Could the South Have Won?

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

[Frumious Bandersnatch]

The only northern states invited to the Montgomery convention were Delaware and Maryland (technically south of the Mason-Dixon line).

They didn't go there to merely discuss political affairs, but rather to convene a constitutional convention.  Convening a constitutional convention to change your form of government and excluding your political enemies is not very good form.  In fact, they didn't follow the forms prescribed for such conventions listed in the U.S. Constitution, so it wasn't done legally.

The only ways open to the south to secede legally was either to get an amendment to the constitution, or by a constitutional convention.  There is no way an amendment would have passed.  The only way a constitutional convention would have worked is by contravening the constitutional rights of northern states.

[4CJ]

Ohoh, you are doing a railsplit and ignoring Article I, section 10 - you know, the one which limits the powers of the individual states.

You wrote: "Read Article I, clauses 8 & 9 sometime. They are very enlightening, I assure you, as to the powers specifically reserved to the federal government." I was wondering how Arts & sciences, copyrights and patents, the court system, or titles of nobility could apply.

There are only 3 clauses in Section 10. All refer to states within the union, and none prohibit secession.

[4CJ]

By seceding, the states are asserting that the supremacy clause is null and void, since they are making a law which is superior to the constitution.

You still don't understand. Nothing prohibits secession, or even sovereign state laws. Unless the Constitution somewhere is delegated the power over secession (or anything else), the US Constitution cannot prohibit secession. Read Hamilton in Federalist 84 for a clue about excersing powers not delegated. He (and other federalists) argued against a Bill of Rights, simply because the federal government had not been delegated the powers over religion, speech, RKBA, individual liberties, civil cases, jury trials, search & seizure &c.

Not to mention the fact that they are also asserting a sovereignty not granted them under the constitution.

Read amendment X. What part of it do you not understand? The states retain EVERYTHING no delegated nor prohibited. The supremacy clause does not delegate or prohibit any powers - it just recognizes that where a power has been delegated, the Constitution is supreme.

[Frumious Bandersnatch]

Take Article I sections 8, 9, & 10 in conjuction with Article VI, clause 2.

The states have cannot legally assume powers denied them in Article I.  Furthermore, the very act of secession puts states laws above the constitution (which is a no-no) since the secession ordinance itself is a state law.

[Frumious Bandersnatch]

You still don't understand. Nothing prohibits secession, or even sovereign state laws. Unless the Constitution somewhere is delegated the power over secession (or anything else), the US Constitution cannot prohibit secession. Read Hamilton in Federalist 84 for a clue about excersing powers not delegated. He (and other federalists) argued against a Bill of Rights, simply because the federal government had not been delegated the powers over religion, speech, RKBA, individual liberties, civil cases, jury trials, search & seizure &c.

No, it is you who don't understand.  I'm not talking about non-delegated powers - which you keep coming back to.  The delegated powers of the constitution cannot be overthrown by state laws.  Any laws made by a state (including secession ordinances) are subordinate to the constitution.  The individual states could not legally secede because they were still bound by the U.S. Constitution as being the supreme law of the land.  Every state, in their secession ordinances recognized that they had no sovereignty under the Constitution.

They claimed that they could get their sovereignty back because state laws trumped constitutional ones.

[TexConfederate1861]

Ok... Point One: The Supreme Court ruled AFTER the war....not before. (and they STILL can't supercede the Constitution!) Point Two: The Confederacy called for volunteers to defend their soil against invaders AFTER Lincoln called for volunteers to invade the South, which was essentially an act of war. There was no formal declaration from either side! If I remember, there was no f

[TexConfederate1861]

Oh Yea: I got you this time Yankee Boy...SHOW ME WHERE that right is spelled out? You won't be able too....John Marshall just assumed that power..... And I wouldn't presume....Too Many of you Yankees think you are Chief Justice and Congress all rolled into one..... Deo Vindice!

[lentulusgracchus]

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

That supposed to be some sort of reply? Sez you.

[Non-Sequitur]

OK...Point one: Of course the Supreme Court ruled after the war. They couldn't very well rule before the war, could they? The Supreme Court can only rule on the legality of issues that comes before it. It cannot issue advisory issues on actions contemplated by others. And the court did not supercede the Constitution. They ruled that the Constitution does not allow for unilateral secession as practiced by the southern states. Nothing was superceded at all. Point Two: On February 26, 1861 the confederate congress passed legislation funding the raising of an army of 100,000 men for a two year enlistment. That was almost two weeks before Lincoln was inaugurated, a month and a half before Sumter, and created an army 7 or 8 times the size of the remaining United States Army. Who was creating the act of war? An act of war, I might point out, that was formalized by the Davis regime on April 17, 1861. The North never declared war. You don't declare war on a rebellious section of your own country.

