Looking back on the whole bloody mess, I truly believe that it was completely pointless EXCEPT as a maneuver to obliterate southern independence.

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
Where about is it in the Constitution?
The court is saying that secession, as done by the southern rebels, is not in the constitution. Which is the supreme law of the land. Therefore all the secession acts that were passed by the states were “null” and were “utterly without operation in law”.

In other words the acts of secession were akin to a group of people in my neighborhood getting together and voting to make our neighborhood an independent country.
 

Rebforever

Lt. Colonel
Joined
Oct 26, 2012
The court is saying that secession, as done by the southern rebels, is not in the constitution. Which is the supreme law of the land. Therefore all the secession acts that were passed by the states were “null” and were “utterly without operation in law”.

In other words the acts of secession were akin to a group of people in my neighborhood getting together and voting to make our neighborhood an independent country.
The Constitution don’t have secession in it then what happens? It is left to the people per the tenth amendment.
 

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
Do it before 1860.
Ok, I’ll be your huckleberry.

Obviously a court, even the Supreme Court, cannot rule on an issue until it comes before it. No cases involving secession came before the court until Texas v White. However, we can look at Supreme Court cases that ruled on the nature of the constitution to determine if secession, as implemented by the southern rebels, was constitutional. Luckily for us there were several such cases prior to the 1860s.

"The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States." Joseph Story Martin v Hunter 1821

Here we see the court explaining that the states did not establish the constitution, the people did.

“The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it." Chief Justice John Marshall Cohens v Virginia 1821

Here the court once again proclaims that the people made the constitution. It goes on to say that only the people can unmake it. Specifically the whole body of the people, no subset. Such as the subset of the people of one or several states.

Here is a thread I started awhile ago to post Supreme Court cases for and against secession. It didn’t get much replies. I was very disappointed that there were absolutely no postings of cases that supported unilateral secession. Perhaps you could add a few and start the discussion going again on that thread.

https://civilwartalk.com/threads/supreme-court-cases-for-and-against-secession.170214/#post-2215188
 

Potomac Pride

Sergeant Major
Joined
Oct 28, 2011
Location
Georgia
Ok, I’ll be your huckleberry.

Obviously a court, even the Supreme Court, cannot rule on an issue until it comes before it. No cases involving secession came before the court until Texas v White. However, we can look at Supreme Court cases that ruled on the nature of the constitution to determine if secession, as implemented by the southern rebels, was constitutional. Luckily for us there were several such cases prior to the 1860s.

"The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States." Joseph Story Martin v Hunter 1821

Here we see the court explaining that the states did not establish the constitution, the people did.

“The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it." Chief Justice John Marshall Cohens v Virginia 1821

Here the court once again proclaims that the people made the constitution. It goes on to say that only the people can unmake it. Specifically the whole body of the people, no subset. Such as the subset of the people of one or several states.

Here is a thread I started awhile ago to post Supreme Court cases for and against secession. It didn’t get much replies. I was very disappointed that there were absolutely no postings of cases that supported unilateral secession. Perhaps you could add a few and start the discussion going again on that thread.

https://civilwartalk.com/threads/supreme-court-cases-for-and-against-secession.170214/#post-2215188
Unfortunately, when the Constitution was written the issue of secession was not addressed. However, at the Constitutional Convention, a proposal was made that would have allowed the federal government to suppress a seceding state. James Madison rejected it, saying: “A union of the 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.” In early 1861 shortly before Lincoln’s inauguration, Sen. James R. Doolittle of Wisconsin proposed a constitutional amendment that read, “No state or any part thereof, heretofore admitted or hereafter admitted into the union, shall have the power to withdraw from the jurisdiction of the United States.” Some historians have pointed out that proposing such an amendment wouldn’t have been necessary if secession was already unconstitutional. The issue of secession was really an unsettled matter before the Civil War. The late Forrest McDonald was a Professor Emeritus of History and one of the foremost constitutional experts of the 20th​ century. He argued that after adopting the Constitution "there were no guidelines, either in theory or in history, as to whether the compact could be dissolved and, if so, on what conditions". However, during "the founding era, many a public figure . . . declared that the states could interpose their powers between their citizens and the power of the federal government, and talk of secession was not unknown".
 

