Could the South Have Won?

NY Books ^ | June 2002 ed. | James M. McPherson

[4CJ]

True, except the supremacy clause does not stand alone in the U.S. Consititution. So your argument is not applicable here, as there are plenty of delegated rights and powers that it refers to.

But you've asserted that the supremacy clause is what prevents secession. Now you acknowledge that the supremacy clause grants nothing.

[Frumious Bandersnatch]

The question you will want to argue is, did the People of New York and Georgia give up their sovereignty, and cease to be a people -- cease to exist except as policy objects -- the minute they ratified the Constitution?

That's not the question I'm arguing.  To say that when the individual states gave up their sovereignty that they ceased to be a people is doing it too brown to put it mildly.

You will note that the constitution is mainly a check on the powers of the federal government.  The federal government is given certain limited powers, but these limited powers (as defined in the constitution) take precedence over any individual state's in the same area.  For example, no state has the power to conclude treaties, to declare war, or to set aside the federal form of government.  Yet this is precisely what the southern states did.

While the federal government can't tromp on state's rights, neither can states tromp of federal rights.

And then Abraham Lincoln conquered them, and made himself, as the First Magistrate of the United States Government, their master and Sovereign.

I suppose that one must have one's personal opinion on Mr. Lincoln, but calling him the "First Magistrate" is perhaps a wee bit too much, since he never took it upon himself to become the Chief Judge.  But, to be fair, if you want to hit on Lincoln, I suggest that you also slam Adams, Jackson and Buchanon, since they were at least as 'bad'.  In fact, Buchanon, in many ways, resembles a southern version of Lincoln.  From my readings, it appears that Lincoln was constantly restraining his allies from doing unconstitutional things.  If you don't believe this, then consider the horrors unleashed upon the south after the civil war.  It was far worse than the war itself in terms of liberties lost.  For all practical purposes, the south was enslaved for a good decade, because president Johnson was too weak politically (although he tried) to do anything about it.

No. The word "government" isn't in it. Secession is a people-to-people political act, modeled on the Roman model in which the plebs physically removed themselves from the Roman civitas and passed, as a body, out of the jurisdiction of Roman law. They did so because they had the right to do so, because they weren't bound to the land, to the City, or to service.

What I said was "in this case."  The actual definition is:

Secede \Se"cede"\ (?), v. i. [imp. & p. p. Seceded; p. pr. & vb. n. Seceding.] [L. secedere, secessum; pref se- aside + cedere to go, move. See Cede.]
To withdraw from fellowship, communion, or association; to separate one's self by a solemn act; to draw off; to retire; especially, to withdraw from a political or religious body.

secede v : withdraw from an organization or communion [syn: splinter, break away]

They seceded or "broke away" from the federal government.  This is what I'm talking of.  And no, they didn't have the sovereignty to do so.  I reiterate, that they gave up their powers to conclude treaties, declare war, and change the federal government when they joined the federal government.  By doing any one of the three, they were in violation of the Constitution.  However, they were guilty, at minimum of violating all three.

[Frumious Bandersnatch]

True, except the supremacy clause does not stand alone in the U.S. Consititution. So your argument is not applicable here, as there are plenty of delegated rights and powers that it refers to.

But you've asserted that the supremacy clause is what prevents secession. Now you acknowledge that the supremacy clause grants nothing.

Say what???  Where did you get the fact that I so much as implied what you are saying?  I said that your argument was inapplicable as the supremacy clause does not stand alone.  The supremacy clause basically states that the constitution is the supreme law of the land (please don't pick nits about "laws in pursuance thereof" or treaties.  I'm just discussing the constitution itself right now).  If the constitution is the supreme law of the land, then all powers delegated to the federal government are part and parcel of this also.

Where does the constitution revoke the sovereignty of the federal government (the right to make war, treaties, etc.)?  Certainly not the 9th and 10th - which were codified to prevent against certain abuses that were prevelant under the Adam's administration.

[Frumious Bandersnatch]

Is an "emanation" the moral equivalent of "interstices"? Or is it more an ex post facto "penumbra"?

LOL.  I've never been asked that before.  At the risk of having made a nasty "insterstice", I would choose "ex post facto penumbra."

[Frumious Bandersnatch]

Good for you. Myself, I've always thought "living document" was just another anagram for "now we've got you!" and "screwed to the wall!"

Too true.  Actually, I wonder how long the so called "secessionists" would retain their views when (and if) the Aztlanders succeed is seceding...

[PsyOp]

Not attacking up mile-long hills well-covered by batteries may also have had something to do with it....Lee might have learned from the six charges up Malvern Hill that failed in 1862, during the Chickahominy campaign, but then he did it again at Gettysburg. Ouch.

