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Post War Supreme Court of the US decisions regarding the non constitionality of secession

Discussion in 'Civil War History - Secession and Politics' started by jgoodguy, Jul 31, 2015.

  1. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Last edited: Jan 20, 2016

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  3. NedBaldwin

    NedBaldwin Captain

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    At a certain point, cases just become derivative of these initial ones. You used Justia as the link for 4 of the 5, any reason why not for TvW as well? Also, have you considered ordering them by date?

    Edits:
    1. Thank you for the hat tip
    2. I had the date of Hickman v Jones wrong in my post
     
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  4. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Tired eyes for the Justia issue. I'll make it consistent.
    Date is a good idea.
    Lets try to get the big ones, extras better than missing some. I hope to get at least one post per case also.
     
  5. NedBaldwin

    NedBaldwin Captain

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    I know you dont want opinion, but I sill want to comment on the organization and presentation of case in this thread:

    1) I think including SCOTUS decisions during the war might be beneficial -- for example I think the Prize Cases are important precedent.

    2) I think there is a curious distinction between cases that try to explain the issue (TvW for example) and ones that just make a judgement without explanation -- such as White v Cannon which states that ordinance of secession was "absolute nullity" but doesnt say why (and whats with all the cases that involve 'White'?).
     
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  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    1. I expect to start threads on pre Civil War, during the Civil War and State cases later.
    2. That is the purpose of posts about the cases-to discuss those types of issues.
    3. This is more lay person than professional academic in its anticipated audience and execution.
     
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  7. NedBaldwin

    NedBaldwin Captain

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    Explanation appreciated. If you want to keep this thread focused, I dont mind if you delete this sequence of posts.
     
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  8. NedBaldwin

    NedBaldwin Captain

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    • White v Cannon, 1867: "That ordinance [of secession] was an absolute nullity, and of itself alone, neither affected the jurisdiction of that court or its relation to the appellate power of this Court." No further explanation.
     
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  9. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Mauran v. Insurance Company - Wikisource,

    Mauran v. Insurance Company, 6 Wallace, 14. (1867-8.)
    from free ebook War Powers Under the Constitution of the United States:

     
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  10. NedBaldwin

    NedBaldwin Captain

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    White v Hart

    This case came later than the others. However it is notable for the language used in explaining secession/rebellion, and especially in the use of the 't' word:

    'The national Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of states, but a government of individuals. It assumed that the government and the Union which it created, and the states which were incorporated into the Union, would be indestructible and perpetual, and as far as human means could accomplish such a work, it intended to make them so. The government of the nation and the government of the states are each alike absolute and independent of each other in their respective spheres of action, but the former is as much a part of the government of the people of each state, and as much entitled to their allegiance and obedience as their own local state governments -- "the Constitution of the United States and the laws made in pursuance thereof," being in all cases where they apply, the supreme law of the land. For all the purposes of the national government, the people of the United States are an integral, and not a composite mass, and their unity and identity, in this view of the subject, are not affected by their segregation by state lines for the purposes of state government and local administration. Considered in this connection, the states are organisms for the performance of their appropriate functions in the vital system of the larger polity, of which, in this aspect of the subject, they form a part, and which would perish if they were all stricken from existence or ceased to perform their allotted work. The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character.' In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the state to which it belongs. In such cases, the state has inherently the right to use all the means necessary to put down the resistance to its authority and restore peace, order and obedience to law.'
     
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  11. NedBaldwin

    NedBaldwin Captain

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    Williams v Bruffy, though coming even later (1877), might be a good one to include due to its language about legal vs 'de facto' existence and also about how the outcome affects legality.
     
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  12. DanF

    DanF Captain

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    Lamar v. Micou, the Court ruled, "The so-called Confederate government was in no sense a lawful government, but was a mere government of force, having its origin and foundation in rebellion against the United States." [112 US 452. 476]
     
  13. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    List updated to reflect this.
     
  14. Rebforever

    Rebforever Captain

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    What law did they base their decision on? Not interjected into opinions, now! :sneaky:
     
  15. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    United States Law, the post war SCOTUS decisions were based on US law and antebellum court decisions. Had the CSA won, any post war SCOTUS decisions would be based on any treaty ending the war granting the CSA independence.
     
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  16. KeyserSoze

    KeyserSoze Captain

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    Virginia v. West Virginia (78 US 39)

    In this 1871 decision the Supreme Court ruled on a governor's discretion regarding elections, but where it pertains to the legality of the Southern secession is that in hearing the case the Supreme Court tacitly ruled that the creation of West Virginia was constitutional, and therefore the loyal Virginia legislature recognized by Congress was legitimate and their ability to authorize the partition of Virginia was legal.
     
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  17. BillO

    BillO Captain

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    Post war doesn't really mean much does it. Let's the winners say " told you so".
     
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  18. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Except that Post War jruisprudence was a continence of 70 years of jurisprudence. By winning the war, that jurisprudence continued unabated. The competing CSA jurisprudence was not that much-maybe 4 years. That is more than a simplistic " told you so".
     
    Last edited: Jul 31, 2017
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  19. SWMODave

    SWMODave Corporal

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    Not sure if this is applicable or not to what you are looking for jgg but the implication is there

    https://supreme.justia.com/cases/federal/us/83/147/case.html

    Carlisle v US
    MR. JUSTICE FIELD delivered the opinion of the Court.

    The circumstances attending the manufacture and sale of the saltpeter, as disclosed in the findings of the court, plainly show that the claimants knew that the saltpeter was to be used by the Confederates in the manufacture of gunpowder for the prosecution of the war of the rebellion, and there is little doubt that the sale was made in order to aid the Confederates in accomplishing their treasonable purposes.
    .......
    There has been some difference of opinion among the members of the Court as to cases covered by the pardon of the President, but there has been none as to the effect and operation of a pardon in cases where it applies. All have agreed that the pardon not merely releases the offender from the punishment prescribed for the offense, but that it obliterates in legal contemplation the offense itself.
    ........
    By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.
     
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  20. wausaubob

    wausaubob 2nd Lieutenant

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    I was reading Gary Gallagher's book on The Union War. He stated that approximately 1833 marks the end of the experimental era of the United States. pp.46-47. At that point a Civil War due to secession was possible, because Unionist sentiment meant that a state would have to fight its way out. These cases just confirm that the perpetual language had always been there. The only thing that was lacking was the unyielding will to enforce those words.
     
  21. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    It can be argued that before the 1850s and the advent of nationalism(Union sentiment) in the North, steam powered transportation and telegraph, secession would have had a great chance of success.
     

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