What If: South Carolina fights!.......but in court.

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Dead Parrott

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a What If thought experiment:

Same timeline, same election, same result, same hostile rhetoric ... but at the South Carolina convention, amid the screaming, level heads prevail, and SC declares it will FIGHT these horrid abolitionists ... through the courts, and the law, and the Constitution.

Bear with me, for the sake of the hypothetical. (We know what actually happened).

Lincoln and the Republicans are still vilified. Southern leadership still realizes they have lost control of the government - and given demographics, they will not recover it for ages. The Southern leadership, with so much invested in slavery (monetarily and culturally), still see the immediate threat to its expansion imperiled, and the long-term threat to its survival through both 1). territories becoming Free States, and 2.) international civilized opinion accelerating its anti-slavery trend.

The slave-owning states of the South have lost control of the US government, but they are far from politically powerless. The SCOTUS recently handed them an amazing victory. It might do so again (the composition of that court had not changed dramatically). The slave-owning states can still influence (if not control) the course of politics nationally, and can control it locally.

Yes, the unresolved issue of slavery had now reached a critical inflection point in US history. But in this timeline, cooler heads realize the immense death and destruction a war would bring, and recognize that many Southerners still hold allegiance to the US. Leadership in the slave-holding states decides to fight in the courts, and with compromise proposals. At best (?), perhaps they win the types of compromises offered to prevent war. At worst, they have a hand in the (very) gradual and compensated elimination of slavery. In other words, they still have a say in the destiny of their Peculiar Institution.

What If SC, leading the slave-holding states, declared a hard and unified political and legal fight, instead of armed rebellion?
 

thomas aagaard

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Why the courts?
Just go to congress, convince a majority of both chambers to pass a bill saying that SC is not longer part of the union.
(and add details about the further relationship and if SC need to pay any money for federal installations within her borders and for her part of the federal debt)
And get the president to sign it... Job done.

I would imagine that the members from the states that joined the CSA would have supported this. So would some from the border states.
And some northern free state might very well have said yes, simply to get the issue solved...

If this fail, then call on the natural right of revolution (that the colonials used) and declare that you are out.
This would have given the CSA a much better moral argument that what they had.
 

steve59p

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Why the courts?
Just go to congress, convince a majority of both chambers to pass a bill saying that SC is not longer part of the union.
(and add details about the further relationship and if SC need to pay any money for federal installations within her borders and for her part of the federal debt)
And get the president to sign it... Job done.

I would imagine that the members from the states that joined the CSA would have supported this. So would some from the border states.
And some northern free state might very well have said yes, simply to get the issue solved...

If this fail, then call on the natural right of revolution (that the colonials used) and declare that you are out.
This would have given the CSA a much better moral argument that what they had.
Not sure about this. Unless the other slave states, especially those who supported succession OTL also include a clause that any other state can do likewise - which I suspect would be massively objected to by the free states - their weakening their own position further by removing one slave state which leaves them even more exposed.

Also how many northern states would allow S Carolina to go without a fight? Even if it only gave an example for other states to leave, let alone included a clause to allow them to. If it allows multiple states to go then that undermines the US economy even further as markets are reduced, revenue is lost and probably the Mississippi, access to which is so important to many states is no longer solely under US control.

Plus Lincoln made clear that he wouldn't allow any state to leave so I think you would need enough votes in both houses to overcome his veto.

Furthermore Dead Parrots idea gives the hope that S Carolina and other slave states can stay in the union which would avoid alienating a lot of moderates, both in the south and elsewhere which I think your idea would. Also if the courts reject the appeal or Congress or probably more likely Lincoln seek to find a way around any such court ruling the southern states can at least claim they tried to settle things peacefully. Then you can try the 1770's option of open revolt.

I can't actually see a suitable compromise because as I understand it Lincoln was willing to agree laws to protect slavery in the existing states but not to allow it to expand to the territories. Hence any new states would almost certainly become free which would further isolate the slave states from power and influence and sooner or later wouldn't another government be able to overturn any such compromise?
 
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thomas aagaard

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Plus Lincoln made clear that he wouldn't allow any state to leave so I think you would need enough votes in both houses to overcome his veto.
No he made it clear that he would not allow any state to leave unilaterally. in the unconstitutional way they where trying to leave.

He did not to my knowledge ever comment on how he would react if congress passed a bill saying a state was out of the union.
 

diane

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Interesting proposition! There were several famous Southern soldiers who wanted to do just that - work the thing through the courts and the Constitution.

