Full Version: Consititutionality of Secession and Lincoln?
I was a little taken aback by AMLord's following comment in another thread.
Was the Secession of the South legal?
South Carolina did not use any procedure of the federal government to secede that I know of? What clause of the Constitution did they invoke?
Were Lincoln's actions un-Constitutional? How?
I am interested in everybody's opinion on these points
QUOTE
The Secession of the South was entirely legal, while Lincoln's actions were un-Constitutional. It is all a matter of history, and we (and the world) probably came out for the better because of Lincoln's actions.
Was the Secession of the South legal?
South Carolina did not use any procedure of the federal government to secede that I know of? What clause of the Constitution did they invoke?
Were Lincoln's actions un-Constitutional? How?
I am interested in everybody's opinion on these points
QUOTE(Eeyore @ May 23 2003, 02:08 PM)
Was the Secession of the South legal?
South Carolina did not use any procedure of the federal government to secede that I know of? What clause of the Constitution did they invoke?
Were Lincoln's actions un-Constitutional? How?
South Carolina did not use any procedure of the federal government to secede that I know of? What clause of the Constitution did they invoke?
Were Lincoln's actions un-Constitutional? How?
It was legal not because the Constitution expressly allowed or provided for it, but because the Constitution does not explicitly forbid it. Jefferson and Madison had this to say in the Virginia and Kentucky resolutions of 1798:
QUOTE
where powers were assumed by the national government which had not been granted by the states, nullification is the rightful remedy
Jefferson said in his first inaugural address (1801):
QUOTE
If there be any among us who wish to dissolve the Union or to change its republican form," the author of the Declaration of Independence said, "let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
In the early history of the US there were several threats of secession, mostly from northern states (Massachusetts four times). The right of succession was not mentioned primarily because it was assumed. So close on the heels of our secession from the British Empire, it might have seemed obvious that the states - even though joined in a loose federation - each controlled its own destiny.
QUOTE
Were Lincoln's actions un-Constitutional? How?
Probably not. If the South had been considered a separate nation, then Lincoln should have sought a proper declaration of war; I don't recall off the top of my head whether he did. However, the official interpretation was that the South was still part of the US. That means the military was being used to enforce domestic order, which I thought was disallowed by the Constitution, but I can't find that in the text. Maybe someone else can find a reference.
The doctrine of nullification that came from the VA and KY resolutions was never successfully applied. Jefferson's theories did not receive precedent.
The right to review constitutionality was grabbed by the Marshall court in Marbury v Madison. The ability of the states to pick and choose laws to obey that is implied in the doctrine of nullification would have been chaos. The other theory that Jefferson had for this was that a nullified law would be respected by all of the states as nullified. This would be tantamount to making the Constitution weaker than the Articles of Confederation because states would have to unanimously support a law.
When Calhoun tried to force the issue of nullification when he went from nationalist to states rights extremist in the 1830s, Tennessean Andrew Jackson passed the Force Bill as a threat to South Carolina. South Carolina backed down.
It is interesting that you use a broad construction argument to push a strict construction theory. Although I am not sure that secession falls under the necessary and proper part of the elastic clause.
An inaugural address is not the Constitution or a law. It is a speech.
The right to review constitutionality was grabbed by the Marshall court in Marbury v Madison. The ability of the states to pick and choose laws to obey that is implied in the doctrine of nullification would have been chaos. The other theory that Jefferson had for this was that a nullified law would be respected by all of the states as nullified. This would be tantamount to making the Constitution weaker than the Articles of Confederation because states would have to unanimously support a law.
When Calhoun tried to force the issue of nullification when he went from nationalist to states rights extremist in the 1830s, Tennessean Andrew Jackson passed the Force Bill as a threat to South Carolina. South Carolina backed down.
It is interesting that you use a broad construction argument to push a strict construction theory. Although I am not sure that secession falls under the necessary and proper part of the elastic clause.
An inaugural address is not the Constitution or a law. It is a speech.
Oh shoot. The Civil War was our country's expression of total discontent with what started out as an ideology doomed to failure. Out of this we got the federal system in which we try to keep some semblance of civility within a system that tries to compromise every ideology from all factions.
Dang. And this flies into the faces of strict interpretations of the original Constitution.
Um, we need to face some facts here. The first one is that our country has a stormy history. The second is that compromises have been made. The third is that we are in deep kimchee now, and where do we go from here, St. Peter??
