State Sovereignty Question

jgoodguy

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I am not a constitutional scholar nor are my Pro Confederate friends. It would appear that it would take a constitutional amendment to allow one or more states to secede from the United States the alternative being of course trial by combat.
To truly answer your question at least a majority of the population of a state would have to attempt to secede and then the Supreme Court would have to make the final decision on the legality of Secession and or just declare the matter was decided by Texas v. White.
Leftyhunter
IMHO secession is a political issue to be decided by Congress or an assembly of States. A president seems to have the power to declare the secession an insurrection or rebellion confirmed or denied by the Supreme Court and or Congress.
 

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jgoodguy

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A point I make to my Pro Confederate friends when I ask them if Secession is legal why didn't the secessionists appeal to the federal courts for protection. So far they are unable to answer that question but hope springs eternal.
Leftyhunter
The short answer IMHO is that the secessionists were in a hurry to get out of Union before someone(s) said hey wait a minute so legal niceties were not on the agenda. There is nothing realpolitik wrong with that, when the fate of nations, cultures, and civilizations are at stake legal niceties are not going to hold things up. It is unique to argue after the fact about legal niceties.
 
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The short answer IMHO is that the secessionists were in a hurry to get out of Union before someone(s) said hey wait a minute so legal niceties were not on the agenda. There is nothing realpolitik wrong with that, when the fate of nations, cultures, and civilizations are at stake legal niceties are not going to hold things up. It is unique to argue after the fact about legal niceties.
I would argue the secessionists were well aware that Secession was illegal but decided that trial by combat was the only way to secede. True that they needed to strike first and hope the could demoralize the Unionists so that Secession would an accomplished fact.
It is not unreasonable that the secessionists were aware that Chief Justice Tan was against Secession and any legal argument in favor of Secession would eventually loose.
Leftyhunter
 
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The argument is of the form of secession is not illegal therefore legal/permissible. US law being that not illegal is permissible is the framework for that. However there are problems with that, permissible is not the same as legal, because a legal activity has protections-for example putting a CBF in a window is legal because of first amendment protections, without that protection, a law enforcement or code enforcement officer could cite the owner of the window and order it removed. Secession has no protections. It is outside of the law. In the case of the 1860-61 secession, the secessionists performed illegal actions that had the color of insurrection or rebellion. When Lincoln dropped the hammer, the secessionists had no legal recourse. Had secession been constitutional, there would have been procedures in place to handle things like asset transfer before the fact.
An alternative scenario is that another nation can quite legally extend diplomatic recognition to a seceded state . The United States and other nations have done the same in other Civil conflicts. The caveat of course is said nation willing to use force to protect their commerce with a seceded state?
Leftyhunter
 

WJC

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The short answer IMHO is that the secessionists were in a hurry to get out of Union before someone(s) said hey wait a minute so legal niceties were not on the agenda. There is nothing realpolitik wrong with that, when the fate of nations, cultures, and civilizations are at stake legal niceties are not going to hold things up. It is unique to argue after the fact about legal niceties.
Additionally, suggesting that a SCOTUS opinion would have settled the crisis reflects a certain amount of presentism. We have grown accustomed to respecting SCOTUS decisions and considering them the 'final word' on any issue. This was certainly not the case in 1860/61 when no one respected the Supreme Court after what was viewed as a politicized and illogical ruling in Dred Scott v Sandford.
 

WJC

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An alternative scenario is that another nation can quite legally extend diplomatic recognition to a seceded state . The United States and other nations have done the same in other Civil conflicts. The caveat of course is said nation willing to use force to protect their commerce with a seceded state?
Leftyhunter
Actually, I doubt that it would have been necessary, at least not before Fort Sumter fell, for a foreign nation to intervene with military force. There was a period, it seems to me, when recognition by Britain or France might have guaranteed a peaceful secession. However, neither government was ready to commit to recognition at that point.
An interesting 'What if?' thread might be "What if Britain had recognized the secessionist government during the Buchanan Administration?"
 
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Until someone points out to me that the constitution doesn’t specifically say that selling drugs is illegal, I will hold that I am completely within my constitutional rights to sell drugs.

Of course such a statement is absurd. Sections of the constitution clearly give both the Federal Government and States the ability to restrict such activities. Just because the Constitution doesn’t specifically forbid me, or a corporation, or a state, from doing something it does not follow that the Constitution allows such an action. The same applies to the notion of complete state sovereignty leading to a right to secession. It’s an absurd argument.

It is of notice that the seceding states, at the time of secession, weren’t appealing to a constitutional right of secession. They were arguing that the constitution was void and they were appealing to a natural right. If they thought that secession was a constitutional right, it follows that they would work within the constitution and the government to accomplish secession.
 

jgoodguy

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Additionally, suggesting that a SCOTUS opinion would have settled the crisis reflects a certain amount of presentism. We have grown accustomed to respecting SCOTUS decisions and considering them the 'final word' on any issue. This was certainly not the case in 1860/61 when no one respected the Supreme Court after what was viewed as a politicized and illogical ruling in Dred Scott v Sandford.
I agree. The problem is responding to the assertions in the present .
 

jgoodguy

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Until someone points out to me that the constitution doesn’t specifically say that selling drugs is illegal, I will hold that I am completely within my constitutional rights to sell drugs.

Of course such a statement is absurd. Sections of the constitution clearly give both the Federal Government and States the ability to restrict such activities. Just because the Constitution doesn’t specifically forbid me, or a corporation, or a state, from doing something it does not follow that the Constitution allows such an action. The same applies to the notion of complete state sovereignty leading to a right to secession. It’s an absurd argument.

