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 Posted: Fri May 6th, 2011 04:00 am
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Cogswell Pepperbox
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ohhhh, yeah.

that's right; I remember now why I stopped posting
on this board the first time around ...



 Posted: Fri May 6th, 2011 04:00 am
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Cogswell Pepperbox
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Last edited on Fri May 6th, 2011 04:01 am by Cogswell Pepperbox



 Posted: Wed Oct 26th, 2011 08:37 am
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csamillerp
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Needless to say though if your country became intolerable to live in... for any reason, would you not, as a soveriegn state have to right to succeed? When each state joined the union they joined with the understanding that they were their own power. Please correct me if i'm wrong



 Posted: Wed Oct 26th, 2011 01:16 pm
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HankC
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well, the constitution does begin with 'We the People of the United States, in Order to form a more perfect Union'...



 Posted: Wed Oct 26th, 2011 02:49 pm
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Texas Defender
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csamillerp-

  HankC can cite the Preamble to the Constitution, as well as any part of it. But in no part of it can he show that the power to forbid states to secede is one of the enumerated powers granted to the federal government which was established by those states.



 Posted: Wed Oct 26th, 2011 08:03 pm
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MildMan
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Can we put aside for a minute the question of whether there was sufficient reason to secede for a minute and talk about the right to secede? I think it’s an interesting issue – and I’d like to hear more about how others think about it. I am not a legal scholar but I am not aware that the constitution says anything directly one way or the other about secession. However, it stands to reason that if the founding fathers thought that the constitution needed or should have an exit mechanism for states they would have put one in. Did they discuss this – or did they ignore the issue? Certainly they were a savvy bunch and they knew that all relationships have ups and downs. Did NOT putting in wording on secession mean they wanted the marriage of states to be permanent? Yes, I think they meant for the union to be permanent, but this doesn’t mean that “wanting out” is wrong. Most marriages begin with sacred vows of “until death do us part”, but many end in divorce anyway. It seems to me that in some cases secession or even revolution is the only route to responsive government. But it would be a last resort- not a first resort. It does not appear to me that South Carolina attempted to address secession in legal and peaceful means BEFORE it acted unilaterally and with violence. Forgive this over simplistic analogy, but its kind of like just “announcing” that you are divorced without going to court (making it legal) and then shooting your partner when he or she came to get his or her share of the stuff. I am ok with saying you are going to secede, and then working though peaceful and legal means to make this so. Shouldn’t South Carolina have put forward a bill in Congress to approve its secession as a first step? Shouldn’t the Supreme Court have ruled that secession was illegal before South Carolina decided it was necessary more aggressive steps? Shouldn’t promotion of a constitutional amendment to create rules for secession have been tried first? My sense is that the folks in South Carolina ignored they had committed to a nation of rules and laws, and by acting unilaterally on secession and by firing on fellow citizens they brought on an unnecessary and terrible calamity. Maybe I am naïve but maybe just maybe secession could have happened without killing 750,000 Americans. My gripe is that it is not clear that South Carolina even tried. :shock:



 Posted: Wed Oct 26th, 2011 08:46 pm
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Texas Defender
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MildMan-

  The Constitution does not mention the right of secession one way or the other. Thus it does not prohibit that right to the states.

  The Founding Fathers were wary of creating too strong a federal government that would threaten the rights of the states and the people. Thus, they decided to form a federal government that they limited in its powers. In order to get the support of the Constitution as it was originally written, it was necessary to add the Bill of Rights, the first ten amendments.

  The Tenth Amendment says that unless the power to do something is given to the federal government or is forbidden by it to the states, then it is reserved to the states and to the people. This would include the right to dissolve the bonds of the states to the federal government.

  The only document that refers to the bonds between the states being: "Perpetual" is the Articles of Confederation. But that compact was too weak and didn't form an effective federal authority. Thus, it became necessary to write a comprehensive Constitution that established a federal government which the Founding Fathers hoped would have enough powers to govern effectively, but not too many so that it  threatened the rights of the states and the people.

