Civil War question, was secession legal in 1860

[Spectre]

Was secession legal in 1860?

[Clintville]

Was secession legal in 1860?
The Federal government didn't think so. And that's all that matters.

And historically it was look down upon as traitorous. Andrew Jackson threatened attack on South Carolina after they threatened to secede during the Nullification Crisis.

[Spectre]

The Federal government didn't think so. And that's all that matters.



This same Federal Govt also said slavery was legal at that time.

I'm talking about legal, like US law, you know the Constitution.

Was secession legal under US law at that time?

[grapabeaux]

The Constitution doesn't say that the powers granted to the federal government were revocable. This would suggest that whether or not a state claimed a right to secede from the union, they weren't going to get those powers back from the federal government.

[captusa]

This same Federal Govt also said slavery was legal at that time.

I'm talking about legal, like US law, you know the Constitution.

Was secession legal under US law at that time?

Slavery was a states rights issue since servitude (including voluntary) was only mentioned in terms of representation.

Jackson set a precedent that could have been reverse through a Constitutional Amendment.
Not even South Carolina proposed to have the issue of sccession addressed by Constituional amendment or appealing to the Supreme Court.
If they did Jackson's threat could have been considered a violation of the Constitution like the uprooting of the Cherokees.
With a decision considering succession to be Constitutional it could have been attempted when a more flexible president than Jackson was in office.

[Clintville]

This same Federal Govt also said slavery was legal at that time.

Slavery was legal at the time. The Federal Government never tried to ban it until the end of the Civil War.

I'm talking about legal, like US law, you know the Constitution.

Was secession legal under US law at that time?
Again, nothing in the Constitution says it was. But informally it pretty much was as far as the US government was concerned. When the Federalists in New England were rumored to be contemplating secession, they were seen as traitors, and their party collapsed. When South Carolina threatened secession during the Nullification Crisis, Andrew Jackson threatened to use force because a state was trying to nullify a law and secession was even brought up.

James Madison, the "Father of the Constitution" was against secession and nullification. The point of the Constitution was to establish a government with national supremacy. It was getting rid of any concept that the states were independent.

[WorldWatcher]

Was secession legal in 1860?


LINK (www.m-w.com)

Insurrection: an act or instance of revolting against civil authority or an established government

Revolt: to renounce allegiance or subjection (as to a government)



United States Constitution
Article 1 Section 8
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"



Many people think "insurrection" involves violence, however no where in the definition of insurrection (and it's sub meaning of "revolt") is there a requirement for violence to occur.


So to answer your question, "Yes" a State can secede, off the top of my head I can think of five ways.


1. The process used to admit new States is followed in reverse. The State applies to Congress and both the Congress and the Legislature of the applying State agree to sever ties. Secession successful.

2. The State does not apply to Congress and commits an act of insurrection (i.e. revolting against the established government). Congress chooses not to exercise it's authority to suppress insurrection with the military. Secession successful.

3. The State does not apply to Congress and commits an act of insurrection (i.e. revolting against the established government). Congress chooses to exercise it's authority to suppress insurrection with the military. The State wins, secession successful.

4. The State does not apply to Congress and commits an act of insurrection (i.e. revolting against the established government). Congress chooses to exercise it's authority to suppress insurrection with the military. The United States military wins, secession not successful.

5. A fifth option would be to blockade the insurrectionist state from all land, sea, and air travel isolating the state from any ability to trade outside it's borders. The effectiveness of the blockade would then depend on the states own internal food and resource production.




See in my opinion "legal" is a slippery term. Whoever wins is the "legal" winner. For example we view the Founding Fathers a patriots who gambled everything to throw off the yoke of England and the Crown. We won, they are heroes. On the other hand, if the American Revolution had failed, very likely the Founding Fathers would have been thrown into chains and dragged to England to face the justice of the Crown as traitors. Remember the winner often writes the history books.


>>>>

[captusa]

LINK (www.m-w.com)

Insurrection: an act or instance of revolting against civil authority or an established government

Revolt: to renounce allegiance or subjection (as to a government)



United States Constitution
Article 1 Section 8
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"



Many people think "insurrection" involves violence, however no where in the definition of insurrection (and it's sub meaning of "revolt") is there a requirement for violence to occur.


So to answer your question, "Yes" a State can secede, off the top of my head I can think of five ways.


1. The process used to admit new States is followed in reverse. The State applies to Congress and both the Congress and the Legislature of the applying State agree to sever ties. Secession successful.

2. The State does not apply to Congress and commits an act of insurrection (i.e. revolting against the established government). Congress chooses not to exercise it's authority to suppress insurrection with the military. Secession successful.

3. The State does not apply to Congress and commits an act of insurrection (i.e. revolting against the established government). Congress chooses to exercise it's authority to suppress insurrection with the military. The State wins, secession successful.

4. The State does not apply to Congress and commits an act of insurrection (i.e. revolting against the established government). Congress chooses to exercise it's authority to suppress insurrection with the military. The United States military wins, secession not successful.

5. A fifth option would be to blockade the insurrectionist state from all land, sea, and air travel isolating the state from any ability to trade outside it's borders. The effectiveness of the blockade would then depend on the states own internal food and resource production.




See in my opinion "legal" is a slippery term. Whoever wins is the "legal" winner. For example we view the Founding Fathers a patriots who gambled everything to throw off the yoke of England and the Crown. We won, they are heroes. On the other hand, if the American Revolution had failed, very likely the Founding Fathers would have been thrown into chains and dragged to England to face the justice of the Crown as traitors. Remember the winner often writes the history books.


>>>>

Your first method corresponds to the opinion I gave that ratification was a contract and to break a contract it requires the agreement of both parties.

and your citing of Article 1 Section 8 answered the question of whether the South rebelled and did the union have the right (and obligation) to quash the rebellion (aka insurrection).
The answer being YES for both.

and winning wars is an effective method of setting a precedent.

[grapabeaux]

Even if a state declared itself to be free from the union, they don't get back the sovereign powers they forefitted to the federal government. So what do they gain? Nothing.

Going further, if a state tries to act as if they recovered those powers, to the extent they are acting in contradiction to the federal government, they are doing so without the force of law. This cripples most of the attempts a state would be able to make to establish sovereignty.

[captusa]

Even if a state declared itself to be free from the union, they don't get back the sovereign powers they forefitted to the federal government. So what do they gain? Nothing.

Going further, if a state tries to act as if they recovered those powers, to the extent they are acting in contradiction to the federal government, they are doing so without the force of law. This cripples most of the attempts a state would be able to make to establish sovereignty.

As he often does.
WW has supplied the appropriate information and documentation.

[Spectre]

So is it accurate to say that at that time the Constitution didn't say secession was or was not legal?

[reasonmclucus]

Was secession legal in 1860?

Whether or not it was, the South made the question mute by attacking Ft. Sumpter and thus declaring war.

[BillyBobUSA]

Was secession legal in 1860?

If you do it and can make it stick then it is legal.

[Spectre]

Whether or not it was, the South made the question mute by attacking Ft. Sumpter and thus declaring war.

The North started the war.


http://www.citizensforaconstitutionalrepublic.com/benson_Jr1-1-09.html

http://www.p2fe.com/Bombardment_of_Fort_Sumter.jpg
The Bombardment of Fort Sumter April 12-13, 1861
South Carolina had ceded property in Charleston Harbor to the federal Government in 1805, upon the condition that “the United States... repair the fortifications now existing thereon or build such other forts or fortifications as may be deemed most expedient by the Executive of the United States on the same, and keep a garrison or garrisons therein” (The Statutes at Large of South Carolina [Columbia, South Carolina: A.S. Johnston, 1836], Volume V, page 501).

