Why Argue About the Constitutionality of Secession?

wbull1

First Sergeant
Official Vendor
Joined
Jul 26, 2018
Well, that's certainly the view that the North took. Following the initial wave of secession, the Confederacy seized many Yankee/Federal assets and this led to a wave of indignation across the North and lit the flame for war.

But . . . I think the real "material breach of contract" was the Yankee's reaction to the Dred Scott Decision.

SCOTUS established that a black man was not a citizen and could be taken into free territories without a change of status. This was (as far as I'm aware) the first true Constitutional ruling on slavery and SCOTUS stated in a 7-2 vote that slavery was, in effect, totally Constitutional and could not be prohibited anywhere in the US!

This was hailed across the South as a triumph for slavery, a repeal of the Missouri Compromise and an opening of the door so that new territories could become slave territories.

Naturally, the plantation class and other slave owners saw this as a major victory!

Yet the North ignored the ruling and it led directly to the rise of a strong Republican Party . . . . which was purely a Northern party . . . . it wasn't even on the ballot in many Southern states.

This rejection by the North of a Constitutional interpretation . . . . as well as Lincoln's rhetoric



is why the Fire Eaters became the dominant political force in the South and were able to generate such huge support for secession.



But again . . . . I think we can get too wrapped up in one "cause" and lose sight of the totality of the 1850s . . . . Bloody Kansas . . . Uncle Tom's Cabin . . . John Brown . . . the raid on Harper's Ferry . . . John Brown's execution . . . Dred Scott case . . . . the Republican Party . . . . the disintegration of the Democrats . . . the Lincoln-Douglas debates . . . . tariffs . . . President Buchanan . . . .

All these things worked together in a perfect storm to bring about the Civil War.

So who committed the first material breach? Who was wrong? I think it's an unanswerable historical riddle.


Good points, especially about there being multiple causes. However, I think you give the Dred Scott decision too much importance. At the time, unlike now, a Supreme Court ruling was not seen as the final word on an issue. In the Lincoln-Douglas debates, Stephen A. Douglas's idea of "popular sovereignty" contradicted the ruling just as much as Lincoln's ignoring it. Nobody paid much attention to that. Lincoln noted Douglas' tendency to ignore the court and called his criticism of Lincoln, for that "an astonisher." Of course, Andrew Jackson ignored Supreme Court rulings years earlier without facing any consequences. Without getting into details, the decision was the least justified decision based on the most twisted legal "reasoning" of all time.

I don't believe there was anything like an across-the-board coherent Northern reaction to the decision. Lincoln's house divided speech was made when he was not in office and he lost the Senate race during which the speech as made. I think it was one of the many events leading up to the Civil War you refer to, but I'm not aware of either side singling out reaction to the decision as the major point of disagreement.

During the war, Lincoln pretty much ignored the Supreme Court, which seems to me to have been a minor issue for his critics. I believe he is much more criticized for the now than he was at the time.
 

JohnJW

Private
Joined
Jun 25, 2019
@JohnJW And I think it settled the question that some questions should not be attempted to be solved by force of arms, at least, not all of them, as the slaveholding South attempted to do.

Great comment . . . . however . . . .

WAR IS A MERE CONTINUATION OF POLICY BY OTHER MEANS.

We see, therefore, that War is not merely a political act, but also a real political instrument, a continuation of political commerce, a carrying out of the same by other means.

All beyond this which is strictly peculiar to War relates merely to the peculiar nature of the means which it uses. That the tendencies and views of policy shall not be incompatible with these means, the Art of War in general and the Commander in each particular case may demand, and this claim is truly not a trifling one. But however powerfully this may react on political views in particular cases, still it must always be regarded as only a modification of them; for the political view is the object, War is the means, and the means must always include the object in our conception. Carl von Clausewitz, On War

In the case of the Civil War, I would argue that the political goal was not to resolve the issue of slavery but to simply

"dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them . . . . "
 

O' Be Joyful

Sergeant Major
Of course, Andrew Jackson ignored Supreme Court rulings years earlier without facing any consequences.