BuckeyeWarrior

Sergeant
Joined
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Location
Ohio
Unfortunately, when the Constitution was written the issue of secession was not addressed. However, at the Constitutional Convention, a proposal was made that would have allowed the federal government to suppress a seceding state. James Madison rejected it, saying: “A union of the 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.” In early 1861 shortly before Lincoln’s inauguration, Sen. James R. Doolittle of Wisconsin proposed a constitutional amendment that read, “No state or any part thereof, heretofore admitted or hereafter admitted into the union, shall have the power to withdraw from the jurisdiction of the United States.” Some historians have pointed out that proposing such an amendment wouldn’t have been necessary if secession was already unconstitutional. The issue of secession was really an unsettled matter before the Civil War. The late Forrest McDonald was a Professor Emeritus of History and one of the foremost constitutional experts of the 20th​ century. He argued that after adopting the Constitution "there were no guidelines, either in theory or in history, as to whether the compact could be dissolved and, if so, on what conditions". However, during "the founding era, many a public figure . . . declared that the states could interpose their powers between their citizens and the power of the federal government, and talk of secession was not unknown".
It appears that Forrest McDonald didn’t read the two Supreme Court cases I quoted in my previous post. This cases, and several others, settle the question of secession many years before the civil war. At least uni-lateral secession as practiced by the southern rebels.
 

Belfoured

2nd Lieutenant
Joined
Aug 3, 2019
It appears that Forrest McDonald didn’t read the two Supreme Court cases I quoted in my previous post. This cases, and several others, settle the question of secession many years before the civil war. At least uni-lateral secession as practiced by the southern rebels.
I've read a lot of posters here going after historians as "p.c." or as pushing an agenda of some sort - that's easy when those historians make a point the posters don't "agree" with. I doubt the same applies across the board.

I'll give McDonald points for being honest, based on sourced quotes at his Wikipedia entry - "McDonald described himself simply as a "conservative." When the interviewer followed up by asking, "How conservative?" McDonald responded, "Paleo." He stated in 2011, "I am an unreconstructed Hamiltonian Federalist, and out of my admiration for Alexander Hamilton I have long been disposed to believe the worst about Thomas Jefferson." But it's probably not a good idea to just swallow his interpretation without a nice dose of skepticism.
 

Potomac Pride

Sergeant Major
Joined
Oct 28, 2011
Location
Georgia
It appears that Forrest McDonald didn’t read the two Supreme Court cases I quoted in my previous post. This cases, and several others, settle the question of secession many years before the civil war. At least uni-lateral secession as practiced by the southern rebels.
Thanks for your comments but the two legal cases that you referred to in your previous post do not actually discuss the issue of secession. The act of secession was not addressed until after the war as part of the Texas vs. White case in which it was declared to be illegal. The issue of secession was really a gray area before the war. In 2010, Supreme Court Justice Antonin Scalia wrote in a letter that “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” The Civil War really decided the issue of secession as Justice Scalia mentioned in his letter.
 

BuckeyeWarrior

Sergeant
Joined
Jan 1, 2020
Location
Ohio
Thanks for your comments but the two legal cases that you referred to in your previous post do not actually discuss the issue of secession. The act of secession was not addressed until after the war as part of the Texas vs. White case in which it was declared to be illegal. The issue of secession was really a gray area before the war. In 2010, Supreme Court Justice Antonin Scalia wrote in a letter that “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” The Civil War really decided the issue of secession as Justice Scalia mentioned in his letter.
Of course the court could not address secession until a case involving secession came before it. However, this does not mean the issue was a grey area. We can look at decisions made by the Supreme Court about the nature and meaning of the constitution to discern how the court would have ruled on secession before the war.

The quotes from the cases I posted clearly show that uni-lateral secession as done by the southern rebels was unconstitutional.
 

Potomac Pride

Sergeant Major
Joined
Oct 28, 2011
Location
Georgia
Of course the court could not address secession until a case involving secession came before it. However, this does not mean the issue was a grey area. We can look at decisions made by the Supreme Court about the nature and meaning of the constitution to discern how the court would have ruled on secession before the war.

The quotes from the cases I posted clearly show that uni-lateral secession as done by the southern rebels was unconstitutional.
Thanks for your opinion and have a good evening.
 