The South, with their 3/5ths rule had an edge that couldn't be beat. As Lincoln said, why not 3/5 of a hog? Non-slave states could get hogs, too - not slaves. They were also powerful enough in Congress to prevent progressive legislature such as homesteading and railroad building - in short, anything that weakened their grip. So, you end up with things like the Kansas-Nebraska Act. The best anyone could come up with for a Congressional resolution was compromise, not solution. The Southerners looked to the Supreme Court, which ruled favorably to them in the past - the Taney Court. That was another reason to resort to war - a president had been elected who looked as if he would be able to change very considerably the tone of the Supreme Court.

There were various compromises but the Kansas-Nebraska one may have actually been the lit fuse to starting the CW. Fighting it out seemed to many to be the only solution, especially framing it the same as the revolution that separated us from England. Might say it was over who had the correct interpretation of the Constitution! Lincoln was looking at the problem as a constitutional crisis rather than a rebellion - until somebody started shooting, that is.
 

jackt62

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Not sure what grounds the state of South Carolina would have to go to court to contest the 1860 election. Maybe foreign interference?
 
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Dead Parrott

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Not sure what grounds the state of South Carolina would have to go to court to contest the 1860 election. Maybe foreign interference?
Oh, to be clear, I wasn't suggesting contesting the election. I meant fighting for the protections of their Peculiar Institution.
 

jackt62

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Oh, to be clear, I wasn't suggesting contesting the election. I meant fighting for the protections of their Peculiar Institution.
That would be a reasonable approach. But wasn't one of the Crittenden proposals that was put forth to avoid war during the secession crisis, an amendment that would have prevented any future abolition of slavery? That would certainly have been agreeable to the southern states but not the north; any lesser protection of slavery would have most likely been rejected by South Carolina.
 
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wausaubob

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Any sort of a negotiated settlement would have been preferable to opening fire, IMHO.
Any delay helps the Lincoln administration. Naval vessels can be withdrawn. Vessels can be towed out of Norfolk navy yard. The machinery can be removed from Harper's Ferry. Regiments can be quietly assembled in St. Louis and Baltimore. Messages can be carried out to Sacramento alerting them to be ready to act. With delay, there can be more negotiations with Britain about what the British expect and anticipate.
If the new administration becomes stronger and more secure, the odds of all out war decline.
Anything that creates more hesitation in Virginia and Tennessee lessons the odds of a revolutionary war.
 

wausaubob

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The attitude that presents a solution is recognizing the SC and GA are functioning independently. The US would state that Texas is independent but violating the terms of statehood, while LA, MS, AL and FL have reverted to federal territory and will be reconquered.
The US concentrates on the Mississippi and on negotiating with Texas before any action to sustain Ft. Sumpter.
 

alan polk

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I think it an interesting “what if,” but I believe what your hypothesizing as an 1860 scenario had already happened in 1850s. It had been tried before and it failed. So I think your proposition is less a “what if,” and more of a “what if they tried to do it again.”

But I’m open to other ideas and I do think it is interesting. Thanks for posting!
 
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wausaubob

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If South Carolina seeks a judicial alternative, in the weeks that pass, the Lincoln administration prepares and Virginia has more time to think along the same lines of Kentucky: that the goal of secession is admirable but the potential costs are too high.
 

diane

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I think it an interesting “what if,” but I believe what your hypothesizing as an 1860 scenario had already happened in 1850s. It had been tried before and it failed. So I think your proposition is less a “what if,” but more of a “what if they tried to do it again.”

But I’m open to other ideas and I do think it is interesting. Thanks for posting!
South Carolina is a special case, I think, because of its history of not really wanting to be in the Union! SC had threatened to leave if slavery was stopped - Washington had to protect slavery because keeping his little newborn country together was absolutely essential. Then there was the Nullification Crisis - states' rights, don't have to listen to you there in Washington! But I think this type of problem is going to be never ending in the United States simply because of the nature of the government we have. Right now, California is being South Carolina in the 1850s.
 

John Fenton

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i don't think SC would have accepted any court decision that interfered with their 'peculiar institution'. kansas- nebraska showed that even with an agreement between both sides the far ends of of the spectrum would have resorted to corruption and arms to gain the edge over the other. because of the differences in economy and production which limited population growth in the south the way it grew in the north , the power in congress would shift to the north, as it was in fact doing. the only way to avoid conflict was southern diversity and moving past the status quo economy in the south. being in the same game was the only way to be competitive in congress.
 
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steve59p

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No he made it clear that he would not allow any state to leave unilaterally. in the unconstitutional way they where trying to leave.

He did not to my knowledge ever comment on how he would react if congress passed a bill saying a state was out of the union.
Thomas

OK thanks for clarifying. It sounds like he might have agreed to such a proposal if it got enough backing from the two houses, which as I say for a number of reasons I suspect would be unlikely. I do suspect from his mentions of preserving the union that he would oppose such a move but don't know how far that would go if a constitutional path to leaving was tried and accepted by both courts and Congress.

Steve
 
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