What If Secessionists Litigated Secession split from Buchanan and Taney on Secession

trice

Colonel
Joined
May 2, 2006
I doubt that. First you have to get by a Taney court. Second you need a offence to litigate. Third you need a open court in the federal district where the offense happened. Then there is the political question issue that a federal court might not rule on.

Everything you mention is easily handled in December of 1860.
  • Taney (according to what he leaked and what was in his files) wanted to allow the secession
  • A test case is easy to create. Example: One state (say South Carolina) declares secession and an import tariff. Another has someone import some goods into SC and objects that South Carolina cannot impose that Tax according to the US Constitution. If that isn't to your liking, pick something else that works better.
  • File your case with a judge you know. Easily done and men available, including a Supreme Court Justice or two down at the circuit level (as Taney did in Ex Parte Merryman a few months later) in the South. You can get a preliminary ruling quickly.
    • In 1860 Andrew G. Magrath would have been the District Judge for South Carolina. You'd need to get him to hold off on his resignation (he'd submitted it after Lincoln was elected and become the South Carolina Secretary of State; Davis made him a Confederate District Judge in 1861; Governor of South Carolina when the war ended) if you wanted to use him, but with a little planning that would not be a problem: just stay on as a US Judge a little longer. It is pretty clear which way he would have ruled, IMHO. (South Carolina had 2 Districts but only 1 Judge until 1901.)
    • Assuming the Circuits were the same then-as-now, South Carolina would have been part of the Fourth Circuit, which also included Maryland, so Taney would have no problem filing. However, no one seems exactly how Taney was acting when he filed the Ex parte Merryman order with the Maryland Court and some think he was doing it under a more general authority from the original 1789 Judicial Act. Maybe any Justice could have filed it, which gives us Campbell of Alabama.
It is always possible that a Judge or Justice might surprise you, but generally you could pick one that will give you what you need -- and even if they rule against you, you appeal up the line until you get to the Supreme Court.
  • If the court agrees to hear your case, fine: you get a definitive answer.
  • If the court refuse your appeal, that's an answer as well
  • If the court declares it a political matter and punts it over to Congress, that's still another answer. Now you can go to Congress and slug it out there (easier to do if you keep your representation in the House and Senate until it is resolved).
 
Everything you mention is easily handled in December of 1860.
  • Taney (according to what he leaked and what was in his files) wanted to allow the secession
  • A test case is easy to create. Example: One state (say South Carolina) declares secession and an import tariff. Another has someone import some goods into SC and objects that South Carolina cannot impose that Tax according to the US Constitution. If that isn't to your liking, pick something else that works better.
  • File your case with a judge you know. Easily done and men available, including a Supreme Court Justice or two down at the circuit level (as Taney did in Ex Parte Merryman a few months later) in the South. You can get a preliminary ruling quickly.
    • In 1860 Andrew G. Magrath would have been the District Judge for South Carolina. You'd need to get him to hold off on his resignation (he'd submitted it after Lincoln was elected and become the South Carolina Secretary of State; Davis made him a Confederate District Judge in 1861; Governor of South Carolina when the war ended) if you wanted to use him, but with a little planning that would not be a problem: just stay on as a US Judge a little longer. It is pretty clear which way he would have ruled, IMHO. (South Carolina had 2 Districts but only 1 Judge until 1901.)
    • Assuming the Circuits were the same then-as-now, South Carolina would have been part of the Fourth Circuit, which also included Maryland, so Taney would have no problem filing. However, no one seems exactly how Taney was acting when he filed the Ex parte Merryman order with the Maryland Court and some think he was doing it under a more general authority from the original 1789 Judicial Act. Maybe any Justice could have filed it, which gives us Campbell of Alabama.
It is always possible that a Judge or Justice might surprise you, but generally you could pick one that will give you what you need -- and even if they rule against you, you appeal up the line until you get to the Supreme Court.
  • If the court agrees to hear your case, fine: you get a definitive answer.
  • If the court refuse your appeal, that's an answer as well
  • If the court declares it a political matter and punts it over to Congress, that's still another answer. Now you can go to Congress and slug it out there (easier to do if you keep your representation in the House and Senate until it is resolved).
Everything is easy in the what if world.
 
Everything is easy in the what if world.

Easy to discard workable ideas if you want to. What I am pointing out to you is very easy to arrange if the secessionists of "the South" actually want to act legally. It might or might not get the result they want, but it is really very straight-forward legal action. They didn't, so it was not done.
 