Work on Fort Sumter had begun in 1829 and had still not been completed by 1860. Unfinished and unoccupied for over thirty years, the terms of the cession were clearly violated and it was thus “void and of no effect.” http://www.citizensforaconstitutionalrepublic.com/1428642196.gif (http://www.amazon.com/gp/product/1428642196?ie=UTF8&tag=citizensforac-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=1428642196)http://www.assoc-amazon.com/e/ir?t=citizensforac-20&l=as2&o=1&a=1428642196
Consequently, the fort was never the property of the United States Government, as Lincoln claimed in his first Inaugural Address, and, upon secession from the Union, the only duty which South Carolina owed, either legally or morally, to the other States was “adequate compensation... for the value of the works and for any other advantage obtained by the one party, or loss incurred by the other” (Jefferson Davis, The Rise and Fall of the Confederate Government (http://www.amazon.com/gp/product/1428642196?ie=UTF8&tag=citizensforac-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=1428642196)http://www.assoc-amazon.com/e/ir?t=citizensforac-20&l=as2&o=1&a=1428642196, Volume I, page 211).

Such being the case, the occupation of Fort Sumter by U.S. troops was technically an act of invasion and the Confederate forces in Charleston were wholly justified in firing upon them.

[Quantrill]

Even if a state declared itself to be free from the union, they don't get back the sovereign powers they forefitted to the federal government. So what do they gain? Nothing.

Going further, if a state tries to act as if they recovered those powers, to the extent they are acting in contradiction to the federal government, they are doing so without the force of law. This cripples most of the attempts a state would be able to make to establish sovereignty.

I do not agree. Aritcle 10 of the Bill of Rights says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

"Delegated" does not mean "surrendered". It means its yours yet you have placed it in anothers ability to carry out. You have not surrendered it.

And, as Alexander Stephens says, "The exercise of supreme or sovereign powers may be by delegation. In this country it is entirely by delegation; but whatever is delegated may be resumed by the authority delegating".

Above quote is from "A Constitutional View of the Late War Between The States", Volume One,pages 40,41, by Alexander Stephens.

Quantrill

[Clintville]

Those that wrote the Constitution were against it and the Founders actually distinguished secession from revolution. They were of course kind of being hypocritical though, since technically what they did was secession and not revolution.

Still, just because it doesn't say states cannot secede in the Constitution doesn't mean it was legal. That was not the point of the Constitution, and it definitely wasn't the intent of the 10th Amendment. And like someone pointed out, there is the Supremacy Clause, the Elastic Clause, and Congress can defend against an insurrection.

[captusa]

So is it accurate to say that at that time the Constitution didn't say secession was or was not legal?

Succession was legal only if both sides agree to it.
One party can not abroggate a contract and if that contract is the Constitution it is insurrection.
I just thought of this.
How would or could the Federal Government eject a state from the Union ?

[Clintville]

Succession was illegal only if both sides agree to it.
One party can not abroggate a contract and if that contract is the Constitution it is insurrection.
I just thought of this.
How would or could the Federal Government eject a state from the Union ?
They pretty much ejected the former Confederacy after the Civil War by turning them into military districts.

[grapabeaux]

I do not agree. Aritcle 10 of the Bill of Rights says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

"Delegated" does not mean "surrendered". It means its yours yet you have placed it in anothers ability to carry out. You have not surrendered it.

And, as Alexander Stephens says, "The exercise of supreme or sovereign powers may be by delegation. In this country it is entirely by delegation; but whatever is delegated may be resumed by the authority delegating".

Above quote is from "A Constitutional View of the Late War Between The States", Volume One,pages 40,41, by Alexander Stephens.

Quantrill

The powers held by the federal government are more binding than that. When the branches of government were established, the powers were mandatory - "Congress shall have the power to...", etc. Your theory would imply some form of agency theory that could be revoked at will, and be revoked in part if desired.

The Constitution does not give any conditions upon this delegation of power. This may not be complete irrevocability, but as long as there is an entity called the federal government, the attempt to revoke these powers by less than all of the states isn't going to be of legal consequence.

[Quantrill]

The powers held by the federal government are more binding than that. When the branches of government were established, the powers were mandatory - "Congress shall have the power to...", etc. Your theory would imply some form of agency theory that could be revoked at will, and be revoked in part if desired.

The Constitution does not give any conditions upon this delegation of power. This may not be complete irrevocability, but as long as there is an entity called the federal government, the attempt to revoke these powers by less than all of the states isn't going to be of legal consequence.

The powers of the Federal Govt. are just as binding as the constitutions says they are. And the Constitution says they were "delegated" not forfited or surrendered.

Its not a theory. Its what it says. The same is so stated in Virginias ratification of the Constitution. " We the delegates of the people of Virginia, duly elected...do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression."

It is of legal consequence if it is written in the Constitution. And there is nothing said about a vote of any states to agree to secession.

Quantrill

[grapabeaux]

The powers of the Federal Govt. are just as binding as the constitutions says they are. And the Constitution says they were "delegated" not forfited or surrendered.

The Constitution says that certain powers "shall" rest with the legisltive, executive, and judicial branches. It says so without reservation. There is nothing in the Constitution allowing for the states to take back any of those powers. Delegation does not mean the power is revocable.

Its not a theory. Its what it says. The same is so stated in Virginias ratification of the Constitution. " We the delegates of the people of Virginia, duly elected...do, in the name and behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression."

Virginia may have claimed that right, but that doesn't make it Constitutionally authoritative.

f legal consequence if it is written in the Constitution. And there is nothing said about a vote of any states to agree to secession.

Quantrill

There is nothing said about the right of states to secede, period.

If the powers were as fluid as you want us to believe, individual states would be cliaiming a right to claim back powers in whole or in part. For instance, if a state was dissatisfied with Congressional act regulating interstate commerce, the state (under your view) could simply say that it is revoking its delegation of power to Congress to regulate interstate commerce, and make its own laws on interstate commerce. This would render the Supremacy Clause moot, and would remove a lot of distinctions between the Constitution and Articles of Confederation.

[Quantrill]

The Constitution says that certain powers "shall" rest with the legisltive, executive, and judicial branches. It says so without reservation. There is nothing in the Constitution allowing for the states to take back any of those powers. Delegation does not mean the power is revocable.



Virginia may have claimed that right, but that doesn't make it Constitutionally authoritative.



There is nothing said about the right of states to secede, period.

If the powers were as fluid as you want us to believe, individual states would be cliaiming a right to claim back powers in whole or in part. For instance, if a state was dissatisfied with Congressional act regulating interstate commerce, the state (under your view) could simply say that it is revoking its delegation of power to Congress to regulate interstate commerce, and make its own laws on interstate commerce. This would render the Supremacy Clause moot, and would remove a lot of distinctions between the Constitution and Articles of Confederation.

The word "delegate" provides for the resumption of those powers, that were never surrendered.

I quoted Abraham Lincoln also before, but here it is again.

"Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is most valuable, a most sacred right-a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people,that can, may revolutionize, and make their own of so much of the territory as they inhabit."

The above is from a speech to Congress Jan. 12, 1848

Does "any people" mean any people? Does "right" mean right. Does "delegate" mean delegate?

Quantrill

[WorldWatcher]

The word "delegate" provides for the resumption of those powers, that were never surrendered.

I quoted Abraham Lincoln also before, but here it is again.

"Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is most valuable, a most sacred right-a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people,that can, may revolutionize, and make their own of so much of the territory as they inhabit."

The above is from a speech to Congress Jan. 12, 1848

Does "any people" mean any people? Does "right" mean right. Does "delegate" mean delegate?

Quantrill



The Constitution says (and has said from it's earliest days) that Congress has the power to suppress insurrection.

Insurrection: an act or instance of revolting against civil authority or an established government.