That question was not answered on Tumbleweek Connection (Elton John), and it isn't being answered now. But it must be.
Dang. And this flies into the faces of strict interpretations of the original Constitution.
Um, we need to face some facts here. The first one is that our country has a stormy history. The second is that compromises have been made. The third is that we are in deep kimchee now, and where do we go from here, St. Peter??
That question was not answered on Tumbleweek Connection (Elton John), and it isn't being answered now. But it must be.
'All war is over money' as Plato said. In the 'Declaration of Causes of Seceding States', the State of Geogia makes her defense for sucession. I see two principles that are not easily dismissed. Tarriffs and slavery, both are issues of commercial self interest. I am going to quote from this Declaration without comment in this post. Later I will offer my own views on this since most people have neither the time nor patience for a lengthy exposition of the text. This perhaps would be suited for the Democrat forum since it overtly hostile to the first Republican administrations' agenda.(I thought I didn't like Republicans) But I think you will agree that there are some definate Constitutional issues involved.
"The party of Lincoln, called the Republican party, under its present name and organization, is of recent origin. It is admitted to be an anti-slavery party. While it attracts to itself by its creed the scattered advocates of exploded political heresies, of condemned theories in political economy, the advocates of commercial restrictions, of protection, of special privileges, of waste and corruption in the administration of Government, anti-slavery is its mission and its purpose. By anti-slavery it is made a power in the state."
"The material prosperity of the North was greatly dependent on the Federal Government; that of the the South not at all. In the first years of the Republic the navigating, commercial, and manufacturing interests of the North began to seek profit and aggrandizement at the expense of the agricultural interests. Even the owners of fishing smacks sought and obtained bounties for pursuing their own business (which yet continue), and $500,000 is now paid them annually out of the Treasury.The navigating interests begged for protection against foreign shipbuilders and against competition in the coasting trade. Congress granted both requests, and by prohibitory acts gave an absolute monopoly of this business to each of their interests, which they enjoy without diminution to this day. Not content with these great and unjust advantages, they have sought to throw the legitimate burden of their business as much as possible upon the public; they have succeeded in throwing the cost of light-houses, buoys, and the maintenance of their seamen upon the Treasury, and the Government now pays above $2,000,000 annually for the support of these objects. Theses interests, in connection with the commercial and manufacturing classes, have also succeeded, by means of subventions to mail steamers and the reduction in postage, in relieving their business from the payment of about $7,000,000 annually, throwing it upon the public"
"The prohibition of slavery in the Territories is the cardinal principle of this organization." (That is the newly formed Republican party)
"Such are the opinions and such are the practices of the Republican party...We know their treachery; we know the shallow pretenses under which they daily disregard its plainest obligations. If we submit to them it will be our fault and not theirs...But they know the value of parchment rights in treacherous hands, and therefore they refuse to commit their own to the rulers whom the North offers us. Why? Because by their declared principles and policy they have outlawed $3,000,000,000 of our property in the common territories of the Union; put it under the ban of the Republic in the States where it exists and out of the protection of Federal law everywhere; because they give sanctuary to thieves and incendiaries who assail it to the whole extent of their power, in spite of their most solemn obligations and covenants; because their avowed purpose is to subvert our society and subject us not only to the loss of our property but the destruction of ourselves, our wives, and our children, and the desolation of our homes, our altars, and our firesides"
http://sunsite.utk.edu/civil-war/reasons.html Declaration of Causes
Neo and Alice followed the white rabbit, in the real world we follow the money.
"The party of Lincoln, called the Republican party, under its present name and organization, is of recent origin. It is admitted to be an anti-slavery party. While it attracts to itself by its creed the scattered advocates of exploded political heresies, of condemned theories in political economy, the advocates of commercial restrictions, of protection, of special privileges, of waste and corruption in the administration of Government, anti-slavery is its mission and its purpose. By anti-slavery it is made a power in the state."
