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.
But, from what I understand from others on this forum, tim has stated such, I believe, this attitude was pretty much the norm in the Northern states. Secession wasn't allowed by the Constitution, but nowhere could it be found you could compell a state to stay by force.
Here is where I think the South had a chance at peaceable secession, and then blew it by firing on Ft. Sumter.
Rebellion/unilateral secession, once initiated by violence, COULD be put down by force.
But still, Taney's opinion on secession makes me question how does anyone think that the idea of secession was ALWAYS a right somehow?
It is confusing. It was confusing then as well.
Just as Lincoln was entering office in March of 1861, the Supreme Court came out with a decision in the Kentucky v. Dennison case. Dennison was Governor of Ohio. Kentucky was seeking to extradite a fugitive, Willis Lago, for helping a slave girl to escape. The Court essentially ruled Dennison had a duty to do so, but that the United States government could not force him to do so.
It goes a bit like this:
===== Kentucky v. Dennison
Argued: --- Decided:
1. In a suit between two States, this court has original jurisdiction without any further act of Congress regulating the mode and form in which it shall be exercised.
2. A suit by or against the Governor of a State, as such, in his official character, is a suit by or against the State.
3. A writ of mandamus does not issue in virtue of any prerogative power, and, in modern practice, is nothing more than an ordinary action at law in cases where it is the appropriate remedy.
4. The words "treason, felony, or other crime" in the second clause of the second section of the fourth article of the Constitution of the United States include every offence forbidden and made punishable by the law of the State where the offence is committed.
5. It was the duty of the Executive authority of Ohio, upon the demand made by the Governor of Kentucky and the production of the indictment, duly certified, to cause Lago to be delivered up to the agent of the Governor of Kentucky who was appointed to demand and receive him.
6. The duty of the Governor of Ohio was merely ministerial, and he had no right to exercise any discretionary power as to the nature or character of the crime charged in the indictment.
7. The word "duty," in the act of 1793, means the moral obligation of the State to perform the compact in the Constitution when Congress had, by that act, regulated the mode in which the duty was to be performed.
8. But Congress cannot coerce a State officer, as such, to perform any duty by act of Congress. The State officer may perform it if he thinks proper, and it may be a moral duty to perform it. But if he refuses, no law of Congress can compel him.
9. The Governor of Ohio cannot, through the Judiciary or any other Department of the General Government, be compelled to deliver up Lago, and, upon that ground only, this motion for a mandamus was overruled.
=====
Applied to secession, this would mean something like: 1) the state has a duty to obey the Constitution but 2) the Federal government has no power to compel them to fullfill their duty.
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.
Just FYI: Kentucky v. Denison was eventually overturned by the Supreme Court in a case involving Puerto Rico, about 20 years or so back, in the 1980s.
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.
That seems to have been the prevailing legal opinion at the time.
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If you do leave the Union, there's nothing the government can do about it.
There has been considerable discussion on this and other threads that the Founers had not intended that the Union could be dissolved. Indeed, some parts of the Constitution can be interpreted to show that the Union couldn't be dissolved. But a legal action against it was not expressed. The Constitution clearly describes treason, and its provisions for putting down a rebellion clearly indicate that such was considered a punishable offense.
Quote:
So, what does it matter if it is illegal or not other than as an abstract trivality, Taney? That makes no sense.
It doesn't. And it does. Historically significant as it was and is, the Constitution was based on compromise. What would be the chances of its ratification if it had flat out said that once you're in, you can't get out? Or if it made provision for the eventual elimination of slavery?
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Secession is however revolution. So...
There were those who didn't think so quite so strongly. When there was a full-court press going on to try Confederate leaders for treason, the then Chief Justice (Seward?) advised that it would be extremely difficult to prove that secession was treason. (This admonition, plus the need to let the wounds heal, saved Jefferson Davis.)
To be a revolution, a rebellion must succeed. History knows our basic war as the Revolutionary War. What is sometimes referred to as the Second Revolution is more accurately known as the War of the Rebellion.