Constitution says Congress can suppress revolts, Lincoln says "Any portion of such people,that can, may revolutionize". Sure they can revolt, but the Congress can suppress them.


I'll take the Constitution as the Supreme Law of the Land (Article VI) over the opinion of an individual.


>>>>

[Quantrill]

The Constitution says (and has said from it's earliest days) that Congress has the power to suppress insurrection.

Insurrection: an act or instance of revolting against civil authority or an established government.



Constitution says Congress can suppress revolts, Lincoln says "Any portion of such people,that can, may revolutionize". Sure they can revolt, but the Congress can suppress them.


I'll take the Constitution as the Supreme Law of the Land (Article VI) over the opinion of an individual.


>>>>

Secede-----to withdraw formally from an alliance, federation, or association

Secession----an act or instance of seceding

The above come from Websters colleg dictionary.

I didn't see anything about insurrection in those definitions. I also take the Constituion as the Law of the Land.

As did the South.

Quantrill

[WorldWatcher]

Secede-----to withdraw formally from an alliance, federation, or association

Secession----an act or instance of seceding

The above come from Websters colleg dictionary.


Let's take a simplified example.

There is an association called "The Family" consisting of my Wife, my daughter, my son, and myself. My son is 19 years old and lives at home while attending college. In addition to being a full time student who's tuition and primary living expenses are paid for by us, he is expected to assist with certain chores around the house.

Example #1
He attempts to secede from the association and revolts against doing chores. Since Mom and I don't agree to it, that would be insurrection. We tell him "Shut-up and do the lawn or pack your bags and leave, if you leave figure out how to pay your own living expenses and for school". He accepts the conditions and leaves, gets a job and is successful at severing the association as it existed. His revolt was insurrection, his secession was successful.

Example #2
He attempts to secede from the association and revolts against doing chores. Since Mom and I don't agree to it, that would be insurrection. We tell him "Shut-up and do the lawn or pack your bags and leave, if you leave figure out how to pay your own living expenses and for school". He thinks about it and realizes that (a) he doesn't have the skills to get a good paying job without a college education, and (b) he can't afford BOTH living expenses and college expenses. He goes and mows the law. His revolt was insurrection, his secession was unsuccessful.

Example #3
He doesn't complain, continues with the Family association until such time as he finishes college. After getting a job and saving up for a couple of months, he now has a good nest egg put away. He sits down and discusses moving out. We agree it time for him to go is own way and help him find his own place and he moves out. Since the agreement was made by all parties, it was not insurrection and his secession from the association was successful.


See the difference now?


I didn't see anything about insurrection in those definitions. I also take the Constitution as the Law of the Land.

As did the South.

Quantrill


Of course you don't see insurrection in those definitions, you would need to look at the definition of - well - insurrection. Since I'm assuming you don't wish to view secession as an act of revolting against an established government (Merriam-Webster) I can see why.

When a group of 50 agree to form into one Constitutional government forming a level called the United States of America, then it would be insurrection for 1 state to revolt against that government and to attempt to revolt against it without the consent of the other 49 States.


Again the definition of "revolt" ["to renounce allegiance or subjection (as to a government)" from Merriam-Webster] does not require violence (as some assume) it only requires an attempt to renounce a previous allegiance.


As I previously posted earlier in the thread secession and insurrection may not be the same thing. If a State secedes through the mutual agreement of all interested parties. In this case the individual State (represented by the Legislature who swore an oath to uphold the Constitution) and the Congress of the United States (as the authority to act representing the United States) and signed by the President as a lawful act, the secession would not be insurrection. However, secession as an act of revolting against the Unite States government of which they are a part, could be seen as insurrection. In such a case then Congress is empowered to suppress such action.


Secession by an individual State isn't mentioned in the Constitution, insurrection is.



*****************


BTW - how did that work out for the south? Any of them still independent nations separate from the United States?


>>>>

[captusa]

Secede-----to withdraw formally from an alliance, federation, or association

Secession----an act or instance of seceding

The above come from Websters colleg dictionary.

I didn't see anything about insurrection in those definitions. I also take the Constituion as the Law of the Land.

As did the South.

Quantrill

Wasn't Webster a Yankee ?
Why would you take any of his words ?

[grapabeaux]

The word "delegate" provides for the resumption of those powers, that were never surrendered.

I quoted Abraham Lincoln also before, but here it is again.

"Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is most valuable, a most sacred right-a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people,that can, may revolutionize, and make their own of so much of the territory as they inhabit."

The above is from a speech to Congress Jan. 12, 1848

Does "any people" mean any people? Does "right" mean right. Does "delegate" mean delegate?

Quantrill

No one disputes that there's a right to insurrection, which would be acting to break up the union and the Constitution together. But to hold that there's some way that a state can secede and still act within the the confines of the Constitution is a fantasy. If there's secession, the union itself is threatened, as is the document holding that union together.

Again, nowhere in the Constitution does it say that a state can revoke its delegation. You are simply interpreting "delegate" to mean something that it is not.

Question: if:

-- Congress passed a law regulating interstate commerce, and
-- one state decided that it was going to enact a contrary law within its own state, and
-- as part of this state law, it declared that it would revoke its delegation to Congress the power to regulate interstate commerce within that state's boundaries,
-- would you say that this is permitted under the terms of the Constitution?

[Quantrill]

Secession by an individual State isn't mentioned in the Constitution, insurrection is.



*****************


BTW - how did that work out for the south? Any of them still independent nations separate from the United States?


>>>>

Well you said a lot to prove what I said. Secession is not insurrection.

The ability to reassume those powers that were delegated, as stated in the 10th ammendment , gives the States the authority to secede, and that peacefully.

How did it work out for the South, you ask. It didn't. In other words, abiding by the Constitution did not work out for the South. Lets see, that is that same Constitution you said you see as the Supreme Law of the Land.

And, we remain part of the U.S. But make no mistake, it is by force and force alone. You see before we came in under agreement. Bound by agreement by Constitution. Now we are just here because we were conquered. And conquered by those who had to immediately remake the Constitution so as to fit their ends.

United by the bayonet.

Quantrill

[Quantrill]

No one disputes that there's a right to insurrection, which would be acting to break up the union and the Constitution together. But to hold that there's some way that a state can secede and still act within the the confines of the Constitution is a fantasy. If there's secession, the union itself is threatened, as is the document holding that union together.

Again, nowhere in the Constitution does it say that a state can revoke its delegation. You are simply interpreting "delegate" to mean something that it is not.

Question: if:

-- Congress passed a law regulating interstate commerce, and
-- one state decided that it was going to enact a contrary law within its own state, and
-- as part of this state law, it declared that it would revoke its delegation to Congress the power to regulate interstate commerce within that state's boundaries,
-- would you say that this is permitted under the terms of the Constitution?

"To the people alone is there reserved as well the dissolving as the constituent power...we may admit the same right as vested in the people of every state in the Union with reference to the General Government, which was exercised by the people of the united colonies with reference to the supreme head of the British Empire, of which they formed a part; and under these limitations (i.e. that the act of secession follow a breach of contract and be answerabe to conscience) have the people of each state in the Union a right to secede from the confederated Union itself."

The above is a quote from John Quincy Adams in 1839. James Bulman, "It is their
right"

Quantrill

[iamredbeard]

I would have to say that constitutionally speaking that secession was not legal. I base that mainly when South Carolina treated to leave the Union and Old Hickory put an end to that. If it was unconstitutional then Congress or the Supreme Court or someone would have done something. That is all speculation though. What is not speculation is that the Supreme Court in 1869 in White v Texas that the constitution did not allow individual states to leave the union.

