Constitutionality of Civil War

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govstud

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Two questions on constitutionality:

1) Were Lincoln's and the Union's actions in the civil war, specifically suspending habeas corpus, constitutional? Keep in mind that the legislative branch does have that power, and Lincoln issued the writ when Congress was not in session. No move was ever made by Lincoln to verify his actions or by Congress to challenge it. Also, it was primarily used on the border states to protect DC, the capital of the north, from being surrounded by seceded states.

2) I've seen other forums debating the constitutionality of secession. I'm a little reluctant to accept Amendment X as proof that secession is okay because no law would ever give its constituents a right to disobey it. But my question is, was it constitutional for the south to secede and for the north to go to war to preserve the union?

Thanks!!
--government student with questions
 

ole

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We've covered this on many threads. Please use the search function to locate a few of those. Then come back to discuss your findings or further questions.

Personally, I believe seceding was unconstitutional. Your reference to the 10th amendment shows that you do as well. However, there may not have been a war if the Confederacy hadn't hung its hat on that silly symbol: Ft. Sumter. Lincoln could not have generated any passion to take back the seceding states without open hostilities. They could have gone in peace.

Others' mileage will vary.
 

coltshooter1

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Lincoln suspended the Writ of Habeus Corpus, called up troops and provided funding for them. All are duties of the Legislative Branch of the Federal Government. But as soon as the Congress returned to session he appealed to them to approve the actions he had performed. This is the difference between his assuming the powers of a dictator and his effort to retain and abide by the Constitution's rules of separation of power. The Tenth Amendment reserves the powers to the states that are not covered by the Articles or Amendments to the Constitution.
 

KeyserSoze

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Lincoln suspended the Writ of Habeus Corpus, called up troops and provided funding for them. All are duties of the Legislative Branch of the Federal Government. But as soon as the Congress returned to session he appealed to them to approve the actions he had performed. This is the difference between his assuming the powers of a dictator and his effort to retain and abide by the Constitution's rules of separation of power. The Tenth Amendment reserves the powers to the states that are not covered by the Articles or Amendments to the Constitution.
Actually the Constitution outlines when habeas corpus may be suspended but it is silent on who may suspend it. The various Militia Acts gave the president the power to call up the militia when Congress was not in session. And Lincoln did not provide funding other than shuffling around money already appropriated by Congress. None of those actions were unconstitutional.

The 10th Amendment also establishes that certain powers are reserved to Congress. The power to create states and approve changes to their status once allowed to join the Union is a power reserved to Congress.
 

KeyserSoze

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We've covered this on many threads. Please use the search function to locate a few of those. Then come back to discuss your findings or further questions.
One problem with referring people to existing threads is that some of them are several years old, and one can reply to comments only to find that it dates from 2008 and the author is long gone. I submit that it isn't necessarily a bad thing to start up threads like this were we can have a spirited discussion with active participants.
 

coltshooter1

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Actually the Constitution outlines when habeas corpus may be suspended but it is silent on who may suspend it. The various Militia Acts gave the president the power to call up the militia when Congress was not in session. And Lincoln did not provide funding other than shuffling around money already appropriated by Congress. None of those actions were unconstitutional.

R

The 10th Amendment also establishes that certain powers are reserved to Congress. The power to create states and approve changes to their status once allowed to join the Union is a power reserved to Congress.
Right. no action was technically un-Constitutional, but the fact that Lincoln made sure he received the approval of Congress defeats the claims by many that he was a tyrant and grossly violated the Constitution.
 

unionblue

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One problem with referring people to existing threads is that some of them are several years old, and one can reply to comments only to find that it dates from 2008 and the author is long gone. I submit that it isn't necessarily a bad thing to start up threads like this were we can have a spirited discussion with active participants.
KeyserSoze,

And I would respectfully counter that by finding these old threads and adding new questions and answers on them would keep the topic centralized and add to the value of that thread.

Just a thought,
Unionblue
 

cash

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Two questions on constitutionality:

1) Were Lincoln's and the Union's actions in the civil war, specifically suspending habeas corpus, constitutional?
Yes.
Keep in mind that the legislative branch does have that power, and Lincoln issued the writ when Congress was not in session.
Nothing in the Constitution reserves that power to Congress specifically. It is a power possessed by the US Government, and the Executive Branch is just as much a part of the US Government as the Legislative Branch.

2) I've seen other forums debating the constitutionality of secession. I'm a little reluctant to accept Amendment X as proof that secession is okay because no law would ever give its constituents a right to disobey it. But my question is, was it constitutional for the south to secede
No. This is settled law. The Supreme Court of the United States has ruled on this.

and for the north to go to war to preserve the union?
Yes.
 

coltshooter1

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Another point of Constitutional Law is the supremacy clause. Basically the Federal law passed by Congress is the Supreme law of the land. The only question that can be raised is "is the law Constitutionally sound?" Did you know that the ability of the Supreme Court to determine the Constitutionality of a law is an Assumed Power of the court. The Constitution never specified this in any formal way. The case of Marbury v Madison established this as in accepting the courts decision the President formally recognized the ability of the Supreme Court to make thes types of decisions.
 

