Could the South Have Won?

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

[Frumious Bandersnatch]

Every single CSA state, in their secession statements, indicated that under the Union they had no prior right of sovereignty and that state laws trumped constitutional ones.

Alabama went so far as to schedule a constitutional convention for the CSA in Montgomery on February 4, 1861 before she even seceded.

Tell me, where in the constitution does it say or imply that state laws take precedence over constitutional ones?

[WhiskeyPapa]

Do you give the lurkers so little credit, that they don't know how the clause reads?

I'm sure lurkers wait with baited breath for every word that flies from you fingers.

It sure was easy to catch you in a flat lie.

You don't even deny it.

Walt

[Frumious Bandersnatch]

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.

I admit to a certain amount of frustration because there seems to be a tendency amongst a certain set to ignore the fact that not only are there states' rights and powers, there are also federal rights and powers.  Between Articles I and VI and the 9th and 10th amendments it is quite clear that sovereignty for the Union is vested in the constitution and delegated to the federal government.

Too many seem to want to pick and choose what they want in the constitution.  I'm afraid that this is perilously close to the "living document theory" that I so abhor.

Personally, I take a fundamentalist view of the constitution.

[4CJ]

However, for a state within the Union to secede, they must pass a resolution of secession which then becomes a law.

See the "Full Faith and Credit" clause. Federal legislation in 1790 mandated that the public acts of the states be recognized by the other states. They did not limit what those actions were.

This is putting state laws above constitutional laws which contradicts the supremacy clause. Every state that seceded put state laws above constitutional ones. In fact, many said as much.

You are still confused about the Supremacy clause. State constitutions and state laws are supreme where the US Constitution has not been delegated authority.

It may seem very extraordinary, that a people jealous of their liberty, and not insensible of the allurements of power, should have entrusted the federal government with such extensive authority as this article conveys: controlling not only the acts of their ordinary legislatures, but their very constitutions, also. The most satisfactory answer seems to be, that the powers entrusted to the federal government being all positive, enumerated, defined, and limited to particular objects; and those objects such as relate more immediately to the intercourse with foreign nations, or the relation in respect to war or peace, in which we may stand with them; there can, in these respects, be little room for collision, or interference between the states, whose jurisdiction may be regarded as confided to their own domestic concerns, and the United States, who have no right to interfere, or exercise a power in any case not delegated to them, or absolutely necessary to the execution of some delegated power.
St. George Tucker, Blackstone's Commentaries, 1803, Vol 1, pp. 369-70.

[lentulusgracchus]

Sovereignty is vested in the constitution. Check out Article VI, clause 2.

I did. It doesn't use the word "sovereignty" anywhere. It says, and let's quote it to cross all the t's, :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

It is readily manifest that the clause does not touch on sovereignty, but on matters of Law, which are not matters of Sovereignty.

My point again: when the People act, in their capacity as Sovereign, their enactments are superior to every law, constitution, or other arrangement. Vox populi, vox Dei.

You obviously believe that Government is, and ought to be, supreme over the People. That is understandable, given the outcome of the Civil War which you're wedded to defending, and it puts you in some very good company -- socialists, Statists, Marxist-Leninists, National Socialists and other Phalangists, and strongmen of every stripe who use the State Power to make their will binding upon the people they batten on.

The 9th and 10th amendments indicate basically that all powers and rights not enumerated as belonging to the federal government nor prohibited to the states belong to the states.

And that includes the Sovereign power -- which is not delegated to the United States, but instead little pieces are dribbled around piecemeal. There is no block grant of Sovereignty anywhere in the Constitution from the People to USG or to any other entity, including the Constitution, or any redefinition of the People, the populus of America, that would cause Sovereignty to be subsumed under the rubric of Union as Lincoln insisted.

Article VI, Clause 2 states that the constitution is supreme. IOW, sovereignty rests with the constitution - not with the people. Remember that the founders feared a democracy and set out to create a republic.

Yes to the first sentence, if you quote the clause verbatim -- but the word "sovereignty" is not used, and that greatest of all powers is not delegated or surrendered. You may construe that the Supremacy Clause confers Sovereignty, but you can't back it up with a quote because it isn't there.

I'd have trouble, by the way, believing that anyone would transfer Sovereignty to an inanimate object such as a contract -- you'd do better arguing that it was transferred to the People of the United States. But then, you'd play hell showing the scholars that the constitutional ratification conventions construed such a thing themselves as a People of the United States, and that they intended there should spring from the new Constitution a new, super-Hamiltonian unitary populus with a unitary government subsuming all the Peoples who had ratified that Constitution. I don't think even Hamilton, in all his enthusiasm for unitary government, ever argued that.

[lentulusgracchus]

The only way that each individual state could exercise such prohibited powers was by raising state laws above constitutional laws.

