Alexander Stephens: A Constitutional View of the Late Civil War

Fewer ads. Lots of American Civil War content!
JOIN NOW:REGISTER HERE!

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
Been perusing this book and I have some questions.

Stephens claims the Compromise of 1820 is unconstitutional. This is a new one for me. It made me think about Congressional power over territories, which sonds like it ought to be plenary. Aritcle IV says Congress can make all needful rules for a territory. I am having trouble imagining why Congress couldn't ban slavery in a territory, or why, after the territory became a state, the supremacy clause wouldn't prevent the state for overturning that.

I thought about the Northwest Ordinances (which is under the Articles of Confed) especially, and wondered if Stephens thought something in the Constitution removed a power the Congress of the Confederacy thought it had.
 

DanF

Captain
Joined
Feb 29, 2012
Messages
5,701
There are two things here,

First Stephens wrote that AFTER the war when he was singing a different tune than he was singing DURING the war.

Second Stephens is probably relying on the SCOTUS ruling in Dred Scott which ruled that Congress had no power to exclude slavery from the territories. Believe it or not Chief Justice Taney actually claimed that the clause in the constitution saying Congress had the power to create ALL rules and regulations for a territory didn't mean laws.
 

KevinLuna

Private
Joined
Jan 24, 2011
Messages
115
Location
Maryland
Been perusing this book and I have some questions.

Stephens claims the Compromise of 1820 is unconstitutional. This is a new one for me. It made me think about Congressional power over territories, which sonds like it ought to be plenary. Aritcle IV says Congress can make all needful rules for a territory. I am having trouble imagining why Congress couldn't ban slavery in a territory, or why, after the territory became a state, the supremacy clause wouldn't prevent the state for overturning that.

I thought about the Northwest Ordinances (which is under the Articles of Confed) especially, and wondered if Stephens thought something in the Constitution removed a power the Congress of the Confederacy thought it had.
The argument was that slaves are property, and the 5th amendment says that the federal government can't take away a person's property without due process. That's why Congress couldn't prohibit slavery in the territories. That argument doesn't hold water, though, because slaves are only property if the law says they're property. Since the territories had no slave code, slaves weren't property in the territories.

Once the territory becomes a state, Congress loses its totalitarian power over it. Congress can no longer control the state's domestic institutions. The Supremacy Clause only applies if the law is constitutional. A federal law that prohibits slavery in a state would have been unconstitutional.
 

DanF

Captain
Joined
Feb 29, 2012
Messages
5,701
The argument was that slaves are property, and the 5th amendment says that the federal government can't take away a person's property without due process. That's why Congress couldn't prohibit slavery in the territories. That argument doesn't hold water, though, because slaves are only property if the law says they're property. Since the territories had no slave code, slaves weren't property in the territories.

Once the territory becomes a state, Congress loses its totalitarian power over it. Congress can no longer control the state's domestic institutions. The Supremacy Clause only applies if the law is constitutional. A federal law that prohibits slavery in a state would have been unconstitutional.
Justice Curtis in his dissent pointed out that due process did not apply since no one property was being taken from them. it was their choice to go into the territory or not no one away making them.
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
There are two things here,
First Stephens wrote that AFTER the war when he was singing a different tune than he was singing DURING the war.
:smile: No doubt! It was like reading transcripts from the Nuremburg Trials. Nazi's? What Nazi's?
On one page he writes, "slavery, so called."

Second Stephens is probably relying on the SCOTUS ruling in Dred Sco tt which ruled that Congress had no power to exclude slavery from the territories.
Yes. Thank you. I knew I came to the right place with the question.

Believe it or not Chief Justice Taney actually claimed that the clause in the constitution saying Congress had the power to create ALL rules and regulations for a territory didn't mean laws.
What do you mean, "or not?" He actually claimed people aren't people. After that, claiming rules aren't laws is an after-dinner mint.
 

rpkennedy

Major
Joined
May 18, 2011
Messages
9,810
Location
Carlisle, PA
:smile: No doubt! It was like reading transcripts from the Nuremburg Trials. Nazi's? What Nazi's?
On one page he writes, "slavery, so called."

Yes. Thank you. I knew I came to the right place with the question.

What do you mean, "or not?" He actually claimed people aren't people. After that, claiming rules aren't laws is an after-dinner mint.
Technically, he claimed they could not be citizens, not that they weren't people.

R
 

m1150

Cadet
Joined
Feb 27, 2012
Messages
7
Here is a paragraph from the syllabus of the Dred Scott decision:

2. The clause in the Constitution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States in the treaty of peace. It does not apply to territory acquired by the present Federal Government by treaty or conquest from a foreign nation.

