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.
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.
That is what Kentucky v. Dennison established in 1861, though. That decision stood until Puerto Rico v. Branstad, 483 U.S. 219 (1987), which reversed it.
So nowadays, the Federal government, arguably, can compel a state to fullfill its' duty, but in 1861, arguably, it could not. However, in both times, a state might be acting illegally.
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.
Correct me if I'm wrong here, but wasn't Kentucky v. Dennison based on Kentucky's desire to prosecute a man who helped a slave escape? Not a demand to return an escaped slave?
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
One of the main reasons the Constitution is so short was it was intended to BE fleshed-out through practical experience in the real world of governing. Which it did, until a radical group decided to act outside the of the Constitution.
It was illogical then, as now, to assume, as secessionists did, that an act as inimical to the Union as unilateral secession, was beyond the scope of Constitutional remedy. So Illogical, that, IMO, it lends credence to the belief of many, that the fear of the slave holding elite of the south that 'eventual' emancipation (no matter how long delayed) would be the ultimate fate of their 'Peculiar Institution' if the south remained in the Union, forced the southern leadership to grasp any reed, in their quixotic attempt to hold back the rush of history.
Correct me if I'm wrong here, but wasn't Kentucky v. Dennison based on Kentucky's desire to prosecute a man who helped a slave escape? Not a demand to return an escaped slave?
Yes. They were seeking the return of a free colored man who had helped an enslaved woman to escape.
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.
Yes. They were seeking the return of a free colored man who had helped an enslaved woman to escape.
Scuzi. One more bit of clarification: The return of a freedman or the extradition of a freedman? Was Lago a Kentuckian to be returned? Or an Ohioan to be extradited? (I know, splitting hairs.)
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
One of the main reasons the Constitution is so short was it was intended to BE fleshed-out through practical experience in the real world of governing. Which it did, until a radical group decided to act outside the of the Constitution.
It was illogical then, as now, to assume, as secessionists did, that an act as inimical to the Union as unilateral secession, was beyond the scope of Constitutional remedy. So Illogical, that, IMO, it lends credence to the belief of many, that the fear of the slave holding elite of the south that 'eventual' emancipation (no matter how long delayed) would be the ultimate fate of their 'Peculiar Institution' if the south remained in the Union, forced the southern leadership to grasp any reed, in their quixotic attempt to hold back the rush of history.
I agree, but probably with more words and less point. Thanks for putting that out there.
Scuzi. One more bit of clarification: The return of a freedman or the extradition of a freedman? Was Lago a Kentuckian to be returned? Or an Ohioan to be extradited? (I know, splitting hairs.)
Extradition. The Supreme Court ruled that it was the duty of the state of Ohio and the Governor to comply with the extradition request, but also that the Federal government could not compel the Governor nor the state to do its duty.
Added later, the original charge:
"WOODFORD CIRCUIT COURT."
"The Commonwealth of Kentucky against Willis Lago,"
"free man of color"
"The grand jury of Woodford county, in the name and by the authority of the Commonwealth of Kentucky, accuse Willis Lago, free man of color, of the crime of assisting a slave to escape, &c., committed as follows, namely: the said Willis Lago, free man of color, on the fourth day of October 1859, in the county aforesaid, not having lawful claim, and not having any color of claim thereto, did seduce and entice Charlotte, a slave, the property of C. W. Nuckols, to leave her owner and possessor, and did aid and assist said slave in an attempt to make her escape from her said owner and possessor, against the peace and dignity of the Commonwealth of Kentucky."
"W. S. DOWNEY, Com. Attorney"
=====
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.
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
Article IV, section 3 specifically states that "New states may be admitted by Congress into the Union..." Thus, arguably, the admission of Texas was proper. I considered whether the power to admit a State necessarily included its corollary, but I decided it does not, for the general reason that in law, the grant of a power does not always include the corollary. If I obtain a building permit, for instance, that gives me the right to build a building. It does not give me the right to tear that building down ( I need a separate permit for that). The Constitution specifically gives the Congress the power to admit new states, but it does not give them the power to undo what it has done. Now, one can argue that the power to undo is implied, but I think not based on the reading the sentance as a whole, which also provides that "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." While the Congress does not need the consent of the people of a Territory to make them a State, it does need their permission to alter the form of the State (and if to alter it then clearly to undo it). It can be argued, therefore, that Congress does not have the power to unmake a State, only to change that State, with its permission, by adding it to other States or splitting off a portion thereof to create other States.
The only way I can think to argue that a State could be unmade by Congress is by arguing that since a State could be combined with another State to form a larger State ("nor any State be formed by the Junction of two or more States") that this implies that a State is not a permanent, perpetual entity and thus could be "unmade." Of course, the counter-argument is that such a Union does not unmake a State, only change its character and thus the language actually supports the idea that the State is a perpetual entity.
And thus, as the saying goes, are lawsuits and horseraces made.
__________________ "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)
Extradition. The Supreme Court ruled that it was the duty of the state of Ohio and the Governor to comply with the extradition request, but also that the Federal government could not compel the Governor nor the state to do its duty.
Added later, the original charge:
"WOODFORD CIRCUIT COURT."
"The Commonwealth of Kentucky against Willis Lago,"
"free man of color"
"The grand jury of Woodford county, in the name and by the authority of the Commonwealth of Kentucky, accuse Willis Lago, free man of color, of the crime of assisting a slave to escape, &c., committed as follows, namely: the said Willis Lago, free man of color, on the fourth day of October 1859, in the county aforesaid, not having lawful claim, and not having any color of claim thereto, did seduce and entice Charlotte, a slave, the property of C. W. Nuckols, to leave her owner and possessor, and did aid and assist said slave in an attempt to make her escape from her said owner and possessor, against the peace and dignity of the Commonwealth of Kentucky."
"W. S. DOWNEY, Com. Attorney"
=====
Tim
Tim's assesment of the Dennison case is correct. And yes, there were people who felt that states had constitutional duties that the Feds could simply not compel, but before we go off the deep end on unenforceable constitutional duties, take a look at Gibbons v. Ogden and McCulloch v. Maryland.
In both Gibbons and McCulloch, the state could simply have turned around and said, "well, the judgment is the judgment, but you can't make us comply with it" - that clealy is not the case.
Dennison is a difficult case and frankly I see it as more indicitive of the struggle between free and slave states than as an expression of what was intended with the Full Faith and Credit Clause.
While Dennison deals with interstate extradition; the modern issue still remains in an international context.
With respect to the US; there are many countries that will not extradite to the US (Mexico is among them) without an affirmative promise that the defendant will not face the death penalty.
If you were a trial level judge hearing an extradition request for a person facing charges in Turkey for insulting 'Turkishness' - what would you do?
Would it matter to you if that person were asserting the veracity of the Armenian genocide?
Would it matter to you if it were a different country (say Germany or Austria) and the person was a Holocaust denier?
Just some food for thought, remember these issues that they faced in 1861 are still being addressed today....they don't simply exist in an historical vacuum....
CivilWarTalk.com -
A free and friendly Civil War community. 
Linear Mode