[lentulusgracchus]

Well, I have got to hand it to you, you have your Lincolnian catechism of subordination down pat.

Just remember to say "sir" a lot, slave.

Oh, and you're still wrong. Since I've exposed my position repeatedly, and laid out my arguments which you've contradicted merely by saying that the People are now the property of the State -- and asserting the Supremacy Clause as the owner's manual -- then you obviously don't believe in the People, nor democracy, nor for that matter a Republic. For if the People are nothing more than what your state ministers may snap their fingers at, and sic a magistrate on, to make them Go Away in any dispute, then why bother with "representing" them either, but just do as you please instead, as Machiavelli counseled princes to do?

You're what America needs more of: an apologist for despotism. Since we're going to get more and more of it, plusgood duckspeakers will be in demand. Have you considered a career in public affairs?

[Non-Sequitur]

OK, Article III, Section 2, Clause 22:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The legal definition of 'jurisdiction' is the authority to interpret and apply the law within a particular geographic area and/or over certain types of legal cases.

[Frumious Bandersnatch]

Well, I have got to hand it to you, you have your Lincolnian catechism of subordination down pat.

Along with Hamilton, Madison, Jackson, Buchanon, etc., etc., &etc.

Just remember to say "sir" a lot, slave.

Along with Hamilton, Madison, Jackson, Buchanon, etc., etc., &etc.

Oh, and you're still wrong. Since I've exposed my position repeatedly, and laid out my arguments which you've contradicted merely by saying that the People are now the property of the State -- and asserting the Supremacy Clause as the owner's manual -- then you obviously don't believe in the People, nor democracy, nor for that matter a Republic. For if the People are nothing more than what your state ministers may snap their fingers at, and sic a magistrate on, to make them Go Away in any dispute, then why bother with "representing" them either, but just do as you please instead, as Machiavelli counseled princes to do? You're what America needs more of: an apologist for despotism. Since we're going to get more and more of it, plusgood duckspeakers will be in demand. Have you considered a career in public affairs?

You have a habit of rail splitting and misrepresenting (or misunderstanding) things I've said.  Where did I say that people were property of the state?  I have said that the constitution is the supreme law of the land.  A synonym for "supreme" is "sovereign."  Therefore the constitution is the sovereign law of the land.

It appears that you are under the illusion that we are a democracy.  Not so.  The founding fathers as a whole profoundly mistrusted a democracy.  We are a republic.  As such power that would be vested in the people in a democracy is instead, vested in representatives of the people.

But even beyond that, no people have the right deny the delegated powers, since the constitution is the supreme law of the land.  Such a move is rebellion or insurrection, and Article I section 8 does provide for congress to move against insurrectionists.

[lentulusgracchus]

So, your idea that the people are sovereign does not bear up under scrutiny since we are not a democracy.

Yes, it does. You just don't want to admit it -- you've got too much riding on the opposed proposition, that the nation's best interests are served by letting oligarchies milk the South and West to feed the Eastern cities. Sorry, you won't get me to buy that.

Your summary argument is a most perfect example of the "consolidation" enthusiasm, as they called it, which the Antifederalists rightly feared in the Federalists.

It was the Antifederalists who wrote, insisted on, and obtained ratification of the Bill of Rights. The BoR modified the concentration of power that the Federalists had, illegally and in direct violation of their instructions as representatives to the Constitutional Convention, concocted. The Federalists represented commercial and business interests mostly, and creditors anxious to create a National Government that they could control, by spending precious time on it that people who had to get a living couldn't afford, the better to see to it their debts were repaid under the gun wielded by that same national government. The Antifederalists were determined to see Sovereignty remain with the People, and with their States.

The Antifederalists (in Jackson Turner Main's The Antifederalists, pp. 111, 120-128 passim) argued about taxes ("the impost") as a proxy for sovereignty, as the most obvious talisman of sovereign power. They wanted sovereignty and the tax power to remain with the People, hard-won in our War of Independence. They didn't want the grubby commercial classes and the well-to-do to lay hands on the same powers that had outraged people in the hands of the King's agents. Without the Bill of Rights, the Constitution bid fair to do so, through Congress's power to tax and the power of judicial review. The Antifederalists feared (prophetically) that the judiciary would always side with Congress on scoping questions, and would respect no area of State legislation. Likewise, they feared that Congress would simply preempt sources of revenue, and reduce the States to nothing. And so for the Antifederalists, the power to tax became a litmus of Sovereignty, and they debated it at length among themselves, in the ratification conventions, and with the Federalists.

The upshot was the preservation of the States' powers to tax, and the Tenth Amendment protection of States' rights.

I don't know how to tell you, in whatever dialect of Chinese you must speak, that they really meant it, that the federal government was not to become a colossus, and that the States must keep their Sovereignty and their rights. But then, your favorite President killed all the people he had to, to have things his way on that question, didn't he?