Apparently Lincoln accepted the idea that secession was forbidden but he had no power to compel the states to remain. But he noted, in his First Inaugural, that he wasn't toothless: I will hold the remaining properties; I will collect duties; and I will close post offices and governmental offices in the seceding states. And then he informed them that if there was to be a war, they would have to start it. (I think, knowing full well that starting it would change the situation from a complex matter of secession to a simple one of rebellion.)
__________________ 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
Justice Taney (and others) believed that a State did not have the right to secede. He also believed that if a State seceded, the Federal Government did not have the right to compel it to remain within the Union.
Note that there is a subtle distinction here, which creates a loophole big enough to drive a limber and caison through: while the Federal Government could not compel a State, it could still compel the citizens/residents of that State to comply with Federal law. Thus, Lincoln apparently believed, he could still send customs officials to collect duties, federal marshalls to enforce warrants, etc. He could also still occupy Federal installations such as Fort Sumter. Federal officials would still have rights within the state, such as right of passage. Citizens of the various Northern States would also be able to claim all rights in the allegedly seceding states.
Further, the legal doctrine developed following secession that the States themselves never actually seceded, since it was impossible for them to do so. Action against persons within the Confederate States of America were just that, actions against persons, not action against the State itself. Harsplitting? Perhaps. But a useful one.
It would also be an interesting case if one of the seceded states met in legislative session and appointed a hereditary monarch or a dictator, since the United States under Article IV, section 4 has a duty to ensure republican government in the states.
If secession was not Constitutional, but states could not be compelled to remain, you would also have the situation which developed of the United States diplomatically isolating the seceded States from the international community with the rightful claim that their secession was a nullity.
The mere fact that the State could not be coerced thus would not be a slam-dunk for the States attempting to secede. Their status at law and standing in the international community would be questionable and their citizens would still be liable to be held for treason or for violations of the laws of the other states. Lots of legal tools in Lincoln's bag remained.
Of course, all that became moot with the siezures of Federal Property and the firing on Fort Sumter. At that point, it became an insurrection (no matter that the Confederates called it "secession") and Lincoln could use Federal force to compel compliance with Federal law.
__________________ "There must be more historians of the Civil War than there were generals figthing in it... Of the two groups, the historians are the more belligerent." David Donald, Lincoln Reconsidered (1961)
Did not Lincoln's attorney general also tell Lincoln that he could compell the states to remain in the Union?
timewalker,
Excellent post! Thanks for expanding on Lincoln's other legal options to deal with secession.
Now, a question for you, and you alone. Within the law, could a state lawfully get out of the Union? In other words, if a state had not resorted to violence or unilateral secession, do you think there is a legal path that could be taken for a state to remove itself peaceably from the Union of States under the Constitution?
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
Did not Lincoln's attorney general also tell Lincoln that he could compell the states to remain in the Union?
timewalker,
Excellent post! Thanks for expanding on Lincoln's other legal options to deal with secession.
Now, a question for you, and you alone. Within the law, could a state lawfully get out of the Union? In other words, if a state had not resorted to violence or unilateral secession, do you think there is a legal path that could be taken for a state to remove itself peaceably from the Union of States under the Constitution?
Sincerely,
Unionblue
While I am not a Constitutional Scholar, I think the answer is clearly "yes." However, it would be a two-step process. First, Article IV, Section 3 (first sentance) states: "New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress." So Congress has the power to create States. However, there is no corresponding power to dissolve states, which is, in effect, what secession is. The Constitution is silent on this question, so it is not a power granted to Congress. Interestingly, this is an argument against unilateral secession since there is clearly a means for admitting States but no mechanism for "de-admitting" them which implies that the Constitution contemplates that it is impossible to remove a State once admitted to the United States.