  The Constitution was written and became the governing document, but it could not eliminate the problem of sectional differences, which only increased as the country expanded westward. Eventually, these differences could no longer be overcome with patchwork compromises. Whether or not the southern states were justified in making the decision to secede can be argued elsewhere. But I believe that a strong case can be made for the legality of secession.

  I don't presume to speak for the Founding Fathers, but I believe that they fully realized that at some point, some state or states might consider leaving the Union. I think that most of them would have said that the Union was a compact of states, and that it was the states that formed the federal government, and not the other way around. If they were determined that the Union must be perpetual, then I am certain that they would have tried to include that provision in the original document. The fact that they did not to me shows that the idea that states were permanently cobbled together met strong opposition in the minds of some of them.

  As for South Carolina, it was not the first state that made serious threats of secession. For that you have to go back to the Hartford Convention, begun during the War of 1812. That was long before the Nullification Crisis or the actual secession of South Carolina in 1860. (Which was threatened if Mr. Lincoln was elected president).

  If you had talked to the citizens of South Carolina in December of 1860, I am certain that they would have told you that their state had the right to leave the Union. They would have told you that they did not NEED the permission of the Congress or the Judiciary to take that course of action. They felt that it was their right and they exercised it.

  There was a long and bloody war because neither side understood the other, and neither side would back down from its position. Many in the north thought that the southern states wouldn't actually secede. Many in the south thought that those in the north wouldn't fight to force the southern states to remain.

  One thing that seems clear is that secession could not have been accomplished peacefully. Those in South Carolina and the other states were determined to leave if Mr. Lincoln was elected. Mr. Lincoln was determined to accept war before he would accept secession. The die was cast.

 

 

 



 Posted: Wed Oct 26th, 2011 10:05 pm
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MildMan
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You haven’t convinced me that South Carolina couldn’t secede peacefully. I get your point that there was reason for residents of South Carolina in 1860 to think that secession was legal so they thought permission was not needed to secede.

Whether that is true or not has never been decided in court. I’d like to know if this issue was ever addressed in the constitutional convention. It’s a BIG issue so it seems odd if it were not. When there are disagreements about the constitution – or when states rights trump the federal government – the Supreme Court decides. No government can work if its just an aggrieved party decides what a law means. As for seeing the government as a compact of the states, I agree with you that that is likely how it was seen. But if you were part of a compact wouldn’t you first go to the compact and say, “this is not working, I am going to leave, how do we do this within the law?” Its like first saying, “look even though I said, till death do us part, we are never going to get along, so the only question is how to divorce in a way that isn’t destructive for everyone”.

I am a student of civil war history – so I am very aware of the seemly intractable “sectional” differences. What I am asking is – couldn’t secession be handled in a different more legal, within the government way? If it is a right of states wouldn’t the supreme court agree? And wasn’t this a Taney ( the protector of southern rights) lead court?

You mention that the election of Lincoln was what determined secession. For me this completely subverts the argument that secession is a right. Democracy can’t work if one can secede if one doesn’t like the result of an election. How long would it be before the mountains of SC seceded from the low county? And the northern mountains seceded from the southern?

If South Carolina had the ‘right” to secede, why did it need to fire on Ft Sumter? In any divorce, there needs to be a legal agreement on what property belongs to whom. Violence made war inevitable. Yes, I am sure that Lincon knew that an attempt to resupply the fort would result in a bombardment – and Davis knew that bombardment would force Virginia to secede. All politics.

Firing on Ft Sumter, galvanized the north. Maybe many northerners didn’t like slavery – but most they thought it was none of their business. If SC felt that is needed to secede to protect and preserve its institutions – maybe northerners would have EVENTUALLY said, ‘"good riddance”. By choosing a violent approach rather than a peaceful legal approach the south ended up losing the whole enchilada.