No, they didn't. They just resumed the powers God gave them, and bestowed them first on their state governments which they had taken out of the Union -- so that their enactments were now ultra vires the Courts of the United States -- and then on the new Confederacy.

All moral and legal.

[wardaddy]

846 and counting....

[Frumious Bandersnatch]

You are still confused about the Supremacy clause. State constitutions and state laws are supreme where the US Constitution has not been delegated authority.

It is not I who am confused.  Rather your quotes make my point for me.  In all cases where states seceded from the Union, they made the constitution subordinate to state laws.

Where in the constitution does it indicate that state laws take precedence over constitutional ones?

[Intimidator]

The only way the south could have won is if it did it early in the war before the north had time to ramp up its industry and before the blockade took effect. It also could have won if Britain or France had come in on the side of the south. The U.S navy was still no match for the Royal navy at that time.

[lentulusgracchus]

Where in the constitution does it indicate that state laws take precedence over constitutional ones?

State laws don't -- even if someone thought they did, and said so, erroneously.

But the People can, and did.

[4CJ]

It sure was easy to catch you in a flat lie.

What lie? I wrote: "But if you haven't been following the thread, a certain poster who holds the opinion that 'pursuant' is nit-picking." The poster in question certainly isn't me, I was extremely adamant about observing the word "pursuant", because that poster misunderstands the supremacy clause. Here's what Hamilton observed in Federalist 33:

"But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such."

Anything not pursuant must be righteously ignored.

You don't even deny it.

Deny what? I wrote: "As you well know, the supremacy clause holds that the Constitution is supreme over mere legislative acts." Which is quite true. So again, deny what - that I didn't put the word "pursuant" into my response? Hamilton had already answered you:

It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed.

Try again.

[Frumious Bandersnatch]

The only way that each individual state could exercise such prohibited powers was by raising state laws above constitutional laws.

No, they didn't. They just resumed the powers God gave them, and bestowed them first on their state governments which they had taken out of the Union -- so that their enactments were now ultra vires the Courts of the United States -- and then on the new Confederacy.

All moral and legal.

I suggest that you read the secession ordinances.  Every one of the states put their own laws above that of the constitution.  Everyone of the states dissolved in whole, or part, their allegiance to the constitution.

To make it simple, each secession resolution was in effect a law.  As such it made state laws supreme over the constitution (see Articles I and VI, and 9th and 10th amendments).

Again I ask, where in the constitution does it say or imply that the constitution is subordinate to state laws (such as, for example, secession ordinances)?

[TC Rider]

Could the South Have Won?

If they had only had more "Jagerminz S'More Flavored Schnapps".

[lentulusgracchus]

Thanks for the quote from Hamilton.

Hamilton didn't explain to his interlocutors that anyone bent on "acts of usurpation" would also probably have control of the national defense establishment, and call it down on the protesting societies if they tried to dismiss the usurpatory acts.

Imagine the State of Georgia attempting to resist a Congressional bill directly attainting a situation in Georgia and settling things to Congress's own satisfaction, nowadays. One has to think that Hamilton knew how that one would work out......and that his blandishments were just that, a siren song for people uneasy about strong government. He understood deeply their misgivings, "felt their pain".......and didn't give a damn. He had to make things right for the Downtown Boys. Who are nowadays the Wall Street Wing of the GOP.

[lentulusgracchus]

However they worded it, as long as the People acted to take their State out of the Union, it was still legal.....now matter how they wrote the enabling legislation afterward. Even if they didn't get the explanations right.

[4CJ]

846 and counting.

I did my part ;o)

[Aurelius]

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

Let's assume for the sake of argument that your statement: (1) makes sense (I have no idea what "it" is); and (2) is accurate. So what? A subjective judgement shared by a million people is still a subjective judgement.

Truth is not determined buy consensus.

[4CJ]

Where in the constitution does it indicate that state laws take precedence over constitutional ones?

Where in the Constitution does it indicate that state laws/acts are subservient to non-existant federal laws?

[WhiskeyPapa]

However they worded it, as long as the People acted to take their State out of the Union, it was still legal.

It was not legal under U.S. law, as the Judiciary Act of 1789 requires that civil controversies between the states be submitted to the Supreme Court.

This whole neo-reb rant will not stand the slightest exposure to the record.

Walt

[Frumious Bandersnatch]

But the People can, and did.

Firstly, you'll note that the issue was not "People's rights," but with state's rights.

The 9th amendment makes it clear that the enumeration of certain rights in the constitution shall not be construed to deny or disparage others to the people.

Individuals can separate themselves by leaving the country.  The people as a body can even move from the country in question (this was done by several large groups of people), but the people have no more right to dissolve a state's obligations to the Union than a state does.  Your arguments would only begin to make sense if we were a democracy.