[Quantrill]

I would have to say that constitutionally speaking that secession was not legal. I base that mainly when South Carolina treated to leave the Union and Old Hickory put an end to that. If it was unconstitutional then Congress or the Supreme Court or someone would have done something. That is all speculation though. What is not speculation is that the Supreme Court in 1869 in White v Texas that the constitution did not allow individual states to leave the union.

What is not speculation is that 1869 is different than 1861. And Im not just speaking of amount of time.

Quantrill

[iamredbeard]

What is not speculation is that 1869 is different than 1861. And Im not just speaking of amount of time.

Quantrill

Well that's the earliest Supreme Court case that I am aware of that address this issue. So all I can do is look at what was done before that which brings us back to Old Hickory v South Carolina.

[iamredbeard]

I also seem to remember some of the New England States wanting to leave the union because they didn't want to be a part of any nation that allowed slavery, but that went no where. I'll try and find some info on it.

[DougBH]

The Federal government didn't think so. And that's all that matters.

And historically it was look down upon as traitorous. Andrew Jackson threatened attack on South Carolina after they threatened to secede during the Nullification Crisis.

They had the bigger army. That mattered.

[DougBH]

I also seem to remember some of the New England States wanting to leave the union because they didn't want to be a part of any nation that allowed slavery, but that went no where. I'll try and find some info on it.

As I recall, this had to do with their opposition to the war of 1812. Of course, they never followed through.

[iamredbeard]

As I recall, this had to do with their opposition to the war of 1812. Of course, they never followed through.

You may be right. I did a quick search and all I could find was recent stuff, like in the last 20 years, like how Martha's Vineyard wants to become it's own nation.

[DougBH]

Slavery was legal at the time. The Federal Government never tried to ban it until the end of the Civil War.

Again, nothing in the Constitution says it was. But informally it pretty much was as far as the US government was concerned. When the Federalists in New England were rumored to be contemplating secession, they were seen as traitors, and their party collapsed. When South Carolina threatened secession during the Nullification Crisis, Andrew Jackson threatened to use force because a state was trying to nullify a law and secession was even brought up.

James Madison, the "Father of the Constitution" was against secession and nullification. The point of the Constitution was to establish a government with national supremacy. It was getting rid of any concept that the states were independent.

But the United States already had a government before the Constitution. It was first set up as a Confederation. The articles of Confederation stated that they were "perpetual", and yet the states dissolved this Confederation in order to form a Constitutional government. The Constitution does not state that it is perpetual, so presumably it has a weaker rule against secession than the Confederation. Lincoln got around this by saying that the union could be dissolved if every state agreed to the dissolution. This, of course is nonsense. If Delaware had refused to dissolve the Confederation, it would have been just ignored. What he should have said is that the Union can be dissolved if you want to do it and have the power to do so. That doesn't sound as good, though.

[Quantrill]

Well that's the earliest Supreme Court case that I am aware of that address this issue. So all I can do is look at what was done before that which brings us back to Old Hickory v South Carolina.

The nullification crisis proved that secession was a factor. Jackson said nullification was against the constitution but then Calhoun reminded him that secession was not and was the next step.

A compromise was reached. The tarriff was lowered, though not nullified. Both sides felt as though they were victorious.

Quantrill

[Clintville]

But the United States already had a government before the Constitution. It was first set up as a Confederation. The articles of Confederation stated that they were "perpetual", and yet the states dissolved this Confederation in order to form a Constitutional government. The Constitution does not state that it is perpetual, so presumably it has a weaker rule against secession than the Confederation. Lincoln got around this by saying that the union could be dissolved if every state agreed to the dissolution. This, of course is nonsense. If Delaware had refused to dissolve the Confederation, it would have been just ignored. What he should have said is that the Union can be dissolved if you want to do it and have the power to do so. That doesn't sound as good, though.

What? Because the Constitution doesn't say perpetual doesn't mean the states have more power. The founders, including the main author of the Constitution were against secession and had no intent of the Constitution allowing it.

[DougBH]

What? Because the Constitution doesn't say perpetual doesn't mean the states have more power. The founders, including the main author of the Constitution were against secession and had no intent of the Constitution allowing it.

Obviously this wasn't a uniform position. There had to be some reason not to include a clause stating that it could not be dissolved. I suspect there were different opinions, just as there were in 1860. In 1789, they could pass it off to a future generation to decide. Maybe it would have been better not to have done that.
It probably wouldn't have made much difference. If one has an army, one can always hire people to make your legal case.

[Clintville]

Obviously this wasn't a uniform position. There had to be some reason not to include a clause stating that it could not be dissolved. I suspect there were different opinions, just as there were in 1860. In 1789, they could pass it off to a future generation to decide. Maybe it would have been better not to have done that.
It probably wouldn't have made much difference. If one has an army, one can always hire people to make your legal case.
I don't think there was ever a discussion of secession when they were writing the Constitution.

[Spectre]

I also seem to remember some of the New England States wanting to leave the union because they didn't want to be a part of any nation that allowed slavery, but that went no where. I'll try and find some info on it.

Yea but then they found out that every New England state had slavery and some of them kept slavery. NJ even held onto slavery after the Civil War was over. :rolleyes:

[TonkaTim]

Was secession legal in 1860?


I see the answer in our founding document - The Declaration of Independence.:flag:

http://uscode.house.gov/pdf/Organic%20Laws/decind.pdf as you can see from the link the Declaration is part of the US Code thus law.

The power held by the federal governement is on loan (ceded) from the People and the power on loan by the People can be rescinded (secede) at anytime.

[Spectre]

TonkaTim, Thanks for the post.

I guess the Union started the war when they invaded Virginia.

[TonkaTim]

TonkaTim, Thanks for the post.

I guess the Union started the war when they invaded Virginia.

Spectre,

Thanks for the response.:cool:

I was happy to offer my evidence as to whether it is legal or not.

I have no desire to debate the "Great Stain on our Republic". Knowing the history of the era I feel it could have and should have been resolved well before brothers came to violence.

[Clintville]

Yea but then they found out that every New England state had slavery and some of them kept slavery. NJ even held onto slavery after the Civil War was over. :rolleyes:
No New England state has legal slavery. And there were only 12 slaves in New Jersey. It was gradual emancipation, once those 12 slaves either died or were emancipated, then slavery would no longer exist.

And I haven't heard of New England trying to secede over the other parts having slavery. There was a rumor of them wanted to secede during the War of 1812, but that may more have just been Democratic Republican propaganda to make people dislike the Federalists (which, if true, worked).

[Clintville]

I see the answer in our founding document - The Declaration of Independence.:flag:

http://uscode.house.gov/pdf/Organic%20Laws/decind.pdf as you can see from the link the Declaration is part of the US Code thus law.

The power held by the federal governement is on loan (ceded) from the People and the power on loan by the People can be rescinded (secede) at anytime.
The Declaration isn't law.

[TonkaTim]

The Declaration isn't law.

Keep thinking that...

[Clintville]

Keep thinking that...
But it isn't. The Constitution is. The Declaration was just the colonies saying they were formally breaking off from Britain.

[WorldWatcher]

I see the answer in our founding document - The Declaration of Independence.:flag:

http://uscode.house.gov/pdf/Organic%20Laws/decind.pdf as you can see from the link the Declaration is part of the US Code thus law.


Here is the link to the current U.S. Code -->> http://www.gpoaccess.gov/uscode/browse.html.


Please show us the section listing the DOI as part of the current U.S. Code.


Thank you in advance.



>>>>

[TonkaTim]

I guess I'm just senile. I must learn to do better than trust the House of Representatives' Office of the Law Revision Counsel. The official office that publishes US Code. http://uscode.house.gov/lawrevisioncounsel.shtml Where I ran my search. It shows it as US Code. http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+uscnst+3+0++%28%27the%2 0declaration%20of%20independence%27%29%20%20%20%20 %20%20%20%20%20%20. They publish the Declaration of Independence as US Code. They call it organic law. Why I linked the PDF file since it came from the House of Representatives official US Code publisher, that and it was a much shorter link, contained all the necessary references... "house.gov" "uscode" "organic law" in the address of the link http://uscode.house.gov/pdf/Organic%20Laws/decind.pdf plus it is downloadable.