 Posted: Wed Oct 26th, 2011 10:42 pm
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MildMan-

  I cannot agree that South Carolina and the other states could have been allowed to secede peacefully. Mr. Lincoln took the position that such action was illegal, and that the states hadn't actually left the Union. He would never accept secession, as he said.

  The question of the legality of secession was finally decided by the Supreme Court in the case of Texas v. White (1869). At that time, the justices decided that Texas and the other states had never left the Union. (I would have asked why then it was necessary to re-admit them).

  As previously explained, the residents of South Carolina believed that they didn't need the permission of anyone in the federal government to leave it. Why then should they take a case to the federal courts? Mr. Lincoln could simply ignore the decision.

  Its interesting that you bring up Chief Justice Roger Taney. When Mr. Lincoln illegally suspended the writ of habeus corpus in 1861 (Merryman case), Mr. Taney tried to intervene. The military authorities ignored his orders, and Mr. Lincoln seriously considered having the Chief Justice arrested. Mr. Lincoln was willing to take any measures necessary to preserve the Union, whether they conformed to the Constitution or not. Unless the Legislative Branch was willing to combine with the Judiciary against the Executive (which it wasn't), then the Judicial Branch was powerless. If Mr. Taney had persisted, then in all probability he would have spent his final years in a prison cell.

  As for the firing on Ft. Sumter, it was the worst possible thing that the southerners could do. In their view, they were trying to enforce state sovereignty (Mr. Lincoln had refused to meet the CSA peace commissioners who wanted to discuss purchasing federal property within their borders). But, as you say, firing on a federal installation gave Mr. Lincoln the greatest gift because it allowed him to use public outrage to raise an army to invade the seceded states.

  Firing on Ft. Sumter was also completely unnecessary as Major Anderson was prepared to leave the fort when he ran out of provisions. He even made his position known. For the southerners, all that was needed was to be patient for a few more days, and then Mr. Lincoln would have needed to provoke another incident to arouse public indignation in the north. This I am certain he would have done, since he was completely consistent in his determination that the Union would be preserved at all costs.

  I believe that by the time Mr. Lincoln was elected, neither side had any interest in pursuing the matter in the federal court system. At this point, it was inevitable in my view that the matter could only be settled by armed conflict.

Last edited on Wed Oct 26th, 2011 11:30 pm by Texas Defender



 Posted: Thu Oct 27th, 2011 11:36 am
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Kind of off topic but what's the difference between civil war and revolution, what i've been able to gather from different events is that it's called a civil war when the revolting side loses and a revolution if that same side wins. Is that right? I've always considered the 2nd amendment to be an emergency backup against a too strong federal government and from what i've studied about the causes of the civil war... the TRUE causes,it seemed like the federal government was steadily becoming more powerful and decision to ban slavery from moving into future states was the straw that broke the camels back



 Posted: Thu Oct 27th, 2011 11:54 am
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CSAmillerp, the terms are spongy now, but if you want to know what the participants would have said about it in a legal sense see the Leiber code:

http://avalon.law.yale.edu/19th_century/lieber.asp#sec10

Hope that helps.

Mark



 Posted: Thu Oct 27th, 2011 02:45 pm
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I think we fought a war to settle this question.  The answer was -- no secession.



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 Posted: Fri Oct 28th, 2011 12:21 am
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MildMan
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Thanks for the interesting comments Texas Defender

At least we agree that firing on Ft Sumter was a bad idea politically – it galvanized the north and gave Lincoln justification and support to raise an army. This might not have happened otherwise. I have read many newspapers here in Maine from the period from 1860 to 1861 and I noticed a sentiment that Slavery was allowed in the constitution and it was no business of anyone to threaten it if it was allowed so. Abolitionists were a minority and sometimes a persecuted one at that. The act of secession was a concern but what really got folks riled up was firing on Ft. Sumter. Then the attacks on troops going though Baltimore put people over the top. Men couldn’t volunteer fast enough. Lincoln asked for one regiment from Maine, and the Governor funded and raised ten! I wonder if folks in Maine would fight to keep SC in the union if Ft Sumter didn’t happen. I think its no better than 50-50.