Therefore, there would have to be a Constitutional Amendment either (a) granting the right of secession or (b) granting Congress the power to de-admit states as well as admit them. If a state was de-admitted, it would arguably go back to being a Territory and the United States could dispose of that Territory by either deeding it to a foreign power (the corollary of its acquistion of, say, the Louisana or Gadsen purchase) or granting it independence (i.e., the Phillipines).
They may cede any of the Territories because of Article IV, Section 3 (second sentance): "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." Thus, they may "dispose of... the Territory...belonging to the United States."
Now it is possible to argue that Congress could bypass all this any simply "secede" a State under this second sentance of Article IV, Section 3 and "dispose of...the Territory...belonging to the United States" but that would seem to be a rather radical reading of the clause since if under the first sentance of Article IV, section 3 you cannot create a new State out of part of an existing state without the consent of its legislature, it would not make sense that you could completely dissolve a State without the consent of its legislature. This would also run afoul of the common understanding of the difference between a State and a Territory.
So, in short (), the United States could (1) pass a Constitutional Amendment providing for either a means of secession by a State or a means for the de-admission of a State (though it must make clear what happens if a State is de-admitted. Does it leave the United States or does it become a Territory?) or (2) the States could call a Constitutional Convention at which points all bets are off in that once called, Constitutional Conventions take on a life of their own (witness the First Constitutional Convention).
Does that answer your question?
__________________ "There must be more historians of the Civil War than there were generals figthing in it... Of the two groups, the historians are the more belligerent." David Donald, Lincoln Reconsidered (1961)
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
timewalker,
Excellent post! Thanks for expanding on Lincoln's other legal options to deal with secession.
Now, a question for you, and you alone. Within the law, could a state lawfully get out of the Union? In other words, if a state had not resorted to violence or unilateral secession, do you think there is a legal path that could be taken for a state to remove itself peaceably from the Union of States under the Constitution?
Pretty much what timewalker said.
There is also the matter of Texas. Many people, then and now, consider the method by which Texas was annexed and admitted as a state to be unconstitutional and illegal. However, it clearly stood up de facto over time, and Texas is considered one of the United States.
Texas was admitted by a Joint Resolution of the Congress of the United States, March 1, 1845. If the Congress has the power to do that, then you might argue that Congress has the power to release a state from the Union as well.
Of course, I have always thought this might be a particularly lousy precedent to expand upon. If Congress has the power to admit you, and to release you, they might also have the power to toss you out, whether you wanted to go or not. Or to compel you to remain, no matter what you wanted. Or to do all sorts of other things I would really rather they did not do. Maybe to sell a state off to another country if they thought the state was a burden on the rest of the nation. Starting down the "slippery slope" is usually a really bad idea.
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.
If Taney and the Supreme Court ruled that secession was not permissable but could not be prevented by the Federal Gov't, does that not throw the question of enforcing Federal authority back to the legislative process in Congress?
I am not convinced that Congress is rendered powerless to legislate solutions to technicalities created by the commission or omissions in previous legislation.
However the political leaders of the South were firmly wedded to the idea that 'their' version of secession was not really a question of Contitutionality, secession was outside the purview of the Constitution and thus was not subject to any of its provisions.
So the question of Constitutional restraint or license was not debatable, such questions were not applicable.
The slave oligarchy ruling the south, already knew they could not leave the Union through the Constitution and realizing the danger of the implications of a declarations of independence, they latched onto Calhoun's theory of nullification and shaped it to their needs of getting out of the Union. Which was easy to do, because both theories were invented for the specific purpose of protecting and promoting slavery.
For the purposes of this thread, IMO, it has been fairly conclusively shown that Secession was Never viewed as a Right, either by majorities of the states, the people, or the Nati'l Gov't.
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), the United States could (1) pass a Constitutional Amendment providing for either a means of secession by a State or a means for the de-admission of a State (though it must make clear what happens if a State is de-admitted. Does it leave the United States or does it become a Territory?) or (2) the States could call a Constitutional Convention at which points all bets are off in that once called, Constitutional Conventions take on a life of their own (witness the First Constitutional Convention).
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