Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'
Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."
Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?
At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."
Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.
Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.
Thank you for the correction.
There was no necessity in the Constitution for prevention of unilateral secession per se, its interdictions were throughout with the bans upon states...
This is incorrect. Remember that the Constitution was an agreement executed by the Peoples of the States directly, assembled in ratification conventions for the purpose. Thus the powers enumerated in Article I that flowed from the States to the United States are listed one by one, because they are limited delegations of the enumerated powers.
In the Confederation period, the U.S. government was basically Congress and a very limited federal establishment that answered directly to Congress. The ambassador corps, the Army and Navy, the Mint, all answered directly to Congress, which acted as agens in rebus and factotum of the States but was not superior to them. The States very clearly and without effective contradiction possessed all powers of Sovereignty, and they exercised them. The Union literally existed in the Congress -- Congress was the Union, and it prosecuted foreign policy for the States -- but it was States' powers which it wielded.
By delegating the enumerated powers to the Federal Government, the States were basically reaching for an economy of scale in government, and in order to allow these delegations to work properly, they had to recuse themselves from certain activities.
But here is the critical insight: Nobody forbade the States anything. They recused themselves, and they delegated. This was because, even as the States were considering the Constitution, they were still every bit as much the Sovereigns of their own destinies as they had been the day that George III admitted the fact in signing the Treaty of Paris.
What did not happen, is that the States abjured Sovereignty, or gave over the Sovereignty of the People to a new entity. The words do not exist in the Constitution, which is the only relevant document. To the contrary, the Ninth and Tenth Amendments make it abundantly clear that what you claim happened did not happen. The words did not come out of the People's mouths, the words did not flow from their pens. It didn't happen.
The transfers of governmental power listed seriatim in the Constitution happened, one by one. The abrogation of Sovereignty by the People did not happen.
And the People, who are they? 4ConservativeJustices has posted repeatedly, and again vide supra in this thread, the citations for the fact that the People exist in their States -- not their governments, but the States themselves -- that the People have always existed in and as their States, and that the People have never been amalgamated, nor their ultimate, God-given, fear-no-man Sovereignty given over to any other entity.
The People fear God Himself, and nothing less. Not the federal government which, after all, is just a government, nor the Constitution which is the treaty among the Peoples of the States, nor the Union which is our arrangement among ourselves, nor the Supreme Court, who are our henchmen and paid servants.
Your attempt to wave away the Ninth and Tenth Amendments won't wash. You can't repeal an article of the Constitution by edict, even if you're John Marshall -- and he tried.
Besides, you'd have a hard time selling that argument to Justices Rehnquist, Scalia, and Thomas. They've been very active in rehabilitating the Tenth Amendment, and repairing the damage done by Hamiltonian partisans during the New Deal Era in particular, when the Commerce Clause was used to justify federalizing just about every human activity under the sun.
My working opinion of that Supreme Court case is that the Court was operating beyond its scope and pretending to decide matters of Sovereignty that were ultra vires the Court, i.e. above its pay grade, because Sovereignty is the exclusive province of the People -- in this case, the People of Texas. The Supreme Court should have sent that case back to Texas.
There is a difference between the States delegating the decision of questions of law to which the States themselves are party, as provided by Article IV, to the Supreme Court, on the one hand, and transferring to the Supreme Court the power to decide what State Sovereignty consists of and what it doesn't.
Too, there's a difference in the constitutional environment between 1860 and 1869, the main contributor being the (never properly ratified, of course) Fourteenth Amendment. Which is a sore spot in constitutional law all its own.
“ The Almighty has His own purposes. ‘Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.’ If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him?”
Not Jonathan Edwards in his maddest Calvinism ever uttered words to equal those of Lincoln. They mean that slavery, which the New World did not want, had to pay for it in agony and blood, but the debt had to be paid by those who did not contract the debt. They mean that a just God willed this, and effected his will by a war which cost the country from 750,000 to 1,000,000 lives and 22,000,000,000 of money. If God was now willing the removal of slavery it was through men like Lincoln, who had given the North and the South this war, without any need for it at all, and who within a few weeks of the day of this Inaugural willed that the war should go on, and that the peace proposals of Stephens should come to nothing save upon terms of ignominious capitulation, without any promises or assurances of any sort as to the fate of the South. There are only two ways of interpreting these words of Lincoln: either one interprets them as a Christian and accepts what he said as true and just, because it is taken from the Bible; or else one has retained his reasoning faculties, and abhors them as the incredible outpouring of a mind at last completely fanaticized.
