What if the South had Made its Case for Secession in Court, Instead of on the Battlefield?

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#1
The US Constitution provided viable mechanisms wherein southern states could have plead their case for the claimed right of secession peacefully and legally. In fact, at least one of the chief mechanisms therein provided was even arguably stacked in the secessionists' favor - the Supreme Court (see below).

Southern secessionists, primarily affluent slave owners, enjoyed disproportionately greater representation in the federal government due to a combination of several factors. Important indirect factors included the high property requirements for voting, and the total disenfranchisement of blacks (whether free or slave), compounded by egregious gerrymandering favoring wealthy, slaveholding districts in southern states. The direct factors contributing to over-representation of slave power interests in Washington were the infamous Three Fifths clause of the US Constitution and the two-senators-per-state formula, which gave the 28% of the potentially eligible voters (notwithstanding local property requirements) from slave states control of 37% of seats in the House, and 48% of the seats in the Senate. These undemocratic leverages were further propagated into the selection process for the presidency by the electoral college formula, which apportions delegates to states based upon the sizes of their Congressional delegations. And finally, and to my point, the undemocratic leverages the slave power enjoyed over the selection of senators and presidents gave them, in turn, an inordinate influence over the composition of the US Supreme Court!

As a result of all the above factors, the Taney Supreme Court of 1861 included five of nine justices, including Chief Justice Roger Taney, who came from slave states, even though southern whites constituted far less than half of the national population or electorate. It included seven of nine justices, also including the Chief Justice, who were nominated for their positions by presidents from slave states. And of course, it included nine of nine justices whose nominations were confirmed by legislative bodies consisting of senators nearly half of whom were from slave states. These facts could be construed to indicate that a majority of justices likely would not have merely dismissed a secession claim out of hand.

Thus, it may be very far from a foregone conclusion that the 1861 Taney Court would have declared any state's secession declaration unconstitutional, if it had been given the opportunity to rule on the question. How might such an opportunity have been created? Suppose that after passing its secession declaration, the State of South Carolina had sued the federal government in its own court for the return of Fort Sumter, instead of firing upon it! This would essentially have forced the Supreme Court to rule on the question of whether it was constitutional for a state to secede. For if secession were judged constitutional, then the federal government would have had no basis to retain the fort, whereas if secession were judged to be unconstitutional, then SC's case would have been deemed to have no merit.

But SC chose not to exhaust the legal, peaceful mechanisms provided for in the US Constitution to argue its claim to the right to secede. Before doing so, SC's secessionist leadership started a war that ultimately killed over 700,000 Americans, left much of the South, and particularly South Carolina, in ruins, and even hastened the demise of the very institution that the instigators sought to save.

Ironically, I find myself feeling relieved that the South did not choose to exhaust the legal option, for they may have succeeded and slavery would have endured, whereas if they had failed, a war likely would have followed anyway.
 
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#3
At first you might think that our country could have avoided all of those lives lost in a bloody war. More likely, war would have come anyway as the two Nations continued on their collision course in the Westward expansion.
I agree. The South would not have abided by a SCOTUS decision against the constitutionality of secession, and the separate nations created by a favorable SCOTUS decision likely would have come to blows not long after. However, such a Confederacy likely would not have had the resources for a protracted offensive war outside their own home turf. Absent a compelling mortal threat to the Confederate nation's existence, the Confederate central government might have been fairly impotent, given the southern states' strong centrifugal tendencies.

Such a Confederacy might have attempted to expand into the Caribbean instead (as some New Orlinians had long advocated), and the confrontation might have devolved into a long, episodic struggle around the geographic periphery of the seceding states.
 
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kevikens

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#4
I don't know about that. There was a rush by the Fire Eaters to push for secession while the iron was hot and, especially in the Upper South where secession was not approved until after Ft. Sumter, that if secession had been delayed for the time it took for the court to deliver its verdict, there was a decent chance that there would have been enough of a cooling off period for Southern moderates to have prevailed. I am sorry it was not tried and had I been Lincoln in 1861 I would have appealed to the court to hear the argument and to the South to await its decision. Perhaps in the long run a war was inevitable but nothing is inevitable until it happens and a cooling off delay might have prevented the outbreak of hostilities. I think it was worth a try.
 
