Buchanan and Taney on Secession

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May 2, 2006
From Lincoln and the Court by Brian McGinty which you can see here:
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Taney’s views about the secession crisis were expressed more privately. Like President Buchanan, he believed that secession was constitutionally impermissible but that the federal government had no authority to “coerce” a seceding state to remain in the Union. Buchanan’s views on the subject had been expressed in his last annual message to Congress, delivered on December 3, 1860. The outgoing executive rejected the idea that the federal government was “a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties.” “If this be so,” he argued, “the Confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States. . . . By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.” But Buchanan searched the Constitution for any language that would give the president or Congress power to keep a state in the Union against its will and, “after much serious reflection,” concluded that there was none. Taney’s own views on secession were expressed in an unpublished memorandum probably written in February 1861, about a month before he was to administer the presidential oath to Lincoln. In that memorandum, he said that the Confederate states were wrong to claim a constitutional right to secede. But, he wrote, federal laws could be enforced within a state only by its own citizens, and the federal military could enter a state only at the call of state officials. Thus it was impermissible for the federal government, against the will of a seceding state, to subject it to military action to prevent it from severing its ties with the Union. It was thus wrong, in the view of both Buchanan and Taney, for a state to break the bonds that tied it to the other states, but also wrong for the federal government to attempt to stop it.
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In passing, a possibly interesting bit of trivia. Lincoln met Taney and the rest of the Justices at a small reception eight days before his 1st inauguration. However, he had argued a case before Taney and the Supreme Court on March 7-8, 1849 just after his term as a Congressman ended: Lewis v Lewis, which he lost (this appears to reverse Ross v. Duval, 1839).
 
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