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.
Tim -"In Lincoln's view, there was no 'repatriation' going on because he did not believe the seceding states had ever left...."
Lincoln's 'ostritch' approach to the seceeded states notwithstanding, the reality is that they did secede and did form their own gov'ts and did act as separate countries until forcibly repatriated by the bigger gun.
Since it was the seceding states who chose to make this a contest of the "bigger gun", I truly do not see what your argument is. They wanted a trial by combat, they got it, they lost. End of the question for them.
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Originally Posted by russ_aukerman
"That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state...."
The laws of the US have no force or effect in other countries, and that's what each of the former states were upon secession. In other words, they were no longer states, and Lincoln's decision not to recognize that is no better than him saying that the sun rises in the west. I prefer reality. The Militia act to which you refer authorized no force against the seceeded states. It could not because the Constitution authorizes no such use of force.
Russ, you have this backwards. The seceding states wanted to be independent of the US. It was never established that they were independent of it in 1860-61. Until they do, US law does apply, or at least it must be viewed that way by anyone in the chair of the President of the United States. Of everyone involved, he clearly has no power to change the matter.
That is what the Civil War was about. The Confederacy CHOSE war as the means of deciding the issue. They avoided legal, constitutional, and legislative options open to them to employ violent means. I actually believe they had a good chance of success if they had just reined in their hubris and violent actions. All the argument since the war is simply about a secessionist refusal to admit how foolish they were in the method they chose.
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Originally Posted by russ_aukerman
"Secession, by definition under the Constitution, is not anything at all...." Please point me to the text of the Constitution which so provides.
So now you wish me to point out to you something that I have just told you does not exist. You are kidding, aren't you?
Let me put this to you clearly: I fully support the Tenth Amendment. I simply do not believe that a "right of secession" ever existed for the states before or after they ratified the Constitution. It never belonged to the states. It never belonged to the United States. It never could be delegated by the states, nor could it be prohibited to them, because it simply did not exist in the form the secessionists of 1860 demanded, and never had. I do not think any such legal "power" ever could exist separate from the agreement itself, and if it did, no agreement of any kind could ever be upheld.
That does not imply that there is no way to leave the Union under the Constitution. I have suggested several and believe them to be workable. However, the unilateral form of arrogant, abusive, vilent "secession" attempted by the states in 1860-61 I refuse to believe in as anything other than revolution.
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Originally Posted by russ_aukerman
"As long as the US maintained the states were in rebellion, there was no need at all for a declaration of war...." Gobbledigook. What any good ostritch might say.
No, just fact. You do not declare war on a rebellion within your own country. When you do declare war, you do so on a foreign country.
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Originally Posted by russ_aukerman
"If you actually want to accomplish secession in a clearly constitutional manner, you would need either a Supreme Court decision or an amendment to the Constitution."
You're still ignoring the 10th Amend. By its operation and effect, secession is a question left for the states to decide. The USSCt. has no jurisdiction to decide differently, and the Constitution requires no amendment for a state to exercise its own sovereign powers. Your suggestion that a USSCt. decision or constitutional amendment is necessary would require a substantial rewriting of the Constitution to be accurate.
No. See above. "Secession" may simply not exist as a "right" or "power". Please show me where the Constitution says that it does. If it doesn't, the states may not exercise it.
The entire concept of "secession" is only relevant within the framework of the Constitution. The sole body with jurisdictional power there is the US Supreme Court -- the Constitution is quite clear about this in all controversies -- yet you deny they have it. They are the only ones who can actually tell you whether the states have it -- or not. As a result, you go to the Court to clear the issue up.
Maybe they decide that you do. If so, fine. Go ahead and leave.
If they don't, big deal. Now you know where you stand. If you don't like it, you can always amend the Constitution to open a clear path. Of course, you might find that you don't have enough votes in the states to get it through -- although the odds would be decent based on what I can see. And there might be conditions you might not like -- welcome to the real world, secessionists.
Or, if you don't like that, you can try to work the kind of flim-flam the Southerners pulled to get Texas admitted to the Union (often considered unconstitutional). Get Congress to vote it, have the President approve it (or over-ride his veto) and leave. Of course this might involve some concession and negotiation -- once again, welcome to the real world, secessionists.
