Thomas Jefferson, Secession, and States Rights

jgoodguy

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Yet this still does not touch my argument. Chase found no evidence whatsoever except for the phrase "perpetual union" that never existed in the Constitution. This was the best defense the Chief Justice of the Supreme Court could muster for a permanent union argument.

I do not know how to state it any more plainly, Chase made the best case against Secession possible and it falls flat. There is nothing that stated they could and nothing that stated they could not. Anything else is just hot air.

I do not see anything that you have posted that is a better position than Chase's position.

I think it floats like a butterfly, myself.
 

Rebforever

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Jonathan is provably wrong... at least in part and at least in the way he words things, in the article he says:

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Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
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This was not in fact Lincoln's view.

First Inaugural Address of Abraham Lincoln

http://avalon.law.yale.edu/19th_century/lincoln1.asp
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Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views 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, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.


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Turley said Lincoln argued for:
"and once a state enters the Union, it cannot leave the Union"

Lincoln actually said:
"no State upon its own mere motion can lawfully get out of the Union"

These are two massively different concepts. This is secession vs unilateral secession.

Now to defend him against my own claim, reading the full article I'm not sure he meant to word it explicitly removing the extra context or if to him "leave" implied getting out "upon its own mere motion", either way one should look at what Lincoln argued since it would be easy to read what Turley summarized as his argument and assume it's different than what it was.

Lincoln argued that the Union was formed between the States and effectively removing a State from the Union would in fact alter the Union itself. On those grounds a single State does not have the power to alter the union. Again this fully allows for altering the union with consent.

This again is consistent with the quotes we've seen both from Jefferson (who resisted secession that wasn't consensual, but supported the idea when he was consenting to the opposing faction) and Madison who clearly states multiple times that both parties have an equal stake in the matter, to annul or prevent the other from annulling (hence a State does not have the power on it's own protected from the rest).
There was no law against secession.
 

jgoodguy

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To my way of thinking, no one but the people in Virginia voted to join the Constitutional Compact. All the people did not vote them in. Guaranteed to the states by this contract was to have a Republic form of Government. Under this guarantee then secession is voted on by the people of that state. IMO

IMO you are wrong.
 

CW Buff

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I've been reading through some of the Virginia secession convention that I linked to upthread (not all, there's a LOT of discussion there), and "dishonest" is not a description that comes to mind while reading what those men talked about. They are largely very serious about their duty and responsibilities and very sincere in their beliefs.

1. The fact that politicians sounded earnest and sincere does not mean they were earnest and sincere. Let's say they were seeking popular support for selfish interests, like personal wealth and power. They would still speak as loyal, patriotic Southerners, defending the original principles of our cherished Constitution, simply trying to protect the rights and liberties of all Southerners. THAT’S THE IDEA. No one is going to say 'I want you to fight for my personal wealth and power.' I don't think most Southern leaders were dishonest. But I believe some where, consisting mainly of the veteran secessionists that had been working toward their goal for decades, dang the consequences, changing their tactics with each failure, and finally hitting on the right combination of method and opportunity. In my book, most of those who were on board with secession before the 1860 election cycle are suspect.

2. That someone feels they are acting on principle, doesn't mean they are. Not when passions and blood are running high. IMHO, Sam Houston hit the nail on the head: “…the North is determined to preserve this Union. They are not a fiery, impulsive people as you are…” Not that Southerners are inherently fiery and impulsive (I think Houston was talking of the moment, rather than generally; Bostonians began getting a bit fiery and impulsive long about 1770). As far as Preston, I don't find him as dishonest as I originally thought. Upon rereading your post, I found the "them" he lost. To read it as he wrote it, the Constitution delegated powers to the people of VA. He seemed a bit discombobulated. I think he was in this group of leaders; Johnny-come-lately secessionists. They got caught up in the moment. He read the ratification statement looking for something, and low and behold he found it. In First Blood, I think (if memory serves) W.A. Swanberg discusses how Francis Pickens and James Chesnut opposed secession before they returned to SC. Pickens, running for governor, gave one or two speeches against secession, got the cold shoulder, and changed his tune.
The people of Virginia, . . . having declared that the powers granted them under the said Constitution were derived from the people of the United States...


That's quite a misrepresentation of what actually happened. Or at the very least, far too broadly applied. There were, without any doubt, leaders who acted out of principle on both sides. Therein lies the tragedy.