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#5
These facts could be construed to indicate that a majority of justices likely would not have merely dismissed a secession claim out of hand.
There is an assumption here that being from the South or having been appointed by a Southerner would effect the opinion of secession. I think there needs to be other evidence or explanation before that assumption should be accepted.

For if secession were judged constitutional, then the federal government would have had no basis to retain the fort....
Why not? How does secession by itself (without a treaty or other deal addressing property, etc) change the ownership of Fort Sumter?
 

gunny

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#6
Congressman John Houston Savage thought that the war on the horizon could be decided by the courts too. He felt that the legal system would and should decide the outcome. He went with his native Tennessee in the end, like Lee went with his native state, but constantly bashed authority after the war began full fledged. Once it took off in full form he called for the end of the confederate presidency and called for the appointment of a dictator!
 

brass napoleon

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#7
The US Constitution provided viable mechanisms wherein southern states could have plead their case for the claimed right of secession peacefully and legally. In fact, at least one of the chief mechanisms therein provided was even arguably stacked in the secessionists' favor - the Supreme Court (see below).

Southern secessionists, primarily affluent slave owners, enjoyed disproportionately greater representation in the federal government due to a combination of several factors. Important indirect factors included the high property requirements for voting, and the total disenfranchisement of blacks (whether free or slave), compounded by egregious gerrymandering favoring wealthy, slaveholding districts in southern states. The direct factors contributing to over-representation of slave power interests in Washington were the infamous Three Fifths clause of the US Constitution and the two-senators-per-state formula, which gave the 28% of the potentially eligible voters (notwithstanding local property requirements) from slave states control of 37% of seats in the House, and 48% of the seats in the Senate. These undemocratic leverages were further propagated into the selection process for the presidency by the electoral college formula, which apportions delegates to states based upon the sizes of their Congressional delegations. And finally, and to my point, the undemocratic leverages the slave power enjoyed over the selection of senators and presidents gave them, in turn, an inordinate influence over the composition of the US Supreme Court!

As a result of all the above factors, the Taney Supreme Court of 1861 included five of nine justices, including Chief Justice Roger Taney, who came from slave states, even though southern whites constituted far less than half of the national population or electorate. It included seven of nine justices, also including the Chief Justice, who were nominated for their positions by presidents from slave states. And of course, it included nine of nine justices whose nominations were confirmed by legislative bodies consisting of senators nearly half of whom were from slave states. These facts could be construed to indicate that a majority of justices likely would not have merely dismissed a secession claim out of hand.

Thus, it may be very far from a foregone conclusion that the 1861 Taney Court would have declared any state's secession declaration unconstitutional, if it had been given the opportunity to rule on the question. How might such an opportunity have been created? Suppose that after passing its secession declaration, the State of South Carolina had sued the federal government in its own court for the return of Fort Sumter, instead of firing upon it! This would essentially have forced the Supreme Court to rule on the question of whether it was constitutional for a state to secede. For if secession were judged constitutional, then the federal government would have had no basis to retain the fort, whereas if secession were judged to be unconstitutional, then SC's case would have been deemed to have no merit.

But SC chose not to exhaust the legal, peaceful mechanisms provided for in the US Constitution to argue its claim to the right to secede. Before doing so, SC's secessionist leadership started a war that ultimately killed over 700,000 Americans, left much of the South, and particularly South Carolina, in ruins, and even hastened the demise of the very institution that the instigators sought to save.

Ironically, I find myself feeling relieved that the South did not choose to exhaust the legal option, for they may have succeeded and slavery would have endured, whereas if they had failed, a war likely would have followed anyway.
Nice analysis, CW. I agree that this option existed for the secessionists, and that if they were truly interested in a peaceful secession, they should have tried it before resorting to force. But there were two problems with this approach. One, which @kevikens pointed out, was that it allowed time for cooler heads to prevail in the South, which went contrary to the secessionists' plan of striking while the iron was hot and dragging the southern states out of the Union before people had a chance to reflect calmly about it. The other problem was that if the Supreme Court ruled against them, then when they did secede (and they certainly would have continued to try to), they would lose a lot of public support from moderates. And even though the Supreme Court was clearly Southern-leaning, that doesn't mean they would have ruled for the secessionists on this matter. Chief Justice Taney, in his own personal notes, seems to have been prepared to rule against them:

"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."

