotiation over terms for responsibilities, debts, etc. Who else will you negotiate with but the other states, and in what venue other than through Congress will the deal be approved?
Quote:
Originally Posted by russ_aukerman
The terms are up to the individual state by the 10th Amend. Correct me if I'm wrong, but you seem to believe that one state needed the permission or consent of the fed or the other states to secede. If that is your opinion, please point to me that provision in the Constitution which requires such. I respectfully submit that you'll find no such provision. Even had the states followed your suggestion and put it to Congress, the states would not have been bound by any 'terms' Congress set because the Constitution does not give Congress the authority to set 'terms' regarding state secession.
No offense, but this sounds like the secessionists are the kind of bratty kids who say "You're not the boss of me!" when they can't have their own way. Do you really think they can simply break a long-term agreement involving shared responsibilities and debts without discussing it with their partners, the other states? That those other states are not entitled to protection against the whims of such people? That the agreements are solely one-way, and not bilateral?
Quote:
Originally Posted by russ_aukerman
I'm not sure what the most prevalent opinion was regarding the legality of secession. What I am sure of is that opinions are irrelevant; its what the Constitution says that counts.
If you wish to work through the Court, the opinions of the justices are important. If you wish to try Constitutional amendment, the opinions of the other states/their voters are important. If you wish to try negotiations, the opinions of the other states/their voters are important.
Quote:
Originally Posted by russ_aukerman
I agree that you've listed some of the more important topics of property division, although state borders I think would have necessarily reverted to pre-ratification boundaries.
Really? Kentucky goes back to Virginia? Tennessee goes back to North Carolina? Alabama, Florida, Mississippi, Louisiana revert to being territories of the United States? Arkansas and Missouri too if they want to secede? You really think so?
"...secessionists refusal to use any other peaceful and legal method." All seceeding states acted legally in seceeding. If you believe otherwise, please point me to the precise TEXT of the law you maintain was broken. None of the seceeding states invaded any other lands upon secession.
"...if the seceding states stay in they can tie up the entire nation on the issues." By their actions, it would seem that the seceeding states had no interest in tying up the nation on any issues. They simply wanted to be separate countries again. Had they wanted to tie up the nation on an issue, they'd have not seceeded.
"Why do you think the 1860 version was so inept?" I don't think that they were inept. I think that they were disinclined to negotiate.
"Who else will you negotiate with but the other states, and in what venue other than through Congress will the deal be approved?" On the issue of federal property division I would deal with Congress. Any deal would have to be approved by both countries - the US and the seceeded state. If Congress would not deal, I would have exercised state eminent domain powers, and let the state court juries determine fair market values for debts and assets. But that's just me. On the issue of secession, I would not deal with anyone. The states alone and individually had the constitutional power to decide the questions for themselves.
Neither the fed nor the other states are the boss of any single state. States are sovereigns in themselves.
"Do you really think they can simply break a long-term agreement involving shared responsibilities and debts without discussing it with their partners, the other states?" Yes. What is it that you mean by 'long-term agreement?' The Constitution states no term of years. It states no duration whatsoever. Thus it may be dissolved by any one of the states, for itself, at will.
"That those other states are not entitled to protection against the whims of such people?" A true statement, as the Constitution provides no such 'protection.' And what precisely are the other states to be protected from? There is and should not be any 'protection' offered to other states for one states exercise of its own sovereign powers. If the framers thought otherwise, they could have included 'protection.' They didn't.
"That the agreements are solely one-way, and not bilateral?" While there are arguments to the contrary, I am persuaded that the Constitution is an agreement and that normal rules of interpretation apply. Thus, I believe the 'agreement' to be bilateral. But that is a different issue than duration. As I said above, absent any temporal term, one party/state may dissolve the 'agreement,' for itself, at will.
"If you wish to try negotiations, the opinions of the other states/their voters are important." By their actions, it does not appear that the seceeding states wished to negotiate. By the Constitution, they had no obligation to do so.