I must contest this notion, Jackson did "face consequences", but they were eventually "ripped" out of the Record. :wink:

Andrew Jackson, presidential censure and the Constitution

On March 28, 1834, the U.S. Senate censured President Andrew Jackson in a tug-of-war that had questionable constitutional roots but important political overtones.
andrew-jackson.jpg
Congressional censure motions against a sitting President have always been controversial. In addition to Jackson, John Tyler and James Polk faced censure resolutions. Abraham Lincoln faced a censure problem during the Civil War, which was ironic, since Representative Lincoln led the censure movement against President Polk.
In recent years, censure motions were introduced against Richard Nixon and Bill Clinton, but not pursued.

Censure motions are subject to votes in either the House of Representatives or the Senate, and their sharply worded language is essentially a public shaming of government officials.


https://constitutioncenter.org/blog/can-a-president-really-by-censured-the-answer-is-yes-and-no
 

wbull1

First Sergeant
Official Vendor
Joined
Jul 26, 2018
I must contest this notion, Jackson did "face consequences", but they were eventually "ripped" out of the Record. :wink:

Andrew Jackson, presidential censure and the Constitution

On March 28, 1834, the U.S. Senate censured President Andrew Jackson in a tug-of-war that had questionable constitutional roots but important political overtones.
View attachment 315129Congressional censure motions against a sitting President have always been controversial. In addition to Jackson, John Tyler and James Polk faced censure resolutions. Abraham Lincoln faced a censure problem during the Civil War, which was ironic, since Representative Lincoln led the censure movement against President Polk.
In recent years, censure motions were introduced against Richard Nixon and Bill Clinton, but not pursued.


Censure motions are subject to votes in either the House of Representatives or the Senate, and their sharply worded language is essentially a public shaming of government officials.

https://constitutioncenter.org/blog/can-a-president-really-by-censured-the-answer-is-yes-and-no

You are correct. There were consquences.
 

unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Location
Ocala, FL (as of December, 2015).
I agree. The Southern States had a valid case.

Nope, they didn't.

They simply thought they could blast their way out of the Union without the need of presenting a "valid case" to the nation at large or in a court of law.

That's not a "valid case."

That's a criminal gang trying to shoot it's way out of a bank they just robbed.
 

unionblue

Brev. Brig. Gen'l
Member of the Year
Joined
Feb 20, 2005
Location
Ocala, FL (as of December, 2015).
Great comment . . . . however . . . .



In the case of the Civil War, I would argue that the political goal was not to resolve the issue of slavery but to simply

"dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them . . . . "

Too bad that was not the impression given by the slaveholding states.

I always find it amusing when the words of 1776 are used as a cover for unilateral secession who's goal was the preservation of not freedom, but the continued denial of freedom to nearly four million souls and the nearly 4 billion in 1860 dollars they represented.

Political bands were not the issue for the seceding South, slavery was.
 

wbull1

First Sergeant
Official Vendor
Joined
Jul 26, 2018
Well, that's certainly the view that the North took. Following the initial wave of secession, the Confederacy seized many Yankee/Federal assets and this led to a wave of indignation across the North and lit the flame for war.

But . . . I think the real "material breach of contract" was the Yankee's reaction to the Dred Scott Decision.

SCOTUS established that a black man was not a citizen and could be taken into free territories without a change of status. This was (as far as I'm aware) the first true Constitutional ruling on slavery and SCOTUS stated in a 7-2 vote that slavery was, in effect, totally Constitutional and could not be prohibited anywhere in the US!

This was hailed across the South as a triumph for slavery, a repeal of the Missouri Compromise and an opening of the door so that new territories could become slave territories.

Naturally, the plantation class and other slave owners saw this as a major victory!

Yet the North ignored the ruling and it led directly to the rise of a strong Republican Party . . . . which was purely a Northern party . . . . it wasn't even on the ballot in many Southern states.

This rejection by the North of a Constitutional interpretation . . . . as well as Lincoln's rhetoric



is why the Fire Eaters became the dominant political force in the South and were able to generate such huge support for secession.