OpnCoronet

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The problem for secessionist theorists was to differentiate secession from the Constitutionally illegal acts of insurrection/rebellion. Southern secessionts, more or less, required a 'legal' covering for the act of secession itself.
In actual fact, many(if not most) southerners(even their leadership) made little coherent effort to prove the legality of secession, but, instead, tended to pass off the claim of legality, itself, as justifification(rather than proof) of its legality.
 

coltshooter1

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Was there any Supreme Court decision that can be directly applied to secession?
I can not remember if there may have been a challenge was of the Force Acts that were passed to counter South Carolina's passage of the Nullification Act. I cannot remember if either of these were challenged as un-Constitutional by any party during the crisis in Jackson's Presidency. I know there were threats of secession in many areas of the country before the war and wonder of any cases were raised regarding this matter.
 

rpkennedy

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Was there any Supreme Court decision that can be directly applied to secession?
I can not remember if there may have been a challenge was of the Force Acts that were passed to counter South Carolina's passage of the Nullification Act. I cannot remember if either of these were challenged as un-Constitutional by any party during the crisis in Jackson's Presidency. I know there were threats of secession in many areas of the country before the war and wonder of any cases were raised regarding this matter.
Not prior to the war. After the war, Texas v White held that unilateral secession was illegal.

R
 

Freddy

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Another point of Constitutional Law is the supremacy clause. Basically the Federal law passed by Congress is the Supreme law of the land. The only question that can be raised is "is the law Constitutionally sound?" Did you know that the ability of the Supreme Court to determine the Constitutionality of a law is an Assumed Power of the court. The Constitution never specified this in any formal way. The case of Marbury v Madison established this as in accepting the courts decision the President formally recognized the ability of the Supreme Court to make thes types of decisions.
I would argue that SCOTUS always had the power to rule on an Act of congress. Clearly below the Constitution gives SCOTUS judicial power over the laws of the U.S. as Marbury v. Madison 1803 was based on the Judiciary Act of 1789.

Article III - The Judicial Branch

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
 
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I would argue that SCOTUS always had the power to rule on an Act of congress. Clearly below the Constitution gives SCOTUS judicial power over the laws of the U.S. as Marbury v. Madison 1803 was based on the Judiciary Act of 1789.

Article III - The Judicial Branch

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

With the emergence of political factions in the mid 1790's, Jefferson and Madison--the flip-flop brothers-- along with some anti-Federalists in Congress began to posit that the state legislatures and not the Supreme Court held the authority to interpret what the Constitution meant when a state or states disagreed with a portion of it or when acts of Congress conflicted with a state's rights, besides Jefferson despised the fact that the Supreme Court was controlled by Federalist jurors.
 

OpnCoronet

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The supremacy of Constitutional law, was upheld on many occasions during the early period of American History before the CW.
The 'right' to Secession, even if it actually existed, would still have to be weighed with or against all the other 'rights' inherent in man and, more especially( in reference to its 'legality') the Constitution.
 

KeyserSoze

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Did you know that the ability of the Supreme Court to determine the Constitutionality of a law is an Assumed Power of the court. The Constitution never specified this in any formal way. The case of Marbury v Madison established this as in accepting the courts decision the President formally recognized the ability of the Supreme Court to make thes types of decisions.
One could argue that the legal defintion of jurisdiction as the power to interpret and apply the law in a specific area grants the court the power to determine the constitutionality of a law as part of Article III. Regardless, Chief Justice Marshall's argument in Marbury v Madison still makes perfect sense:

"It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."

If not the Supreme Court then who?
 

KeyserSoze

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The 'right' to Secession, even if it actually existed, would still have to be weighed with or against all the other 'rights' inherent in man and, more especially( in reference to its 'legality') the Constitution.
One can also say that one state's right cannot impinge on another state's right. If a state claims the right to secede then don't the other states have the right to be protected from any damages caused them by the secession?
 

OpnCoronet

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By their actions(if not always by their words) the leaders of the south, committed themselves to enforcing their form of secession at all costs.
The Legality of secession was not a big problem for the southern leadership, because they were determned to enforce its application, no matter what any laws might or might not say. That is why there was no plans or even calls by southerners for the issue to be adjudicated in any courts of law. Even though the Constitutionality of an unencumbered right to secession by individual states would be exactly the type of controversy, the Supreme Court was designed to settle.
The southern leadership cooly and very deliberately chose the mode of their secession that was most obviously Unconstitutional and unlawful...
 
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