History of Liberty: Judge Napalitano on the Civil War and the Gilded Age

http://www.youtube.com ^ | June 12, 2012

[NKP_Vet]

Lincoln's "actions were unconstitutional and he knew it," writes Napolitano, for "the rights of the states to secede from the Union . . . [are] clearly implicit in the Constitution, since it was the states that ratified the Constitution . . ." Lincoln's view "was a far departure from the approach of Thomas Jefferson, who recognized states' rights above those of the Union." Judge Napolitano also reminds his readers that the issue of using force to keep a state in the union was in fact debated -- and rejected -- at the Constitutional Convention as part of the "Virginia Plan."

[Ditto]

The Revolution was secession from England.

No, the Revolution was a Revolution. The Founders didn't pretend there was some unwritten 'penumbra' hidden in deep British law that allowed them to walk away whenever they damn well felt like it.

And most of the Fire-Eating Confederates didn't think there was some clause in the Constitution that allowed them to secede at will, or at least they never pointed that clause out at the time. Most of them had simply deluded themselves into believing the other states wouldn't try to stop them from doing so.

[rockrr]

Where?

[nathanbedford]

Golly, I thought you had when you said, "By contrast [to the colonials experience with the British] the southern slavers agitated a violent separation from the union …" You meant that this behavior distinguished and made illegitimate there efforts to secede.

But later, when it was pointed out that Lincoln was certainly equally harsh in his treatment of the former states which had succeeded and had formed their own country, you dismissed his behavior saying,

So what? War is hell. They shouldn't have started something and set the pace for something they couldn't finish.

Which is it?

You make much of saying that there is no "enumerated "right" of succession" but of course that neglects the very existence of the Declaration of Independence which Lincoln explicitly sought to incorporate into and make a fundamental document of the American Republic by his speech at Gettysburg. So while the Constitution does not enumerate a right of secession the Declaration of Independence certainly articulates such a right.

Equally, the Constitution does not enumerate a prohibition against secession but it does explicitly reserve rights not otherwise enumerated to the states. Why is the right of secession not one of those rights?

The experience of West Virginia can hardly be said to be apposite because there was a succession from Virginia, that is a state of one nation, the Confederacy, to become a state of a different nation, the United States. Evidently, there is a right to secede in one direction only.

Incidentally, the south did secede in an orderly fashion by plebiscite in many cases. Once done, by their lights, federal troops invaded a sovereign nation which any nation has the right to resist and supplies a fully "defensible reason other than their own belligerence" for resort to arms.

I think a justification of Lincoln's war against the Confederacy must be made on a moral level, inherent in the moral wrong of slavery, just as Lincoln was forced to do against his inclination when he issued the Emancipation Proclamation. As Lincoln said to Harriet Stowe, author of, Uncle Tom's Cabin, "so you are the little lady who started the Civil War."

The idea that the sovereign states who formed a union of "United States" whose Constitution contains no "enumerated" prohibition against secession are somehow constitutionally prohibited from doing so, depends not on logic but on Appomattox Courthouse. The constitutional principle was established there and not in the Supreme Court (except post bellum) and not in the halls of Congress.

[donmeaker]

The Revolution was not secession from England. The colonies were chartered by England, but the tax power and local government was devolved from England at that time.

England was attempting to force the colonies to pay taxes levied in England where there was no representation, after taxes had already been levied by colonial governments, and was attempting to use military force to deny them rights like due process, rights to trial, and sent a military patrol to steal firearms. The port of Boston was closed by military action in an attempt to starve the citizens, absent any trial.

No similar unconstitutional acts were committed by the federal government before the insurrection of 1860.

After the insurrection started, the President declared that an insurrection had begun per the law of 1795, and the federal government successfully suppressed it.

The attempted insurrection was decided and found to be illegal in Texas v. White.

[rockrr]

You've applied a curious twist - to both your own statements and to my reply.

As to forfeiture: I interpreted your statement as the south forfeiting by conceding their attempt at secession - they obviously did not (atleast until the bitter end). It looks like you meant that they lost at their attempt at secession (they didn't succeed at seceding LOL). I apologize for any confusion.

Then, your original statement was, "As Judge Napolitano points out, Lincoln was not altogether polite in his suppression of the rebellion." to which I responded "war is hell".