That is how you would try to secede peacefully, legally, constitutionally. If none of that works, you can always go ahead and start your revolution anyway. Not much of a downside here, so just why were the seceding states so afraid to try it?
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Originally Posted by russ_aukerman
"...act as responsible parts of the Union, and use the strengths the Constitution gave them to get their purpose accomplished."
The seceeding states exercised their power of secession to accomplish their self-determination to no longer be a part of the Union, responsible or otherwise, and to no longer be bound to the Constitution. They didn't want to play nicely or nastily; they didn't want to play at all. That's their right.
I agree that, had the south decided to play nice, there's a small chance that their independence could have been recognized and accomplished without hostilities.
Please note that we have established that -- by chosing violence -- the Confederacy was destroyed and secession was denied. In our hindsight, it appears the odds of success by the route you are trying to ignore was superior.
The states have no right to act in the way they did, just as no individual has a right to shout "Fire!" irresponsibly in a crowded theatre. All rights are limited by responsibilities and obligations, as well as the rights of others. All these secessionist arguments come down in the end to this: "rights" for them above all, "no rights" for anyone else whenever it suits the secessionists.
It made sense to them. They had discovered that independence was wonderful, but that the water was filled with sharks.
I agree with that there was certainly a need for some sort of alliance or union, but not necessarily one which disallowed any state to remove herself if it didn't work for her.
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Originally Posted by trice
Clearly they declared it. It is also clear that they had been told no conditional approvals would be accepted, that they had to vote on accepting the document as it was written only.
Understood, but claiming the right to revert to self-government wasn't a condition being demanded. It was merely restating and clarifing the understanding that the Federal government would have only the powers delegated to it by the states and that this was one of the state's rights that wasn't being given up. This was the chance for the Union to say, "Hold it. We do not accept you into the Union on those conditions. You may not revert to self-government unless we say so." But the Union didn't do that and these states were accepted with the understanding that they retained the right to return to self-government.
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Originally Posted by trice
The Constitution was accepted and went into force before any of these states ratified it. If the acceptance of the later states is different than theirs, then either the 3 you mention have a different agreement, or they are not in the Union at all. They must all be voting for the same agreement or the entire process is corrupt and meaningless.
Yes, exactly. That is why any state had the right to secede, not only the three that expressly made that point.
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Originally Posted by trice
I have no problem with any state leaving the Union in a peaceful manner, negotiated with her partners. I find the concept that any one party has full control of everything they can lay hands on to be legally unworkable and practically insane. No state would ever have agreed to let another have a "right of secession" such as the Confederate states attempted to practice.
Here I would have to disagree. All states believed they retained all of their power of independence other than that which they had agreed to turn over to the Union. No state believed they retained that right for themselves and other states didn't. Equal footing and all that. The New England states had threatened secession prior to the Southern states and I don't recall anyone standing up to say they couldn't do that or that they had no right to do that or even that they had to ask someone's permission. I believe all states understood that secession was a right of the states not forbidden by the Constitution.
Regards,
Rose
__________________ "Forgive your enemies, but never forget their names".--J.F.K.
The War Between the States established... This principle that the Federal Government is, through its courts, this final judge of its own powers.
-- Woodrow Wilson
Tim -"What he says -- and what I have pointed out -- is that the 'more perfect Union' of the Constitution is that already existing 'Perpetual Union'. That's a no-brainer. His conclusion from that can be questioned, but the fact of the pre-existence of the United States as a 'Perpetual Union' cannot be.
The AoC are no longer of any force or effect. What he did was to add a word to the Constitution - perpetual - that is not there. Hence, he's wrong. Art. V is the exclusive method to add words to the Constitution, as the Constitution provides NO other method.
Nope. Again, he did not say the Articles of Confederation and Perpetual Union were still in effect -- that is your invention here. He said that the Union they established in 1781 continued under the Constitution. The Constitution itself does acknowledge the prior existence of the United States and the continuance of the obligations of it under the Constitution.
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Originally Posted by russ_aukerman
"You can also question what 'Perpetual Union' means."