NedBaldwin

Major
Joined
Feb 19, 2011
Location
California
...at the Constitutional Convention, a proposal was made that would have allowed the federal government to suppress a seceding state...
Which led to a distinction, endorsed by Madison, that the new federal government would not have the power to coerce a state but did have the power to use force against individuals who were obstructing or resisting US law. And so it was that when South Carolina passed illegal laws, like an ordinance of secession, the federal government did nothing (an illegal law is just a nullity anyway) but when individuals in south carolina attacked us property and us forces, the federal government was empowered to act.

In early 1861 shortly before Lincoln’s inauguration, Sen. James R. Doolittle of Wisconsin proposed a constitutional amendment that read, “No state or any part thereof, heretofore admitted or hereafter admitted into the union, shall have the power to withdraw from the jurisdiction of the United States.”
If one is interested in facts, the Doolittle resolution (which was proposed but rejected as a clause to the Corwin amendment) actually started with "Under this Constitution, as originally adopted and as it now exists, no State ..." etc, so it was simply Doolittle trying to get other Congress-critters to vote on what was already the case. His fellows rejected it anyway so the real meaning was that Congress didnt think it was needed.
 

Jantzen64

Private
Joined
Aug 10, 2019
Thanks for your comments but the two legal cases that you referred to in your previous post do not actually discuss the issue of secession. The act of secession was not addressed until after the war as part of the Texas vs. White case in which it was declared to be illegal. The issue of secession was really a gray area before the war. In 2010, Supreme Court Justice Antonin Scalia wrote in a letter that “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” The Civil War really decided the issue of secession as Justice Scalia mentioned in his letter.
Technically, you're right that those two cases did not address the specific issue of secession. But that does not mean that they cannot or do not inform the discussion on this topic. What we are discussing is the nature of the "compact" by which citizens, working through their respective states, surrendered some of their sovereignty to the federal government. That issue IS addressed in the cases cited by BuckeyeWarrior and characterize the union as perpetual and as a compact of the whole. Supreme Court jurisprudence relies upon precedent from the common law and "legislative" history - in addition to the literal words of the Constitution in order to render decision. So, even though Texas v. White was not decided until after the war, we are not left in some type of "Schroedinger's cat" scenario where secession is both constitutional and unconstitutional until that decision was rendered. We can and should look to the history prior to the secession crisis to see how leading authorities and the majority of the country vieed the issue.

NedBaldwin in post # 1,095 provided some important context on both Madison and Doolittle; but there's more. In Madison's letter to Hamilton discussing the amendments, he explained the "all-in" and perpetual nature of the intended Union:

"My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States." (Letter to Hamilton, July 1788).

And, in post ratification correspondence to Trist (1830), and again to Trist (1832), and to Rives (1833), and to Daniel Webster (1833), Madison repeated, in various phraseologies that unilateral secession was unconstitutional:

" A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it."

(NOTE that the "abuse of the compact" language he uses refers to the natural right of revolution, not a legal means of withdrawal, as particularly explained in the letter to Webster). Coming from one of the two primary architects of the Constitution, this is powerful evidence against a unilateral right of secession.

Also, note how the the threat of some New England secessionists in 1813 was largely derided by the country to the point that the Hartford Convention backed off from making that threat. And, of course, in 1833, Congress enacted the Force Bill as the "stick" to go along with the "carrot" of the compromise tariff to end the Nullification Crisis. Interestingly, that dispute was about tariffs, not slavery. When that was the issue, the clear majority of the country agreed that it was not constitutional for a state to unilaterally defy duly enacted federal legislation.

Ultimately, the fact that the Constitution does not expressly forbid secession (athough note the Supremacy Clause and the prohbition on states entering compacts with other states) - which I understand is the principle argument made in this chain, relying on the 10th Amendment - does not answer the question because it fails to address the nature of the government created by the Constitution. Recall that under Article IV, the federal government was to gurantee to every State in the Union a Republican form of Government - republicanism (little "R" here) has no meaning if the minority can just decide on its own to not abide by the decisions of the majority.
 