Now you phrase it as "Lincoln was certainly equally harsh..." - I categorically reject that premise. Lincoln's response to the south was reactionary and slow to get up to speed but he did not treat the rebels as harshly as the Brits treated the colonists.

So while the Constitution does not enumerate a right of secession the Declaration of Independence certainly articulates such a right.

There is no mention of secession in the Declaration of Independence. The colonists openly rebelled without pretense or deceit.

You can think the analogy of West Virginia inapt or clumsy but it stands as an example of a correct way to secede - as opposed to the way the slavers did it. The main difference is that they did not attempt unilateral secession like the confeds.

I think a justification of Lincoln's war against the Confederacy must be made on a moral level, inherent in the moral wrong of slavery, just as Lincoln was forced to do against his inclination when he issued the Emancipation Proclamation.

You can think that but you would be wrong. Although the moral wrongness of slavery was a legitimate issue of contention, it was the south's issue - not the norths. Lincoln went to war in response to the south going to war against him and the north. .

The constitutionality of unilateral secession has been addressed - and rejected by SCOTUS. That doesn't mean it couldn't come up again but it would be an uphill battle.

[celmak]

Napolitano has it wrong about the Civil War in that it was the Democrat slavers who began to fire upon the the Union first, thus go beyond diplomacy first, and going into armed conflict first - a situation it brought unto themselves. Once military force is brought to the table, it cannot be expected that the other side will not reciprocate; whether the other side is right or wrong! And it is obvious the Democrat slavers wanted to expand slavery to the Western territories and would have used any means necessary to do so, as was obvious in Bloody Kansas.

[NKP_Vet]

In the white guilt rationale if some of the states did not want to join the union in the first place and did not join the union, Washington would had threatened them with war and MADE them join. It was a voluntary union of states. If not, the Founding were a bunch of a lying SOBs who never had any intention of EVER letting a state out once they opted to join. If anyone believes that I’ve got some good ocean front property in Arizona to sell you.

[jmacusa]

What is it with people who ostensibly identify themselves as conservatives venerating a bunch of Dixiecrats?

[nathanbedford]

There is no mention of secession in the Declaration of Independence

"it is the Right of the People to alter or to abolish it, and to institute 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."

You did not address the fact that there is no enumerated prohibition against secession and therefore it is a 10th amendment right held by the states.

The colonists openly rebelled without pretense or deceit.

I have already noted that the southern states seceded quite openly and by Democratic means.

"Lincoln was certainly equally harsh..." - I categorically reject that premise. Lincoln's response to the south was reactionary and slow to get up to speed but he did not treat the rebels as harshly as the Brits treated the colonists.

"If a pigeon attempted to fly the length of the Shenandoah Valley he would have to pack his own rations"… General Phil Sheridan in his report describing the devastation he wrought in the Shenandoah Valley. Sherman's march to the sea was worse.

The main difference is that they [West Virginia] did not attempt unilateral secession like the confeds.

Of course they did, they conducted the secession from Virginia without reference to the will of the people of the whole state, protected by force of arms of Union troops. When the southern states seceded they submitted the issue to all the people of all of the southern states respectively.

The secession of West Virginia stands in hypocritical contradistinction to the war of Northern aggression conducted against the South for doing the very same thing.

[jmacusa]

Here’s another Halsey quote: “Hit hard, hit fast, hit often’’. Halsey was a Yankee, you know. Born in Elizabeth, NJ.

[rockrr]

You have such a simple-minded view of the world. Does it hurt?

If you had ever taken the time to actually read any history of the constitutional convention you would have seen the agonizing that was done over the invention of a government created from whole cloth. Every interest, every fear was debated and considered. Many interests were adopted, many rejected.

In the end the issue of leaving the union was left unaddressed. The representatives knew that and knew that their only choice was to accept the constitution as is, or walk away. They all accepted it - reluctantly or otherwise.

Why? Because they knew that the alternative was unthinkable. Going it alone meant being naked and alone in a den of wolves. No one state - no matter how strong - could survive it. They would get consumed, or subsumed - or they could join the relative safety of the republic.

As for “letting a state out once they opted to join” I stated my opinion upstream. Although secession isn’t an enumerated right, there is no reason why a state couldn’t petition for secession.

[nathanbedford]

A mere irony of geography.

