Confederates advocating secession via the US Constitution

jgoodguy

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There are 2 branches of the unilateral secession tree comprising all the reasons appealed to.
  1. Rebellion.
    • For greed' or political power.
    • Natural law for reason of intolerable circumstances.
  2. Compact Theory
    • No support in court, constitution or custom.
 

Bee

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Here's an odd ball question: did West Virginia have the right to breakaway and become a separate state? When does secession stop? At the state level? County? Or do we just become a collection of 300 million sovereign citizens driving our cars as fast as we like?

I was just reading about this in the Constitution tonight. The process for forming new states was specifically spelled out:

Article IV Section 3.
New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.​
 

jgoodguy

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I was just reading about this in the Constitution tonight. The process for forming new states was specifically spelled out:

Article IV Section 3.
New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.​

In some of my references on the SCOTUS decision Texas v White, the assertion is made that some of the more radical Radical Republicans wanted to undo all the old Southern State boundaries and readmit the territory created as new States. This is an interesting view of the proposition that States can seceded. If indeed they can secede, then they destroy themselves as States and when conquered return to territory status.
 

WilliamH

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But formenting rebellion and tearing a nation at peace apart to preserve slavery is OK?

No, I never meant to suggest slavery was a just cause or one worth seceding over but I also have a hard time justifying killing/forcing people of a State to remain part of this country if they do not wish to be.

As James Madison said about the use of force on a State; “A Union of States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts by which it might be bound.” http://press-pubs.uchicago.edu/founders/documents/a1_8_15s5.html

“Yet that reason was the primary and main reason most Northern men enlisted for, to save the Union.”

I realize that, I just don’t believe that the idea of preserving the Union in an isolated environment was a just cause. This is why I have always believed the Emancipation Proclamation to be so important, it changes the nature of the war to what is without a doubt/debate a just cause….(I know it didn't free all of the slaves but it started us down that path) Yes I do need to find the time to read more books thank you for the recommendation.
 

jgoodguy

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No, I never meant to suggest slavery was a just cause or one worth seceding over but I also have a hard time justifying killing/forcing people of a State to remain part of this country if they do not wish to be.

As James Madison said about the use of force on a State; “A Union of States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts by which it might be bound.” http://press-pubs.uchicago.edu/founders/documents/a1_8_15s5.html

“Yet that reason was the primary and main reason most Northern men enlisted for, to save the Union.”

I realize that, I just don’t believe that the idea of preserving the Union in an isolated environment was a just cause. This is why I have always believed the Emancipation Proclamation to be so important, it changes the nature of the war to what is without a doubt/debate a just cause….(I know it didn't free all of the slaves but it started us down that path) Yes I do need to find the time to read more books thank you for the recommendation.

Without the impulse to save the Union, there is no freeing of the slaves. Even at the end, the 13th amendment was not a sure thing. Freeing the slaves was a mess; a circuitous, hypocritical, political mess. Idealized perfection was not there and not to be found.

IMHO preserving the union, the experiment in democracy started by the founding is a just cause, however imperfect. Without union the CSA keeps slavery alive and kicking for decades maybe a century.
 

Potomac Pride

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No, I never meant to suggest slavery was a just cause or one worth seceding over but I also have a hard time justifying killing/forcing people of a State to remain part of this country if they do not wish to be.

As James Madison said about the use of force on a State; “A Union of States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts by which it might be bound.” http://press-pubs.uchicago.edu/founders/documents/a1_8_15s5.html

“Yet that reason was the primary and main reason most Northern men enlisted for, to save the Union.”

I realize that, I just don’t believe that the idea of preserving the Union in an isolated environment was a just cause. This is why I have always believed the Emancipation Proclamation to be so important, it changes the nature of the war to what is without a doubt/debate a just cause….(I know it didn't free all of the slaves but it started us down that path) Yes I do need to find the time to read more books thank you for the recommendation.

That is a good post WH. The framers of the Constitution never intended to hold the Union together through the use of force. They discussed measures in regards to delinquent states and came to the conclusion that coercion by the federal government against the states was a bad idea.
 