Yep. Lee was good as Civil war generals went, but was certainly not the genius as Southern Civil War mythology has painted him. He was uncommonly good at assessing the tactical situation, making good use of terrain, and then doing what the enemy least expected.

At Getteysburg he experienced a major lapse. Longstreet lobbyed hard against engaging the Union at Gettysburg, because he saw how much the ground favored the Union forces. But Lee's arrogance and disdain for his opponents, combined with the desire to bring the Union to the negotiating table got the better of his tactical sense (a good general doesn't waste his troops and listens to the council of proven subordinate commanders). The only thing that saved the Army of Northern Virginia from complete annhilation was the failure of union forces to pursue him in retreat. McClellan could well have ended the war then and there if he had.

After the war, Longstreet, who was arguably the better general, made the mistake of letting his opinion of Lee's actions at Gettysburg known publicly. The south turned on him rather than believe anything ill of Lee. Longstreet was shunned by his friends and died a broken man because of it.

Lee is the sacred cow of the south. Criticising him to a southerner is worse than blasphemy, and they will always point you to some book written to support the myth rather than the facts. They also forget that his many early victories were won in battles against very incompetent Union commanders leading green troops that could barely handle a musket - while most southern soldiers came to the Army of Northern Virginia with exstensive experience handling firearms and time in the saddle.

[Non-Sequitur]

Point is, the decision was handed down in 1869, Helloooo.

And when would you have liked the decision handed down? Before it happened? The Supreme Court rules on cases as they come before them regardless of how long it takes. The ruling in Scott v. Sanford, the Dred Scott decision, was issued in 1857, ruling on something that had happened 11 years before. That's the way it works. The court can't issue a decision on something unless it is brought to them.

[Frumious Bandersnatch]

True there were better southern generals than Lee, but you have to admit that nobody better represented the true gentleman than did Lee at that time.

[PsyOp]

nobody better represented the true gentleman than did Lee at that time.

True. One of the reasons for his enduring fame and good press. He was forgiven much for reasons of character.

[4CJ]

The supremacy clause basically states that the constitution is the supreme law of the land (please don't pick nits about "laws in pursuance thereof" or treaties.

I simply asked you what powers the Supremacy clause contained if it were the only clause. Even more so because you base your argument on it. I acknowledge that the Constitution (and laws made pursuant to it) are above state constitutions and laws - WHERE the federal government has been delegated authority.

If the constitution is the supreme law of the land, then all powers delegated to the federal government are part and parcel of this also.

Excellent, you do understand the 10th. Where has the Constitution been delegated the power to prohibit secession? Where is it written that the contract is permanent and unbreakable? Why did the founders NOT include the word "perpetual" (which they used 5 times in the Articles), "permanent", "unbreakable" or any other synonym? In what clause or section if the Constitution is this elusive delegation of powers to be discovered?

[Frumious Bandersnatch]

Excellent, you do understand the 10th. Where has the Constitution been delegated the power to prohibit secession? Where is it written that the contract is permanent and unbreakable? Why did the founders NOT include the word "perpetual" (which they used 5 times in the Articles), "permanent", "unbreakable" or any other synonym? In what clause or section if the Constitution is this elusive delegation of powers to be discovered?

I've said this before, but I guess I have to say it again.  Only the federal government has the power to make treaties, regulate interstate commerce and, for that matter, make laws pursuant to the constitution.  All powers delegated to the federal government are enumerated in said constitution.  If said constitution is the supreme law of the land, no state can make treaties, set aside the federal government, or make any law which trumps the constitution.  Every seceding state made laws which elevated state laws above the constitution.  Every CSA state except Tennessee set aside the constitutional form of government that had been set up at founding.  Every state that joined the CSA rejected the U.S. constitution (although the CSA constitution was similar) and thus rejected the validity of the supremacy clause.  The federal government is the only U.S. government authorized under the constitution to treat with foreign powers.  Every state in the CSA did so (by leaving the Union, they were asserting their supremacy over the constitution.  By joining the CSA, they were exercising treaty power).

Article I, Section 10 says:
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

We see from this that the CSA broke the constitution by keeping troops, attempting to exercise treaty power and declaring war on the Union.

Furthermore, Article I, section 8, says that congress has (amongst other things) the power:

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

Since the CSA set aside the constitution, they were an insurrection, therefore the Union was only exercising the power inherent in the constitution.  By denying that the constitution had any power over them (every CSA state did this), they were in open rebellion.

The only way that the CSA could give the least vestige of legality to their proceedings was to keep the U.S. Constitution as it stood after their secession.  Of course there would then be some awkwardness attached to their position of adhering to something that they fled from...

While the word "secession" is not in the constitution, the organization of said constitution makes it illegal to secede - because the federal powers are defined and the supremacy clause makes the constitution supreme to state laws.  Not even the vaunted 9th and 10th amendments deny this.  In fact, the 10th reinforces the notion that enumerated federal powers trump state powers and rights.

