Common Misconceptions/Myths

that is an assumption

in general, a soldiers duty was to obey orders
While I can’t argue with you on your statement as a duty is to follow orders.
But, do you not think that if/when the Union saw action that those from that region weren’t also concerned for their homes?

The confederacy held fairly good examples of the Union destroying homes, outbuildings, cities, etc. So, it would have been quite natural to be worried about the state of the homestead they had left.

And, perhaps this ties in to why Lee chose to align with his home state of Virginia. “Home” And what had been carved out of the landscapes sad home seem to be a common thread through the confederacy. And, this may also help explain the reason that the war is still such a hot topic in the southeast. While home should be important to all, I know the importance it is to a southerner. It’s a feeling one can’t explain to someone who does not feel the same way about their home state. With our moves around the country, I’ve experienced the differences between a pride and appreciation of a state. Some have a palpable amount of it and other states sadly have none.

Maybe, just maybe this desire to protect state and home is a portion of the entire concept of the ACW from Lee siding with Virginia to confederates fighting for their homes even if those homes didn’t include the enslaved. Maybe the desire to keep home as it always had been- and for many in the south, it wouldn’t have meant owning the enslaved, were part of that desire? Just a consideration to ponder. Or, not.
 
It would be nice to finally see the myth of constitutional unilateral secession dry up and blow away. Such was never anything more politically self-serving tripe. The lie of secessionist compact theory is in its portrayal of the Constitution, which is obviously a fundamental law, as a treaty of confederation. As a fundamental law the Constitution represents a social compact, not a compact among fully sovereign nation-states. A fundamental law entails sovereignty, a treaty of course does not. A fundamental law carries the force of law upon all segments of society (including states, if they are part of that society), a treaty of course does not. This was the whole reason we switched from a traditional confederation, based on a treaty of confederation, to a more perfect Union based upon a fundamental law. The states failed to maintain voluntary compliance with the AoCs, so the voluntary component was removed. As it had been in the states, so it would now be in the Union. Obey the law, or suffer the consequaneces. Free government does NOT mean anarchy.

All positive/man-made laws require sovereignty to enact. Sovereignty is the supreme lawful authority to govern, to make and apply laws. By voluntarily and collectively making a fundamental law together, the people of the US established their sovereignty, their supreme control over the Constitution, the more perfect Union, and the US Gov’t. That sovereignty extends over the entire country.

'We the people of the United States, do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc. etc.” – 2 U.S. 419, Chisholm v. Georgia, 1793

And the beauty of it was that other prerogatives of sovereignty (i.e. other aspects of sovereignty itself) were retained by the states. If you understand sovereignty, that's it, you have a perpetual, indissoluble Union in which sovereignty is divided between the member states and the Union itself. Neither can cancel the other out. But for some reason, some people seem to only understand what sovereignty is when it's state sovereignty (the sovereign people of a state), and suddenly loose sight of its meaning (legal supremacy) in the case of national sovereignty, or worse yet, simply don't recognize there was ever any such thing as the sovereign people of the United States.
 
The legal theory embraced by the seceding states was that, by their secession, all federally owned land within their borders had reverted to the state government.
Legal theory is just that, theory, until established by legal process, i.e. the courts. Is there a constitutional right I’m not aware of here, to devise a theory, AND act on it as legal fact in final and absolute manner? To thereby decide the matter for all of society? Did the rest of the country not have a right to weigh in on this theory? Such an assertion is nothing more than a recipe for anarchy, chaos, the very things governments are instituted to eliminate.
 
There are some matters which aren't normally expected to be covered in existing law, and civil war or secession is often one of them. The original Thirteen Colonies didn't have a legal instrument by which to proclaim a republic, after all.
The Constitution addresses both civil war (i.e. insurrction, and the violent subversion of US law) and unilateral secession (in the nature of fundamental law and sovereignty, but also, the Framers made it particularly clear with the inclusion of the Supremacy Clause, which prohibits any unilateral interference with the Fed in the exervicse of its delgated authority).

The colonies did not pretend to have such a legal instrument. They genuinely believed their cause morally justified. That is one of the differences between the AR and the ACW.
 
Legal theory is just that, theory, until established by legal process, i.e. the courts. Is there a constitutional right I’m not aware of here, to devise a theory, AND act on it as legal fact in final and absolute manner? To thereby decide the matter for all of society? Did the rest of the country not have a right to weigh in on this theory? Such an assertion is nothing more than a recipe for anarchy, chaos, the very things governments are instituted to eliminate.
The point I'm trying to get at here is not "the Confederates were in the right", but "I can understand the reasons why the Confederates felt they were in the right" - and, indeed, viewed the actions of the Union as prejudicial.

