That is the opposite of how the judiciary works. No court, especially the Supreme Court, can rule on something that hasn't happened. And it goes further than that, no court can rule on a matter that has not been brought before it. Since secession had not been attempted before the court had not had a chance to rule on its legality. And the matter was never brought before the court until Texas v White.
How can the men living in 1861 be blamed for not following the reasoning of a Supreme Court ruling made in 1869?
I don't think anyone is blaming them, merely pointing out that they were mistaken in their belief that unilateral secession was legal.
The reasoning of Texas v. White went like this...
I think you missed the reasoning entirely. The heart of the decision is in this quote here: "The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States." In other words, the same method used by the majority of states to join in the first place.
In my view, if the Constitution is supposed to "say" something, I want to see it in plain English and not have a Supreme Court Justice playing word games with the Constitution as if he were a High Priest at the Oracle of Delphi reading chicken entrails or Justice Douglas divining "penumbras and emanations".
As Chief Justice Marshall pointed out, "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language." Where is he wrong?
That is the opposite of how the judiciary works. No court, especially the Supreme Court, can rule on something that hasn't happened. And it goes further than that, no court can rule on a matter that has not been brought before it. Since secession had not been attempted before the court had not had a chance to rule on its legality.
However, we know that, when an issue is really important, a "test case" is found, somewhere, somehow, to force a ruling on it.
Prior to the Civil War and its devastating carnage, secession had been threatened many times, mostly by Northern politicians. We all know several examples and stainlessbanner has listed a several on Post 132.
If it was antebellum common knowledge that secession was illegal and treasonous, any one of those politicians could have been formally charged with treason as soon as you could say "Aaron Burr".
At that point, the legal case would have centered around the point of whether secession was treason or not and a legal precedent would have been set ..... prior to a bloodbath.
If either side was uncomfortable with the legal outcome, the "battle" could have been waged in the legal arena with maybe some sort of compromise or understanding being reached.
The reasoning of Texas v. White went like this... "The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States........
And the reasoning of Roe v. Wade went like that, and Polybius' reasoning in Post 120 went like this and the "perpetual" Articles of Confederartion lasted a shorter time than the bloom of youth in a pretty girl's face.
How long did those "perpetual" Articles of Confederation actually last?
Nine years.
And where, exactly, in the new contract, the Constitution, does it spell out in plain English, that, while this, that and the other thing in the Articles of Confederation are being thrown in the ash heap of History, that and this and the other thing are being kept and engraved in granite?
The phrase "The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States" could easily be interpreted to mean:
"This Constitution has an expiration date nine years in the future like the Articles did."
In my view, if the Constitution is supposed to "say" something, I want to see it in plain English ...
A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.
Very true. A Constitution that addresses every picky little detail from war powers to the price of Wisconsin cheese would be have the basic principles lost in a forest of trees.
However, when some particular point has the potential cause a national disaster of Biblical proportions ( the Civil War cost 600,000 lives out of a population of 31.4 million) that particular point deserves to be spelled out.
As I said before, I see it tragic oversight by the Founding Fathers.
Nobody is perfect.
It was a tragic oversight.
The Founding Fathers wrote a "short and sweet" Constitution and then threw in the Tenth Amendment to leave what powers were not prohibited to the Federal Government in the hands of the States. When the Tenth Amendment is ignored, you end up with things like Roe v. Wade.
Some men of the mid-nineteenth century, both North and South as seen by the many secession threats by Northern politicians over the years prior to 1861, took the Tenth Amendment at face value.
The legality of secession was left unclear to the point that honorable men could interpret it two different ways and that was a tragic oversight in the wording of the Constitution.
Lessons were learned from that oversight by future generations.
The European Union Constitution specifically addresses the issue of the legality of secession in Article 72.
How can the men living in 1861 be blamed for not following the reasoning of a Supreme Court ruling made in 1869?
I don't think anyone is blaming them,...
I saved this point, out of order, for last because it goes to the heart of of my participation in Civil War threads which is to try to get into dogfights and separate fighting dogs both of which I am fond of.
Look at my Post 133.
Free Republic Civil War threads are ALWAY about blame.
ALWAYS. :-)
These threads never seems to get beyond the "treason", "tyrant" , "slavery", "rights", "should have been hung" dog fights.
Look at your own tag line.
(Save Fredericksburg. Support CVBT.)
When do we ever leave 1860 politics behind and discuss Civil War topics where we agree to disagree on the politics and focus our attention on the brave men on both sides that did their duty for their country as they honorably saw their duty?
A Free Republic thread of your tag line would go like this:
Save Fredericksburg. Support CVBT.
** CVBT helped purchase Willis Hill in the center of Marye's Heights.
** Why are your supporting an organization that purchases the areas of a battlefield that were manned by traitors instead of purchasing areas of a battlefield in the town of Fredericksburg that were manned by loyal patriots.
** The men that manned Marye's Heights were not traitors.
** Yes they were.
** No they weren't.
** Yes they were.
** No they weren't.
** Yes they were.
** No they weren't.
We have the arguments after that memorized by now don't we? :-)
Why can' we ever leave the 1860's politics behind and just discuss:
Wow. Can you imagine the bravery of those Union lines going up, again and again, against Marye's Heights?
Yeah, that was amazing. And what about that John Pelham?
Do you think that Burnside could have mounted a flanking movement towards Chancellorsville by keeping up a token attack against Marye's Heights? Do you think it may have worked or would it have been impossible to carry out undetected?
Why can't we ever have threads like that?
That's my point.
At that point, both sides fired a volley at that strange Cuban man in the middle of no man's land and went on with the war. ;-)