The Constitution. You know that Chief Justice Chase who Benson quoted? Look up what he had to say on the matter. Texas v White, 1869.
As somebody whose ancestors had no dog in the Great Unpleasantness and as somebody that tries to see the issues as contemporaries on both sides saw it at the time, namely, in 1861 ......
Would it not have carried more weight for the Supreme Court to have made a ruling on the legality of secession BEFORE 600,000 Americans had died rather than AFTER 600,000 Americans had died and a retroactive legal justification was needed for the bloodbath?
How can the men living in 1861 be blamed for not following the reasoning of a Supreme Court ruling made in 1869?
Just wondering.
If the issue of the legality of secession was so black and white, could not the Supreme Court have ruled on the matter in 1861 before the rivers of blood started flowing?
There is no doubt in my mind that it was best that the Union was preserved.
However, prior to the time that the Parrott shells started flying and for four years after they stopped flying, nothing in the U.S. Constitution and nothing in any Supreme Court ruling stated in plain English that secession was illegal.
It seems to me that the entire issue of secession was one of those issues that the Founding Fathers simply forgot or neglected to address.
Sh!t happens.
Even to the Founding Fathers.
The reasoning of Texas v. White went like this:
The Articles of Confederation's described the American Union as "perpetual". The Constitution stated that it wanted to create "a more perfect Union" thereby suggesting that the United States was now more perfectly perpetual.
That is word play right up there with the "penumbras" of Roe v. Wade.
It can just as easily be argued that nobody but God is "perpetual" and that a "more perfect" Union would be a Union less blasphemous to God and therefore not claiming the Godly power of perpetuity. A nation cannot be "perfect" if you are blaspheming God by engaging in the ultimate hubris of claiming the Godly power of being "perpetual", can it?
How is the reasoning of Texas v. White or my reasoning or the reasoning of Roe v. Wade not wading waaayyy deep into "penumbra" territory?
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".
Is plain English too much of a bother to avoid the loss of 600,000 American lives between 1861 and 1865?
Is plain English too much of a bother to avoid the loss of the lives of millions America's unborn children in the past 34 years?
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?