So the court seems to be saying that the constitutional power discussed here applied only to the territory the U.S. already had when the Constitution was enacted. Congress's power to legislate for the Louisiana Purchase or points west was more limited. This line of argument allowed the court to explain away the Northwest Ordinance and its ban on slavery, which was enacted by some of the same people who would write the Constitution.
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
Once the territory becomes a state, Congress loses its totalitarian power over it. Congress can no longer control the state's domestic institutions. The Supremacy Clause only applies if the law is constitutional. A federal law that prohibits slavery in a state would have been unconstitutional.
I don't follow this, because your legal theory is not adhering to the time line, I can understand the idea that Congress loses plenary authority upon statehood, but that does not explain a de facto repeal of pre-existing sovereign law.
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
Technically, he claimed they could not be citizens, not that they weren't people. R
You might be right. I have no intention of immersing myself in that filth again, but I recall him saying something like "beings of a sub order." Perhaps, I took him too literally (order, family, genus, specie); as if he meant the Negroe genetic train went off on a different fork three stops before homo and four stops before sapien. Maybe that system of classification wasn't in use yet.
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
Here is a paragraph from the syllabus of the Dred Scott decision:

It does not apply to territory acquired by the present Federal Government by treaty or conquest from a foreign nation.
Thanks. I believe this is what Stephens had in mind.
 

DanF

Captain
Joined
Feb 29, 2012
Messages
5,701
The book should have been entitled:

Alexander Stephens: My unConstitutional Reasoning for Unilateral Secession and Illegal Rebellion, No Excuses.

I believe that Stephens would have titled it.

Alexander Stephens: My unConstitutional Reasoning for Unilateral Secession and Illegal Rebellion so called.

:D
 

whitworth

2nd Lieutenant
Joined
Jun 18, 2005
Messages
2,514
In the end, the Constitutional way did not matter. The Confederacy took the route outside of constitutional decisions -war of rebellion.
Operating outside of Constitutional law, the U.S. Constitution didn't matter to the Confederacy, for its short existence.

It did not matter to the Confederacy, that the the U.S. Supreme Court would later rule that secession was illegal. By that time, all the Confederates cannon and rifles had failed. And they ceased to exist.
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
I believe that Stephens would have titled it.
Alexander Stephens: My unConstitutional Reasoning for Unilateral Secession and Illegal Rebellion so called.
:D
So, you guys really like it, huh?

In general, he rambles. He doesn't write like a lawyer, lacking that cases-and -points organization.

IMO,
He really belabors the Declaration, arguing that it wasn't a national document or any evidence of national governance, and every time he says "independent states," it is as if he is trying to prove they are independent from each other, rather than independent from Britain. The delegates were representive of states (apparently, so-called united states) and not "representatives of THE United States." And all for what? He had already rejected the principles of the Declaration in his Cornerstone speech. I suppose the unspoken point is that new states entering the union after the Constitution would not be bound by the Declaration's natural-law principles of equality, because it wasn't a national document. If he were alive, he could thank me for filling in his blank. Perhaps because I have the advantage of sampling 150 years of hearing others in rehearsal, I know his argument better than he does.
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Messages
10,460
The DoI, as it had usually been interpreted during the ante-bellum period, was seen as a definite stumbling block to the theory of secession, especially by the secessionists.
If slaves were human beings, then they had all the natural rights, given by God, thus inalienable, to all human beings, including slaves and were as free to secede from their masters, as their masters were from their gov't; if the theory of unilateral secession were true.(the theory depends upon there being no such thing as 'natural rights')
 

KevinLuna

Private
Joined
Jan 24, 2011
Messages
115
Location
Maryland
I don't follow this, because your legal theory is not adhering to the time line, I can understand the idea that Congress loses plenary authority upon statehood, but that does not explain a de facto repeal of pre-existing sovereign law.
A law passed by Congress outlawing slavery in a state is unconstitutional. Why would it matter when that law was passed?
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
A law passed by Congress outlawing slavery in a state is unconstitutional. Why would it matter when that law was passed?
It matters, for example, because the law was passed when there was no Constituttion. I am just trying to figure out how you reach your conclusion. There is some land. Congress passes a law about the land. People move in. They have to follow the law. Later Congress tells the people your land is now admitted as a state - but you say they no longer have to follow the law. Where does the repeal come in?
 

NedBaldwin

Major
Joined
Feb 19, 2011
Messages
7,631
Location
California
It matters, for example, because the law was passed when there was no Constituttion. I am just trying to figure out how you reach your conclusion. There is some land. Congress passes a law about the land. People move in. They have to follow the law. Later Congress tells the people your land is now admitted as a state - but you say they no longer have to follow the law. Where does the repeal come in?
The federal law applies to the area as a territory of the US; once it is no longer a territory the federal law no longer has jurisdiction.
 

Shelby's Foot

Corporal
Joined
Jan 12, 2010
Messages
428
The federal law applies to the area as a territory of the US; once it is no longer a territory the federal law no longer has jurisdiction.
Same question. According to what? As I said to the same idea in my last post. "I am trying to figure out how you reach your conclusin."
 

KevinLuna

Private
Joined
Jan 24, 2011
Messages
115
Location
Maryland
Same question. According to what?
According to the 10th amendment. The Constitution doesn't give the federal government the power to regulate slavery in a state. From what I understand, that's the whole reason why Congress couldn't pass any laws abolishing slavery nationwide.
 
Top