I guess our legislative body the House of Representative is wrong, their Office of the Law Revision is wrong. So I must be wrong as well. I know I am very old and things have changed. I was taught that the Declaration was permanent organic law many many years ago. So it looked to me the links I posted were mere confrimations of what once was commonly known. I guess I'm just senile, I was under some illusion this is still America, guess not when the Declaration of Independence is shouted down as just an old out-dated worthless piece of paper. Should we update the House of Representative? or just let them be wrong?

[WorldWatcher]

I guess I'm just senile. I must learn to do better than trust the House of Representatives' Office of the Law Revision Counsel. The official office that publishes US Code. http://uscode.house.gov/lawrevisioncounsel.shtml Where I ran my search. It shows it as US Code. http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+uscnst+3+0++%28%27the%2 0declaration%20of%20independence%27%29%20%20%20%20 %20%20%20%20%20%20. They publish the Declaration of Independence as US Code. They call it organic law. Why I linked the PDF file since it came from the House of Representatives official US Code publisher, that and it was a much shorter link, contained all the necessary references... "house.gov" "uscode" "organic law" in the address of the link http://uscode.house.gov/pdf/Organic%20Laws/decind.pdf plus it is downloadable.

I guess our legislative body the House of Representative is wrong, their Office of the Law Revision is wrong. So I must be wrong as well. I know I am very old and things have changed. I was taught that the Declaration was permanent organic law many many years ago. So it looked to me the links I posted were mere confrimations of what once was commonly known. I guess I'm just senile, I was under some illusion this is still America, guess not when the Declaration of Independence is shouted down as just an old out-dated worthless piece of paper. Should we update the House of Representative? or just let them be wrong?


I don't see a link showing the DOI from the GPO site????


But that's alright, well let it slide. See even the House of Representatives refers people to the Government Printing Office.


The people who maintain the official ".gov" site for the U.S. Code which I gave you the link to earlier.



While every effort has been made to ensure that the Code database on the web site is accurate, those using it for legal research should verify their results against the printed version of the United States Code available through the Government Printing Office. http://uscode.house.gov/about/info.shtml


BTW - Feel free to support your emotional rant where anyone said that the DOI was "just an old out-dated worthless piece of paper". That's your attempt at emotionalism simply because it was pointed out that it is not part of the current U.S. Code as listed in the official site.



>>>>

[TonkaTim]

BTW - Feel free to support your emotional rant where anyone said that the DOE was "just an old out-dated worthless piece of paper". That's your attempt at emotionalism simply because it was pointed out that it is not part of the current U.S. Code as listed in the official site.


No emotional rant, sacrasm. But your link does not prove what you claim, it just does not list it on that particular site. The GPO does not list the Federal Reserve Act either that mean we can go back to honest money & end the Fed? The other site does. It is the Official Office repsonsible for maintaining the record of & printing permanent US Code.
http://en.wikipedia.org/wiki/United_States_Code (http://en.wikipedia.org/wiki/United_States_Code)
"The United States Code (U.S.C.) is a compilation and codification (http://forums.hannity.com/wiki/Codification_(law)) of the general and permanent federal law of the United States (http://forums.hannity.com/wiki/Law_of_the_United_States). It contains 50 titles and is published every six years by the Office of the Law Revision Counsel (http://forums.hannity.com/wiki/Office_of_the_Law_Revision_Counsel) of the US House of Representatives (http://forums.hannity.com/wiki/US_House_of_Representatives). "

The Declaration of Independence is called organic law it is foundational law.
http://en.wikipedia.org/wiki/Organic_law#Organic_laws_of_the_United_States
"Organic laws of the United States
The organic laws of the United States of America are included in the U.S. Code (http://forums.hannity.com/wiki/U.S._Code). These documents include the United States Declaration of Independence (http://forums.hannity.com/wiki/United_States_Declaration_of_Independence), the Articles of Confederation (http://forums.hannity.com/wiki/Articles_of_Confederation), the Northwest Ordinance (http://forums.hannity.com/wiki/Northwest_Ordinance), and the U.S. Constitution (http://forums.hannity.com/wiki/U.S._Constitution).[1] (http://forums.hannity.com/#cite_note-0) These documents comprise the very first part of the United States Code (http://forums.hannity.com/wiki/United_States_Code), wherein lies the collected statutes of the United States."

Like I said, it was taught as common knowledge when I was a child. Why I was being sarcastic. I'll stick with what I know, but thanks for your input.

[DougBH]

The Declaration isn't law.

That being the case, there is no legal basis for our being separate from Britain. Accordingly, the Constitution intself must be illegal.
It may not be Constitutional law, that doesn't mean it isn't law.

Either that, or we need to let Britain know we're coming home. They'll be so thrilled.

No doubt you could cite the treaty ending the war with Britain as the founding document. But we don't, do we? We consider that the U.S. colonies were independent upon the signing of the Declaration. That is law, IMO.

[Clintville]

That being the case, there is no legal basis for our being separate from Britain. Accordingly, the Constitution intself must be illegal.
It may not be Constitutional law, that doesn't mean it isn't law.

Either that, or we need to let Britain know we're coming home. They'll be so thrilled.

No doubt you could cite the treaty ending the war with Britain as the founding document. But we don't, do we? We consider that the U.S. colonies were independent upon the signing of the Declaration. That is law, IMO.
The Declaration of Independence isn't the supreme law of the land. That is what I was saying. And yeah, even though it was when Americans officially declared independence, it was the Treaty of Paris that formally de jure dissolved any union between the colonies and Britain.

[Zanger]

That being the case, there is no legal basis for our being separate from Britain. Accordingly, the Constitution intself must be illegal.
It may not be Constitutional law, that doesn't mean it isn't law.
Not entirely true. Thomas Jefferson wrote a treatise explaining the legal basis for separation, the points of which were effectively summarized as 1) The colonies established a charter with the King to establish and govern themselves, 2) Parliament had no jurisdiction or right to interfere with the colonies' affairs as no such provision existed in the colonial charters, 3) Because the King refused to temper Parliament's interference, the original charter the colonies had with the King was effectively void (the 'contract' was breached).

No doubt you could cite the treaty ending the war with Britain as the founding document. But we don't, do we? We consider that the U.S. colonies were independent upon the signing of the Declaration. That is law, IMO.
Law for whom? To whom? According the Constitution, The Constitution and the treaties the US enters into with other countries are the supreme law of the land. Any debts and engagements that were valid against the individual states prior to ratification of the Constitution would be held valid against the US after ratification. There is no basis for saying that the DoI is US law. It is not US law. I don't believe a single US Court has ever cited the DoI as a matter of binding law.

[JohnRandolph]

yes

[PhantomPholly]

Secession is, and always was, legal under the Constitution. In fact, the Constitution specifies that it is the duty of the people to change or even abolish the Federal Government when it strays sufficiently from the letter and the intent of the Founding Fathers.

The Supreme Court cannot overrule that no matter what rulings they may have voted on, because they fundamentally lack the authority to overturn the Constitution and thus their ruling is illegal.

Now, that doesn't mean that the folks in Washington won't send the troops out against We the People, nor will they hesitate to run the charade and jail individuals, simply because they are in the wrong. If that were so we wouldn't need police, because criminals would simply turn themselves in. Thus, if you want to BE one of those people attempting to hold the government accountable to the Constitution you run into the pesky problem that politicians will do what they always do best - lie - and make up plausible stories about how those intent on holding them to the Constitution were radicals.

