Civil War Related

[Chop]

Don't forget the 10th Amendment argument. The Constitution goes into considerable detail over how a potential state can join the Union and become a State and what all is required. Nothing is said about how to leave the Union and what is required. No power to stop States from leaving was delegated to the United States. The 10th Amendment leaves undelegated rights to the States.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 

[Crockett]

What percentage of high school seniors know that the Democratic party was the party of slavery?

I'm guessing it would be about 10 times as high as the percentage of Klansmen, Neo-Nazis and White Supremacists who voted for Hillary instead of The Donald.

 

[towersniper]

Don't forget the 10th Amendment argument. The Constitution goes into considerable detail over how a potential state can join the Union and become a State and what all is required. Nothing is said about how to leave the Union and what is required. No power to stop States from leaving was delegated to the United States. The 10th Amendment leaves undelegated rights to the States.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Interesting argument. I see that it is common among Confederacy apologists- and I mean "apologist" in the intellectual sense, not as a slam against those who hold that view, or as a pejorative. I confess I had to go to the google, but here is a response to the argument from none other than James Madison. Since his women's Lacrosse team made the NCAA final four last year, his opinions are worthy of note.
Again, Madison didn't think the 10th Amendment language meant that. This gets a little complicated. The Virginia and Kentucky Resolutions, secretly authored by Jefferson and Madison respectively, discussed the basis for the 10th Amendment in the context of the Alien and Sedition Acts. Tenth Amendment Center: The Kentucky and Virginia Resolutions: Offering a Pathway to a More Free Society
Madison, later in life, was horrified to see the Virginia and Kentucky Resolutions used to support the concepts of nullification and secession. In Madison's view, this was a perversion of the 10th Amendment concept, the right of the federal government to coerce compliance, and its in-applicability to the question of secession being inherent in the nature of a compact between and among states. "It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them.You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject." James Madison on Secession
He was one who understood the subject, I think. Of course, that's just like his opinion, man.

 

[towersniper]

[QUOT


# O.W. Holmes, arguably our nation's greatest jurist and legal scholar of all time, was a mid-level Union officer in the Civil War seeing much carnage in the thick of some major battles. In Missouri v. Holland, Holmes ruled that the State of Missouri's bill in equity in a federal court was a reasonable and proper means for Missouri to assert its quasi-sovereign State's rights.[/QUOTE]
Also interesting. I suppose South Carolina would have had to pass a bill of Secession, and then brought suit to enjoin action by US governmental official to track Holland, acting as a foreign governmental Plaintiff, and in the alternative, as a State under the Constitution. That would have gone over well. No wonder it took a war; it makes my head hurt.

 

[towersniper]

[QUOT


# O.W. Holmes, arguably our nation's greatest jurist and legal scholar of all time, was a mid-level Union officer in the Civil War seeing much carnage in the thick of some major battles. In Missouri v. Holland, Holmes ruled that the State of Missouri's bill in equity in a federal court was a reasonable and proper means for Missouri to assert its quasi-sovereign State's rights.

Chop: Also interesting. I suppose South Carolina would have had to pass a bill of Secession, and then brought suit to enjoin action by US governmental officials to track Holland, acting as a foreign governmental Plaintiff, and in the alternative, as a State under the Constitution. That would have gone over well. No wonder it took a war; it makes my head hurt.[/QUOTE]

 

[Chop]

Whether the CSA States could have Constitutionally seceded (probably--at least until the Texas v White decision--though it's still in dispute among legal scholars to this day), and whether they should have actually done it (obviously not) are 2 entirely different questions and should be kept separate in any fair analysis.

 

[Chop]

Trying to shift gears away from dense academic Constitutional arguments over secession here. Set forth your opinions on the best and worst USA and CSA generals.