"Really? Kentucky goes back to Virginia? Tennessee goes back to North Carolina? Alabama, Florida, Mississippi, Louisiana revert to being territories of the United States?" I should have said 'pre-secession' boundaries. I stand corrected.
Tim -"...secessionists refusal to use any other peaceful and legal method."
All seceeding states acted legally in seceeding. If you believe otherwise, please point me to the precise TEXT of the law you maintain was broken. None of the seceeding states invaded any other lands upon secession.
Balderdash. Please explain the repeated acts of aggression and seizure in the seceding states, many before the state involved actually seceded, sometimes weeks or months before it seceded.
BTW, the first invasion of another state in the Civil War was by a Virginian, the soon-to-be-Stonewall Jackson, crossing the Potomac into Maryland at Harpers Ferry to occupy the high ground on the other side.
Quote:
Originally Posted by russ_aukerman
"...if the seceding states stay in they can tie up the entire nation on the issues."
By their actions, it would seem that the seceeding states had no interest in tying up the nation on any issues. They simply wanted to be separate countries again. Had they wanted to tie up the nation on an issue, they'd have not seceeded.
The point is that they have a great deal of power and influence to use, peacefully and legally, to attain their goals. The problem was that they actually had to act as part of the United States to use it. If they wish to proceed with legislative, constitutional, or judicial approaches, they are in a very strong position, with good odds of achieving a solution. They refused to attempt it. You seem to be saying they were either inept or afraid their case was not strong enough to prosper in the light of open negotiation and debate. Fear of failure does not excuse their abusive behavior.
Quote:
Originally Posted by russ_aukerman
"Why do you think the 1860 version was so inept?"
I don't think that they were inept. I think that they were disinclined to negotiate.
Not inept then. You think they were just arrogant and determined to force their will onto others.
Quote:
Originally Posted by russ_aukerman
"Who else will you negotiate with but the other states, and in what venue other than through Congress will the deal be approved?"
On the issue of federal property division I would deal with Congress. Any deal would have to be approved by both countries - the US and the seceeded state. If Congress would not deal, I would have exercised state eminent domain powers, and let the state court juries determine fair market values for debts and assets. But that's just me.
Note that the seceding states chose to avoid all legal means and to merely seize what they wished by armed force, often in advance of even the passing of a secession ordinance by their own legislature.
Quote:
Originally Posted by russ_aukerman
On the issue of secession, I would not deal with anyone. The states alone and individually had the constitutional power to decide the questions for themselves.
No offense, but what makes you think any such power existed? Can you please give a few examples of any instance before 1860 of such a thing?
If you can't, maybe you should consider that it DID NOT EXIST and therefore the states had no right or power of secession to exercise.
Quote:
Originally Posted by russ_aukerman
Neither the fed nor the other states are the boss of any single state. States are sovereigns in themselves.
You think that means that they are not bound by the agreements they sign? That when the states pledged to join a Perpetual Union, they had their fingers crossed? That all commitments and responsibilities vanished whenever they felt like it, requiring no consultation or agreement with the partners to the Union for anything? No, I don't agree with that.
Quote:
Originally Posted by russ_aukerman
"Do you really think they can simply break a long-term agreement involving shared responsibilities and debts without discussing it with their partners, the other states?"
Yes. What is it that you mean by 'long-term agreement?' The Constitution states no term of years. It states no duration whatsoever. Thus it may be dissolved by any one of the states, for itself, at will.
No. The United States was not created by the Constitution. The Constitution is merely the current set of laws governing it. The "more perfect Union" of the Constitution is the already existing "perpetual Union" of the "Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.".
Lest you think that a mere slip in the title:
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ART. XIII. - Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. And whereas it hath pleased the great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union, Know ye, that we, the undersigned delegates by virtue of the power and authority to us given for that purpose, do, by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent; and that the Union Shall be perpetual. In witness whereof, we have hereunto set our hands in Congress. Done at Philadelphia, in the State of Pennsylvania, the ninth day of July, in the year of our Lord 1778, and in the third year of the Independence of America.