From the Confederate point of view, it was a pretty simple situation - as soon as a state has declared that it wishes to secede, then that state is no longer bound by the Constitution into the Union. It is a decision for each state to make as to whether it wishes to be part of the Union, and the idea that New Yorkers (say) could decide whether or not South Carolinans could leave the Union would be to effectively "force" South Carolinans to do something they did not wish to do (i.e. remain within the Union).


Thus, the Confederate view is:

1) The right to secede is a right granted by the 10th Amendment.
2) However, we think it is fairly clear that the Union will do their best to not allow us to exercise that right.
3) In order to retain our rights, we must be willing to resort to force.

This is in keeping with the founding myth of the United States itself (the idea of the people in arms to retain and regain their rights which a government is ignoring) which is probably part of why it resonated.
 
The Constitution addresses both civil war (i.e. insurrction, and the violent subversion of US law) and unilateral secession (in the nature of fundamental law and sovereignty, but also, the Framers made it particularly clear with the inclusion of the Supremacy Clause, which prohibits any unilateral interference with the Fed in the exervicse of its delgated authority).
I'm not sure that the Supremacy Clause actually applies here, or at least not in a "particularly clear" way, because:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But the Confederate argument is that (1) The 10th Amendment grants them the right to secede, which is a constitutional issue, and (2) once they have seceded then the Constitution no longer binds them to follow it.

So the Supremacy Clause could be argued not to apply because each Confederate state is exercising a constitutional right (granted by the 10th).


The appropriate lens to view this kind of argument through is a controversial issue of the modern day. I don't mean by that that there's a direct parallel, but that the different kinds of interpretation and argument - each side believing it is in the right and in many cases acting according to that interpretation - existing at the same time in contradiction of one another is the way to understand historical issues of controversy (like secession and slavery).
 
And even if the Southern legal theory was the more meritorus one, would you honestly expect a US supreme court to rule after years of bloody war to restore the Union that - in fact - all that fighting had been for nothing? The Supreme Court is made up of men (at the time it was all men) and they're influenced by outside events no matter how much they say they're not.
And even if the Confederacy lost the war, you can't expect them or their later adherents to admit they were wrong. Correct? That applies to both sides, right?

However, TX v. White is consistent with prior SCOTUS decisions regarding the nature of the Constitution and the sovereignty of the people of the US, as well as aligning perfectly with Madison’s statements circa 1832. Without a specific constitutional provision, there can be no constitutional method of withdrawal, except via consent of the states. And no actual withdrawal from the Union, except via consent of the states or revolution. Not that revolution is legal, but it is successful rebellion.
 
The point I'm trying to get at here is not "the Confederates were in the right", but "I can understand the reasons why the Confederates felt they were in the right" - and, indeed, viewed the actions of the Union as prejudicial.

From the Confederate point of view, it was a pretty simple situation - as soon as a state has declared that it wishes to secede, then that state is no longer bound by the Constitution into the Union. It is a decision for each state to make as to whether it wishes to be part of the Union, and the idea that New Yorkers (say) could decide whether or not South Carolinans could leave the Union would be to effectively "force" South Carolinans to do something they did not wish to do (i.e. remain within the Union).


Thus, the Confederate view is:

1) The right to secede is a right granted by the 10th Amendment.
2) However, we think it is fairly clear that the Union will do their best to not allow us to exercise that right.
3) In order to retain our rights, we must be willing to resort to force.

This is in keeping with the founding myth of the United States itself (the idea of the people in arms to retain and regain their rights which a government is ignoring) which is probably part of why it resonated.
The question is were the Confederates in the right? I'm so tired of hearing what they believed. That's a statement that, in my opinion, says they were wrong, but hey, they believed it.
 
The 10th Amendment is the one which states that unless the Federal government explicitly reserves a power it is retained by the States. It doesn't need to state it, the fact that secession was not otherwise reserved (i.e. not stated) in the Constitution is the argument that the power is retained by the states.

Is this argument correct? Not sure, but I can see the legal theory behind it.
I think that it's a question where the answer has been inevitably "tainted" by the fact of the Civil War; any judicial ruling from our history is going to be taking place in an environment where (1) hundreds of thousands have been wounded or killed and (2) the judges are part of the United States government.