My picks:

CSA - Best
1. Thomas "Stonewall" Jackson (Virginia)
2. Longstreet (Georgia)
3. Robert E. Lee (Virginia)
4. Patrick Cleburne (Arkansas/Ireland)
5. N. Bedford Forrest (Tennessee)
6. Mosby (Virginia)
7. Rodes (Virginia)
8. Beauregard (Louisiana)
9. A. Sidney Johnston (Texas)
10. Hardee (Georgia)

CSA - Worst
1. Hood (Kentucky -- he was NOT from Texas)
2. Bragg (Louisiana)
3. Joe Johnston (Virginia)
4. Ewell (Alabama)
5. Pillow (Tennessee)
6. Marmaduke (Missouri)

USA - Best
1. George Thomas (Virginia Unionist)
2. Sherman (Ohio)
3. Grant (Illinois)
4. Meade (Pennsylvania)
5. Steele (Iowa)
6. Sheridan (Ohio)
7. Buford (Illinois)
8. Reynolds (Pennsylvania)
9. Chamberlain (Maine)


USA - Worst
1. Burnside (Rhode island)
2. Banks (Massachusetts)
3. Butler (Massachusetts)
4. Sturgis (Pennsylvania)
5. McClellan (Ohio)
6. McDowell (Ohio)

 

[towersniper]

Good list. Speaking mostly out of ignorance, and what I've absorbed from people who know what they are talking about, and VERY casual reading, my only quibble would be that I would say Grant, Sherman, then Thomas on the Union side. A former West Point military history instructor once explained to me how Grant used Sherman and created a modern style "army group" to an extent not then seen. Where most great general at the time were great tacticians, and sought decisive battle victories, Grant combined a strategic component to an unusual extent and saw actions, even defeats, in the context of achieving overall victory. He told me that many at West Point consider Grant to be the first modern theater commander.
On the Southern side, Lee, Longstreet, then Jackson...just cuz. Probably more sentimental attachment to Lee, and discomfort with the creepiness of Jackson.

 

[iatrogenic]

I'm guessing it would be about 10 times as high as the percentage of Klansmen, Neo-Nazis and White Supremacists who voted for Hillary instead of The Donald.

And 90 times the percentage of communists and socialists that voted for The Donald instead of Hillary.

 

[Monahorns]

Really none of the Confederate generals approached the war very well. They allowed the North provoke their troops to shoot first at Ft. Sumter. Without that Lincoln doesn't have the justification to start the war. Then Lee kept trying to out punch the North losing a disproportional amount of men and resources in the process. The South needed a more defensive, guerrilla strategy utilizing the large and undeveloped area of the Deep South. Lee didn't even change his approach after his first couple of attempts for a quick victory didn't work. He was good at tactics and leading men, but his overall strategy didn't match the situation very well.

 

[Phil Elliott]

I don't understand all this legal talk. My question is this - how can the federal government compel a state to remain in the union when all that is in play here is a "gentlemen's agreement"? The states who joined the union, as far as I know, did not sign any kind of contract that stipulated their membership and preclude any sort of exit (ie, secession), so what power does the union have, legally? It's like belonging to a club - if you decide to leave, their rules do not apply to you anymore. Am I wrong about this?

 

[Chop]

I don't understand all this legal talk. My question is this - how can the federal government compel a state to remain in the union when all that is in play here is a "gentlemen's agreement"? The states who joined the union, as far as I know, did not sign any kind of contract that stipulated their membership and preclude any sort of exit (ie, secession), so what power does the union have, legally? It's like belonging to a club - if you decide to leave, their rules do not apply to you anymore. Am I wrong about this?

That sounds like a pretty solid common-sense argument to me.

 

[Chop]

IMHO Longstreet was one of the greatest generals on either side. He was pilloried by Southern historians and the press for becoming a Republican and joining the US Army after the war, and putting down some Reconstruction era violence in New Orleans.

Longstreet's reputation as a great general still hasn't recovered from the unfair post-War smearing.

 

[Mr. Deez]

I don't understand all this legal talk. My question is this - how can the federal government compel a state to remain in the union when all that is in play here is a "gentlemen's agreement"? The states who joined the union, as far as I know, did not sign any kind of contract that stipulated their membership and preclude any sort of exit (ie, secession), so what power does the union have, legally? It's like belonging to a club - if you decide to leave, their rules do not apply to you anymore. Am I wrong about this?

Phil, you're asking the big question. I'm not a Confederacy apologist by any means. I'm not a Southerner. I'm from California. I'm not a fan of any of the Confederate flags. I'm not a fan of Confederate statues. But if we're following the written law, states have the right to leave. What anyone thinks of the statues, flags, or even slavery is irrelevant.