I read about the case you mentioned, Texas v. White. This supreme court case seems to say that there is no such thing as secession. Do you agree then that secession was not legal?

If secession was not legal, no wonder the south acted unilaterally – without seeking legal permission. If secession is not legal, doesn’t that mean secessionists were breaking the law (i.e. criminals or traitors)?

I still think that a relentless political approach was more likely to have been effective than war. The south should have cited “irreconcilable differences” and sought a legal solution – over and over again in every legal avenue available - perhaps even a constitutional amendment. Over time, the North would say enough is enough. Please go, just leave us alone! South Carolina was not very important here in Maine – most would think its not worth dieing to keep. Overtime, the south could have simply worn the North out.

As with many things, I think hot heads driven by testosterone got in the way of a reasonable strategy. Just my opinion.

By the way there is an interesting article on the legality of secession in Wikipedia http://en.wikipedia.org/wiki/Secession_in_the_United_States

It’s been intersting talking to you.



 Posted: Fri Oct 28th, 2011 12:25 am
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MildMan
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PS Remember that when Lincoln took office he was not in a very strong position. He was a minority president. War, and shrewd politics, gave him his power. He was a toothless tiger without the South firing on Ft Sumter.



 Posted: Fri Oct 28th, 2011 12:59 am
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MildMan-

  I do not agree with your apparent position that secession wasn't legal in 1860 and 1861. I believe that it has not been legal since 1869. For a state to be able to leave now, it would first be necessary to overturn Texas v. White.



 Posted: Fri Oct 28th, 2011 05:40 am
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i think it's funny how it's illegal to secceed when the state that's seceeding doesnt give a damn what legal or not in the country they just left



 Posted: Fri Oct 28th, 2011 05:09 pm
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MildMan
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Hmmmm. Texas Defender. If the supreme court ruled that secession was impossible in 1869 then it was also impossible in 1861. The supreme court doesn't make laws, it interprets them. The law was in place in 1861, but it wasn't until 1869 that court affirmed the meaning of the constitution.

Remember, I started by saying that all relationships are subject to dissolution. If some thing is not legal, like smoking marijuana, then work to change the law! Don't just say its my right to smoke and expect to do it without consequences.

My premise is that the South should have fully pursued a legal solution before firing on Ft sumter.



 Posted: Fri Oct 28th, 2011 05:27 pm
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MildMan-

  You are absolutely and totally wrong in saying that if something is judged to be illegal in 1869, then it was also illegal in 1861.

  If your interpretation of the law was correct, then there would have been no reason for the Founding Fathers to have outlawed ex post facto laws in the Constitution. If your interpretation was correct, then after the 18th Amendment was ratified and prohibited the manufacture, sale, or transportation of intoxicating liquors after January 16, 1920, then it was also illegal to do so before that date. (Making those who did so liable for prosecution).

  If the justices in 1869 had ruled that secession was legal in 1861, that would have repudiated Mr. Lincoln and the reason that the people in the north chose to go to war. The justices would have become the most hated men in America. They simply couldn't do it.

  Jefferson Davis was indicted for treason in Virginia in 1866, but the federal government was afraid to go to trial because he would have used the legality of secession as a defense. So the trial date was repeatedly put off for years before the charges were finally dropped. Those that were in charge of prosecuting the case were afraid that they might not be able to get a conviction. If Mr. Davis had been acquitted, it also would have been a repudiation of Mr. Lincoln's position that it was justifiable to fight a war to prevent the southern states from leaving the Union.

  As for your premise, my answer is that they didn't have to, they weren't going to, and the judiciary would not have been able to enforce any decision that they made on Mr. Lincoln.

Last edited on Fri Oct 28th, 2011 06:33 pm by Texas Defender



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