So what exactly is the South to do if - just to take a hypothetical - the courts rule that secession is legal, but then the United States promptly "chooses trial by combat" and invades and annexes the South?

For the South to wait for the resolution of a court case, besides requiring every single member of a multi-million-man state to exercise iron self-control (since any hostile action by anyone from the Confederate states can be treated as an excuse for war) in the face of what they see as foreign occupiers on their soil (i.e. Union troops), would mean they were putting themselves at a significant military disadvantage in the event that military action broke out - and the South cannot assume it would not.

In other words, for the South to win their freedom legally and without violence would require:

1) Their legal theory to be correct, which is something they did believe.

2) A United States court to accept that legal theory rather than a conflicting theory, even though the Southern legal theory would reduce the authority of the United States court in question.
Do take a moment to consider this one, in light of things like current battles of legal interpretation. It is quite possible for the majority of the Supreme Court to sustain a ruling which is ridiculous on the face of it, and indeed members of the Supreme Court disagree so often that a 9-0 decision is if anything the anomaly. This therefore implies that at least one member of the Supreme Court (one high powered lawyer) often subscribes to a view which is viewed as wrong.

3) Every Southerner in a position of any authority to not make any kind of hostile action, despite the presence of Union troops on Southern soil (which would be viewed in a roughly comparable light to, say, a Soviet military base on Long Island) for however many weeks, months or years the case took to go through.

4) The North to then take this ruling (which is contra to the views the South knows the majority of the North holds) and accept it, rather than simply promptly declaring war on the South and using their military and strategic advantages (which is to say, things like Fort Sumter right in the middle of a key Southern city, or major military bases very close to Richmond, or the possession of a large fleet, or a monopoly on rifle production and near-monopoly on small arms) to flatten the South.


This is an extremely high standard of behaviour, and people in the South making decisions would be quite within the bounds of interpretation to doubt (2), (3) and (4) to different degrees. And if they go with this approach and it turns out that at least one of (2), (3) and (4) doesn't go through, the South is in a war it is almost certain to lose; if they seize arsenals and take Fort Sumter and start forming an army, they are much more likely to survive.

I disagree.

The idea that there is a hidden, "get out of the Union" free card, tucked away somewhere in the Constitution, 10th amendment not with standing, is just plain nonsense. Something so important, so tremendous for a new found nation, an escape clause that would render the suffering and bloodshed of the American Revolution meaningless, is pure fantasy.

Attempts were made to include such language during the Constitution's ratification and ALL were denied or rejected.

Why there has to be a "hidden" exit clause where none is mentioned seems to be more a ploy of 20th and 21st century civil war forums than political reality.

Unionblue
 
I'm not sure that the Supremacy Clause actually applies here, or at least not in a "particularly clear" way, because:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But the Confederate argument is that (1) The 10th Amendment grants them the right to secede, which is a constitutional issue, and (2) once they have seceded then the Constitution no longer binds them to follow it.

So the Supremacy Clause could be argued not to apply because each Confederate state is exercising a constitutional right (granted by the 10th).


The appropriate lens to view this kind of argument through is a controversial issue of the modern day. I don't mean by that that there's a direct parallel, but that the different kinds of interpretation and argument - each side believing it is in the right and in many cases acting according to that interpretation - existing at the same time in contradiction of one another is the way to understand historical issues of controversy (like secession and slavery).
Really?

This Constitution . . . shall be the supreme Law of the Land . . . any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution shall be (is AND shall remain) supreme to all else. And a secession ordinance is clearly something in the constitution or laws of a state contrary to the SC. The Constitution is not irrelevant UNTIL a state is out of the Union, and the Constitution, via the SC (as well as the concepts of social compacts, fundamental laws, and sovereignty) stands as a constitutional barrier to unilateral withdrawal.

The Tenth does not grant the individual states anything. It reserves powers to them, i.e. powers that they already had. The individual states obviously had no preexisting powers over the more perfect Union, which came into being 1788/1789. But you are right. Political rights/powers must be granted. The more perfect Union belongs to the people of the US, they created it, they alone retain sovereign authority over the new polity. Everyone else, including individual states, can only have what political powers the people specifically grant them via the Constitution. Certainly folks would understand this if a city, town, or country presumed to have an unspecified power to withdraw from a state. But for some reason, it just doesn't register in the case of the US.
 