The Union is more than a gentleman's agreement. States are admitted by acts of Congress, so they are creatures of federal statute. However, states are governments of general jurisdiction, while the federal government is one of specific jurisdiction. That means that states have all powers that are not denied to them, and the feds only have powers specifically given to them. The Constitution doesn't prohibit secession by states and doesn't empower the feds to coerce them to remain. Therefore the states have the power to secede, and the feds do NOT have the power to force them to stay. (My answer would be different if states that were admitted to the Union had agreed to remain perpetually in the Union.)

Towersniper isn't full of ****. He's right in how he's discussing the case law. However, I think the case law is wrong. The Articles of Confederation may have mentioned a "perpetual union," but they aren't the law of the United States and haven't been literally for centuries. The Constitution is. That controls, not the Articles. If you have to rely on legal authority that has been superceded, your argument is weak. Might there be an argument that the Articles have some authority over states that were admitted under it? Maybe, but it's still very weak.

Art. I, Sec. 10 does have some restrictions on state power, but do you know what I don't see in that section? A restriction on the right to secede nor an affirmative duty to remain.

States can't secede for one reason - the federal government is willing to use weapons of war and murder people to stop them. That is it. The Constitution and laws have nothing to do with it.

 

[Chop]

Well put Deez. Texas v White was a post-War justification to 'make legal' and justify what was already done by force of arms.

As for Texas, whether secession was legal or not, we should have listened to Sam Houston and not actually done it. Here in present day Texas, it's fun to talk about how we'd be better off as an independent Republic again, and some people put those cute SECEDE bumper stickers on their cars, but any actual attempt to secede would be an exercise in insanity and self-destruction.

 

[Mr. Deez]

Well put Deez. Texas v White was a post-War justification to 'make legal' and justify what was already done by force of arms.

Yep. Lincoln made 5 appointments to the Supreme Court. That's a lot even for a two-term President. For a President who only served a few months into his second term, that is astounding. He completely overhauled the Court's majority (including its Chief Justice), and it wasn't going to effectively undermine the legitimacy of the Civil War. If it had to pull some jurisprudence out of its *** or pretend we were still under the Articles of Confederation to avoid doing so, then it was going to do that.

 

[OUBubba]

The Supreme Court ruled in favor of the Cherokee Nation in Cherokee Nation v. Georgia. Andrew Jackson ignored it. So, Lincoln could have just ignored them based upon precedent.

Also, can we get rid of the concept that current GOP/Democratic parties are anything akin to what they were 160 years ago? While the slow wake of the slavery boat changed them, they changed them significantly.

 

[Chop]

The Supreme Court ruled in favor of the Cherokee Nation in Cherokee Nation v. Georgia. Andrew Jackson ignored it. So, Lincoln could have just ignored them based upon precedent.

Also, can we get rid of the concept that current GOP/Democratic parties are anything akin to what they were 160 years ago? While the slow wake of the slavery boat changed them, they changed them significantly.

There's a multitude of ways to look at it, but consider this viewpoint:

From its beginning to the present, the GOP has been an ideology-driven party.

From its beginning to the present, the Democratic Party has been a coalition party.

The ideologies and coalitions may have changed around and back-and-forth (and back again) at various times, but the basic DNA-level nature of these 2 beasts remains. (GOP=ideology party vs. DEM =coalition party)

 

[Mr. Deez]

The Supreme Court ruled in favor of the Cherokee Nation in Cherokee Nation v. Georgia. Andrew Jackson ignored it. So, Lincoln could have just ignored them based upon precedent.

I think you're thinking of Worcester v. Georgia, and Jackson didn't actually disobey the Court. Nevertheless, there has always been a tension between the executive and judicial branches based on the judiciary's power to state what the law is and what it means and the executive's power to enforce laws. People talk about that as though it's a horrible thing, but it's actually good thing. It is part of our system of checks and balances designed to keep one branch from having too much power.

Would Lincoln have refused to obey an order permitting secession? Very likely that he would have, but it would have been considered highly controversial. Furthermore, it may have diminished popular support for the Civil War in the North. I think it would have been worth the South's effort to try. In 1860, we still had the Taney Court, which handed down Dred Scott and was far more sympathetic to the South than the Chase Court that was packed with Reconstruction Republicans and handed down Texas v. White.

Also, can we get rid of the concept that current GOP/Democratic parties are anything akin to what they were 160 years ago? While the slow wake of the slavery boat changed them, they changed them significantly.

From its beginning to the present, the Democratic Party has been a coalition party.