Easy to discard workable ideas if you want to. What I am pointing out to you is very easy to arrange if the secessionists of "the South" actually want to act legally. It might or might not get the result they want, but it is really very straight-forward legal action. They didn't, so it was not done.
I personally find what ifs easy to construct because they do not taking into account the perversity of humans and the effect of random effects. Best I can say is that your theory works in your what if universe, but not mine where human actors regularly royally really rubbish things up.
 
I personally find what ifs easy to construct because they do not taking into account the perversity of humans and the effect of random effects. Best I can say is that your theory works in your what if universe, but not mine where human actors regularly royally really rubbish things up.

Of course people mess things up -- we know they do, and the proof is that the secessionists rushed to war instead of a peaceful solution. What I am describing to you is a very normal legal process that could be carried through with a normal amount of work by skilled and willing people. What you are insisting is the only possibility is that the secessionists would always be unwilling to act as normal, reasonable people seeking a peaceful solution. Your what-if insists they can never be competent.

If that is really what you insist on, you should avoid discussing alternatives to real events. You will always say it could never be different.
 
Of course people mess things up -- we know they do, and the proof is that the secessionists rushed to war instead of a peaceful solution. What I am describing to you is a very normal legal process that could be carried through with a normal amount of work by skilled and willing people. What you are insisting is the only possibility is that the secessionists would always be unwilling to act as normal, reasonable people seeking a peaceful solution. Your what-if insists they can never be competent.

If that is really what you insist on, you should avoid discussing alternatives to real events. You will always say it could never be different.
No, I just regard your what if as overly optimistic and unlikely to secede. IMHO while not impossible, it is a remote possibility. Along those line, IMHO secessionists are not likely to invest time and effort in a judicial decision when that time and effort can be invested in the revolutionary.

My impression of Fire Eaters and Southern Revolutionaries is that the are not normal, reasonable people seeking a peaceful solution simply because they did not attempt it.
 
No, I just regard your what if as overly optimistic and unlikely to secede. IMHO while not impossible, it is a remote possibility. Along those line, IMHO secessionists are not likely to invest time and effort in a judicial decision when that time and effort can be invested in the revolutionary.

My impression of Fire Eaters and Southern Revolutionaries is that the are not normal, reasonable people seeking a peaceful solution simply because they did not attempt it.

In short, you reject a reasonable alternative because you insist they will always do what they did. If so, you should avoid discussing alternatives because they are unreal to you.
 
In short, you reject a reasonable alternative because you insist they will always do what they did. If so, you should avoid discussing alternatives because they are unreal to you.
No because in this time line they did what they did. In alternate timelines, Political action is more likely than litigation because that was what happened. So we have first what happened in secession. Second the attempts to deter secession of the Upper South and bring the secessionists back were all political. We also have Luther v. Borden by Taney that pushes political questions to the President and Congress. I see a possible alternative, but not a reasonable one.
 
No because in this time line they did what they did. In alternate timelines, Political action is more likely than litigation because that was what happened. So we have first what happened in secession. Second the attempts to deter secession of the Upper South and bring the secessionists back were all political. We also have Luther v. Borden by Taney that pushes political questions to the President and Congress. I see a possible alternative, but not a reasonable one.

What you are objecting to is simply a description of a method by which an attempt could be made. You are objecting that they would not have tried it when the point is only that it was something they could have tried.

On Taney, BTW, all evidence is that he would have welcomed someone (anyone) bringing a test case before the Court system. He made it clear (via a February 1861 "leak", via a March 1861 decision, and via notes he kept before he died) that he was willing to take that case on and would have been opposed to Lincoln's actions.

On Buchanan, he really has no voice or place in an attempt to bring a test case before the Court. His government will have to defend the case when it is brought. His place would be to enforce the law, as Lincoln also saw the Presidency. I would guess both Buchanan and Lincoln would have liked to see it go through the Court (for Buchanan, it would have meant delay, and he seems to have liked that).

In the end, all going through the Court does is show that you are trying to act as reasonable men. If "the South" ending up losing the case they can still have their war; they have just gained time to prepare. If they win, they avoid the war.
 
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My impression of Fire Eaters and Southern Revolutionaries is that the are not normal, reasonable people seeking a peaceful solution simply because they did not attempt it.

So I'll dip my toe into this... My impression is while they may not have been normal and reasonable, many of them were quite smart and knew their way through the legal and political system. It's pretty apparent from the secession declarations that South Carolina, Mississippi, etc. were trying to make a legal case: we signed on to a compact, you broke the compact, so now we're leaving the compact. So why didn't they first pursue their case in court? My hunch - and I'll emphasis hunch - is that they knew their position was a legal sophistry and if they lost in court, that would have put them whistling on a windy corner. So instead they took the route that we're talking about today.

Dave G.
 