Really?

This Constitution . . . shall be the supreme Law of the Land . . . any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution shall be (is AND shall remain) supreme to all else. And a secession ordinance is clearly something in the constitution or laws of a state contrary to the SC. The Constitution is not irrelevant UNTIL a state is out of the Union, and the Constitution, via the SC (as well as the concepts of social compacts, fundamental laws, and sovereignty) stands as a constitutional barrier to unilateral withdrawal.

The Tenth does not grant the individual states anything. It reserves powers to them, i.e. powers that they already had. The individual states obviously had no preexisting powers over the more perfect Union, which came into being 1788/1789. But you are right. Political rights/powers must be granted. The more perfect Union belongs to the people of the US, they created it, they alone retain sovereign authority over the new polity. Everyone else, including individual states, can only have what political powers the people specifically grant them via the Constitution. Certainly folks would understand this if a city, town, or country presumed to have an unspecified power to withdraw from a state. But for some reason, it just doesn't register in the case of the US.
Where in the supreme law of the land is there a mention of secession?
Or in the Constitution?
 
I'm not sure that the Supremacy Clause actually applies here, or at least not in a "particularly clear" way, because:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But the Confederate argument is that (1) The 10th Amendment grants them the right to secede, which is a constitutional issue, and (2) once they have seceded then the Constitution no longer binds them to follow it.

So the Supremacy Clause could be argued not to apply because each Confederate state is exercising a constitutional right (granted by the 10th).
This argument falls apart easily, which is why the Confederates didnt actually use it.
The 10th is about powers, not rights. The 10th specifically refers to powers not prohibited by the Constitution. Thus the 10th does not override the other parts of the constitution. The Supremacy Clause restricts State powers. So arguing the 10th is a non-starter.

Which is why it wasnt actually what they agued. South Carolina, in its declaration, argued that the Constitution was already broken by the actions of other states and therefore S. Car. was no longer bound by the Constituion. No need to reference 10th or any other provisions, as the claim is that the Constitution is no longer in operation before they took action.
 
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The conclusion of the war determined the legality of secession. Texas vs. White was after the fact response. If one were to argue the illegality of secession before the conclusion of the war, the separation of West Virginia from Virginia is a stronger case.
 
The conclusion of the war determined the legality of secession. Texas vs. White was after the fact response. If one were to argue the illegality of secession before the conclusion of the war, the separation of West Virginia from Virginia is a stronger case.
How so?
 
From a legal point of view it seems absolutely right (now), that a legal right to secede didn´t exist then, but
- it might be that not everybody was so firm in his juridical knowledge
- it might also be that this legal viewpoint was indeed not so commonly accepted (as it is now)
hence there were indeed some earlier secession movements in the US
(I do recall the rebellion of the "Whiskey boys" in 1794 - and didn´t the New Englanders also plan a secession around 1814??).

Maybe it could be fruitful to advance the idea
that one has to distinguish
between the common populace (who eventually still believed in a right to secede - as demonstrated in 1794 and 1814)
and leading political figures who knew eventually better how constitutional rights were soundly to interpret?

This would lead to two questions:

1.Were the leading figures of the secession movement in 1861 deliberately misinterpreting the constitution (against their better knowledge)? Maybe because they knew that this was a point that could appeal to a lot of people - and also to foreign nations?

2.Or was the period of a wee bit more than eighty years the US existed at that time eventually not long enough to create everywhere a firm belief in the insoluble authority of the national government?
 
Note that I'm not saying that the Confederates were right; what I'm saying is that an integral part of the founding myth of the United States is that it is permissible to use violence to secede from a government with which you do not agree, even if there is no existing legal framework for such secession.
Then it sounds like you are making the argument that people have an unalienable right to revolt. I think that's a different argument than a legal right to secede.

If there is an unalienable right to revolt we can stop looking for a legal right to secede in the 10th Amendment; a people can simply revolt for reasons that seem important to them and choose to believe that the revolt was just even if it was unlawful.

But if you're going to do it that way you better win.
 
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I simply meant that the federal government didn't confiscate anyone's home or land other then some of Lee's Plantation at Arlington where his family received fair compensation. If a home gets destroyed in fighting oh well that's war.
Leftyhunter


I was hoping that's what you meant.

Sure, protect your land, I'm all for that. No fed should ever march against their own people, but after the first couple of years, I guess one could see that the whole protection thing was pointless. Now it's attrition.
 
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