Lincoln the Man
Edgar Lee Masters
pp. 471-472
otherwise i AGREE.
FRee dixie,sw
Sorry? Where?
I'm sure he's pretty firmly on the record. Take a hard line, then blame God's wrath for the consequences of your own.
He took a hard line with the Southerners from the minute he came into office, and didn't deviate from that hard line as long as Southern resistance was afoot anywhere. "Charity for all" was predicated on total surrender to Lincoln's will, just as Caesar had counseled in his Commentaries 1900 years before.
He just didn't want the blame for the destruction that flowed from his policies. I think he realized that if he took responsibility and credit for what he'd done, like an ancient conqueror, the people of the North would have rejected him, and possibly even his own partisan base, when they realized that what had happened was the direct result of their own policy selections. The voters would have exculpated onto Lincoln.
He anticipated their revulsion at all the missing limbs and fresh graves and their asking "was this really worth it after all?" by making God his goat.
That he got away with it and enjoyed 140 years of unquestioning acceptance of his policies by the consensus, is the damage done by John Wilkes Booth.
Nah. In Martin v. Hunter's Lessee Justice Jay wrote that, 'the powers of the states depend upon their own constitutions; and the people of every state had the right to modify and restrain them, according to their own views of policy or principle.'
The states CREATED the federal government, not vice versa. Even Jay acknowleged that the states STILL retained the right to alter their form of government.
Then he writes, '[t]he government, then, of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.'
Just as an aside, be sure to read Jay's arguement defining the powers of the co-ordinate branches of the government (look for the expression "shall be vested"). It EXPLICITLY refutes the arguement that the Executive can exercise the Legislative power of suspending the writ of habeas corpus.
Personally, I like the following section from Justice Johnson's decision, 'To me, the constitution appears, in every line of it, to be a contract, which, in legal language, may be denominated tripartite. The parties are the people, the states, and the United States. It is returning in a circle, to contend, that it professes to be the exclusive act of the people, for what have the people done, but to form this compact? That the states are recognised as parties to it, is evident, from various passages, and particularly, that in which the United States guaranty to each state a republican form of government.'
Of course, in McCullough v. Maryland, we have Justice Marshall writing this, 'No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.' Which is most assuredly true, since NO founder would second Morris' motion that would have consolidated the people of each state into on common mass.
And you know that.
The phrase does not exist in the Constitution. It is from the Articles of Confederation and Perpetual Union, which was dissolved by the secession of the parties involved.
Try these, there are many more:
Calder v. Bull, 3 U.S. 386 (1798)
Martin v. Hunter's Lessee, 14 U.S. 304 (1816)
Gibbons v. Ogden, 22 U.S. 1 (1824)
Northern Securities Co. v. United States, 193 U.S. 197 (1904)
McCray v. United States, 195 U.S. 27 (1904)
Hammer v. Dagenhart, 247 U.S. 251 (1918)
State of Missouri v. Holland, 252 U.S. 416 (1920)
Bailey v. Drexel Furniture Company, 259 U.S. 20 (1922)
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
United States v. Butler, 297 U.S. 1 (1936)
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)
Carter v. Carter Coal Co., 298 U.S. 238 (1936) Steward Machine Co. v. Collector of Internal Revenue, 301 U.S. 548 (1937)
Helvering v. Davis, 301 U.S. 619 (1937) United States v. Darby, 312 U.S. 100 (1941)
Morgan v. Virginia, 328 U.S. 373 (1946) Maryland v. Wirtz, 392 U.S. 183 (1968)
United Transportation Union v. Long Island Rail Road Co., 455 U.S. 678 (1982)
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1982)
Missouri v. Jenkins, 495 U.S. 33 (1990)
Printz v. United States, 521 U.S. 898 (1997)
Reno v. Condon, 528 U.S. 141 (2000)
(my favorite, see Justice Thomas' dissent) US Term Limits, Inc. v. Thornton, 514 US 779 (1995)
Jay wasn't even on the Court.
Walt
Justice Chase's decsion in Texas v. White was destroyed by Justice Grier in his dissent. If Chase's premise is correct (they states never left & were still members of the union), then Chase's conclusion re: the bonds was the reverse of what the premise dictated.
My bad. Justice STORY.
Bump.
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