Assuming a Court or Consitutional restriction on Secession, would the Secession happened anyway.

jgoodguy

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#1
Perhaps called a secession against the tyrannical Court or Constitution. This eliminates the real world situation where secession was a debatable issue or in a gray area of not being prohibited and therefor permissible.

The situation being that the South wanted to preserve slavery and independence was the only way. I assume that the Secession would have occurred.

Would the same justifications be used?
 

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matthew mckeon

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#2
Yes. If the cause was valid enough in the eyes of the secessionists for secession it was valid enough for a rebellion.
 
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#3
Yes, it appears that the Deep South states or at least a portion of them would have tried secession anyway. They don't appear to have been overly concerned about the legalities or such based on their actions and the timeline.

The changes to the Confederate preamble indicate that the claim to a right of unilateral secession was not established in the U.S. Constitution:
We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.
 

jgoodguy

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#4
Yes, it appears that the Deep South states or at least a portion of them would have tried secession anyway. They don't appear to have been overly concerned about the legalities or such based on their actions and the timeline.

The changes to the Confederate preamble indicate that the claim to a right of unilateral secession was not established in the U.S. Constitution:

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.

Could you expound on this? This appears to be mostly from the Articles of Confederation to me.


Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

...

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
 
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#5
Could you expound on this? This appears to be mostly from the Articles of Confederation to me.
The CSA preamble appears to me as a reclamation of state sovereignty given up by ratification of the U.S. Constitution. The U.S. preamble states that it is "to form a more perfect Union" than the already "perpetual Union" of the Confederation of colonies. The Confederates even dropped the "common defense" and "general Welfare" portions.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Cotton States were turning back the clock to before the U.S. Constitution was ratified.
 
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#6
Yes, the slave states were turning back the clock but they believed they had every right to. They believed that it was the states that created the central gov't and therefore it was their right to cancel that concession.
 
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#7
While "states rights" is a common term now used to represent the secession argument, there is another I keep bumping into by period sources: "Southern rights." It crept up frequently enough in Missouri self-descriptions of secessionist political figures, "Southern rights men." States rights would apply equally to all states, but Southern rights applies to one thing alone.

The following link is to a Southern rights flag used in Kansas in 1856. http://www.kshs.org/kansapedia/cool-things-southern-rights-flag/10254

Where I'm going with this in relation to the thread is that secession wasn't a matter of national/state constitutional rights, but one of "Southern rights" to the peculiar institution.
 

jgoodguy

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#8
Yes, the slave states were turning back the clock but they believed they had every right to. They believed that it was the states that created the central gov't and therefore it was their right to cancel that concession.

Would that belief prompt the Slave States to secede with a court ruling, federal law or constitutional amendment forbidding secession.
 

jgoodguy

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#9
While "states rights" is a common term now used to represent the secession argument, there is another I keep bumping into by period sources: "Southern rights." It crept up frequently enough in Missouri self-descriptions of secessionist political figures, "Southern rights men." States rights would apply equally to all states, but Southern rights applies to one thing alone.

The following link is to a Southern rights flag used in Kansas in 1856. http://www.kshs.org/kansapedia/cool-things-southern-rights-flag/10254

Where I'm going with this in relation to the thread is that secession wasn't a matter of national/state constitutional rights, but one of "Southern rights" to the peculiar institution.
That would be one direction that I intended with this thread. I'd like to see evidence to the effect that Southern Rights AKA Southern States Rights as interpreted by Southerners were a motive for secession rather than some reasoned universal secession right.
 
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#10
That would be one direction that I intended with this thread. I'd like to see evidence to the effect that Southern Rights AKA Southern States Rights as interpreted by Southerners were a motive for secession rather than some reasoned universal secession right.
It's a good request, unfortunately I'm not yet well equipped to respond. My perception in reading period comments is that there wasn't all that much reliance on a constitutional basis, it was added to bolster the secession argument, but not necessary of its own account.

I've started reading Louis Gerteis Civil War St. Louis and it reviews the Missouri aspect of the Dred Scott case in detail. While I already knew much of the basics and timeline of the case, there was an aspect that was new to me. Calhoun's Southern Address provided the basis for overturning longstanding legal (Missouri Supreme Court) precedence in Missouri. This is why the case ended up going before the U.S. Supreme Court.

Seems that Southern leaning judges latched onto this and overturned all precedents in the way, with the U.S. Supreme Court going down the same rabbit hole. Keep in mind that in other states the state supreme court precedents dated back to the 18-teens...when founders were still around to contest them. This leads to the conclusion that the Southern judges were inventing an "originalist" interpretation of the Constitution which was incompatible with the time of the Founding Fathers. (Hmm...kinda like the originalist arguments today.)
 
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#11
Perhaps called a secession against the tyrannical Court or Constitution. This eliminates the real world situation where secession was a debatable issue or in a gray area of not being prohibited and therefor permissible.

The situation being that the South wanted to preserve slavery and independence was the only way. I assume that the Secession would have occurred.

