Leaving aside for the moment that my good and learned friend Stainlessbanner far exaggerates the 'threats' of secession that were made, how can they be a test case? On what grounds should such talk have been taken before the court? Courts rule on actions taken, not contemplated or talked about. The Supreme Court's restrictions go even further. As one of the three branches of government they cannot go to Congress and say, "Don't pass that law because we'll strike it down as unconstitutional" or go the the President and say, "Don't take that action because the Constitution doesn't allow it." To do so would be a violation of the separation of powers. So the court cannot, under any circumstances, issue advisory rulings to the other branches of government or the states. The court can only rule on actions those entities take, and then only if it is a matter brought before them.
As I said before, I see it tragic oversight by the Founding Fathers.
In retrospect you may be right. But that doesn't change history.
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.
True. And when the question of the legality of secession was finally brought before the court it issued it's ruling. It said one side was right and the other wrong. It did not say that the wrong side should have known better, it did not say that their acts were criminal, merely that there interpretation was wrong.
On what grounds should such talk have been taken before the court? Courts rule on actions taken, not contemplated or talked about.
When Jefferson Davis gave his farewell speech to the U.S. Senate, he began by saying, "I rise, Mr. President [John C. Breckinridge], for the purpose of announcing to the Senate that I have satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States."
He then announced that since his functions were terminated, he would be going home to Mississippi. Foote writes that Davis stayed in Washington a few days afterward, hoping to be arrested for treason, thereby testing the doctrine of secession in the federal courts.
Was there not sufficient cause in Davis's announcement -- that he was resigning from the Senate to join a group of "rebels" -- to provide for a test case?