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Potomac Pride

Sergeant Major
Joined
Oct 28, 2011
Location
Georgia
Technically, you're right that those two cases did not address the specific issue of secession. But that does not mean that they cannot or do not inform the discussion on this topic. What we are discussing is the nature of the "compact" by which citizens, working through their respective states, surrendered some of their sovereignty to the federal government. That issue IS addressed in the cases cited by BuckeyeWarrior and characterize the union as perpetual and as a compact of the whole. Supreme Court jurisprudence relies upon precedent from the common law and "legislative" history - in addition to the literal words of the Constitution in order to render decision. So, even though Texas v. White was not decided until after the war, we are not left in some type of "Schroedinger's cat" scenario where secession is both constitutional and unconstitutional until that decision was rendered. We can and should look to the history prior to the secession crisis to see how leading authorities and the majority of the country vieed the issue.

NedBaldwin in post # 1,095 provided some important context on both Madison and Doolittle; but there's more. In Madison's letter to Hamilton discussing the amendments, he explained the "all-in" and perpetual nature of the intended Union:

"My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States." (Letter to Hamilton, July 1788).

And, in post ratification correspondence to Trist (1830), and again to Trist (1832), and to Rives (1833), and to Daniel Webster (1833), Madison repeated, in various phraseologies that unilateral secession was unconstitutional:

" A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it."

(NOTE that the "abuse of the compact" language he uses refers to the natural right of revolution, not a legal means of withdrawal, as particularly explained in the letter to Webster). Coming from one of the two primary architects of the Constitution, this is powerful evidence against a unilateral right of secession.

Also, note how the the threat of some New England secessionists in 1813 was largely derided by the country to the point that the Hartford Convention backed off from making that threat. And, of course, in 1833, Congress enacted the Force Bill as the "stick" to go along with the "carrot" of the compromise tariff to end the Nullification Crisis. Interestingly, that dispute was about tariffs, not slavery. When that was the issue, the clear majority of the country agreed that it was not constitutional for a state to unilaterally defy duly enacted federal legislation.

Ultimately, the fact that the Constitution does not expressly forbid secession (athough note the Supremacy Clause and the prohbition on states entering compacts with other states) - which I understand is the principle argument made in this chain, relying on the 10th Amendment - does not answer the question because it fails to address the nature of the government created by the Constitution. Recall that under Article IV, the federal government was to gurantee to every State in the Union a Republican form of Government - republicanism (little "R" here) has no meaning if the minority can just decide on its own to not abide by the decisions of the majority.
Thank you for your comments. As I mentioned previously, one thing that the Civil War resolved according to the late Justice Scalia was that the states did not have the right to secede.
 
Mauran v Insurance and Hickman v Jones were both 2 years before Texas v White
Hickman v. Jones, 76 U.S. 197 (1869)

Justice Swayne gave the opinion of the court (excerpt):

"The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the state to which it belonged. The proportions and duration of the struggle did not affect its character. Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts. It was not recognized by the national nor by any foreign government. It was not at any time in possession of the capital of the nation. It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states. The union of the states, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the states themselves, and nothing but revolutionary violence can in either case destroy the ties which hold the parts together. For the sake of humanity, certain belligerent rights were conceded to the insurgents in arms. But the recognition did not extend to the pretended government of the Confederacy. The intercourse was confined to its military authorities. In no instance was there intercourse otherwise than of this character. The rebellion was simply an armed resistance to the rightful authority of the sovereign."

Edited to add "(excerpt)"
 
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NedBaldwin

Major
Joined
Feb 19, 2011
Location
California
Hickman v. Jones, 76 U.S. 197 (1869)

Justice Swayne gave the opinion of the court:

"The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the state to which it belonged. The proportions and duration of the struggle did not affect its character. Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts. It was not recognized by the national nor by any foreign government. It was not at any time in possession of the capital of the nation. It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states. The union of the states, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the states themselves, and nothing but revolutionary violence can in either case destroy the ties which hold the parts together. For the sake of humanity, certain belligerent rights were conceded to the insurgents in arms. But the recognition did not extend to the pretended government of the Confederacy. The intercourse was confined to its military authorities. In no instance was there intercourse otherwise than of this character. The rebellion was simply an armed resistance to the rightful authority of the sovereign."
I guess I’m mistaken that it was years earlier than T v W
Any idea which one was ruled on first?
 
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