I've always said that New Jersey is a great place to be from.

[rockrr]

"it is the Right of the People to alter or to abolish it, and to institute 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."

Nope, no mention of secession. They are referring to the natural law of rebellion.

You did not address the fact that there is no enumerated prohibition against secession and therefore it is a 10th amendment right held by the states.

No I didn't. Because it isn't a "right" granted by omission via the 10th.

I have already noted that the southern states seceded quite openly and by Democratic means.

Unilaterally and illegally.

Sherman's march to the sea was worse.

But didn't rise to the level of the Brits treatment of the colonists.

[Charles H. (The_r0nin)]

Unilaterally and illegally.

What the heck are you talking about? There is no such thing as an "illegal" secession, because there's no such thing as a "legal" one, either. Secession is the act of leaving an organization. Whether or not you follow the "rules" of the organization you just left is only relevant if you lose.

As for West Virginia... it seceded even more "illegally" than the Confederate states did (based on your standard). The Confederate states at least used the existing state governments to declare their separation. West Virginia was created because a second, unionist-backed Virginia government was formed in Wheeling that then voted to secede (over the objections of the established Virginia government in Richmond) and was recognized by the US Government. If there had not been a war, West Virginia would have been enjoined from statehood based on Article 4 Section 3 of the Constitution itself:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Far from supporting the idea of a "legal" secession, the case of West Virginia shows that there is no such thing. The only legal secession is the one that succeeds, and the only "illegal" one is the one that fails.

[nathanbedford]

Nope, no mention of secession. They are referring to the natural law of rebellion.

Are you sure you want to concede a natural right of "rebellion?"

No mention of secession in the Declaration of Independence? I suppose you are correct, the declaration only provides for the right of the people to "alter" or "abolish" government and to "institute" new government. You're right, no right to secession as mentioned.

I noticed you have abandoned your core argument that there is no "enumerated" right to secession (presumably in the Constitution alone).

Unilaterally and illegally.

To argue that the opposite of what someone maintains without justification or explanation is puerile.

But didn't rise to the level of the Brits treatment of the colonists.

Whole sections of the land were burned-out and the population starved out as a deliberate policy anticipating the wars of the 20th century, I think an argument can be made that the Yankees treated the South worse than the Brits treated the colonials. But, remember your initial premise that there is no equivalence, no relevance to the American war of Independence. We are now discussing degrees of violence etc. It sounds to me like we are talking about very similar affairs with arguable degrees of violence on one side or another but no clear ability to say that one was different from another because of the degree of violence. It is impossible given these facts to say that there is no relevance between the two wars.

[Tau Food]

What is it with people who ostensibly identify themselves as conservatives venerating a bunch of Dixiecrats?

Most people want to be proud of their ancestors, their heritage. It's natural for a person to feel that the conduct of his ancestors somehow reflects on him. Many Germans feel the same way about parents or grandparents who were Nazis.

I respect very much those who happened to live in the South and even those who fought (unsuccessfully) for the Confederacy. However, the primary motive of the "secessionist" leaders was to protect slavery and I think it should have been more clear to those leaders that they were trying to row upstream against an overwhelming historical tide. "Secessionist" leaders also should have known that they were proceeding on a bogus view of the fundamental political structure of the United States and the meaning of the U.S. Constitution. Unfortunately, the South was just plagued with relatively weak and incompetent leadership at the time. I think many of those leaders predicted that Lincoln would be as impotent and submissive as President James "Miss Nancy" Buchanan. They guessed wrong, of course.

[rockrr]

Are you sure you want to concede a natural right of "rebellion?"

I'm conceding nothing.

You're right, no right to secession as mentioned.

But you are. LOL

I noticed you have abandoned your core argument that there is no "enumerated" right to secession (presumably in the Constitution alone).

Nope, wrong again. I have abandoned nothing.

I would agree that comparisons of severity are subjective and a lot depends on whose ox is being gored. I never said that there was "no relevance" but I do maintain that the attempt to compare is severely strained.

[nathanbedford]

I am content to leave the debate where it stands if that suits you?

All the best.

[0.E.O]

Napolitano has his opinion and Madison, Jackson, Webster, and Buchanan had theirs. I’ll go with Madison, Jackson, et.al.

[rockrr]

As you wish. Thanks for the lively discussion!