It is of notice that the seceding states, at the time of secession, weren’t appealing to a constitutional right of secession. They were arguing that the constitution was void and they were appealing to a natural right. If they thought that secession was a constitutional right, it follows that they would work within the constitution and the government to accomplish secession.
Good points. The arguments I have seen in the antebellum period promoting the compact theory the ultimate ideological basis for secession are natural rights arguments, not constitutional ones. The best constitutional argument for secession is that if a State that forms a nonrepublican State government, it is out of the Union. However, the Luther v Borden court case closed that off by ruling that the Federal government gets to recognize which State's government is Constitutional. We see this in Civil War Virginia when the Union recognizes a group of Unionists as the legitimate government of VA
 

jgoodguy

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I would argue the secessionists were well aware that Secession was illegal but decided that trial by combat was the only way to secede. True that they needed to strike first and hope the could demoralize the Unionists so that Secession would an accomplished fact.
It is not unreasonable that the secessionists were aware that Chief Justice Tan was against Secession and any legal argument in favor of Secession would eventually loose.
Leftyhunter
I would argue against that. The secessionists figured they were independent with all the attributes of independence including defending their turf. Generations of Southern political theorists had argued the Union was a compact, not a consolidated union.
 
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I would argue against that. The secessionists figured they were independent with all the attributes of independence including defending their turf. Generations of Southern political theorists had argued the Union was a compact, not a consolidated union.
And they were quite wrong.
Leftyhunter
 
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Additionally, suggesting that a SCOTUS opinion would have settled the crisis reflects a certain amount of presentism. We have grown accustomed to respecting SCOTUS decisions and considering them the 'final word' on any issue. This was certainly not the case in 1860/61 when no one respected the Supreme Court after what was viewed as a politicized and illogical ruling in Dred Scott v Sandford.
A Supreme Court decision affirming the right of Secession may very well of settled the issue of Secession. We will never know and Taney' s unpublished opinion on the legality of Secession makes the possibility of a favorable decision on Secession remote.
It takes a strong centralized government to enforce an unpopular Supreme Court decision.
Leftyhunter
 

jgoodguy

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A Supreme Court decision affirming the right of Secession may very well of settled the issue of Secession. We will never know and Taney' s unpublished opinion on the legality of Secession makes the possibility of a favorable decision on Secession remote.
It takes a strong centralized government to enforce an unpopular Supreme Court decision.
Leftyhunter
It takes a strong centralized government to suppress a determined rebellion. Roll the Taney SCOTUS dice and you may get secession is not Constitutional, but there is no Constitutional way to force the States back into the Union. IMHO that was true until Davis opened fire and hot war gave Lincoln the opportunity to declare the secessionists were insurrectionists in rebellion. The war officially was against rebels and not States.
 
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Actually, I doubt that it would have been necessary, at least not before Fort Sumter fell, for a foreign nation to intervene with military force. There was a period, it seems to me, when recognition by Britain or France might have guaranteed a peaceful secession. However, neither government was ready to commit to recognition at that point.
An interesting 'What if?' thread might be "What if Britain had recognized the secessionist government during the Buchanan Administration?"
If the British government recognized the secessionists post November 1860 then the British have to calculate is the risk of losing the United States as a trading partner and engaging in an unpopular war with the United States a better alternative to having their cake and eating it to by simply selling weapons and what ever else they could to both sides on a cash and carry basis.
Leftyhunter
 

wbull1

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I would argue against that. The secessionists figured they were independent with all the attributes of independence including defending their turf. Generations of Southern political theorists had argued the Union was a compact, not a consolidated union.
I disagree about "generations." Calhoun introduced the idea during the "nullification crises" about 30 years before the Civil War and South Carolina got no support from any other state. Missippi condemned the state's action. Almost nobody outside SC There is a long history of people in different parts of the grumbling, "We don't like [fill in the blank] federal action. We should secede." But it was never tested until the 1830s at which time it was seriously criticized. Secession as a serious idea only gained support gradually starting after the "nullification crisis." One generation, two at very most.
 

jgoodguy

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I disagree about "generations." Calhoun introduced the idea during the "nullification crises" about 30 years before the Civil War and South Carolina got no support from any other state. Missippi condemned the state's action. Almost nobody outside SC There is a long history of people in different parts of the grumbling, "We don't like [fill in the blank] federal action. We should secede." But it was never tested until the 1830s at which time it was seriously criticized. Secession as a serious idea only gained support gradually starting after the "nullification crisis." One generation, two at very most.
Some scholars think in much longer time spans for example:
The Road to Disunion, Vol. 1: Secessionists at Bay, 1776-1854
 

wbull1

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Some scholars think in much longer time spans for example:
The Road to Disunion, Vol. 1: Secessionists at Bay, 1776-1854
I'm not sure this disagrees with me. The idea of secession has been along for a long time, which does not mean it was taken seriously by enough people to qualify as a serious alternative. The author apparently includes debates in state legislatures in 1860. If it was not thought worthy of debate until shortly before the start of the Civil War, that suggests to me it was seen as viable only a relatively short time before the war. Looking back from the 1860s to find justification would encourage viewing people could see earlier thoughts on secession as more prevalent and important than they were seen at the time they were presented.
 

jgoodguy

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I'm not sure this disagrees with me. The idea of secession has been along for a long time, which does not mean it was taken seriously by enough people to qualify as a serious alternative. The author apparently includes debates in state legislatures in 1860. If it was not thought worthy of debate until shortly before the start of the Civil War, that suggests to me it was seen as viable only a relatively short time before the war. Looking back from the 1860s to find justification would encourage viewing people could see earlier thoughts on secession as more prevalent and important than they were seen at the time they were presented.
Ideas have a long gestation period, they do not spring forth fully formed. Further discussion should be in a new thread.
 



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