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They spent 16 months debating the wording of that document, and almost another 3 years getting all the legislatures to agree to it. The use of the word "perpetual" so repeatedly and emphatically argues that they meant what they said.
You will also note that they agreed to abide by the determinations of the collected states. Not just when they wanted to do so; not abide by the decisions some of the time. They agreed that every state would abide by the decision of the collected states all of the time.
Now the governing document changed, but that is how the nation started, growing out of the even earlier association of the colonies from 1774. We can argue about the meaning of "perpetual" and other things. But it is clear that at the very beginning of the nation, the new states were looking at a long-term relationship where the entire group had a part in decisions affecting them all. If, as the opinion of the Chief Justice says in White v. Texas in 1866, the "more perfect Union" of the Constitution is necessarily the "Perpetual Union" of the Articles of Confederation, maintaining something different becomes quite difficult.
Quote:
Originally Posted by russ_aukerman
"That those other states are not entitled to protection against the whims of such people?"
A true statement, as the Constitution provides no such 'protection.' And what precisely are the other states to be protected from? There is and should not be any 'protection' offered to other states for one states exercise of its own sovereign powers. If the framers thought otherwise, they could have included 'protection.' They didn't.
Or perhaps they simply believed that they were already part of a Perpetual Union where they had declared limitations on what could be done.
As to "protection", do you really think that the other states should not be protected against, say, a state like Louisiana seizing the New Orleans Customs House and the $600,000 in specie in the vault there? LA did just that in 1861. Isn't that simply theft? Shouldn't the other states have protection against that?
Quote:
Originally Posted by russ_aukerman
"That the agreements are solely one-way, and not bilateral?"
While there are arguments to the contrary, I am persuaded that the Constitution is an agreement and that normal rules of interpretation apply. Thus, I believe the 'agreement' to be bilateral. But that is a different issue than duration. As I said above, absent any temporal term, one party/state may dissolve the 'agreement,' for itself, at will.
I am not a lawyer, and so have no particular weight on that. However, I do not think that is the normal legal interpretation. I think it would more likely be that if no specific term is mentioned, the presumption is that it is forever.
Quote:
Originally Posted by russ_aukerman
""If you wish to try negotiations, the opinions of the other states/their voters are important."
By their actions, it does not appear that the seceeding states wished to negotiate. By the Constitution, they had no obligation to do so.
Russ, you asked me what I would do. I suggested negotiating through Congress as a viable way to attain their goals, pointing out the advantages the slave states had. Then you told me the opinions of the other states were not important, and I told you why they would be if you wanted to negotiate. Now you are back to the opinions aren't important because the secessionists simply wanted to have their own way with no strings attached.
I tend to agree with you. I tend to think secession was a foolish enterprise by unrealistic, spoiled men. That doesn't make it a legal right, or constitutional. It takes us back to the case that they simply wanted what they wanted, and that all professions by them that secession was over "rights" or "powers" or "northern aggression" are simply hogwash, public relations statements to cover their actions.
Quote:
Originally Posted by russ_aukerman
"Really? Kentucky goes back to Virginia? Tennessee goes back to North Carolina? Alabama, Florida, Mississippi, Louisiana revert to being territories of the United States?"
I should have said 'pre-secession' boundaries. I stand corrected.
That won't work. Seceding states were rescinding/repealing their original agreement to the Constitution, making null and void their entire adherence to the agreement.
Please explain how Alabama, for example, goes back to before she was a part of the United States. She was not "sovreign" then. If she rescinds the agreement, she goes back to being a territory, not a "sovreign" state. At least in some views, although you can argue she was gifted with sovereignity by the rest of the United States upon admitance.
Since states like LA, AR, MS, AL, FL were actually purchased/fought for by the other states, doesn't the seceding state owe the rest of the nation something if they decide to reneg on their agreement to join the Union? Are they going to pay the Union back for the treaties with France and Spain? Remit the costs of forcing the tribes out on the Trail of Tears? Somehow cover the costs of the Seminole War or the War with Mexico for Texas?
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