I could. But, I prefer not to enter into word games. Had the Constitution actually said that the Union was perpetual, that would be close enough for me to say that state secession was prohibited. It would have been clearer, though, to say that 'No state may secede from the Union.' They didn't say either.
Probably because the entire concept of secession as tried in 1861 was what the Founding Fathers considered the "natural right of revolution" and they would see no reason to write that in. No one thought in such double-speak terms as the Fire-Eaters and later arguers for secession. Just as Robert E. Lee and many others thought "secession" meant nothing but revolution 70 years later.
If you want to engage in arguing the Constitution, then you really do need to think about what "Perpetual Union" means here. I certainly don't think it means there is no way for a state to leave the Union. I merely think it means there is no way to leave without proceeding legally and peacefully through the means and methods provided to accomplish the purpose.
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Originally Posted by russ_aukerman
"...the "right of secession" as attempted by the states of the Confederacy in 1860-61 was denied de facto and de jure."
Might makes right? Its just not what the Constitution says.
Again, it was the seceding states that chose the "might makes right" method you deride. They lost. Having chosen it, they should stop complaining about it.
If you want to make secession a matter of legal and Constitutional argument, you take it to the Courts or the Congress. If you chose cannon and sword, forget the nonsense where secessionists claim the law was on their side. That's all.
Thank you for the posted quotes and analysis. I agree that they support the position of state/former colony independence for the period after dissolution of the AoC and before ratification of a particular state. I also think them consistent with the effect of dissolving the AoC - that the AoC were no longer law. I have never seen anything in the Constitution evincing an intent to incorporate any part of the AoC.
"Every State that joined the Union DID know it was joining and that secession would not be allowed without the consent of all." The ratifying states knew no such thing, and I'm doubtful that any of them would've agreed. What authorities do you have to support your contention. How can you even say that of NY and Va., which had specifically included in their ratifying documents their retention of the power of unilateral secession.
"Had the Constitution plainly stated that secession was strictly forbidden, I doubt many colonies would have joined the Union." I agree. I also believe that inclusion of a prohibition on secession in the proposed constitution would have been a deal-killer.
"But they did know and they did argue about joining because of the fact they would not be able to 'just leave' on their own hook." Even if you have support for this proposition, it would make no difference. By the Constitution, the states may "'just leave' on their own hook" if they so desire.
"A colony would have to be out of their collective minds to be willing to die for independence and then turn right around and make that independence vulnerable to a new and untried form of government without any type of recourse if it failed to work for their best interests. It simply doesn’t make sense." I couldn't help but voice my agreement. I couldn't have said it any better.
However, I must respectfully disagree that "The United States accepted these terms and they were binding." The US accepted the ratification, but I don't believe that terms of the ratification documents of the several states became binding. The reason I don't believe that is because the Constitution, by Art. V, provides the exclusive method for amending the Constitution. Were ideas from ratification documents intended to be part of the Constitution, it would so provide. But if that were the case, it would allow 1 state to add terms binding on all. Art. V tells me that such was not the intent.
Last edited by russ_aukerman; 06-19-2006 at 05:55 PM.
"I find the concept that any one party has full control of everything they can lay hands on to be legally unworkable and practically insane." I see you as a strong adherent to democratic principles. But, you don't live in a democracy. You live in a constitutional republic. If the country were a pure democracy, there'd be no need for states or state boundaries. Everything would be decided by majority vote of US citizens. But the Constitution retained the states as well as state sovereignty. You may not think that a good idea, but that's what happened. I agree with Rose that you might not have ratification at all if prohibiting secession had been a condition.
BTW, no one state has "full control of everything." For example, we here in Oh. might vote NJ out of the Union. Could Ohioans do that? Of course not, because Ohioans don't have "full control of everything." By the Constitution, each state does retain determination of itself; i.e., full control over itself, subject only to the powers the states specifically delegated to the US. The power of secession was not specifically delegated to the US in the Constitution.
"Since it was the seceding states who chose to make this a contest of the 'bigger gun', I truly do not see what your argument is. They wanted a trial by combat, they got it, they lost. End of the question for them." I don't believe that might makes right. Moreover, I don't believe that might makes lawful or constitutional.