So I'll dip my toe into this... My impression is while they may not have been normal and reasonable, many of them were quite smart and knew their way through the legal and political system. It's pretty apparent from the secession declarations that South Carolina, Mississippi, etc. were trying to make a legal case: we signed on to a compact, you broke the compact, so now we're leaving the compact. So why didn't they first pursue their case in court? My hunch - and I'll emphasis hunch - is that they knew their position was a legal sophistry and if they lost in court, that would have put them whistling on a windy corner. So instead they took the route that we're talking about today.

Dave G.
Secession had been tried before in 1850, the compromise of 1850 happened, passions dissipated and left the secessionists high and dry. Political or legal efforts will give time for compromise and with compromise failure of secession. IMHO the secessionists did not have time or motive to go the legal or political route when rebellion was surer.
 
Secession had been tried before in 1850, the compromise of 1850 happened, passions dissipated and left the secessionists high and dry. Political or legal efforts will give time for compromise and with compromise failure of secession. IMHO the secessionists did not have time or motive to go the legal or political route when rebellion was surer.

In 1850, large parts of "the South" thought they were nutcases and refused to support them -- and the President of the United States had told them what he would do if they tried it. Without hesitation, Zachary Taylor told them he would gladly lead an army south and hang traitors with more joy than he did deserters in the Mexican War.

In 1860, you are not dealing with Fire-Eaters alone. Those men were shuffled to the sidelines and the back-bench before Lincoln took the oath of office; the men in power in Montgomery were not Rhett and his cronies. Davis was President (he had already hoped for someone to arrest him for Treason when he resigned as Senator a few weeks earlier), Stephens was Vice President, Toombs, Benjamin, Memminger, Walker, Reagan and Walker are in the Cabinet. This is commonly seen in revolutions by the upper class. The rabble-rousers are useful for getting things started, but tend to get shuffled aside by the big boys once that happens. In the Confederacy, it happened quickly.

It is undoubted that the desire to fan the flames was a major cause of the rush the Confederacy chose. Time could be a problem or a benefit. Pursuing a legal solution can have several benefits, some political, some public relations, some in material ways (the Confederacy needed to organize and prepare, so time can be used for that.)
 
In 1850, large parts of "the South" thought they were nutcases and refused to support them -- and the President of the United States had told them what he would do if they tried it. Without hesitation, Zachary Taylor told them he would gladly lead an army south and hang traitors with more joy than he did deserters in the Mexican War.

In 1860, you are not dealing with Fire-Eaters alone. Those men were shuffled to the sidelines and the back-bench before Lincoln took the oath of office; the men in power in Montgomery were not Rhett and his cronies. Davis was President (he had already hoped for someone to arrest him for Treason when he resigned as Senator a few weeks earlier), Stephens was Vice President, Toombs, Benjamin, Memminger, Walker, Reagan and Walker are in the Cabinet. This is commonly seen in revolutions by the upper class. The rabble-rousers are useful for getting things started, but tend to get shuffled aside by the big boys once that happens. In the Confederacy, it happened quickly.

It is undoubted that the desire to fan the flames was a major cause of the rush the Confederacy chose. Time could be a problem or a benefit. Pursuing a legal solution can have several benefits, some political, some public relations, some in material ways (the Confederacy needed to organize and prepare, so time can be used for that.)
What is your explanation of why the secessionists did not chose adjudication solutions in 1860-61.
 
What is your explanation of why the secessionists did not chose adjudication solutions in 1860-61.

I think that I provided one plausible answer – that they may have felt the risk of losing in court outweighed the benefits of winning. The confederate states laid out their legal stand; Trice had mentioned that Jefferson Davis was willing to go to the mat; the Taney court was friendly to them. If the SCOTUS had ruled that secession was in fact legal, where would that place Lincoln?

On the other hand, had they south lost their case then the legitimacy of their declarations would have been at risk. Their hopes for British and French recognition would have been severely weakened. They may have lost support from the middle states and interests further north.

So in the end, and simple risk-reward analysis seems to be a reasonable explanation on why the south didn’t pursue a legal course on the outset.
 
I think that I provided one plausible answer – that they may have felt the risk of losing in court outweighed the benefits of winning. The confederate states laid out their legal stand; Trice had mentioned that Jefferson Davis was willing to go to the mat; the Taney court was friendly to them. If the SCOTUS had ruled that secession was in fact legal, where would that place Lincoln?

On the other hand, had they south lost their case then the legitimacy of their declarations would have been at risk. Their hopes for British and French recognition would have been severely weakened. They may have lost support from the middle states and interests further north.