Pray tell, how can a state exercise powers that it is specifically prohibited from exercising?  IOW, how could the CSA declare war when the constitution forbade them?  How could the individual states elevate their laws above the constitution (everyone did so)?

[4CJ]

Everything you cite refers to states within the union - not states that are out of the union. The issue that must be resolved first is the legality of secession. The US government had no control over Rhode Island and Providence Plantations until she ratified (on her 13th attempt). She and two others expressly reserved the right to resume the powers of self-government.

If said constitution is the supreme law of the land, no state can make treaties, set aside the federal government, or make any law which trumps the constitution.

And what I'm trying to get you to explain, is where is any prohibition against secession. I agree about the treaties, and about laws, but where is something to prevent the states from setting "aside the federal government"?

[WhiskeyPapa]

Where has the Constitution been delegated the power to prohibit secession?

Jefferson Davis said it resided in the Congress' power to provide for the common defense.

Walt

[WhiskeyPapa]

Since the CSA set aside the constitution, they were an insurrection, therefore the Union was only exercising the power inherent in the constitution. By denying that the constitution had any power over them (every CSA state did this), they were in open rebellion.

The US Supreme Court ruled in 1862 that the "so-called confederate states" (their phrase) were in rebellion and that under acts passed on 1795 and 1807 (passed in pursuance of the Constitution don't you know) the government was empowered to put down that rebellion.

The neo-rebs are not like Monty's Python's Black Knight. They are not like the Emperor with no clothes. They are like the Black Knight with no clothes.

Walt

[WhiskeyPapa]

"One aspect of the neo-reb rant is its unreasonable nature."

"Ureasonable" is a subjective judgement; what appears unreasonable to you may appear perfectly reasonable to someone else.

Over a million Union soldiers saw it the same that Washington, Madison, Jefferson, Jay, Wilson, Story, Marshall, Jackson, Houston -- and Lincoln saw it.

Walt

[Jeff Gordon]

The South shot themselves in the foot. That is, they shot and killed their own Stonewall Jackson. If Jackson had lived, the South would have own.

IMHO

[stainlessbanner]

Article I, Section 10 pertains to states within the Union. Let it not be forgotten the Southron states seceded as independent republics or states first, and then aligned with the Confederate States of America.

The CSA was not even created before the states seceded. Consider the order of secession:

South Carolina, Convention passed Ordinance of Secession, 20 Dec 1860

Mississippi, Convention passed Ordinance of Secession, 9 Jan 1861

Florida, Convention passed Ordinance of Secession, 10 Jan 1861

Alabama, Convention passed Ordinance of Secession, 11 Jan 1861

Georgia, Convention passed Ordinance of Secession, 19 Jan 1861

Louisiana, Convention passed Ordinance of Secession, 26 Jan 1861

Texas, Convention passed Ordinance of Secession, 1 Feb 1861 (admitted to CSA 23 Feb)

Constitution of the Confederate States of America signed 11 March 1861

Virginia, Arkansas, North Carolina, Tennessee, Missouri, and Kentucky were admitted between 4 April - 10 December 1861 (after Lincoln's call for troops).

***********************

Pray tell, how can a state exercise powers that it is specifically prohibited from exercising?

The real question we should be asking is how can the federal government assume rights not specifically delegated to it?

[stainlessbanner]

Jackson's death was tragic. Because of his fearless drive and bravery, he was in front of his troops, leading them. It is so unfortunate we lost our beloved Stonewall. Perhaps you are right, had Jackson lived, the South would have won. For sure, Lee missed him desperately and oft saw Gen. Jackson in visions.

[stainlessbanner]

Where has the Constitution been delegated the power to prohibit secession? Where is it written that the contract is permanent and unbreakable?

Just like the US Consitution, the Constitution of the CSA does not specifically call out secession (see Article VI, 6) - one of the most sacred rights among the Confederate states. Perhaps they understood what delegating and retaining rights means.

[lentulusgracchus]

The court can't issue a decision on something unless it is brought to them.

My point, which you must concede in fairness, is that you cannot bind people to rulings made after the fact. That's judging people a posteriori, applying the standards of one time to another. And the Court's ruling was teleological, in that, in 1869, they could only rule one way anyway, politically, because Lincoln had changed the Constitution with two million bayonets and revolutionized the basis of the Union by winning his political war against the South.

And it would have upset too many applecarts for them to have ruled correctly, to-wit, that the Southern States were within their rights, sitting in convention as The People, to have seceded from the Union.

You might say that the Supreme Court's decision was a necessary one, to perfume spoils of conquest reeking of the stink of blood. And its timing falls squarely in the middle of the period when the South in no way was a participant in the Union, but a conquest under it.