Kind of like the way Dems are talking about people who attend Tea Parties right now. For now, at least, it is just talk - and hopefully will remain so long enough for them to be voted out and replaced with people more likely to return to the intent of the Constitution. Sadly, the greatest likelihood is that they will be replaced with more of the same, just with a different label.

[Zanger]

Secession is, and always was, legal under the Constitution. In fact, the Constitution specifies that it is the duty of the people to change or even abolish the Federal Government when it strays sufficiently from the letter and the intent of the Founding Fathers.
Proof?

[DougBH]

As there is no part of the Constitution that says "this is permanent and there's no way out" (something that even Lincoln didn't believe - he believed that if all the states agreed, then states could secede) or a part that says "these are the steps a state must take to secede", then we must assume that the authors and signers intentionally avoided this question. Its easy to ignore the baby gorilla in the room. I say "intentionally" because all of these states were in the process of seceding from their "perpetual" confederation, so they could not have been oblivious to the possibility. They weren't a gathering of idiots.
That being the case, I believe we should consider what the states thought they were ratifying in the Constitution. When I consider this, I have to ask myself if the people of Virginia or North Carolina would have agreed to the Constitution if there had been an explicit clause in there saying, "If your descendants decide to secede from this Federal Government, then that government will be authorized to send an army to kill them". If anybody really believes they would have agreed to that, raise your hand. The only alternative for someone who thinks a state could not secede is to believe that the Constitution as we know it was never really agreed to, but rather that our ancestors were tricked into confirming it.

[Zanger]

As there is no part of the Constitution that says "this is permanent and there's no way out" (something that even Lincoln didn't believe - he believed that if all the states agreed, then states could secede) or a part that says "these are the steps a state must take to secede", then we must assume that the authors and signers intentionally avoided this question. Its easy to ignore the baby gorilla in the room. I say "intentionally" because all of these states were in the process of seceding from their "perpetual" confederation, so they could not have been oblivious to the possibility. They weren't a gathering of idiots.
The Supreme Court has never assumed a right exists inherently in the Constitution simply because it is not mentioned. It is folly to claim that such a right exists because it is not mentioned. The Constitution mentions nothing about Federal right to buy land from other sovereign nations (it was just accepted as a power of the government following the Louisiana Purchase). The Constitution also mentions nothing about the Federal right to outlaw slavery (which was done, and then proclaimed unconstitutional). Your argument is unpersuasive.

That being the case, I believe we should consider what the states thought they were ratifying in the Constitution. When I consider this, I have to ask myself if the people of Virginia or North Carolina would have agreed to the Constitution if there had been an explicit clause in there saying, "If your descendants decide to secede from this Federal Government, then that government will be authorized to send an army to kill them". If anybody really believes they would have agreed to that, raise your hand. The only alternative for someone who thinks a state could not secede is to believe that the Constitution as we know it was never really agreed to, but rather that our ancestors were tricked into confirming it.
Even if they had a right to secede, they did not have a right to attack federal property and unlawfully seize it. The Federal government would have had an inherent right to protect its property.

[DougBH]

The Supreme Court has never assumed a right exists inherently in the Constitution simply because it is not mentioned. It is folly to claim that such a right exists because it is not mentioned. The Constitution mentions nothing about Federal right to buy land from other sovereign nations (it was just accepted as a power of the government following the Louisiana Purchase). The Constitution also mentions nothing about the Federal right to outlaw slavery (which was done, and then proclaimed unconstitutional). Your argument is unpersuasive.

Your reference to the Supreme Court is also unpersuasive, because the Constitution does not give them an explicit right to decide what is Constitutional. The Supreme Court actually read this right into the Constitution themselves, which makes them not a very credible source on this subject. But I am saying that there is neither a right to secede nor a right to stop secession written into the Constitution. It works both ways.
I will also state that the Constitution does not give rights to the states. It gives rights to the Federal government. The states retain those rights they did not give up. Therefore, the burden of proof should be on someone who claims that the states did give up the right to secede.


Even if they had a right to secede, they did not have a right to attack federal property and unlawfully seize it. The Federal government would have had an inherent right to protect its property.

I suppose you are arguing that the Federal government could have claimed the South through some sort of international right of conquest. This is sort of moot, because no claim was ever made for this. To claim this, you would have to first agree that the states had seceded, and then find some method to get them in the union again.
I will agree that the attack on Sumter was an incredibly bad move, whether legal or not. It gave Lincoln a ton of additional arguments of why an attack on the South was legal, as well as gaining support for doing so.

[Clintville]

Secession is, and always was, legal under the Constitution. In fact, the Constitution specifies that it is the duty of the people to change or even abolish the Federal Government when it strays sufficiently from the letter and the intent of the Founding Fathers.

I believe that was the Declaration. And the Founders wrote about the differences of secession and the right of revolution.

However, the Constitution does state that Congress has the power to defend against insurrection.

[Clintville]

Your reference to the Supreme Court is also unpersuasive, because the Constitution does not give them an explicit right to decide what is Constitutional.

That doesn't matter, it is an informal amendment. It is part of American law no matter what the Constitution specifically says. It was however, written about in the Federalist Papers.

[Zanger]

Your reference to the Supreme Court is also unpersuasive, because the Constitution does not give them an explicit right to decide what is Constitutional. The Supreme Court actually read this right into the Constitution themselves, which makes them not a very credible source on this subject. But I am saying that there is neither a right to secede nor a right to stop secession written into the Constitution. It works both ways.
Article III, Section 2; -- "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
As the Constitution is Law, a person would read this as the Supreme Court having jurisdiction to interpret the Constitution as a matter of law. Would you read it otherwise? Why only give SCOTUS power to ponder upon certain aspects of the law, but not extend that power to the supreme law of the land? Can you reconcile the competing arguments? Furthermore, if a private individual sued his state government for, say, violation of the 1st Amendment, what court other than SCOTUS would have final say on the matter? Surely you don't think ALL the courts are prohibited from ruling on the issue, do you? Because that's what it sounds like.


I suppose you are arguing that the Federal government could have claimed the South through some sort of international right of conquest. This is sort of moot, because no claim was ever made for this. To claim this, you would have to first agree that the states had seceded, and then find some method to get them in the union again.
The Federal government certainly could have done as you describe, and one could say that they did. At the time Lincoln recognized that they seceded, but refused to recognize the seceded states as a sovereign nation, thus declaring them to be in a state of insurrection (the suppression of which is a Constitutional power, Art. 2, Sec 8). The Federal government then waged a war on the Confederacy to bring back the Union. Easy peasy.

[DougBH]

Article III, Section 2; -- "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
As the Constitution is Law, a person would read this as the Supreme Court having jurisdiction to interpret the Constitution as a matter of law. Would you read it otherwise? Why only give SCOTUS power to ponder upon certain aspects of the law, but not extend that power to the supreme law of the land? Can you reconcile the competing arguments? Furthermore, if a private individual sued his state government for, say, violation of the 1st Amendment, what court other than SCOTUS would have final say on the matter? Surely you don't think ALL the courts are prohibited from ruling on the issue, do you? Because that's what it sounds like.

Please read to me where the Supreme Court is the final arbiter of the Constitution. The President must also enforce laws under the Constitution. He could just as easily say that he will follow what the Constitution says, not what the Supreme Court says. Indeed, he could say he is bound by oath to do so. Thus, he should be the final arbiter of the Constitution. Any of the three branches could do this. It is only through years of tacit agreement that the current balance has been reached. It is not as explicit as you make it to be, IMO.




The Federal government certainly could have done as you describe, and one could say that they did. At the time Lincoln recognized that they seceded, but refused to recognize the seceded states as a sovereign nation, thus declaring them to be in a state of insurrection (the suppression of which is a Constitutional power, Art. 2, Sec 8). The Federal government then waged a war on the Confederacy to bring back the Union. Easy peasy.