So in the end, and simple risk-reward analysis seems to be a reasonable explanation on why the south didn’t pursue a legal course on the outset.
Some good points here.

However only in a what if world is Taney favorable to secession. In the real world there is no evidence that a Taney court was favorable in favor of secession and the available evidence suggests he was opposed to secession as unconstitutional.
Based on a fragmentary scribbled memorandum parts of which are missing(The Dred Scott Case by Fehrenbacher pp553-555 contains information on a memorandum where Taney discusses secession). Taney rants and raves against the North but wrote.
"The South contends that a state has a constitutional right to secede from the Union formed with her sister states. In this I submit the South errs. No power or right is constitutional but what can be exercised in a form or mode provided in the constitution for its exercise. Secession is therefore not constitutional, but revolutionary; and is only morally competent, like war, upon failure of justice."
- Chief Justice Roger Taney, January, 1861

The secessionists did pursue a peaceful political process providing for secession. The secession conventions and related actions by seceding State legislatures. There is simply no motive to trying the Federal courts.
 
Reboot in the what if universe.
Everything you mention is easily handled in December of 1860.
In your opinion, not mine. Wonderful thing about what ifs is that difficult stuff is always easy and any difficulty can be handled by making stuff up.
Taney (according to what he leaked and what was in his files) wanted to allow the secession
No such evidence exists.
In the real world, Taney ruled against just letting the South secede.
What we do know is that Taney concurred with Justice Nelson's opinion in the Prize Cases, and that opinion backed the government's right to put down the rebellion. It also backed the fact that the President of the United States has the authority to use force to enforce the laws of the United States. It quotes both the Constitution and the Militia Acts. A state may make the unlawful claim that it is outside the Union, but the President still has the duty and the authority to make sure the laws of the United States are executed within the boundaries of that state. Don't forget that Taney formally agreed with that stance in the Prize Cases, and we don't have to guess what he was trying to do.
Based on a fragmentary scribbled memorandum parts of which are missing(The Dred Scott Case by Fehrenbacher pp553-555 contains information on this memorandum). Taney rants and raves against the North but wrote.
"The South contends that a state has a constitutional right to secede from the Union formed with her sister states. In this I submit the South errs. No power or right is constitutional but what can be exercised in a form or mode provided in the constitution for its exercise. Secession is therefore not constitutional, but revolutionary; and is only morally competent, like war, upon failure of justice."
- Chief Justice Roger Taney, January, 1861
suggesting an unfavorable ruling to a constitutional right to secede. It does not shed light on the substance of
Taney’s constitutional reasoning.

There a letter to ex-president Franklin Pierce.
The American Historical Review edited by John Franklin Jameson, Henry Eldridge Bourne, Robert Livingston Schuyler
p0.png

Taney writes that a peaceful separation is better than a bloody civil war and reunification under a military dictatorship.

Nothing, zip, nada, zero about how or if he would rule about secession in an adjudication. He did rule in favor of war against the CSA.


In summary there is no evidence that Taney would rule in favor of secession.

Taney ruled in Luther v. Borden that political questions are decided by the president and congress, this is also consistent with his view that Lincoln exceeded his powers that only Congress had.

There is no evidence out side what if assumptions that Taney would or wanted to rule on a secession case.
A test case is easy to create. Example: One state (say South Carolina) declares secession and an import tariff. Another has someone import some goods into SC and objects that South Carolina cannot impose that Tax according to the US Constitution. If that isn't to your liking, pick something else that works better.
There is no evidence that anyone wanted to test secession in Federal Court. What is the motive? Inthe the real world, the secessionists simple seceded via State level political processes.
File your case with a judge you know. Easily done and men available, including a Supreme Court Justice or two down at the circuit level (as Taney did in Ex Parte Merryman a few months later) in the South. You can get a preliminary ruling quickly.





    • In 1860 Andrew G. Magrath would have been the District Judge for South Carolina. You'd need to get him to hold off on his resignation (he'd submitted it after Lincoln was elected and become the South Carolina Secretary of State; Davis made him a Confederate District Judge in 1861; Governor of South Carolina when the war ended) if you wanted to use him, but with a little planning that would not be a problem: just stay on as a US Judge a little longer. It is pretty clear which way he would have ruled, IMHO. (South Carolina had 2 Districts but only 1 Judge until 1901.)



    • Assuming the Circuits were the same then-as-now, South Carolina would have been part of the Fourth Circuit, which also included Maryland, so Taney would have no problem filing. However, no one seems exactly how Taney was acting when he filed the Ex parte Merryman order with the Maryland Court and some think he was doing it under a more general authority from the original 1789 Judicial Act. Maybe any Justice could have filed it, which gives us Campbell of Alabama.
Wonderful thing about the what if world is that stuff can simply be made up and presented without any evidence. I see a lot of moving parts where the assumption is that the result of any decision point is favorable to the thread premise. As noted the available evidence is that Taney was opposed to secession.

