Did the Civil War truly settle the secession question?

C-Pol: Constitutionalist, Conservative Politics ^ | February 17, 2010 | Tim T.

[Constitutionalist Conservative]

Prior to the American Civil War, it was popularly assumed that states which had freely chosen to enter the Union could just as freely withdraw from said union at their own discretion.  Indeed, from time to time individual states or groups of states had threatened to do just that, but until 1860 no state had actually followed through on the threat.

Since then, it has been considered axiomatic that the War “settled the question” of whether or not states had the right to secede.  The central government, backed by force of arms, says the answer is No.  As long as no state or group of states tests the central government’s resolve, we can consider the question to be “settled” from a practical viewpoint.

This assertion has long troubled me from a philosophical and moral viewpoint.  We are supposedly a nation of laws, and the central government is supposedly subservient to the laws that established and empower it.

In a nation of laws, when someone asks, “Do states have a right to secede from the Union?”, a proper answer would have one of two forms:

• “Yes, because x.”

• “No, because x.”

Here, x would be an explanation of the laws that supported the Yes or No answer. 

With the secession issue, though, we are given the following as a complete and sufficient answer:

“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”

There is no appeal to law in this answer – just brute force.

Based on this premise, the central government can amass to itself whatever right or power it chooses, simply by asserting it.  After all, who has the power to say otherwise?

Come to think of it, that’s exactly how the central government has behaved more often than not since the Civil War.

---

This issue came to mind today because of an item posted today on a trial lawyer’s blog (found via Politico).  The lawyer’s brother had written to each of the Supreme Court justices, asking for their input on a screenplay he was writing.  In the screenplay, Maine decides to secede from the US and join Canada.  The writer asked for comments regarding how such an issue would play out if it ever reached the Supreme Court.

Justice Antonin Scalia actually replied to the screenwriter’s query.  I have a lot of respect for Scalia regarding constitutional issues, but his answer here is beyond absurd.

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.")

He actually said that a constitutional issue was settled by military action.  Oh, and by including the word “indivisible” in the Pledge of Allegiance, the issue became even more settled.

What if the president were to send out the troops to prevent the news media from publishing or broadcasting anything critical of his administration?  This is clearly an unconstitutional action, but by Scalia’s logic, if the president succeeds, we must then say that the military action “settled the question” of free speech.

If these scenarios are not comparable, I’d like to hear why.

[Bigun]

It is quite apparent to everyone who reads these threads that you are a bigoted fool as every word you write confirms it.

Begone bigot!

[Non-Sequitur]

You may imagine Lincoln a god but most others do not and especially those who have done even the most perfunctory research on the matter.

I don't consider Lincoln a god. Unlike you, who look upon him as Satan incarnate, I recognize him for what he was - a man like any other. He had his faults. And he made mistakes. But he also made the the best decisions he could under the circumstances, and in the end he saved the country and kept it united in the face of the Southern rebellion. And if you want to hate him for that then so be it. If you can't stand this country and think it's all because of Abe then I highly suggest you find a country that you like better and head there post-haste.

[Non-Sequitur]

It is quite apparent to everyone who reads these threads that you are a bigoted fool as every word you write confirms it.

And yet another pot-meet-kettle Southron moment. Accuse others of hate when they hate every bit as much themselves. Call other bigots while ignoring their own predjudices. I swear there is no hypocrisy like Lost Cause hypocrisy.

[x]

Davis was a substantial slave owner, so were other members of his cabinet. Compare them head to head against Lincoln's candidate and I don't think you'd be able to make the case that Lincoln's bunch was more clearly oligarchic or plutocratic.

Looking at the different groups in your analysis, there were fire-eating secessionist radicals who owned a slaves but didn't end up in Davis's cabinet. They were judged too extreme. But they were a major force in pushing for secession. There were also some hangers-on of wealthy families who didn't own many slaves themselves but who pinned their hopes on the creation of a new slave-holding empire.

There were also those wealthy planters who weren't enthusiastic for secession. A lot of them went along with it, though. They saw how dangerous secession and war would be for their interests, but didn't want to rock the boat. If they stayed out of the Confederate government, good for them.

Compare, say, South Carolina with Iowa or Vermont and it would be hard to say that Northern politics were more elitist or oligarchic than Southern.

[Idabilly]

“You may imagine Lincoln a god but most others do not and especially those who have done even the most perfunctory research on the matter.”

Non-Sense’s - reputation precedes him. Not only is he the Founder of The ( Lincoln Pee Drinkers Association )

He's also a member of this Group......
http://www.facebook.com/group.php?v=wall&gid=2244982234
The Thinkin Lincoln Cult

[ought-six]

You talk of common sense, and what a majority of the people would want. Well, that's all well and good; but it's also Pollyannish.

We are a nation of laws, not of men. The law, for good or ill, is determinant. Can we ignore it, or break it? Certainly. But if we choose to live by the law we must necessarily be bound by it, and accept the consequences of running afoul of it.

Common sense is not necessarily the equivalent of law.

[ought-six]

“Read what I said; they frequently are. Furman v Georgia did not strike down future death penalties, it invalidated the sentence of every person on death row.”

Yet again, you misinterpret what was been said. I will say it one more time, and then I am done with you.

It is unconstitutional for an ex post facto ruling to apply retroactively so that the ruling would allow an actor, whose act was legal at the time of commission, to be charged after that act was determined to be illegal.