- Roger Taney, January, 1861

Source: <<http://books.google.com/books?id=tcrkYmIlFOsC&pg=PA195&lpg=PA195
I actually think a better course of action for the secessionists, if they had truly been interested in a peaceful secession, would have been to push for a Constitutional Convention or a Constitutional Amendment that would spell out a procedure for a legal secession (or "fix terms for the separation of the states", as Lincoln put it). This would allow them to secede legally and peacefully if the country adopted it, but wouldn't burn any bridges behind them if it didn't. They could still insist that even without this amendment, there was nothing in the Constitution that explicitly prohibited secession. Of course this method still had the same disadvantage of requiring time, which would allow cooler heads to prevail. And so it was rejected also.
 
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#8
Nice analysis, CW. I agree that this option existed for the secessionists, and that if they were truly interested in a peaceful secession, they should have tried it before resorting to force. But there were two problems with this approach. One, which @kevikens pointed out, was that it allowed time for cooler heads to prevail in the South, which went contrary to the secessionists' plan of striking while the iron was hot and dragging the southern states out of the Union before people had a chance to reflect calmly about it. The other problem was that if the Supreme Court ruled against them, then when they did secede (and they certainly would have continued to try to), they would lose a lot of public support from moderates. And even though the Supreme Court was clearly Southern-leaning, that doesn't mean they would have ruled for the secessionists on this matter. Chief Justice Taney, in his own personal notes, seems to have been prepared to rule against them:

"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."

- Roger Taney, January, 1861

Source: <<http://books.google.com/books?id=tcrkYmIlFOsC&pg=PA195&lpg=PA195
I actually think a better course of action for the secessionists, if they had truly been interested in a peaceful secession, would have been to push for a Constitutional Convention or a Constitutional Amendment that would spell out a procedure for a legal secession (or "fix terms for the separation of the states", as Lincoln put it). This would allow them to secede legally and peacefully if the country adopted it, but wouldn't burn any bridges behind them if it didn't. They could still insist that even without this amendment, there was nothing in the Constitution that explicitly prohibited secession. Of course this method still had the same disadvantage of requiring time, which would allow cooler heads to prevail. And so it was rejected also.
Thanks for that great, revealing Taney quote. So it seems as if even a southern-leaning court would have ruled against secession. That fact in itself is highly noteworthy. The secessionist cause was so lousy that it couldn't even have won with a stacked deck!
 
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kevikens

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#9
Nice analysis, CW. I agree that this option existed for the secessionists, and that if they were truly interested in a peaceful secession, they should have tried it before resorting to force. But there were two problems with this approach. One, which @kevikens pointed out, was that it allowed time for cooler heads to prevail in the South, which went contrary to the secessionists' plan of striking while the iron was hot and dragging the southern states out of the Union before people had a chance to reflect calmly about it. The other problem was that if the Supreme Court ruled against them, then when they did secede (and they certainly would have continued to try to), they would lose a lot of public support from moderates. And even though the Supreme Court was clearly Southern-leaning, that doesn't mean they would have ruled for the secessionists on this matter. Chief Justice Taney, in his own personal notes, seems to have been prepared to rule against them:

"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."

- Roger Taney, January, 1861

Source: <<http://books.google.com/books?id=tcrkYmIlFOsC&pg=PA195&lpg=PA195
I actually think a better course of action for the secessionists, if they had truly been interested in a peaceful secession, would have been to push for a Constitutional Convention or a Constitutional Amendment that would spell out a procedure for a legal secession (or "fix terms for the separation of the states", as Lincoln put it). This would allow them to secede legally and peacefully if the country adopted it, but wouldn't burn any bridges behind them if it didn't. They could still insist that even without this amendment, there was nothing in the Constitution that explicitly prohibited secession. Of course this method still had the same disadvantage of requiring time, which would allow cooler heads to prevail. And so it was rejected also.
I wholeheartedly support the notion that the calling together of a Constitutional Convention, either by the Congress or the states on their own (Lincoln and Davis both could have helped with its convening) could have followed a divided or ambiguous court ruling on secession. Remember that circa 1860-1861 one could still make a legitimate argument over the constitutionality of secession and most of all it would have allowed more time for Unionists in the South (and there were plenty of them pre Fort Sumter) to reassert themselves. It might also have sobered up Northerners who had become dismissive of Southern intentions of seceding.

