Gaps and assumptions in logic: Lincoln and Secessionist


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While the Court didn't directly take on the question of secession's constitutionality, or lack thereof, in the Prize Cases, it did rule indirectly on it.

“Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason. The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars. ‘A civil war,’ says Vattel, ‘breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.’ This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., & c.; the war will become cruel, horrible, and every day more destructive to the nation. As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know. The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated: When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” [67 US 635, 666-668]

“This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. It is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties.” [67 US 635, 668-669]

In upholding Lincoln’s actions against the rebels, calling the war a “civil war,” calling the rebellion an “insurrection,” and labeling the rebels as “rebels or traitors,” the Supreme Court was implicitly denying the legality of secession.
 

jgoodguy

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There is much more commentary of a similar character, but I sure hope that clears everything up.[/QUOTE]
Having read both, the dissenting opinion makes a lot more sense. But of course, before anyone reminds us, it was the minority opinion and holds no legal weight.
Perhaps, then again the dissent.

But that verdict did not settle any question not involved in the case. It did not settle the question of her right to plead insanity and set aside all her contracts, made during the pending of the trial, with her own citizens, for food, clothing, or medicines. The same "organized political body," exercising the sovereign power of the State, which required the indorsement of these bonds by the governor also passed the laws authorizing the disposal of them without such indorsement. She cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be "an organized political body," exercising all the powers and functions of an independent sovereign State.​
 

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"I hold that in the contemplation of universal law and of the Constitution, the union of these States is perpetual."
This one seems easy to me. Universal law = the universal law of constitutions. The Union is perpetual, based on both the concept of constitutions in general, and our Constitution in particular.

Constitutions in general; or, as the Founders knew it, John Locke's social compact theory:

Constitutions (fundamental laws), unlike treaties (e.g. the AoCs), are inherently perpetual. They remain in effect until repealed by the people who establish them, and can only be altered by those people, unless otherwise specified. Constitutions in turn establish a political society/state, and its government. Therefore, the constituted state and government are similarly perpetual, and similarly can only be altered by the sovereign people, unless/except otherwise specified (the admission of new states by Congress). Also, based on constitutions in republican states, the people who establish them, as a whole, are sovereign.

Our Constitution in particular:

Indicates quite clearly in the Preamble that it is ordained and established by "the People of the United States of America." And contains the Supremacy Clause, which bars any state from unilaterally subverting the supremacy of the Constitution. This can only be altered by the constitutional amendment process.

Can any secessionist/fan of the Southern secessions explain why the Constitution should be inherently different from other constitutions, like the state constitutions, for example?

Edited to Add: everything after the first little paragraph, sorry, I posted accidentally B4 I intended.
 
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jgoodguy

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A recent(2010) court decision regarding secession uses Texas v White as precedent just in case anyone thinks TvW has slipped into the dust bin.
SCOTT KOHLHAAS v. STATE OF ALASKA
January 15, 2010


The constitutionality of secession was “intensely debated and ․ unresolved” until the end of the Civil War.17 As President Abraham Lincoln stated in his first inaugural address, “A disruption of the Federal Union heretofore only menaced, is now formidably attempted.” 18 President Lincoln tried to persuade the country to reject threats of secession from southern states, arguing that “no State, upon its own mere motion, can lawfully get out of the Union,-that resolves and ordinances to that effect are legally void,” 19 and that “the Union of these States is perpetual.” 20 While a state's ability to secede was an unsettled question before the end of the Civil War, subsequent United States Supreme Court opinions have concluded that secession is clearly unconstitutional, and Lincoln's belief in a perpetual Union is reflected in what we have described as “a plenitude of Supreme Court cases holding as completely null” the acts of secession by Confederate states.21 In Texas v. White, an opinion issued just after the Civil War, the United States Supreme Court stated:​
The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.[[22 ]​
This is the law to which we Alaskans bound ourselves at the moment we achieved statehood. We recognized in Kohlhaas I: “When the forty-nine-star flag was first raised at Juneau, we Alaskans committed ourselves to that indestructible Union, for good or ill, in perpetuity.” 23 We concluded that because “Secession is clearly unconstitutional” 24 and “because the initiative [sought] a clearly unconstitutional end, the lieutenant governor correctly declined to certify it.” 25


 

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A recent(2010) court decision regarding secession uses Texas v White as precedent just in case anyone thinks TvW has slipped into the dust bin.
SCOTT KOHLHAAS v. STATE OF ALASKA
January 15, 2010