Would the same justifications be used?
In a speech a few years before the war, Jeff Davis said that if the Republicans won the presidency in 1860 he "would be in favor of holding the City of Washington, the public archives, and the glorious star spangled banner, declaring the government at an end, and maintaining our rights and honor, even though blood should flow in torrents throughout the land" and that he would "rather appeal to the God of battles at once than attempt to live longer in such a Union". Doesnt sound like courts of constitution mattered.
 

jgoodguy

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#12
In a speech a few years before the war, Jeff Davis said that if the Republicans won the presidency in 1860 he "would be in favor of holding the City of Washington, the public archives, and the glorious star spangled banner, declaring the government at an end, and maintaining our rights and honor, even though blood should flow in torrents throughout the land" and that he would "rather appeal to the God of battles at once than attempt to live longer in such a Union". Doesnt sound like courts of constitution mattered.

Quote appears to come from Jefferson Davis: The Man and His Hour - Page 268
 

jgoodguy

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#13
From Was Secession Constitutional? over at the Crossroads blog.

Brooks D. Simpson .... As a historian, what’s important to me is that Americans in 1860-61 disagreed over whether secession was constitutional. Some people said yes, some people said no. There had been much discussion of this issue ever since the framing of the Constitution itself, and no one emerged with an argument that was satisfactory to all. Moreover, even those people who argued for nullification, interposition, and ultimately secession offered a somewhat different procedure than that used in 1860-61, which was, basically, a preemptive first strike by the original seven seceding states, followed by muddled (and sometimes simply ignored) procedures in several other states that either seceded or contemplated it.
James F. Epperson

While I am guilty of participating in my share of debates on this issue, and I even have what I consider a solid argument in my favor, it is obvious that there was no agreement on 1860-61. But many of the secessionists were going to do what they did regardless. Something that has always puzzled me about modern Confederate romantics is their insistence on the strict legality of what happened in the formation of the Confederacy. Of course, I understand their problem: Once you admit that your course of action might not be strictly legal, you essentially admit that folks can oppose it. Thus, “legality of secession” is a touchstone for “the Confederacy as victim” argument.

Ned Baldwin


I put forth the following hypothesis:
First, that in 1860-61, the constitutionality of secession was less of an open issue than we claim. The nullification crisis of the 1830s and the crisis of 1850 showed some widespread acceptance of the unconstitutionality of secession. Thus in 1860, South Carolina avoided the issue with its argument that the obligations of the Constitution had been voided. Other states followed suit.
Second, only after the fact did the question of Constitutionality assume the level of importance it is given today. As Jim stated early in the comments ““legality of secession” is a touchstone for “the Confederacy as victim” argument.”
 

whitworth

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#14
The Confederacy never went the Constitutional Secession route. They pursued a miliary secession and lost that attempt. If the Confederacy thought that a constitutional secession route was feasible, they never would have fired on Fort Sumter.
 
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#15
Perhaps called a secession against the tyrannical Court or Constitution. This eliminates the real world situation where secession was a debatable issue or in a gray area of not being prohibited and therefor permissible.

The situation being that the South wanted to preserve slavery and independence was the only way. I assume that the Secession would have occurred.

Would the same justifications be used?
Sure, why not? The South was bound and determined to leave and whether they tried to cloak it in a faux-legitimacy by calling it secession or whether they had come right out and called what it was - rebellion - they would have done it anyway.
 

Carronade

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#16
Constitutions or constitutional law rarely provide for separation of part of a nation, and the ones that recognize it on paper - like the former Soviet Union - may be the least likely to let it happen in practice. Regardless of the specifics of a situation, the majority is unlike to accept that its rule is considered oppressive by a minority and that they should therefore be allowed to go their own way. It's regrettable, but it also seems to be human nature. That's why the most cogent commentators on the subject, the authors of the Declaration of Independence, relied on the natural law argument.
 

OpnCoronet

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#17
Sure, why not? The South was bound and determined to leave and whether they tried to cloak it in a faux-legitimacy by calling it secession or whether they had come right out and called what it was - rebellion - they would have done it anyway.
I agree, if Slavery still existed in the scenario of this thread, then it would still be under threat and still need to be protected.
Ironically, IMO, the only real difference to attitudes, would be that the south would be forced to rely directly on the 'natural right' of rebellion/revolution, instead of being able to cloak their justification around 'states right' as justification for secession, in order to protect the' southern right' to own slaves
 
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#20
Q: Assuming a Court or Constitutional restriction on Secession, would the Secession happened anyway?

A: Yes. Dissolving the Union was not an end in itself, it was the means to an end. People in the slave states believed, whether right or wrong, that the Black Republican Lincoln administration was a threat to the institution of slavery. The need to protect the institution does not go away simply because secession is not seen as constitutional.

Note that, there were men, like RE Lee, who did not believe that secession was constitutional, and who nonetheless supported their state's secession from the USA.

- Alan
 



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