I have never thought either secession or civil war was inevitable. In time the slavery issued would have resolved itself if only sufficient time and wiggle room were granted to the country to work it out. A court case, a constitutional convention might have provided the necessary respite. Oh how I wish statesmen had bought us this time.
 
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#11
There is an assumption here that being from the South or having been appointed by a Southerner would effect the opinion of secession. I think there needs to be other evidence or explanation before that assumption should be accepted.
No such assumption was made. I asserted only that one could not assume that a federal court would reject the notion of secession being a constitutional right merely because it was a federal court, and it was entirely plausible that a claim to the legitimacy of secession might have been upheld. The manner of selection of Supreme Court justices tended to weed out persons, whether of the North or South, who were known to be implacably hostile to Slave Power interests.


Why not? How does secession by itself (without a treaty or other deal addressing property, etc) change the ownership of Fort Sumter?
If SC was to be recognized as a separate sovereign state, what possible reason could the federal government have had for continuing to maintain a fort in Charleston Harbor? Who would they be protecting? If SC did subsequently fire upon the fort once their secession had been legitimized by the Supreme Court, who could have blamed them? What 100,000 men would have answered a president's call to "preserve the Union" that had already been legally dissolved? How could the federal government even have supplied such a fort without passing through SC's legitimately sovereign waters? Thus SC could have forced the federal government to abandon the fort without even firing a shot!
 
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#13
No such assumption was made.

I think it clearly was. You gave an explanation of how most of the judges ether "came from slave states" and/or "were nominated for their positions by presidents from slave states" and were nominated by a Senate "nearly half of whom were from slave states". Then you jump to a conclusion that these facts mean that the judges would not reject secession. To me that's too big a jump since we know that there were people from slave states who rejected the Constitutionality of secession.


If SC was to be recognized as a separate sovereign state, what possible reason could the federal government have had for continuing to maintain a fort in Charleston Harbor?
No reason. But the fort was still US property, so what would be the basis of the suit?
It would be a legislative and executive matter for how to dispose of or transfer no longer needed property.
I think you need to find some other issue for SC to bring a case to the court.
 
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#14
I think it clearly was. You gave an explanation of how most of the judges ether "came from slave states" and/or "were nominated for their positions by presidents from slave states" and were nominated by a Senate "nearly half of whom were from slave states". Then you jump to a conclusion that these facts mean that the judges would not reject secession. To me that's too big a jump since we know that there were people from slave states who rejected the Constitutionality of secession.
The arguments I gave, which you just quoted, were to buttress the assertions below, which followed:

"...These facts could be construed to indicate that a majority of justices likely would not have merely dismissed a secession claim out of hand.

Thus, it may be very far from a foregone conclusion that the 1861 Taney Court would have declared any state's secession declaration unconstitutional, if it had been given the opportunity to rule on the question. ..."

I am saying that a rejection of a southern claim by the Supreme Court would not have been automatic! Nowhere did I say that the court would necessarily have upheld the legitimacy of secession. That is impossible for anyone to know!


No reason. But the fort was still US property, so what would be the basis of the suit?
It would be a legislative and executive matter for how to dispose of or transfer no longer needed property.
I think you need to find some other issue for SC to bring a case to the court.
The claim that secession was legal is tantamount to claiming that the State of SC was entitled to dissolve any and all contracts it made with the federal government, presumably including the cession of land it made for the siting of Fort Sumter. The basis of the suit would be that the land on which the fort was located was SC property that was ceded to the federal government for the purpose of protecting the people and interests of the State of SC, and should therefore revert to SC ownership once SC seceded from the Union. SC could also have argued that having seceded, the continuing federal outpost represented the presence of a foreign power on SC soil, and was therefore a clear and present threat to the independence and sovereignty of SC. The legitimacy of both these claims would have depended entirely on the legitimacy of SC's secession declaration. Hence, in ruling on them, the Supreme Court could not have helped but rule on the constitutionality of secession.
 
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KansasFreestater

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#15
I wholeheartedly support the notion that the calling together of a Constitutional Convention, either by the Congress or the states on their own (Lincoln and Davis both could have helped with its convening) could have followed a divided or ambiguous court ruling on secession. Remember that circa 1860-1861 one could still make a legitimate argument over the constitutionality of secession and most of all it would have allowed more time for Unionists in the South (and there were plenty of them pre Fort Sumter) to reassert themselves. It might also have sobered up Northerners who had become dismissive of Southern intentions of seceding.