The constitutionality of secession was “intensely debated and ․ unresolved” until the end of the Civil War.17 As President Abraham Lincoln stated in his first inaugural address, “A disruption of the Federal Union heretofore only menaced, is now formidably attempted.” 18 President Lincoln tried to persuade the country to reject threats of secession from southern states, arguing that “no State, upon its own mere motion, can lawfully get out of the Union,-that resolves and ordinances to that effect are legally void,” 19 and that “the Union of these States is perpetual.” 20 While a state's ability to secede was an unsettled question before the end of the Civil War, subsequent United States Supreme Court opinions have concluded that secession is clearly unconstitutional, and Lincoln's belief in a perpetual Union is reflected in what we have described as “a plenitude of Supreme Court cases holding as completely null” the acts of secession by Confederate states.21 In Texas v. White, an opinion issued just after the Civil War, the United States Supreme Court stated:​
The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.[[22 ]​
This is the law to which we Alaskans bound ourselves at the moment we achieved statehood. We recognized in Kohlhaas I: “When the forty-nine-star flag was first raised at Juneau, we Alaskans committed ourselves to that indestructible Union, for good or ill, in perpetuity.” 23 We concluded that because “Secession is clearly unconstitutional” 24 and “because the initiative [sought] a clearly unconstitutional end, the lieutenant governor correctly declined to certify it.” 25


But ... but ... but ... how can that be? We've been assured by assertion with no supporting evidence that TvW didn't have anything to do with secession, yet these justices of the Supreme Court of Alaska choose to quote from it, saying it denies the constitutionality of secession. Perhaps some of our posters should send them a letter containing their unsupported opinion to correct these justices.

The decision also declares secession is "clearly unconstitutional." Yet we've been assured this can't be the case since the Constitution doesn't mention secession. Again, perhaps a letter to these justices with more unsupported opinion is needed to correct their view. After all, they're only constitutional law experts. What do they know?
 

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But ... but ... but ... how can that be? We've been assured by assertion with no supporting evidence that TvW didn't have anything to do with secession, yet these justices of the Supreme Court of Alaska choose to quote from it, saying it denies the constitutionality of secession. Perhaps some of our posters should send them a letter containing their unsupported opinion to correct these justices.

The decision also declares secession is "clearly unconstitutional." Yet we've been assured this can't be the case since the Constitution doesn't mention secession. Again, perhaps a letter to these justices with more unsupported opinion is needed to correct their view. After all, they're only constitutional law experts. What do they know?
Possibly they did not get the news, dog sled team mail delivery not all that reliable.
 
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But ... but ... but ... how can that be? We've been assured by assertion with no supporting evidence that TvW didn't have anything to do with secession, yet these justices of the Supreme Court of Alaska choose to quote from it, saying it denies the constitutionality of secession. Perhaps some of our posters should send them a letter containing their unsupported opinion to correct these justices.

The decision also declares secession is "clearly unconstitutional." Yet we've been assured this can't be the case since the Constitution doesn't mention secession. Again, perhaps a letter to these justices with more unsupported opinion is needed to correct their view. After all, they're only constitutional law experts. What do they know?
I’m not sure where to go from here. I’ve seen constitutional arguments, antebellum SC decisions, writings of the Founders, post war Supreme Court decisions, and on and on... all of which are in general agreement to the nature of the constitution and the legality, or lack thereof, of unilateral secession. I think the evidence is overwhelming. There is no constitutional right to unilateral secession.
 

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I’m not sure where to go from here. I’ve seen constitutional arguments, antebellum SC decisions, writings of the Founders, post war Supreme Court decisions, and on and on... all of which are in general agreement to the nature of the constitution and the legality, or lack thereof, of unilateral secession. I think the evidence is overwhelming. There is no constitutional right to unilateral secession.
I think if you start with the assumption it is legal, then look for any possible or impossible way to discount actual evidence. whether warranted or not, and proceed on a religious-like faith that it's legal, then you can come to the conclusion it's legal.
 

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I think if you start with the assumption it is legal, then look for any possible or impossible way to discount actual evidence. whether warranted or not, and proceed on a religious-like faith that it's legal, then you can come to the conclusion it's legal.
"Now faith is the substance of things hoped for, the evidence of things not seen." -- Hebrews 11, verse 1, KJV.
 