Andersonh1

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I see it is based on the compact argument which as no basis in anything but opinion. You posted there was something other than the compact argument. Or so that is how i read it.

Here's what I posted. There are two main arguments that appeal to the Constitution that I have seen in reading through a number of Confederate speeches and writings, and I've read more since I wrote this. They have other arguments that go beyond the Constitution, but that's beyond the scope of this thread.

State Sovereignty arguments (appealed to Article 7, the 10th Amendment, and the history and process of ratification)
1) Powers were delegated to the Federal Government by the states, and those delegated powers can be recalled and full sovereignty resumed. The states guarded their sovereignty in part by insisting on the adoption of the 10th amendment, and some guarded it by noting they could recall those rights in their ratification documents.
2) The government was not formed by the people of the United States in the aggregate, but by the people acting through the states. There were 13 separate conventions, not one national convention, and those 13 were called by the states and acted in the name of the states. Each state individually decided whether or not to adopt the Constitution. Madison wanted both a national and state referendums, but did not get them, which is further evidence in favor of the states.
3) Article 7 supports secession. The will of a majority of states was not binding on the minority. Each state chose on its own whether or not to join the Union and put the Constitution into effect. Once the requisite number had joined, the remaining states were not then forcibly integrated into the Union. They remained outside it until they chose to ratify.
4) Because states did not delegate the power of determining secession to the federal government, or put a limitation on themselves in the Constitution, states have the right of secession as a final remedy.

Compact argument:
1) The states ratified the Constitution and agreed on certain mutual responsibilities in order to obtain mutual benefits: "establishing justice, insuring domestic tranquility, promoting the general welfare, and securing the blessings of liberty to themselves and their posterity."
2) "If they are restrained, by the Constitution, from doing certain things, the restraint was self-imposed, for it was they who ordained, and established the instrument, and not a common superior. They, each, agreed that they would forbear to do certain things, if their copartners would forbear to do the same things." - I couldn't say it better than Semmes, so I just took his wording for this point. This would apply equally to the state sovereignty argument.
3) The North has not lived up to its side of the agreement, and it has abused the powers of the Federal Government for its own benefit and to the detriment of the South.
4) The South has tried all remedies within the system, but those are exhausted.
5) Since the North has failed to live up to the agreement, and will not submit to internal remedies, they have broken the compact and the South is free from the agreement. The only option left is either to submit to Northern rule, or to exit and seek the benefits in a new Union.
 

unionblue

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No, I never meant to suggest slavery was a just cause or one worth seceding over but I also have a hard time justifying killing/forcing people of a State to remain part of this country if they do not wish to be.

As James Madison said about the use of force on a State; “A Union of States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts by which it might be bound.” http://press-pubs.uchicago.edu/founders/documents/a1_8_15s5.html

“Yet that reason was the primary and main reason most Northern men enlisted for, to save the Union.”

I realize that, I just don’t believe that the idea of preserving the Union in an isolated environment was a just cause. This is why I have always believed the Emancipation Proclamation to be so important, it changes the nature of the war to what is without a doubt/debate a just cause….(I know it didn't free all of the slaves but it started us down that path) Yes I do need to find the time to read more books thank you for the recommendation.

WilliamH,

Thank you for your more detailed response above.

I appreciate it.

Until our next post,
Unionblue
 

jgoodguy

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Here's what I posted. There are two main arguments that appeal to the Constitution that I have seen in reading through a number of Confederate speeches and writings, and I've read more since I wrote this. They have other arguments that go beyond the Constitution, but that's beyond the scope of this thread.

State Sovereignty arguments (appealed to Article 7, the 10th Amendment, and the history and process of ratification)
1) Powers were delegated to the Federal Government by the states, and those delegated powers can be recalled and full sovereignty resumed. The states guarded their sovereignty in part by insisting on the adoption of the 10th amendment, and some guarded it by noting they could recall those rights in their ratification documents.
2) The government was not formed by the people of the United States in the aggregate, but by the people acting through the states. There were 13 separate conventions, not one national convention, and those 13 were called by the states and acted in the name of the states. Each state individually decided whether or not to adopt the Constitution. Madison wanted both a national and state referendums, but did not get them, which is further evidence in favor of the states.
3) Article 7 supports secession. The will of a majority of states was not binding on the minority. Each state chose on its own whether or not to join the Union and put the Constitution into effect. Once the requisite number had joined, the remaining states were not then forcibly integrated into the Union. They remained outside it until they chose to ratify.
4) Because states did not delegate the power of determining secession to the federal government, or put a limitation on themselves in the Constitution, states have the right of secession as a final remedy.