One could say that they did, but they didn't say it. In order to say that they would have had to agree that the secession was legal and they were a separate entity. They weren't about to do that. Moot point.

[DougBH]

Must say we're off the track a little. Your original statement was that the Supreme Court has never assumed a right exists inherently in the Constitution simply because it is not mentioned. I believe my other paragraph (perhaps added after your "copy") was probably sufficient to cover this. The states were not granted rights, they retained rights. Therefore, the S. Court statement really isn't even relevant.

[Zanger]

Please read to me where the Supreme Court is the final arbiter of the Constitution. The President must also enforce laws under the Constitution. He could just as easily say that he will follow what the Constitution says, not what the Supreme Court says. Indeed, he could say he is bound by oath to do so. Thus, he should be the final arbiter of the Constitution. Any of the three branches could do this. It is only through years of tacit agreement that the current balance has been reached. It is not as explicit as you make it to be, IMO.
Perhaps, true, but you also fail to recognize that courts have been declaring statutes void in this country well before Marbury v. Madison. Thus, SCOTUS' establishment of judicial review for the declaration of statutes to be unconstitutional could be seen as expected, because it was an acceptable part of the court's function. Under common law, courts in America have the secondary purpose of making law, subject only to legislative statutes that serve to shape the law. SCOTUS' actions may not have been explicitly allowed by the Constitution, but were reasonably foreseeable by the framers (most of whom were lawyers, and thus well acquainted with the judicial processes), so if they wanted to restrict the court's powers in this regard, they would have explicitly done so. I think it's very explicit.

One could say that they did, but they didn't say it. In order to say that they would have had to agree that the secession was legal and they were a separate entity. They weren't about to do that. Moot point.
Except secession = rebellion. Rebellion happened. Suppression of the rebellion is tautological to re-unionization. If secession was legal they wouldn't have reason to suppress the rebellion.

[DougBH]

Perhaps, true, but you also fail to recognize that courts have been declaring statutes void in this country well before Marbury v. Madison. Thus, SCOTUS' establishment of judicial review for the declaration of statutes to be unconstitutional could be seen as expected, because it was an acceptable part of the court's function. Under common law, courts in America have the secondary purpose of making law, subject only to legislative statutes that serve to shape the law. SCOTUS' actions may not have been explicitly allowed by the Constitution, but were reasonably foreseeable by the framers (most of whom were lawyers, and thus well acquainted with the judicial processes), so if they wanted to restrict the court's powers in this regard, they would have explicitly done so. I think it's very explicit.

Of course, it was Lincoln who decided to ignore writs of habeas corpus.
Again, this is really moot to the first point, namely that "the Supreme Court has never assumed a right exists inherently in the Constitution simply because it is not mentioned" because the states do not rely on rights granted from the Constitution. They retain all those rights which they did not explicitly give up.


Except secession = rebellion. Rebellion happened. Suppression of the rebellion is tautological to re-unionization. If secession was legal they wouldn't have reason to suppress the rebellion.

And that is what the whole discussion is about.
But I thought you said the attacks on Federal forts would have given them the right to attack the South whether there was a legal secession or not?

[DougBH]

Opinion Question: How much authority do you believe Lincoln would have accepted in the Supreme Court if it had declared, in 1861, that secession was a legal right retained by the States.


Hint: None

[Clintville]

Opinion Question: How much authority do you believe Lincoln would have accepted in the Supreme Court if it had declared, in 1861, that secession was a legal right retained by the States.


Hint: None
Well... it didn't.

[Quantrill]

Opinion Question: How much authority do you believe Lincoln would have accepted in the Supreme Court if it had declared, in 1861, that secession was a legal right retained by the States.


Hint: None

The voice of the Supreme Court and the Constitution were already becoming questioned and ignored in the North so that it just wouldn have mattered.

Quantrill

[Clintville]

The voice of the Supreme Court and the Constitution were already becoming questioned and ignored in the North so that it just wouldn have mattered.

That was because half the country didn't think they should have to protect an institution they disagreed with and banned. Nor did they think the Northwest Ordinance should have been repealed.

[Quantrill]

That was because half the country didn't think they should have to protect an institution they disagreed with and banned. Nor did they think the Northwest Ordinance should have been repealed.

Yes, but wan't it protected under the Constitution?

Do you have proof of that opinion of the Northwest Ordinace?

Quantrill

[Clintville]

Yes, but wan't it protected under the Constitution?

Yeah, according to the Supreme Court. The Federal government never illegally passed anything that nullified the act, people in the states (not all of them of course) simply ignored it.

Do you have proof of that opinion of the Northwest Ordinace?

The Northwest Ordinance banned slavery in the territories, so it is safe to say people had that opinion. But from a New York newspaper;

"The conspiracy is nearly completed. The Legislation of the Republic is in the hands of this handful of Slaveholders. The United States Senate assures it to them. The Executive power of the Government is theirs. Buchanan (http://en.wikipedia.org/wiki/James_Buchanan) took the oath of fealty to them on the steps of the Capitol last Wednesday. The body which gives the supreme law of the land, has just acceded to their demands, and dared to declare that under the charter of the Nation, men of African descent are not citizens of the United States and can not be — that the Ordinance of 1787 was void — that human Slavery is not a local thing, but pursues its victims to free soil, clings to them wherever they go, and returns with them — that the American Congress has no power to prevent the enslavement of men in the National Territories — that the inhabitants themselves of the Territories have no power to exclude human bondage from their midst — and that men of color can not be suitors for justice in the Courts of the United States!"

[Quantrill]

Yeah, according to the Supreme Court. The Federal government never illegally passed anything that nullified the act, people in the states (not all of them of course) simply ignored it.

The Northwest Ordinance banned slavery in the territories, so it is safe to say people had that opinion. But from a New York newspaper;

"The conspiracy is nearly completed. The Legislation of the Republic is in the hands of this handful of Slaveholders. The United States Senate assures it to them. The Executive power of the Government is theirs. Buchanan (http://en.wikipedia.org/wiki/James_Buchanan) took the oath of fealty to them on the steps of the Capitol last Wednesday. The body which gives the supreme law of the land, has just acceded to their demands, and dared to declare that under the charter of the Nation, men of African descent are not citizens of the United States and can not be — that the Ordinance of 1787 was void — that human Slavery is not a local thing, but pursues its victims to free soil, clings to them wherever they go, and returns with them — that the American Congress has no power to prevent the enslavement of men in the National Territories — that the inhabitants themselves of the Territories have no power to exclude human bondage from their midst — and that men of color can not be suitors for justice in the Courts of the United States!"

So the Supreme Court supported the Souths right to take its slaves freely wherever it wanted.

Quantrill

[Clintville]

So the Supreme Court supported the Souths right to take its slaves freely wherever it wanted.

Well, the territories.

[Quantrill]

Well, the territories.

That doesn't say anything. Try again.

Quantrill

[Clintville]

That doesn't say anything. Try again.

What do you mean it doesn't say anything. Yes it does! The Supreme Court ruled that slavery couldn't be restricted in new territories.

[Quantrill]

What do you mean it doesn't say anything. Yes it does! The Supreme Court ruled that slavery couldn't be restricted in new territories.

Where does it say it?

Quantrill

[Clintville]

Where does it say it?

I don't think it actually states it. I was talking about the Dredd Scott decision. The Ordinance of 1787 is what banned slavery in the old northwest.

[Quantrill]

I don't think it actually states it. I was talking about the Dredd Scott decision. The Ordinance of 1787 is what banned slavery in the old northwest.

Sure it states it else no one would know about it. So, what does it really say?