Winning a war still doesn't make you right on the issues. You can claim your filthy, bloodsoaked "win" if you wish -- here it is, I hold it out to you, stinking and smoking -- grasp it and take yourself to New York for your big New York payday. But don't pretend you are arguing a principle. I've explained how and how badly you are wrong, and how the People were within their rights to withdraw from a Union in which the moneyed classes professionally represented by Edwin Stanton and Abraham Lincoln, attorneys at law, proposed to welsh on the guarantees of rights and sovereignty represented by the Bill of Rights. I've explained my point of view, and you have not confuted me, but only recited your Unionist, triumphalist, Gilded-Age, vest-pocket catechism over and over. Well, call me when you think of something. I'm tired of listening to Lincoln's rationale for conquest.

[lentulusgracchus]

I have said that the constitution is the supreme law of the land. A synonym for "supreme" is "sovereign." Therefore the constitution is the sovereign law of the land.

Your word play is defective. There is no claim of Sovereignty in the Constitution. Quote it if you've got it. Article VI isn't it.

The founding fathers as a whole profoundly mistrusted a democracy.

You mean Hamilton and his merchant pals. Well, we've heard their maxim of government before, blurted out by a Philadelphia congressman on an FBI videotape: "Money talks, and bullshit walks!" What a proud motto for a political movement! Proud as Carthage, I'm sure.

As such power that would be vested in the people in a democracy is instead, vested in representatives of the people.

Oh, I see -- the representatives represent themselves, and tell us what to do afterwards. Gee, I wish I'd been born rich.

But even beyond that, no people have the right deny the delegated powers, since the constitution is the supreme law of the land.

You bet. So, chasing the pecking order upstream, we go from me, the lowly louse of a citizen, upstream to the powerful Congressmen and the magistrates, and further upstream to the people who give them money. I can't get further up the stream than them........nobody pays them or tells them what to do, rather the other way around.......so I conclude from your precis that we are a plutocratic oligarchy, and ought by right to be, just like Hamilton wanted.

Guess the Bill of Rights was kinda otiose after all, eh? The Antifederalists could have saved their breath, arguing with driven businessmen working on their bottom lines.

[Frumious Bandersnatch]

So, your idea that the people are sovereign does not bear up under scrutiny since we are not a democracy.

Yes, it does. You just don't want to admit it -- you've got too much riding on the opposed proposition, that the nation's best interests are served by letting oligarchies milk the South and West to feed the Eastern cities. Sorry, you won't get me to buy that.

So are you saying that we are not a republic?

Concerning you conclusions of federalism vs anti-federalism:  The federalists did not want a codified bill of rights for fear that government would use that as an excuse for trying to take away any right not listed in the constitution.  After the abuses of the Adams presidency (and his disputes with the DuPonts), the practical problems inherent in a lack of bill of rights was observed.

Again states can't be sovereign, because sovereign means supreme.  And the states did not have supreme control over their people.  The constitution did.  Furthermore, the constitution delegated powers to the federal government which it prohibited from the states.

You can't be "supreme" or "sovereign" and have powers and rights denied to you at the same time.

[lentulusgracchus]

Where did I say that people were property of the state?

It's implicit in your remarks. Either you work for the State and are its commandable resource, or it works for you, and it is your commandable resource.

So who is the master, you or the State? If it isn't you, it's the State.

Like they say, if you're sitting in a poker game and you can't tell by looking who the sucker is -- it's you.

[Frumious Bandersnatch]

Your word play is defective. There is no claim of Sovereignty in the Constitution. Quote it if you've got it. Article VI isn't it.

Sorry to disappoint you, but Article VI clause 2 states ...Supreme law of the land.  In case you missed it, supreme and sovereign are synonyms.

Another way that this could be rendered is ...Sovereign law of the land.

[A CA Guy]

The South is winning as Mexico invades us right now!

[Aurelius]

"Furthermore, the very act of secession puts states laws above the constitution..."

No, it renders the state no longer subject to the Constitution.

[lentulusgracchus]

You can't be "supreme" or "sovereign" and have powers and rights denied to you at the same time.

Mutatis mutandis, the federal government cannot be "sovereign" or "supreme" in your usage, as long as there is a Bill of Rights.

Look, we are down to quibbling about the meanings of words here. What I mean by "Sovereign" is the standard poly-sci and historical meaning. Before we rebelled against Britain, George III was the Sovereign, notwithstanding that he shared power with Parliament and his ministers in Commons. In America after the Revolution, the former colonies become States -- their poleis, their populi, Peoples -- were the Sovereign in each place. Reading Main on that point is clear: the People were Sovereign, and the Antifederalists were concerned that a delegation of too much power to the federal government would make it a National Government, and the Sovereign. Hence the reservations of power -- showing where the power came from in the first place -- and the codification of the reservation in the Bill of Rights.