"The material prosperity of the North was greatly dependent on the Federal Government; that of the the South not at all. In the first years of the Republic the navigating, commercial, and manufacturing interests of the North began to seek profit and aggrandizement at the expense of the agricultural interests. Even the owners of fishing smacks sought and obtained bounties for pursuing their own business (which yet continue), and $500,000 is now paid them annually out of the Treasury.The navigating interests begged for protection against foreign shipbuilders and against competition in the coasting trade. Congress granted both requests, and by prohibitory acts gave an absolute monopoly of this business to each of their interests, which they enjoy without diminution to this day. Not content with these great and unjust advantages, they have sought to throw the legitimate burden of their business as much as possible upon the public; they have succeeded in throwing the cost of light-houses, buoys, and the maintenance of their seamen upon the Treasury, and the Government now pays above $2,000,000 annually for the support of these objects. Theses interests, in connection with the commercial and manufacturing classes, have also succeeded, by means of subventions to mail steamers and the reduction in postage, in relieving their business from the payment of about $7,000,000 annually, throwing it upon the public"
"The prohibition of slavery in the Territories is the cardinal principle of this organization." (That is the newly formed Republican party)
"Such are the opinions and such are the practices of the Republican party...We know their treachery; we know the shallow pretenses under which they daily disregard its plainest obligations. If we submit to them it will be our fault and not theirs...But they know the value of parchment rights in treacherous hands, and therefore they refuse to commit their own to the rulers whom the North offers us. Why? Because by their declared principles and policy they have outlawed $3,000,000,000 of our property in the common territories of the Union; put it under the ban of the Republic in the States where it exists and out of the protection of Federal law everywhere; because they give sanctuary to thieves and incendiaries who assail it to the whole extent of their power, in spite of their most solemn obligations and covenants; because their avowed purpose is to subvert our society and subject us not only to the loss of our property but the destruction of ourselves, our wives, and our children, and the desolation of our homes, our altars, and our firesides"
http://sunsite.utk.edu/civil-war/reasons.html Declaration of Causes
Neo and Alice followed the white rabbit, in the real world we follow the money.
A little known fact about the events leading up to the Civil War, One Senator was nearly beaten to death by another. We take for granted the liberties we enjoy but liberty is always at a price.
It interesting that the Rebublican party got its start leading us into Civil War. I often think of that when I consider the reasons for the empeachment of Clinton. On the off chance that someone might actually read this I wonder, do you know who the only other President to be empeached was? Do you know why? The reasons are almost identical.
We are at war, not with drugs, or terrorism, or Iraq. We are at war with the status quo. They are winning ever battle but the final battle is fought in the hearts and minds of the people that go to work every day. They are the lifeblood of these United States. If the history of Republics is any indication the US will last a thousand years. We are in the front row of a phenomenon that keeps on happening.
One thing is for sure, we are blessed to be afforded the luxury to be unconcerned.
It interesting that the Rebublican party got its start leading us into Civil War. I often think of that when I consider the reasons for the empeachment of Clinton. On the off chance that someone might actually read this I wonder, do you know who the only other President to be empeached was? Do you know why? The reasons are almost identical.
We are at war, not with drugs, or terrorism, or Iraq. We are at war with the status quo. They are winning ever battle but the final battle is fought in the hearts and minds of the people that go to work every day. They are the lifeblood of these United States. If the history of Republics is any indication the US will last a thousand years. We are in the front row of a phenomenon that keeps on happening.
One thing is for sure, we are blessed to be afforded the luxury to be unconcerned.
That little know fact of congressional sectional violence is in every high school US history text book in the country. How about the original question for this thread?
QUOTE(Eeyore @ May 25 2003, 05:38 PM)
That little know fact of congressional sectional violence is in every high school US history text book in the country. How about the original question for this thread?
Yeah, I have that image (a newspaper drawing of the time I believe) stuck in my head forever - one Senator with his cane raised above his head bringing it down to whack the other Senator!
With regards to the original question, Yes, no, maybe....
Legally, a case could easily be made that the Confederate states had the right of secession guaranteed within the 9th (or is it 10th?) Amendment. Further, they clearly had the right of secession if we consider the language and moral/legal reasoning that gave birth to this country and the Consititution, best embodied by the Declaration of Independence. The right to petition the gov't for redress of wrongs is also toothless if there exists no "legal right" to take action when the government repeatedly refuses redress.
Undercutting all of this morally is the issue of slavery. Without slavery, the South clearly would have had the moral highground. Since secession itself was never "tested" in the courts, there is no clear legal case. The "might makes right" test applied, and by that standard, history shows that the Rebels had no legal authority to secede.
Me, I think they did. They seceded for the right reasons, and the wrong ones. A great many of the charges tallied against King George III could be leveled against the Federal Government in 1861 by the South. Again, we stumble against slavery. Unfortunately for the Union's claims of a superior legal position, it wasn't fighting to free the slaves, it was fighting to maintain the Union. So much for self-determination....
A fine mess it was...
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