Quantrill

[Clintville]

Sure it states it else no one would know about it. So, what does it really say?

Quantrill
Where does it say slavery cannot be restricted in the Constitution?

[Quantrill]

Where does it say slavery cannot be restricted in the Constitution?

You said "The Supreme Court ruled that slavery couldn't be restricted in new territories".

I asked where it said that. You said; "I don't think it actually states it". But you go on to say its in the Dred Scott decision.

So, give the quote from the Dred Scott decision that makes you sayt that slavery couldn't be restricted in new territories.

Quantrill

[Zanger]

So, give the quote from the Dred Scott decision that makes you sayt that slavery couldn't be restricted in new territories.

Quantrill

You just made me read through a 100+ pg court decision, but I found it as you requested. For future reference, it is ridiculous to expect someone to be able to find a copy of a court decision and quote it back at you.

From the Majority opinion: "[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution....it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the [Missouri-Compromise Line] is not warranted by the Constitution, and is therefore void."

Dred Scott v. Sandford, 60 U.S. 393, 451 (1856).

Ergo, the outlawing slavery in any territory, including the Northwest Territories, was found to be unconstitutional.

The Court, of course, is most likely basing its conclusion on the fact that slaves were seen as personal property, and the Government has no right to interfere with, or otherwise abridge the right to, personal property in any way pursuant to the 5th Amendment.

[PhantomPholly]

Proof?

Read the writings of the founders. They clearly stated that once a government no longer served the people it should be abolished.

[PhantomPholly]

I believe that was the Declaration. And the Founders wrote about the differences of secession and the right of revolution.

However, the Constitution does state that Congress has the power to defend against insurrection.

Yep - it's a pickle, isn't it?

The winners always write the history books.

;)

[PhantomPholly]

Opinion Question: How much authority do you believe Lincoln would have accepted in the Supreme Court if it had declared, in 1861, that secession was a legal right retained by the States.


Hint: None

Then Lincoln would have been in clear and direct violation of the Constitution. Some argue that he was anyway.

[sgtmac_46]

Was secession legal in 1860?

It's irrelevant..........law is only what is commonly accepted..........when a disagreement about law grows to the point where it's irreconcilable the point of law goes to whoever is the strongest.

[captusa]

I don't think it actually states it. I was talking about the Dredd Scott decision. The Ordinance of 1787 is what banned slavery in the old northwest.

The Ordinance of 1787 would not have been in effect after the Constitution was ratified since there was no United States of America in 1787.

[Clintville]

Read the writings of the founders. They clearly stated that once a government no longer served the people it should be abolished.
And again, they also wrote about the difference of revolution and secession. They didn't favor secession.

[PhantomPholly]

And again, they also wrote about the difference of revolution and secession. They didn't favor secession.

I think that is splitting hairs, nor is there firm consensus on your conclusion. At what point is the government simply abolished - when 100% "secede"; 90%; 50%? In any event, the powers originally granted to the states to keep the federal government in check have been discarded, and thus their power to overturn an unjust government through Constitutional means has been revoked by fiat. Given that the government offers no recourse today, I think the founders would say that it is legitimate for the States to simply turn their backs on this mockery of a Constitutional Republic.

[Zanger]

Read the writings of the founders. They clearly stated that once a government no longer served the people it should be abolished.
There's enough controversy surrounding the use of legislative intent of statutes, and you want to use intent to determine what's in the Constitution despite it not being there? Lulz. Never mind the fact that what you say, if true, legitimizes revolution, not secession.

[PhantomPholly]

There's enough controversy surrounding the use of legislative intent of statutes, and you want to use intent to determine what's in the Constitution despite it not being there? Lulz. Never mind the fact that what you say, if true, legitimizes revolution, not secession.

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute a new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

I hardly think that I am inserting "interpretation" into their intent. Nor am I overlooking that they ACTED on those precepts to form our current government, casting off the old.

No, you are being purposefully obtuse - a troll, I believe.

[Zanger]

I hardly think that I am inserting "interpretation" into their intent. Nor am I overlooking that they ACTED on those precepts to form our current government, casting off the old.

No, you are being purposefully obtuse - a troll, I believe.

No, you're twisting words to your own ends. Right to abolish = right to rebel and make a NEW government. If you're going to use that as grounds for secession, then secession is impliedly rebellion, and the currently legal government has the right to quash the rebellion.

[PhantomPholly]

No, you're twisting words to your own ends. Right to abolish = right to rebel and make a NEW government. If you're going to use that as grounds for secession, then secession is impliedly rebellion, and the currently legal government has the right to quash the rebellion.

Who is twisting words? Was or was not America one "part" of the British Empire? Did we replace THEIR government? No, we seceded and formed our own. What do you do if 50% of the states are so screwed up that they are willing to condone a dictatorship - go beat them up until they agree to abolish that government, or secede and leave them to their own hell?

You see, you are the one mincing words - just like a good lawyer in training - attempting to re-write the words and deeds of the Founders to your liking. By your rationale, NO amount of abuse is unacceptable so long as 50% of the States go along with it, and any amount of force by those States still clinging to the corrupt facade of a "just government" (such as that of England in 1776) is justifiable to prevent others from gaining their freedom. That is nothing less than justification for atrocities.

Right to abolish = right to rebel and make a NEW government.

That is the gist of secession. Rejecting the old government and establishing your own. It is not "rebellion" unless you try to steal other States away with you, or to attack what remains of that establishment after forming your own legitimate government. It is simply rejection by civil means. If the Federal Government seeks to impose rulership (which is what it was created to protect AGAINST) when a State rejects it, then by definition it is no longer a government of the people and therefore illegitimate IN THAT STATE.

Of course, the winners always write history - and as we did after the "Civil War" (or, "The War of Northern Aggression") they labeled civil secession as rebellion. The excuse was that a Union Fort was attacked - but, since the South had announced their withdrawal from the Union, that Fort was remaining there illegally.

Illegally, but (wink,wink) you of all people know that "the truth is negotiable" (a favorite saying of lawyers) and that the winners write the histories...

[captusa]

And again, they also wrote about the difference of revolution and secession.
....

The difference between revolution and secession is revolutionists win.

Seriously WW had the ultimate answer(as usual).
The federal government has, in the constitution, the power of deciding if a state not abiding with the federal government is committing insurrection.
Ergo the south was committing an insurection.

[PhantomPholly]

The difference between revolution and secession is revolutionists win.

Tell that to the many Soviet States which successfully seceded.

Seriously WW had the ultimate answer(as usual).
The federal government has, in the constitution, the power of deciding if a state not abiding with the federal government is committing insurrection.
Ergo the south was committing an insurection.

Only because the North won. The story would have been different had the South successfully held them off.

Historically speaking, the track we are now treading is nothing new whatsoever, and it leads nowhere good. Next decade is gonna suck...

:think:

[Dale in GA]

The Constitution doesn't say that the powers granted to the federal government were revocable. This would suggest that whether or not a state claimed a right to secede from the union, they weren't going to get those powers back from the federal government.

I agree.

The fact that the South raised an army suggests that it knew the action it was taking violated the Constitution the states had subscribed to.

Just like today - some people like to claim that for some reason, Texas, of all the states, is the only one with a special right to secede if it doesn't like the way things are going, but this right exists only in the fevered imagination of the tinfoil hat brigade.

[Clintville]

I agree.

The fact that the South raised an army suggests that it knew the action it was taking violated the Constitution the states had subscribed to.

Just like today - some people like to claim that for some reason, Texas, of all the states, is the only one with a special right to secede if it doesn't like the way things are going, but this right exists only in the fevered imagination of the tinfoil hat brigade.
Doesn't Texas have the right to break itself into five different states or something? I don't know how the "they have the right to secede" thing came from that, but a lot of people believe that misconception.