I agree. But the Southern leaders I see as most principled were the Southern unionists, struggling against secession, denying that Lincoln's election was cause for splitting the Union, trying to prevent war. Sam Houston comes to mind, he resisted it right until up until they booted him out of office for it, and as far as I know, never joined in.
 

jgoodguy

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CW Buff

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I am more interested to know why there wasn't a direct law written into the Constitution.

How bout the Supremacy Clause. “The Constitution . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” You’re probably going to tell me that once a state exercises some unspecified, never before recognized “reserved” power to unilaterally secede, the very specific Supremacy Clause no longer applies. The problem is, the Supremacy Clause denies the states the authority to pass “any Thing” that affects the supremacy of the Constitution. Read this as “The Constitution . . . shall be the supreme law of the Land; any [ordinance of secession in the laws of any state] notwithstanding.” That’s a constitutional catch-22. Can’t get there from here.
 

CW Buff

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Excuse me? They bloody war didn't start over keeping men in bondage.
It started, and you already know this, over secession. And the South was fighting to keep what they already had protected by the Constitution.

They swallowed a war to swallowed secession to swallowed slavery to swallowed a fly, but I don’t know why, they swallowed a fly. [Yeah, it's past my bedtime. :D]

You can try to hit a reset button at the point of secession all you want, and it’s not going to work on any objective, rational person. Slavery-Secession-War, you still have the same starting point; Slavery.
 

CW Buff

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They did all ratify, though North Carolina took a year and a half, and Rhode Island took two years.

And if they could just jump in, and then jump out anytime they wanted, why do you suppose NC and RI dragged their feet for so long? If there was no real commitment in the act of ratification, there would have been no reason for such hesitation. Every state ratification convention could have ended after just a day or two with the words, ‘well, we can back out whenever we want.’ This is yet another problem with the idea that unilateral secession was considered part of the deal; it leaves NC and RI with no reason for this foot dragging.

The process going in means nothing WRT getting out. What was agreed to going in means everything. As indicated in the letter issued by the Constitutional Convention, made available to all, they agreed to surrender a portion of state sovereignty (“It is obviously impracticable in the foederal government of these States, to secure all rights of independent sovereignty to each“), because that had proved the fatal flaw in the Confederation; they agreed to form a sovereign nation (in terms of John Locke’s social compact theory, “Individuals entering into society, must give up a share of liberty to preserve the rest”), and the Union was thereby consolidated (“In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union“). At that point, the Union was as secure against dissolution as any state; “an indestructible Union composed of indestructible States” — Texas v. White.
 

CW Buff

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So am I correct that now we are tring to find out why the 13 Originals and the few that joined prior to the CW were confused or did not understand what they joined, what they gave up, what they retained. That the "We the People"is clearer now than it was then.
I wonder if it was ignorance, apathy, deceit or what that defined or redifined the terms.

They were not confused. We the People was understood when the Constitution was established, as well as now. It was somewhere in the middle where the confusion set in. Call it a doughnut hole.

Take a look at the original. Could they have stressed the people part any more than that?
 

jgoodguy

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And if they could just jump in, and then jump out anytime they wanted, why do you suppose NC and RI dragged their feet for so long? If there was no real commitment in the act of ratification, there would have been no reason for such hesitation. Every state ratification convention could have ended after just a day or two with the words, ‘well, we can back out whenever we want.’ This is yet another problem with the idea that unilateral secession was considered part of the deal; it leaves NC and RI with no reason for this foot dragging.

The process going in means nothing WRT getting out. What was agreed to going in means everything. As indicated in the letter issued by the Constitutional Convention, made available to all, they agreed to surrender a portion of state sovereignty (“It is obviously impracticable in the foederal government of these States, to secure all rights of independent sovereignty to each“), because that had proved the fatal flaw in the Confederation; they agreed to form a sovereign nation (in terms of John Locke’s social compact theory, “Individuals entering into society, must give up a share of liberty to preserve the rest”), and the Union was thereby consolidated (“In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union“). At that point, the Union was as secure against dissolution as any state; “an indestructible Union composed of indestructible States” — Texas v. White.
This is a good point, if a confederation/compact was what they wanted why go though the trouble of a Constitution.
 

CW Buff

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I think there's a good discussion of the issues in this article, and Turley comes to one conclusion that while Lincoln's view would probably prevail in a court (and he clearly favors Lincoln's view), neither side had an overwhelming argument. Prior to the Civil War, both sides had points of history and language in their favor. I've pulled two quotes, but I would encourage anyone to read the entire article to get the full context.

https://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/

But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.

