Sorry, I was unclear. I meant why the seceding states didn't sue for separation in court before shooting at US soldiers.
[Edit: meaning that if they really believed it was legal, why not try to settle it without bloodshed. Either it was felt to be illegal or there were perceived to be political benefits from the effusion of blood. ]
Personally, I feel the seceding states would have had their best shot at being allowed to leave by proceeding through the Congress. In the courts, they'd have had more difficulty, and I think the most likely result would have been for the Supreme Court to boot it over to the Congress for resolution as belonging properly in the political sphere -- even if the Supreme Court felt "the South" had been severely injured.
In that same Texas v White case, Chief Justice Chase had this to say:
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When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.
There was no place for reconsideration or revocation, except through revolution or through consent of the States.
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The "
revolution" part of that is what we had: the American Civil War, the exercise of the "natural right of revolution". That's nothing more than trial by combat, and gets us to the
de facto resolution on the "right of secession" in the Union: it does not exist.
What Chase is saying with the "
through consent of the States" part is that a State could leave the Union by proceding through the Congress and/or the Amendment process.
What Chase is denying in all this is the unilateral "right of secession" being claimed by "the South" in 1860. That's not too surprising. What legal system could survive if it said any member could declare at any time the rules did not apply to them?
What a court could do, however, is to decide that "the South" had been so badly injured by the actions of others, and the other states had conspired to unjustly prevent her from leaving, that the only appropriate and just remedy would be for the Court to declare her freed from all responsibilities and connections to the Union. Chase doesn't mention it, but that is a possible legal decision.
Attaining it would impose a massive burden of proof on "the South" to show the intolerable injuries done to them by the other states. If you strip all the rhetoric/emotion out and try to look at the events of the 1850s with some objectivity, it becomes very difficult to see how the South could have proved they had been seriously injured to that extent. "The North" had, essentially, done little or nothing to "the South", and the immediate cause of secession seems to have been the election of someone "the South" didn't like who
might have done things that
might have injured "the South".
I think the secessionists didn't proceed through the courts because they knew they had a weak case. Even if they thought they could eventually succeed, they thought that time was against them politically, and that a long drawn-out process was more likely to result in a cooling of tempers and reconcilliation after sober thought by the people. So they decided to strike while the iron was hot, to fan the flames and rush the people into secession, and they did. Thus Civil War and Reconstruction came.
Tim
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