- Joined
- May 8, 2015
- Location
- Pittsburgh, PA
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.
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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