If the court declares it a political matter and punts it over to Congress, that's still another answer. Now you can go to Congress and slug it out there (easier to do if you keep your representation in the House and Senate until it is resolved).
Why not just skip the expense, time and bother of dealing with the Yankees and just secede with some sort of political process just as it happened in the real time line?
 
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I think that part of the issue I have with the proposed alternative scenario is that I don't see an answer to one really important question. Given what had taken place when the idea of secession was floated in 1850, how does a slow, deliberate process of adjuticating secession through the courts benefit those who are pushing the slave states to leave in 1860-61?
 
I think that part of the issue I have with the proposed alternative scenario is that I don't see an answer to one really important question. Given what had taken place when the idea of secession was floated in 1850, how does a slow, deliberate process of adjuticating secession through the courts benefit those who are pushing the slave states to leave in 1860-61?
“Audaces fortuna iuvat (latin)- Fortune favors the bold.” ― Virgil
 
Reboot in the what if universe.

In your opinion, not mine. Wonderful thing about what ifs is that difficult stuff is always easy and any difficulty can be handled by making stuff up.
No such evidence exists.
In the real world, Taney ruled against just letting the South secede.

Based on a fragmentary scribbled memorandum parts of which are missing(The Dred Scott Case by Fehrenbacher pp553-555 contains information on this memorandum). Taney rants and raves against the North but wrote.

suggesting an unfavorable ruling to a constitutional right to secede. It does not shed light on the substance of
Taney’s constitutional reasoning.

There a letter to ex-president Franklin Pierce.
The American Historical Review edited by John Franklin Jameson, Henry Eldridge Bourne, Robert Livingston Schuyler
View attachment 141187
Taney writes that a peaceful separation is better than a bloody civil war and reunification under a military dictatorship.

Nothing, zip, nada, zero about how or if he would rule about secession in an adjudication. He did rule in favor of war against the CSA.


In summary there is no evidence that Taney would rule in favor of secession.

Taney ruled in Luther v. Borden that political questions are decided by the president and congress, this is also consistent with his view that Lincoln exceeded his powers that only Congress had.

There is no evidence out side what if assumptions that Taney would or wanted to rule on a secession case.

There is no evidence that anyone wanted to test secession in Federal Court. What is the motive? Inthe the real world, the secessionists simple seceded via State level political processes.

Wonderful thing about the what if world is that stuff can simply be made up and presented without any evidence. I see a lot of moving parts where the assumption is that the result of any decision point is favorable to the thread premise. As noted the available evidence is that Taney was opposed to secession.


Why not just skip the expense, time and bother of dealing with the Yankees and just secede with some sort of political process just as it happened in the real time line?

I have no clue why you believe this about Taney, nor why you are ranting and raving at me about it. Taney made no ruling at all on secession, although you claim he did. His opinion on secession is well known because he wrote it down himself and you are denying it -- but he was never able to act on it in the Supreme Court before he died in 1864.

Chief Justice Taney wrote a memorandum (unpublished) about his views on secession. Here is a description of that, found in the first chapter of Lincoln and the Court by Brian McGinty, published by Harvard University Press in 2008.

"... Taney’s own views on secession were expressed in an unpublished memorandum probably written in February 1861, about a month before he was to administer the presidential oath to Lincoln. In that memorandum, he said that the Confederate states were wrong to claim a constitutional right to secede. But, he wrote, federal laws could be enforced within a state only by its own citizens, and the federal military could enter a state only at the call of state officials. Thus it was impermissible for the federal government, against the will of a seceding state, to subject it to military action to prevent it from severing its ties with the Union. It was thus wrong, in the view of both Buchanan and Taney, for a state to break the bonds that tied it to the other states, but also wrong for the federal government to attempt to stop it."

You can find the first chapter of McGinty's book at this link.
You can find McGinty's book on the Harvard University Press site at this link.

Taney announced the decision in Kentucky v. Dennison immediately after Lincoln entered office -- just as he had announced the decision in Dred Scott immediately after Buchanan entered office. That decision is essentially that the Federal government has no power to compel a state. It is generally believed that this was Taney firing a warning shot across Lincoln's bow, to indicate how he would decide if Lincoln acted against secession.

So absolutely, beyond a doubt, we have strong evidence of how Taney felt on the issue of a "right of secession", how he intended to rule on it, and you are clearly wrong on the issue. Please stop arguing about this.
 
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