Compact argument:
1) The states ratified the Constitution and agreed on certain mutual responsibilities in order to obtain mutual benefits: "establishing justice, insuring domestic tranquility, promoting the general welfare, and securing the blessings of liberty to themselves and their posterity."
2) "If they are restrained, by the Constitution, from doing certain things, the restraint was self-imposed, for it was they who ordained, and established the instrument, and not a common superior. They, each, agreed that they would forbear to do certain things, if their copartners would forbear to do the same things." - I couldn't say it better than Semmes, so I just took his wording for this point. This would apply equally to the state sovereignty argument.
3) The North has not lived up to its side of the agreement, and it has abused the powers of the Federal Government for its own benefit and to the detriment of the South.
4) The South has tried all remedies within the system, but those are exhausted.
5) Since the North has failed to live up to the agreement, and will not submit to internal remedies, they have broken the compact and the South is free from the agreement. The only option left is either to submit to Northern rule, or to exit and seek the benefits in a new Union.

Thanks for the clarification, but what is the difference? The 10th argument is dependent on the Constitution being a compact as I see it.
 

thomas aagaard

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Compact argument:
3) The North has not lived up to its side of the agreement, and it has abused the powers of the Federal Government for its own benefit and to the detriment of the South.
4) The South has tried all remedies within the system, but those are exhausted.
5) Since the North has failed to live up to the agreement, and will not submit to internal remedies, they have broken the compact and the South is free from the agreement. The only option left is either to submit to Northern rule, or to exit and seek the benefits in a new Union.
The problem is that all 3 are simply lies.

It was the south that controlled the Federal government in the 1850ties... and used it in institute laws that violated the rights of the citizens in the free states. (forcing citizens to help hunt runaway slaves against their will)

The only thing the north did was to elect a president who wanted to limit slavery in the territories. Something the founding fathers had also done.
The election was legal and democratic (for its time)

The south could have gone to congress... they did not.
They could have let Lincoln actually be sworn in and see if he actually did something horrible... they did not.
They could have waited 4 years and try to elect a pro slavery president... They did not.

Had they actually tried congress without success and tried the courts... and Lincoln had ignored it.. then I think they would have had a good reason to be angry... but loosing an legal election is simply not "just cause" for starting a rebellion.
 

Andersonh1

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Thanks for the clarification, but what is the difference? The 10th argument is dependent on the Constitution being a compact as I see it.

I don't see that. Under the theory, a state's sovereign right to withdraw from the Union is not derived from the compact, it is based on a retention of certain sovereign rights that existed before the state entered the compact in the first place. In other words, state sovereignty is older than the compact, and is not dependent on it.
 

unionblue

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That is a good post WH. The framers of the Constitution never intended to hold the Union together through the use of force. They discussed measures in regards to delinquent states and came to the conclusion that coercion by the federal government against the states was a bad idea.

"What can be more preposterous than to say that the States as united, are in no respect or degree, a Nation." -- Madison to Rives, 1833.

"It is obviously impracticable in the foederal [sic] government of these States; to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all-- Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained." --George Washington, Sept. 17, 1787, in a message to the President of Congress.

"When any one State in the American Union refuses obedience to the Confederation by which they have bound themselves, the rest have a natural right to compel obedience."
-- Thomas Jefferson, Writings, Vol. XVII.

"Congress can no more abolish the state governments, than they can dissolve the Union."
-- Alexander Hamilton, June 25, 1788, Elliot's Debates, Vol. 2, p. 258.