But again . . . . I think we can get too wrapped up in one "cause" and lose sight of the totality of the 1850s . . . . Bloody Kansas . . . Uncle Tom's Cabin . . . John Brown . . . the raid on Harper's Ferry . . . John Brown's execution . . . Dred Scott case . . . . the Republican Party . . . . the disintegration of the Democrats . . . the Lincoln-Douglas debates . . . . tariffs . . . President Buchanan . . . .

All these things worked together in a perfect storm to bring about the Civil War.

So who committed the first material breach? Who was wrong? I think it's an unanswerable historical riddle.


If I understand your argument, the "material breach" was to ignore a Supreme Court decision that was given in 1857. What actions resulted from the decision as you see it? I am not aware that an armed force refused to allow slavery into the territories. I'm not aware of any hostilities engendered directly by the decision. Bleeding Kansas followed the Kansas-Nebraska Act. Firing on Fort Sumer initiated the shooting war. The war followed the decision in time, but so did many other events. What evidence do you offer that the decision was the key event? What specific actions constituted the material breach?
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Why do posters here feel compelled to argue again and again and again about whether secession was a constitutional right?
It's not as if anyone's reached a definitive decision that's widely accepted.
Isn't it enough to say that Americans at the time disagreed over whether there was a constitutional right of secession, and, as so many arguments were cast in terms of constitutionality and original intent, that the inability of people at the time to reach a generally-agreed upon conclusion contributed to the events leading up to the secession crisis and the decision for war in 1860-61?



The Constitutionality of unilateral secession(i.e., or any form of secession not provided for by the Constitution itslf) was very important, because it was the issue around which the Civil War revolved.

If the South were right, then the claim that the Union's defense of itself, as justification for participating in the war, was wrong. If the Union were right, then Southern resistance to Federal Authority, required its defense. That, it seems to me, to be a very important matter that can be discussed, but, not,IMO, debated. i.e., There were various methods and means available within h clearrly expressed terms of the Constitution, answer the question of the legality (under the Constitution) of unilateral secession. The South, with much forethought and great deliberation chose armed force to settle the issue of its legality/viability and the Lincoln had no other Constitutional choice except to defend it.

The South had thrown its gauntlet at the Union's feet, and Lincoln picked it up. The South had chosen to prove its claims by 'Trial by Combat' the Union accepted the terms, and defeated the South, proving, by the method chosen by the South, to settle the issue once and for all.

The issue was settled with the defeat of Southern war against the authority of the United States Constitution, i.e., until the Supreme Court, the Congress or All the People of all the States of their Union, change their minds, unilateral secession was, is and always had been Unconstitutional.
 

leftyhunter

Brev. Brig. Gen'l
Joined
May 27, 2011
Location
los angeles ca
As to the question itself, inasmuch that there is absolutely nothing in the constitution that prevents the exercise of the right, secession clearly was, and is, a constitutional right.
Per what statutory or case law is it true that Secession is a legal right? If Secession was a legal right then why didn't the secessionist leaders ask for protection from the federal courts?
Leftyhunter
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Per what statutory or case law is it true that Secession is a legal right? If Secession was a legal right then why didn't the secessionist leaders ask for protection from the federal courts?
Leftyhunter




Good point, IMO, the Constitution and its gov't and laws, recognize no higher power or auuthority to govern the United States than itself, i.e. Any right or power existing outside the authority and power of all the people of all the states of their Union and their chosen Constitution and gov't and laws, cannot conflict or transcend any of thhe expressed powers and authority of that Union, without its peoples consent. To do otherwise, would be Revolution.
 

GwilymT

First Sergeant
Joined
Aug 20, 2018
Location
Pittsburgh
Good point, IMO, the Constitution and its gov't and laws, recognize no higher power or auuthority to govern the United States than itself, i.e. Any right or power existing outside the authority and power of all the people of all the states of their Union and their chosen Constitution and gov't and laws, cannot conflict or transcend any of thhe expressed powers and authority of that Union, without its peoples consent. To do otherwise, would be Revolution.