N-S, I have tried to carry on a legitimate discourse with you, not only on this thread, but on several others. You, however, are consumed by some pathological aversion to anyone and anything that may run counter to what you hold sacrosanct, such that you have become what you so profess to abhor: An intolerant bigot.

You are, quite frankly, not worth any further consideration.

[Solitar]

The overwhelming majority of American military strength is in the southern and western states and in the most conservative parts of those and other states.

Nearly all Air Force personnel have had their original training in Texas, Alabama or Colorado Springs.

Army — their enlisted training is Fort Benning, Georgia, South Carolina, Missouri, Oklahoma, or Kentucky — all conservative states. Their officer training is in Georgia or West Point — both very conservative.

Nearly all Marines go through South Carolina or San Diego. Marine officers go through Quantico in Virginia or Annapolis in Maryland. I could question the conservative roots of Naval enlisteds and officers — but Marines are the most conservative of all in spite of the states their training facilities are in.

Navy personnel go through boot camp in Great Lakes, Michigan or OCS in Maryland or Academy in Maryland but the Navy may be the most conservative behind the Marines. Yet some of their major ports are in liberal Democrat states — Washington, Connecticut, and the liberal coast of California.

I dunno about the Navy. What do you all think — could they be trusted?

[PeaRidge]

Two very weak responses in less than a day. I see you are running on empty logic and absence of facts. Why bother any more?

[PeaRidge]

It seems that they just cannot get over the construction of the Republic and the Constitution. I intend to continue to address their lack of education and knee jerk incorrect responses to the facts. It is worth the fight, not for their minds, but for those who would think that their attacks are valid.

[PeaRidge]

From your post # 130:

You forgot to insert the sarcasm on the last paragraph too.

You have been given ample evidence numerous times over the past years that the truth is:

1. The newly formed Confederate government formally offered the Union government unencumbered access to the Mississippi for peaceful purposes. It did not “cut off” anything. The offer remained in effect until the Union invaded the South.

2. The newly formed Confederate government formally offered to the Union government compensation for any former federal property that was taken as well as the seceded states’ portion of the federal debt. The offer remained in effect until the Union invaded the South.

If you think references to the above would help you, please request. If you are going to engage in that blather in the future, don't bother.

[Bigun]

If you think references to the above would help you, please request.

Personally I doubt that you will ever see any such request as their minds are already made up and are not about to allow facts and logic to alter that.

[Non-Sequitur]

Common sense is not necessarily the equivalent of law.

Throw out laws and you have anarchy.

[Non-Sequitur]

1. The newly formed Confederate government formally offered the Union government unencumbered access to the Mississippi for peaceful purposes. It did not “cut off” anything. The offer remained in effect until the Union invaded the South.

Worthless since the Davis regime could take it back at the drop of a hat. Their disregard for their own constitution is well documented, why should one expect that they would have any respect for international agreement or treaties?

2. The newly formed Confederate government formally offered to the Union government compensation for any former federal property that was taken as well as the seceded states’ portion of the federal debt. The offer remained in effect until the Union invaded the South.

No they did not. Other than a vague offer to talk about it if the confederacy felt it was of interest to them, there was no offer on the table when Lincoln was inaugurated. And having stolen it to begin with, what was their incentive to pay a fair price for it even had they been interested? After all, they had possession.

But it brings up an interesting question: if the confederacy was serious about paying for property they took then wouldn't that be an agreement that their seizure of the property was wrong to begin with?

If you think references to the above would help you, please request. If you are going to engage in that blather in the future, don't bother.

No need. I know exactly what you are talking about, and know just how meaningless the words were.

[Non-Sequitur]

Personally I doubt that you will ever see any such request as their minds are already made up and are not about to allow facts and logic to alter that.

ROTFLMAO!!!!! This from the man who has been asked time and again to provide support for his claims and refuses to do so.

[central_va]

Then let me try again. The claim was made by you that in his 1848 speech Lincoln was supporting secession when it is obvious he was not. Secession and rebellion are not synonymous,

I guess calling brave and noble Confederate Troops "Rebs" both during and after the war, not withstanding...Hence forth you must refer to Confederate Soldiers as "Secs" not "Rebs". :)

[central_va]

One thing about Lincoln and that he was a great politician

Because of his tyrannical actions, the Illinois Butcher™ probably sits in hell.

[stainlessbanner]

Absolutely - Lincoln refused to meet with Southern peace delegation. They spent 3 or 4 days in DC and Lincoln refuse to acknowledge them.

[x]

As opposed to your oh so strong posts with oh so much research behind them?

Your post to me was barely coherent and didn't engage with what I'd actually said, so why bother with it?

You go from "Your point is not founded either in fact or law" to "your contention ... is laughable" to "Why bother?" and you expect a serious response?

[Lancelot Jones]

The State[s] interred a contract ( The Constitution ) With an Understanding - they could leave.

They should have put that "understanding" in writing, as there seemed to be a disconnect in that alleged "understanding", insofar as it obviously wasn't "understood" by all the States that made up the Union, or ratified the Constitution.

There is distinct verbiage in the Constitution which addresses new States entering into the Union (Article IV, Section 3), but no verbiage addressing States leaving it.

There is also text prohibiting States that have joined the Union, from entering into any "Confederation" (Article I, Section 10).

The Constitution is the Supreme Law of the nation, not an "understanding" of the Constitution not shared by all the members of the Union.

Requiem æternam dona eis, Domine; In memoria æterna erit justus, ab auditione mala non timebit.

Beauseant!