The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.

Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.

---------------------------------


Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.

I'm not familiar with the man, but I get a tad bit concerned when a constitutional scholar takes that passage from the official letter of the Constitutional Convention and presents it as Washington’s own personal thought:

George Washington, who presided over the convention, noted, “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.”

The letter was created by the Committee of Stile [sic] and Arrangement, presented to and adopted by the Committee of the Whole (the Convention itself), and signed by Washington merely in his official capacity as President of the Convention. You’d think a constitutional scholar would be intimately familiar with the proceedings of the Constitutional Convention.
 

CW Buff

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Salmon Chase as a Supreme Court justice tried to argue that the phrase "perpetual union" solidified the argument, but his argument actually backfires and proves him wrong due to its elimination from the Constitution.

If the phrase "perpetual union" was the best a Chief Justice of the Supreme Court could do, it shows just how weak the argument is.

It is one of several sound arguments against unilateral secession. Specifying the perpetuity of the Union was necessary with the Articles, which were only a treaty of alliance, created during the Revolution, and it was therefore necessary to make the perpetuity of the arrangement clear. The Union was not just a means to independence, it would continue beyond the Revolution, assuming they won. They intended for it to be permanent. That intent and desire did NOT suddenly change during the ten years between drafting the Articles and drafting the Constitution. In fact, it was the obvious, impending failure of the Articles to provide that perpetuity that made the Constitution necessary. The Constitution is a law, not a treaty, and is therefore inherently perpetual. Like any law, it can only be repealed by the same authority that established it (which is exactly why nullifiers and secessionists seized on the idea of the Constitution as a compact between sovereign states, rather than the social compact which the preamble and Convention’s letter declare it to be). And the Framers reiterated their intentions for a perpetual union by clearly declaring that the Constitution was ordained and established not just for contemporary Americans, but for their posterity (definition - all future generations).

As I see it, the arguments against unilateral secession include:
  1. the Union is perpetual;
  2. As of the Constitution, the US is a sovereign nation;
  3. the Supremacy Clause;
  4. A vague, nonspecific means of secession is a recipe for disaster;
  5. Specific statements by Founders;
  6. Multiple pre-ACW SCOTUS decisions.
 

ForeverFree

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I think there's a good discussion of the issues in this article, and Turley comes to one conclusion that while Lincoln's view would probably prevail in a court (and he clearly favors Lincoln's view), neither side had an overwhelming argument. Prior to the Civil War, both sides had points of history and language in their favor. I've pulled two quotes, but I would encourage anyone to read the entire article to get the full context.

https://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/

But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.

The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.

Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.

---------------------------------


Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.

I think it is fair to say that going into the Civil War, the idea of unilateral secession was debatable. I don't know that there was a consensus on the issue in 1860.

But it is also true that in 1832, President Andrew Jackson proclaimed that unilateral secession was not Constitutional; that "disunion by armed force is treason"; and that such disunion would be met by the federal government with military force.

Now: this doesn't mean that Jackson's position would stand up in court. The issue was not adjudicated until after the CW. But the thing is, when Lincoln echoed Jackson's policy toward secession, he could point to prior federal policy to bolster his own. It's not like he was relying on an abstraction or esoteric intellectual debates.

The secessionists had to have been aware that their actions carried the risk of war, assuming Lincoln followed the policy precedent of a prior, sitting president. And they took that risk. That is, they had real reason to anticipate that their controversial view of secession would not be acceptable to the Union, and that war would result - and they decided to go for it anyway.

- Alan
 

Old_Glory

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It was the judgement of the Court in Texas v White, which was used as precedent in several hundred cases including a Alaskan Supreme Court decision in 2006 Kohlhaas v. STATE, OFF. OF LIEUTENANT GOV.

Please excuse me if your unsupported word seems insufficient to me.

What is your point? He used a phrase that was removed from the Constitution to support his findings. It was illogical and baseless. He should have recused himself because he was part of the reason the South succeeded in the first place and he was knee deep in the politics of it.

It was one of the worst rulings in history that has yet to be overturned. I do not think Chase's ruling is sound footing to stand. But you are free to believe whatever you wish. I am sure there are people who still feel Roger Taney's decision on Dred Scott was wonderful and legally sound. I'm not one to follow Supreme Court justices who try to write laws rather than interpret them like Taney and Chase.
 
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