"It was never established that they were independent of it in 1860-61." It was 'established' by the various ordinances of secession. Those made the seceeding states independent nations, and they so acted accordingly. You seem to believe that someone other that a particular state had the power to 'establish' secession. It does not say that in the Constitution.
"Until they do, US law does apply, or at least it must be viewed that way by anyone in the chair of the President of the United States. Of everyone involved, he clearly has no power to change the matter." The fed has only those powers enumerated in the Constitution. The Constitution does not give the President the power to utilize fed forces to oppose secession.
"So now you wish me to point out to you something that I have just told you does not exist. You are kidding, aren't you?" Not at all. You're referring to constitutional silence regarding secession. As with all other subjects upon which a state could legislate, the 10th Amend. makes secession a state power precisely the Constitution does not delegate that power to the fed. Its as simple as that.
"I do not think any such legal 'power' ever could exist separate from the agreement itself, and if it did, no agreement of any kind could ever be upheld." You're wrong. But its becoming clear that nothing I say will change you're mind. You've singled out secession from all of the other subjects upon which a state could legislate it and simply said, contrary to ordinances of secession which clearly establish the existence of the power, that the subject doesn't 'exist' for legislative purposes. Doesn't it bother you at all that there's never that sort of 'existence' debate for states to exercise any of their other powers. You can say you don't like it, or that it should be unconstitutional, but continuing to say it doesn't exist is meaningless and does not further discussion on the point.
"That does not imply that there is no way to leave the Union under the Constitution. I have suggested several...." You have suggested consent by the other states, and procuring a court order, as alternatives. But they are not required, as you say, 'under the Constitution.' In other words, where in the Constitution does it say "A state may secede upon the consent of 'x' number of states," or that "A state may secede if it first obtains a favorable ruling on the subject by the Supreme Court." It doesn't say either, so neither is required.
"You do not declare war on a rebellion within your own country. When you do declare war, you do so on a foreign country." A rebellion within your own country is insurrection, a topic covered by the Constitution. Secession is not insurrection because a seceeded state is not "within your own country." Therefore, by you're logic, a declaration of war was necessary. Where is it?
"Please show me where the Constitution says that it does. If it doesn't, the states may not exercise it." Please research the topic of 'enumerated powers' under the Constitution. Enumerated powers are, as Madison said, "definite." In other words, fed powers are 'enumerated' or 'definte' in the Constitution. Not so with state powers. State powers, as Madison says, are "indefinite." State powers are not enumerated or defined in the Constitution, but exist as the residuary of all powers not delegated to the fed. Please see the cases I've recently cited for that proposition. A state power need not be explicit in the Constitution; a fed power does need to be enumerated. The Constitution does not attempt to embody all gov't powers; just those delegated by the states to the fed.
"...it appears the odds of success by the route you are trying to ignore was superior." I'm not trying to ignore your alternatives. I'm only saying that your alternatives are not required by the Constitution before a state may lawfully secede. Whether it would have been wiser to negotiate first is a different subject. 'Wise' and 'constitutional' aren't always the same thing.
"...just why were the seceding states so afraid to try it?" As I've said, they appear to have been disinclined to negotiate. There's no constitutional requirement that they do so. It may, in retrospect, not have been the wisest course.
"He said that the Union they established in 1781 continued under the Constitution." Hmay have said or meant that. No matter. It doesn't say perpetual in the Constitution. The AoC were dissolved, and were of no force or effect afterwards.
"If you want to engage in arguing the Constitution, then you really do need to think about what "Perpetual Union" means here." No, I don't. I could learn all there is to know about the Constitution without ever knowing even the definition of the word 'perpetual,' because that word does not appear anywhere in the Constitution. Just because a Justice says the sun rises in the west doesn't make it so.
"...there is no way to leave without proceeding legally and peacefully through the means and methods provided to accomplish the purpose." Where, in the Constitution, does it provide for methods to accomplish the purpose of secession? It doesn't. I thought we'd already agreed that the Constitution is silent on the subject of secession.
"If you chose cannon and sword, forget the nonsense where secessionists claim the law was on their side." It is possible, as the southern states did, to choose cannon and sword and also have the law - the Constitution - on their side.
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