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.
Taney specifically is of the opinion that Congress lacks the authority to ban slavery in the territories.
What Taney is trying to do is very simple. He's trying to lay down a precedent that will protect slavery from Congressional action by essentially holding that the issue is to be regulated by the states. To a certain extent his holdings have a logic to them, particularly if you look at it from the point of view of 'property' (of course describing human beings as property is abominable) because as a general rule (particularly in the 19th century), Congress did lack authority to regulate property within the states, Congress couldn't prohibit moving property from state to state; and if you replace the word 'slave' with say 'automobile', 'inventory', 'livestock' etc. the ruling makes a little bit more sense. Of course the whole 'slave' terminology messes up the whole equation because quite naturally you're defining a human being as 'property'.
AND he puts all of the dicta into the case despite the fact that basically the ruling is that Dred Scott cannot maintain a suit in Federal Court because he is not a US citizen under Federal Law. If you're going to rule that way the decision should be one paragraph, ie. plaintiff lacks standing.
We also have to look at the Taney ruling with respect to Kansas and the concept of 'popular sovereignity,' ie. let the people in the territories decide for themselves if they desire slavery or not. The term 'popular sovereignity' sounds good, but Bloody Kansas is clearly the result as pro-slave forces and free soiler forces collide.
Clearly when you see the results of 'popular sovereignity', ie. a virtual state of war, its ludicrous to rule that Congress cannot say which territories are to be free and which shall be slave.
Obiter dictum. Must try to remember that. Thanks, Freddy.
ole
__________________ I never knew a man who wished to be himself a slave. Consider if you know any good thing that no man desires for himself. A. Lincoln
The Northwest Ordinance prohibited states from secession.
Believe I've read that, as well. But, as Freddy probably has the reference closer to hand, I'll let him answer it.
ole
__________________ I never knew a man who wished to be himself a slave. Consider if you know any good thing that no man desires for himself. A. Lincoln
Ole,
In my textbook the term appears and that is how I was able to remember it, but I had to look up the spelling of obiter.
cw1865,
Remember this is not my argument I read it somewhere but cannot find the source.
Here is part of article 4 of the NW Ordinance. Art. 4.The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto... http://www.earlyamerica.com/earlyame...ance/text.html
From Wikipedia, "On August 7, 1789, the U.S. Congress affirmed the Ordinance with slight modifications under the Constitution."
Not sure if they passed a joint resolution to accept it as US law, but from Art. 4 it could be argued that the NW Ordinance was to be binding on all US governments unless it was altered, which is what Congress did. However, parts of the Ordinance were overturned by the Supreme Court. I have not found a reference to Art. 4 being overturned by the Court.
__________________ "Those who forget to remember the past are condemned to repeat it", George Santayana.
I'll stick to my supremacy clause. When SC secedes, would you really be able to look them in the eye and tell them that the Federal statute, whose legislative intent is clearly regulating the old Northwest 'backdoored' secession as to the original 13 colonies?
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
I read that as a pledge that the territory would not be sold or ceded back to England, and the states that resulted from the territory would be the equal of all other states and could not be kicked out of the Confederacy.
Thanks for trying though.
ole
__________________ I never knew a man who wished to be himself a slave. Consider if you know any good thing that no man desires for himself. A. Lincoln
Apparently in Strahan v Graham, 1851, decided by Taney, included the judges' Obiter Dictum that the the prohibition of slavery in the NW Ordinance were unenforceable.
I was not able to access the history of this case, so I do not know the particulars of the decision, but Taney seems to have had a habit of not being able to resist issueing Obiter Dicta concerning slavery.
I read that as a pledge that the territory would not be sold or ceded back to England, and the states that resulted from the territory would be the equal of all other states and could not be kicked out of the Confederacy.
I'd read it as more than that: a flat declaration that all this territory was forever more a part of the United States of America.
===== Art. 4. The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Aricles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of government, to be apportioned on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and, in no case, shall nonresident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.
=====
In general, the conditions of the Northwest Ordinance of 1787 under the Articles of Confederation (adopted in 1789 by the US Congress with some slight changes to accomodate the new Constitution) were the model for the admission of all other states except Texas. This would include several states that seceded to become part of the Confederacy: (Tennessee, Kentucky, Alabama, Florida, Missisippi, Arkansas, Louisiana). It would be interesting to see the text of the enabling legislation for their admission as states to see if their territory is also declared to be "forever" part of the United States of America.
Regards,
Tim
__________________ "Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses."
Charles Cotesworth Pinckney of South Carolina, 1740-1824, Revolutionary War soldier, one of the authors of the US Constitution in 1787, speaking at the South Carolina Ratifying Convention in 1788.
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