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All true, but back the time not so sure of a thing. At each critical point, there are many paths forward. The AOC was the ideal until it wasn't. Secession was a possibility, quasi-legal because it was a confederacy and there is only a congress of State representatives no court and no enforcement. The early Constitutional government gave the Southerners power to rule to keep them in the union. At no time was the US able to force seceding States back in the union if they were united. IMHO Jackson threat to hang traitors was mostly a bluff--if SC was united, he could not plus there was a compromise. There were numerous compromises and other concessions to the South to keep them from seceding. Perhaps there were SCOTUS decisions that could have ruled against secession, but enforcement was IMHO not there. The idea that secession was unconstitutional but force States back was also unconstitutional in seems to be the prominent idea and without the political desire to expend blood and treasure to suppress secession in the cold light of day force simply not there. Secession is a political question, not a legal one, enough political power in either direction ensures its success of failure, SCOTUS depends on the Executive to enforce its rulings. If money and men are not committed, anything can happen. Previous secession efforts failed on lack of will to do it.

The Secessionists seems to have banked on that could get out of the Union, laugh at SCOTUS and depend on the force against States is unconstitutional. Unfortunately for them, it was the wrong time. Nationalism had taken root in the North. There would be no more compromises and concessions would not suffice. As so there was a secession, for a while it appears the old cannot force States back end would succeed. SCOTUS was not on Lincoln's side and the States divided on how to proceed.

Then Sumter and secession would be decided by force of arms. It goes from a legal question to one decided by war. The rest is history.
 

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All true, but back the time not so sure of a thing. At each critical point, there are many paths forward. The AOC was the ideal until it wasn't. Secession was a possibility, quasi-legal because it was a confederacy and there is only a congress of State representatives no court and no enforcement. The early Constitutional government gave the Southerners power to rule to keep them in the union. At no time was the US able to force seceding States back in the union if they were united. IMHO Jackson threat to hang traitors was mostly a bluff--if SC was united, he could not plus there was a compromise. There were numerous compromises and other concessions to the South to keep them from seceding. Perhaps there were SCOTUS decisions that could have ruled against secession, but enforcement was IMHO not there. The idea that secession was unconstitutional but force States back was also unconstitutional in seems to be the prominent idea and without the political desire to expend blood and treasure to suppress secession in the cold light of day force simply not there. Secession is a political question, not a legal one, enough political power in either direction ensures its success of failure, SCOTUS depends on the Executive to enforce its rulings. If money and men are not committed, anything can happen. Previous secession efforts failed on lack of will to do it.

The Secessionists seems to have banked on that could get out of the Union, laugh at SCOTUS and depend on the force against States is unconstitutional. Unfortunately for them, it was the wrong time. Nationalism had taken root in the North. There would be no more compromises and concessions would not suffice. As so there was a secession, for a while it appears the old cannot force States back end would succeed. SCOTUS was not on Lincoln's side and the States divided on how to proceed.

Then Sumter and secession would be decided by force of arms. It goes from a legal question to one decided by war. The rest is history.
You are right as rain, JG. Secession was always a political question, not a legal one. Succeed in seceding and you can make it as legal as you want. Succeed in defeating secession and make it as illegal as you want. That simple. The winner makes the rules.
 
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It really did not matter if it was constitutional, because the US initially was reluctant to resolve the issue by fighting. Secession was a fact.
The expected way to resolve the issue was a growth contest. If Missouri and Maryland did not secede, the US expansion would continue, without the burden of slavery, and both sections were going to have evidence of which economic system had more strength.
 
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But the issue was not resolved by those rational arguments. The fundamental question is why did the paid labor states fight? It was rationally in their self interest to let the Confederacy go, and get rid of the burden of the enslaved population, and only buy enough cotton to sustain a limited cotton textile industry.
That question pinpoints the gaps in Lincoln's logic. The gaps were filled in by the guilty conscience of the North Eastern states, who had been complicit in the protection and enlargement of the slave economy. Guilt may be combined with youthful ambition for the financial potential of the American Empire, and combined with fear that westward expansion would be burdened not only by the remaining Indians, but also competition with the financial power of the cotton economy and its borrowing capacity.
 

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It is both. The question of whether the Constitution allows secession is a legal question because the Constitution is fundamental law.
In the abstract, yes it was a legal question. But in reality, it was exclusively political. The seceders never had any intention of testing their case in a legal proceeding. They hoped they could bypass all that. They decided instead to test the mettle of the north. They grossly underestimated their northern brethren's willingness to fight for the Union.
 

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In the abstract, yes it was a legal question. But in reality, it was exclusively political. The seceders never had any intention of testing their case in a legal proceeding. They hoped they could bypass all that. They decided instead to test the mettle of the north. They grossly underestimated their northern brethren's willingness to fight for the Union.
As the Supreme Court's docket after the war shows us, it was very much a legal question, because its legality or illegality affected numerous other legal issues.
 
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