It is only latter day apologists who claim secession is or was a constitutional right. The secessionists were very clear that in their opinion the constitution was null and void and they were appealing to a natural right of revolution and independence. One can think them right or wrong, but to claim that they were acting legally under the constitution is silly.
 

Saint Jude

Sergeant Major
Joined
Oct 15, 2018
Location
Heaven
"[Lee] had to go down, honored and beloved indeed for the man he was, but the more lamented for the unhappy choice he made when he cast his lot with those who forsook the old flag for a new one, which did not recognize the fact that old things had become new--that even constitutions move with the march of men, with wider interpretations and to their appointed goals, and that the old flag borne forward by farther-seeing men held its potency not only in the history of the past but the story of the future." (Joshua Lawrence Chamberlain in The Passing of Armies.)

I agree with Chamberlain that the "constitutionality" of secession was--and is-- irrelevant.
 

uaskme

2nd Lieutenant
Joined
Nov 9, 2016
Location
SE Tennessee
In many ways, it was easier for southerners to find historical precedents for their attempt at separate nationhood that it was for northerners to defend their opposition to secession. Southerners could far more easily align themselves with the revolutionary generation than northerners could. The South's invocation of George Washington was a particularly powerful symbol. As a southerner himself, and as the father of his country, Washington was the most impressive national figure the Confederacy could appropriate for its cause. If southerners perceived any irony in their trying to destroy the Union by using the man who had warned his countrymen to beware of sectional rivalries and to "properly estimate the immense value of your national to your collective and individual happiness," they did not show it. As Jefferson Davis patiently explained, in "order to guard against any misconstruction of their compact, the several States made explicit declaration in a distinct article--that 'each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled." Faced with this deadly combination of emotive and legalistic argument in favor of secession, northerners struggled to offer not just an alternative but an overwhelmingly persuasive argument in support of their assertion that America was constructed as one nation and ought to remain so. pp162-163 North over South by Grant

Were the Yankees trying to make Southerners Americans, of Yankees? If the Yankee was fighting for Yankee Nationalism, Why couldn't Southerns fight for theirs?
 

Andersonh1

Brigadier General
Moderator
Joined
Jan 12, 2016
Location
South Carolina
Nope, they didn't.

They simply thought they could blast their way out of the Union without the need of presenting a "valid case" to the nation at large or in a court of law.

They did present their case to the Supreme Court, and won big. That was the Dred Scott decision. Look at the reaction to that decision by the northern states and the Republican party, and it will tell you that a day in court simply was not going to solve the issue.

And even then, the south did not "blast their way out of the Union" until backed into a corner. They prepared for war, but they attempted to use diplomacy to obtain recognition. It was Lincoln who refused to talk, not the Confederates.
 
Joined
Jun 16, 2016
The answers to the OP suggest that people would rather continue to debate the constitutionality of secession than address the historical fact that people in 1860 disagreed over this issue and that any conclusion reached today in a little-known internet discussion group has no effect on that fact ... and that we're no closer to a definitive and accepted answer, then or now.

Carry on.
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
It is only latter day apologists who claim secession is or was a constitutional right. The secessionists were very clear that in their opinion the constitution was null and void and they were appealing to a natural right of revolution and independence. One can think them right or wrong, but to claim that they were acting legally under the constitution is silly.



I agree, such was the the claim of those secessionists who really bothered to defend it on legal grounds.

Theoretically, since the retained rights contained in the X Amend. were seen to be the exclusive rights of the indiviidual states. and so, were beyond the authority of the Constitution. But, as many on this board have long pointed out, none of the retained rights are, and, were not be the get out of the Union Free Cards. that many legalist secessionists then(and, now) claim, i.e., there would, almost certainly, be Constititutional(Legal)consequences to their implementation.

All the retained powers of the states must be weighed and measured, against the clearly expressed powers contained in the Constitution, in order for their implementation, to not violate or override those rights clearly expressed in the Constitution.
 
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