"The people of America, Sir, are one people. I love the people of the North, not because they have adopted the Constitution; but, because I fought with them as my countrymen and because I consider them as such.-- Doesn't it follow from hence, that I have forgotten my attachment to my native state? In all local matters, I shall be a Virginian; In those of a general nature, I shall not forget that I am an American." --Henry Lee, father of Robert E. Lee, during the Virginia Ratification Convention, June 9, 1788.
 

jgoodguy

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Lets take a look at the 1792 Militia Act. 2nd US Congress.
First an expression of appreciation those who beat me up in thread on this and educated me on this years ago.
Also Militia Act of 1792 revised in 1795 and Lincoln | American Civil War Talk.
Emergency Power and the Militia Acts - The Yale Law Journal

When reading this, consider that if the 10th Amendment arguments and/or the Compact Theory arguments exist in some tangible reality, why is this legislation being passed.


History
The Militia Acts were passed in response to the overwhelming U.S. losses at St. Clair's Defeat.[1] The Constitution permitted Congress to provide for calling forth the militia, but it was understood at the time that the president could not do so on his own authority absent that statutory provision. There was a widespread fear that the Western Confederacy of American Indians would exploit their victory during the recess of Congress. St. Clair's defeat was blamed in part on the poor organization and equipment of his army.[2] Congress took action to remedy these problems in 1792.
Here we are in 1792. The second Congress ever. Only 4 years from the ratification of the Constitution. The States as represented by Congress apparently did not consider the compact theory in passing this. This gives the power to the president to remove rebellious governments if necessary from States.

If the President of the United States has the right to remove rebellious governments from controlling States, then any argument about forcing States back into the Union is mote, null and void and otherwise of no consequence.

United States Statutes at Large, Volume 1
United States Congress
Public Acts of the Second Congress, 1st Session, Chapter 28
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action,1795, ch. 36, sec. 10. as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; Insurrection against the government of any state;and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted,or opposition to the execution of the laws of U. States. That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

This was followed by the 1795 Militia Act.
Emergency Power and the Militia Acts - The Yale Law Journal P162
Yet, as much as the Calling Forth Act worked as intended during the Whiskey Rebellion, Washington’s experience dealing with the rebellion also highlighted the flaws that the case-by-case regime necessarily created, flaws that he implored the Third Congress to rectify.49 Despite Washington’s suggestions, Congress did not seriously consider his suggested reforms to the militia system, though it gave its imprimatur to his conduct by reenacting the Calling Forth Act on a permanent basis in 1795 with various revisions to enhance the President’s powers under the Act. Indeed, y his actions in the Whiskey Rebellion, Washington had apparently dissipated the fears expressed in 1792 that these powers “could not with safety be entrusted to the President of the United States.” The Whiskey Rebellion thus resulted in the establishment of both a permanent law and a precedent for all future use of federal military force in domestic disorders.50

In reenacting the Calling Forth Act, the Third Congress replaced the original statute with the 1795 Militia Act, which removed—or heavily diluted—several of the major checks on the President’s authority under section 2, though it left section 1 of the 1792 Act entirely intact. The 1795 Act changed the nature of the section 2 delegation in three critical ways. First, the Act removed the requirement of an antecedent court order—which had been added as a necessary amendment in 1792—leaving the President as the sole arbiter of when circumstances necessitated the calling forth of the militia.51 Second, the 1795 Act removed the 1792 Act’s requirement that militiamen from other states could be used only when Congress was not in session,52 despite the fears at Philadelphia that militiamen from New Hampshire might be sent to quell a disturbance in Georgia, and vice versa.53 Third, the 1795 Act kept the dispersal proclamation requirement but removed the requirement from the 1792 Act that such a proclamation be issued “previous thereto,” i.e., before calling out the militia.54 A fair reading of the 1795 Act suggests that all Congress sought to require was a contemporaneous proclamation—notice to the rebels that the troops were on their way. Per the amended section 2,

THIRD CONGRESS. SESS. II. CH. 36. 1795.
'SECTION . SEC. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by tins act, it shall be lawful for the President of the United States, to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress. '*£>-EC. 3. Provided always, and be it further enacted, That whenever il may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

In short there appears to be no evidence of a compact theory in the early history of the US. If State Governments can be removed as rebels, then any argument that States can secede are interesting but have no practical effect.
 
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