Gaps and assumptions in logic: Lincoln and Secessionist

GwilymT

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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.
I have to agree. Perhaps they could have submitted to the rule of law and attempted their separation in a legal manner, but they chose no to.
 

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Popular sovereignty conducted on a national scale would have led to highly likely dominance of the paid labor economy.
The southern states were burdened by disease problems and poverty among the enslaved working class that were not subject to immediate solutions.
 
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If facts are substituted for rhetoric, the facts were that the Caribbean slaves had already demonstrated that they did not accept their enslaved condition. Nor did US slaves in the border states accept their condition. In large areas of the deep south, a critical mass necessary for a mass uprising was developing. The secessionists could fill in any gap in their reasoning with fear.
Outside of those deep south areas, with the exception of central Virginia, that resort to fear was not as compelling. There are basic reasons why secession followed the % of the population enslaved. Kentucky is the exception to that rule. Kentuckians had economic fears that balanced out their fears of the enslaved.
 

jgoodguy

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It is both. The question of whether the Constitution allows secession is a legal question because the Constitution is a fundamental law.
Both Luthern v Borden and Texas v White suggest that what governments States are allowed to have is a political question, not a legal one. Texas v White says that secession is decided by "consent of the States." a political not legal entity. Under the current Constitution, secession is outside of the law because it is not covered by the fundamentals law of the Constitution. Deciding if a 'secession' is a rebellion of insurrection will be decided by the president. Rebellion and insurrection are forbidden under the Constitution so that exit is up to the political arms of the US government to resolve. Any challenge will be resolved, by SCOTUS like in the Prize Cases.
 

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Both Luthern v Borden and Texas v White suggest that what governments States are allowed to have is a political question, not a legal one. Texas v White says that secession is decided by "consent of the States." a political not legal entity. Under the current Constitution, secession is outside of the law because it is not covered by the fundamentals law of the Constitution. Deciding if a 'secession' is a rebellion of insurrection will be decided by the president. Rebellion and insurrection are forbidden under the Constitution so that exit is up to the political arms of the US government to resolve. Any challenge will be resolved, by SCOTUS like in the Prize Cases.
I repeat, as the Court records and dockets show clearly, the legality or illegality of secession was a major legal issue that needed to be determined to solve a variety of cases that arose after the war.
 

jgoodguy

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Let's take a look at what happened in 1861.

Sumter
Lincoln declares a rebellion and takes action a political decision.
Congress goes into special secession and confirms another political decision.
2 years later SCOTUS by a single vote affirms yep it is a rebellion finally the legal catches up with the political.

I see no reason that the future is any different, the political arms will make a decision and SCOTUS will affirm it.
 

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Let's take a look at what happened in 1861.

Sumter
Lincoln declares a rebellion and takes action a political decision.
Congress goes into special secession and confirms another political decision.
2 years later SCOTUS by a single vote affirms yep it is a rebellion finally the legal catches up with the political.

I see no reason that the future is any different, the political arms will make a decision and SCOTUS will affirm it.
That assumes a great deal.

More likely, considering previous case law, the Prize Cases ruling was correct regarding the law, and then after the war the case law followed precedent.
 
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Amazingly (unbelievably, really), it is still being argued that Texas v White adjudicated the constitutionality of secession. And to make matters worse, now the same empty claims are being made about the Prize cases. So to be clear, the constitutionality of secession has never, not once, not ever, been adjudicated by the Supreme Court. Now then, insofar as Texas is concerned, and in addition to both Chase and Grier explicitly repudiating the ridiculous and utterly false idea that the constitutionality of secession was before the Court, here is how Cornell's LII Oyez Project characterized the issue before the Court in Texas:


Question
  1. Was Texas eligible to seek redress in the Supreme Court?
  2. Could Texas constitutionally reclaim the bonds?


Anyone see anything about the constitutional right of secession there? Just shout it right out if you do.

And this is how the same Cornell LII Oyez Project characterizes the question before the Court in the Prize cases


Question

Did Lincoln act within his presidential powers defined by Article II when he ordered the seizures absent a declaration of war?


One again, feel free to shout it right out if you see the constitutional right of secession as before the Court.


And what makes the agitprop and obiter dictum in Texas so dishonest, odious, and despicable, is that a mere two years earlier, Chase did have the issue of secession squarely and directly in front of him in the person of President Jefferson Davis. Yes, President Jefferson Davis, the traitor, the man responsible for 350,000 dead union boys, hundreds of thousands of casualties, millions upon millions in property damage, broken and destroyed families, ruined lives, and the man they were going to gleefully hang from a sour apple tree. He was right in front of Chase. Squarely and directly in front of him for two full years. What's more, secession is so clearly, palpably, plainly, obviously, and apodictically, traitorous and illegal. Secession screams "treason and unconstitutional" from each and every provision of the United States Constitution. Surely, surely, the United States could give Davis a fair trial and convict him. Surely.

But no. After imprisoning President Davis for two years, he was released and never brought to trial. Never prosecuted. Never found guilty. President Jefferson Davis went free. So much for the illegality of secession.
 

jgoodguy

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That assumes a great deal.

More likely, considering previous case law, the Prize Cases ruling was correct regarding the law, and then after the war the case law followed precedent.
We are concerned with the cusp of secession, in 1861 the political arms decided it was not a secession and proceeded to treat it as a rebellion.
 

jgoodguy

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Note that the prize cases did not adjudicate secession, only if there was a rebellion and war. It was Lincoln, a political actor, and Congress, political actors that chose between rebellion and secession.
Prize Cases

The question before the court dealt with the seized ships, but it reached widely into the legality of wars against acts of belligerence, whether or not officially declared.​
In making its decision, the Court looked to recent British interpretations of international law, and concluded that the Southern Confederacy was indeed a belligerent, but a belligerent did not have to be a nation and furthermore that the name of the war was irrelevant. Justice Robert Grier wrote the 5-4 majority opinion stating, "...it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States."​
 

jgoodguy

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And in 1861 there were people who were asserting secession was a legal issue and defended their legal position with arms.
And muffed any chances they had.

The war was not about secession but if violence can be used to force States back into the Union.
 
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jgoodguy

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Let's summarize. Lincoln used stock standard nationalistic rhetoric, decades old. The nationalistic political philosophy goes back to the founding of the Constitutional Republic. There were other competing political philosophies, but the nationalistic won. There are no gaps or assumptions only folks unhappy with Lincoln.
 
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Secession may be an issue in a legal case. But the territorial integrity of the United States in the face of opposition requires a response by the executive and the legislative branches.
 
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https://founders.archives.gov/documents/Madison/99-02-02-2655


Madison is a smart guy... and was key in creating the constitution. See link for his thoughts.

I’m clearly not as bright but I understand his writing to basically say he views the constitution as a contract between the states. You are bound to the language and requirements on the contract until all parties agree that it can be ended. In other words... the southern rebel states had rights... but so did the states who remained loyal. By Madison’s logic I suppose if you got the other states to agree to you leaving... then you could leave. I think this makes sense because one states right to secede can not supersede anothe rstates right to whatever guarantees or rules or requirements made in this contract- our constitution.
 
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