I have never thought either secession or civil war was inevitable. In time the slavery issued would have resolved itself if only sufficient time and wiggle room were granted to the country to work it out. A court case, a constitutional convention might have provided the necessary respite. Oh how I wish statesmen had bought us this time.
I kind of agree, kevikens. But I'm gonna pull a Tevye here and say "On the other hand...."

Given that Lincoln's later offers to give financial compensation to border-state slaveowners, if they would just give up slavery, were met with deafening silence, I'm inclined to think that peaceful solutions would not have been accepted. I am convinced that it wasn't just financial interest that caused the South to dig its heels in. No, that kind of hardheadedness usually comes only when people have an emotional stake in something as well. And I do think that that was the case with slavery. Giving up slavery would have meant acknowledging, at some level, that what they had been doing, up to that point, was morally problematic. But they couldn't face up to that reality without having tremendous guilt to deal with, since the whole system had depended on white people convincing themselves that it was all okay. People would prefer just about anything to facing their guilt.

And unfortunately, people often prefer even the horrors of war to the seemingly scary unknowns of personal conversion.
 
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#16
And thus the fact that despite having ample time to deal with it dissolving, from an economic point of view, they acted as if it was in danger of immediate, violent destruction from January 1st.

Not sure if Fort Sumter would have been abandoned or not, depending on what was worked out - but insisting on it being on SC soil would probably be problematic to say the least if the goal was to avoid a fight.
 

ivanj05

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#17
A court decision would be highly unlikely to address the transfer of nationally held property in seceding states to those states, but a Constitutional Convention on secession would almost certainly have done so. Any attempt by seceding states to unilaterally seize Federal property as happened historically would have almost certainly undone any attempts to secure peaceable secession.
 
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#18
A court decision would be highly unlikely to address the transfer of nationally held property in seceding states to those states, but a Constitutional Convention on secession would almost certainly have done so. Any attempt by seceding states to unilaterally seize Federal property as happened historically would have almost certainly undone any attempts to secure peaceable secession.
Whether or not the court decision would have addressed the transfer of federal property to states would have depended upon the nature of the suit that the states brought. SC passed a secession declaration that explicitly declared that all contracts between the state and the federal government were null and void. Hence if SC argued for the return of Ft. Sumter on that basis, the court, if it decided to hear the suit at all, would be forced to rule on the constitutionality of secession. Even if the court were to have decided that secession was legitimate but that Ft. Sumter remained federal property, the point would have been moot, because the fort would be protecting nothing, and it could not have been resupplied without violating SC territorial waters. (The fort had no water supply, except from the mainland, which would have made the resupply question immediately acute!)
 
#19
Whether or not the court decision would have addressed the transfer of federal property to states would have depended upon the nature of the suit that the states brought. SC passed a secession declaration that explicitly declared that all contracts between the state and the federal government were null and void. Hence if SC argued for the return of Ft. Sumter on that basis, the court, if it decided to hear the suit at all, would be forced to rule on the constitutionality of secession. Even if the court were to have decided that secession was legitimate but that Ft. Sumter remained federal property, the point would have been moot, because the fort would be protecting nothing, and it could not have been resupplied without violating SC territorial waters. (The fort had no water supply, except from the mainland, which would have made the resupply question immediately acute!)
Since a state cannot sue the federal government how would South Carolina bring a suit in regards to Ft. Sumter before the Supreme Court? For that matter, in 1860 or early 1861, how would have any of the Southern states brought a suit over the right of secession before the Supremes?
 
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#20
Since a state cannot sue the federal government how would South Carolina bring a suit in regards to Ft. Sumter before the Supreme Court? For that matter, in 1860 or early 1861, how would have any of the Southern states brought a suit over the right of secession before the Supremes?
I believe that your premise is flawed. States can, and have, sued the federal government for infringement of their constitutionally reserved rights. My understanding is that the federal government's "sovereign immunity" does not apply in such cases. The question at issue in this hypothetical suit would have been whether secession was a constitutionally reserved right. If the SCOTUS had refused to hear such a suit, that refusal in itself would have been a momentous statement. Given the furor over the issue in the country at the time, it is hard to imagine that the SCOTUS would not have taken up the issue, even if reluctantly, if the case had been presented. There would have been deafening howls of protest from all sides if the court had tried to punt.
 
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