You are actually both correct. The Democratic Party has pretty much always been a coalition party (which is why identity politics are so important to them), and the Party is different from where it was 160 years ago.

Of course, the Democrats would claim that they've become more righteous and woke than they were 160 years ago. They've "evolved" like Obama did on gay marriage. The reality is that they have simply changed the coalition. They have different groups of people now.

 

[OUBubba]

I think you're thinking of Worcester v. Georgia, and Jackson didn't actually disobey the Court.

You're right about the case. Wrong about Jackson's actions.

“JOHN MARSHALL HAS MADE HIS DECISION; NOW LET HIM ENFORCE IT.”
Though President Jackson’s exact words were a bit different, the sentiment remained. Enforcing the ruling would mean not only deviating from his own ideology, but alienating a state that shared his core beliefs. So he decided to undermine the system of checks and balances and ignore the ruling. Without the president’s enforcement of the Supreme Court’s ruling, the opinion largely meant nothing. Samuel Worcester remained imprisoned in Milledgeville and the militia of Georgia was free to encroach on Cherokee land.

Remembering the Time Andrew Jackson Decided to Ignore the Supreme Court In the Name of Georgia’s Right to Cherokee Land
-----------------
I'm a descendant of William Weatherford (Chief Red Eagle) of the Creeks. He fought Jackson in various battles back in his Indian fighting days. I have a keen dislike of Jackson. My father taught me that and a strong dislike of Notre Dame football.

I always appreciated Davy Crockett's stance with Indian relations. He has two quotes that I love.

"I believed it was a wicked, unjust measure.... I voted against this Indian bill, and my conscience yet tells me that I gave a good honest vote, and one that I believe will not make me ashamed in the day of judgement."

"I told the people of my district that I would serve them as faithfully as I had done; but if not, they might go to hell, and I would go to Texas."

 

[Mr. Deez]

You're right about the case. Wrong about Jackson's actions.

“JOHN MARSHALL HAS MADE HIS DECISION; NOW LET HIM ENFORCE IT.”
Though President Jackson’s exact words were a bit different, the sentiment remained. Enforcing the ruling would mean not only deviating from his own ideology, but alienating a state that shared his core beliefs. So he decided to undermine the system of checks and balances and ignore the ruling. Without the president’s enforcement of the Supreme Court’s ruling, the opinion largely meant nothing. Samuel Worcester remained imprisoned in Milledgeville and the militia of Georgia was free to encroach on Cherokee land.

Remembering the Time Andrew Jackson Decided to Ignore the Supreme Court In the Name of Georgia’s Right to Cherokee Land
-----------------
I'm a descendant of William Weatherford (Chief Red Eagle) of the Creeks. He fought Jackson in various battles back in his Indian fighting days. I have a keen dislike of Jackson. My father taught me that and a strong dislike of Notre Dame football.

I always appreciated Davy Crockett's stance with Indian relations. He has two quotes that I love.

"I believed it was a wicked, unjust measure.... I voted against this Indian bill, and my conscience yet tells me that I gave a good honest vote, and one that I believe will not make me ashamed in the day of judgement."

"I told the people of my district that I would serve them as faithfully as I had done; but if not, they might go to hell, and I would go to Texas."

I haven't read the opinion. It's too lengthy and boring, and I'm in Texas right now, so I'm busy as hell. However, the Wikipedia article (lol) suggests that the Court didn't seek to be enforced by federal marshals to avoid a confrontation with the White House, much as Chief Justice Marshall did in Marbury v. Madison.

 

[towersniper]

"You may wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights. That does not relieve you of adherence to it." (said by….somebody who must be famous) Seriously though, CHOP, Deez, Monahorns, your arguments are good ones, and they resonate with conservative libertarians, clearly. They are not clear cut, and not self-evident, however. As with many matters, the issue has long been in dispute. Determining “original intent” is rarely as easy a matter as some would assume, but many founders believed that secession was not permitted under the Constitution – and many believed that it was. Patrick Henry opposed ratification because the proposed constitution purported to act for “[w]e the people” instead of “we the states,” the new entity was a unity, that divested the states of fully independent character. Gouvenor Morris, Madison and others put forth the notion that appears in the preamble and throughout the Constitution that we are citizens of a single nation, as well as citizens of a State. This was a great concern of Patrick Henry, who argued: “Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” http://press-ubs.uchicago.edu/founders/documents/preambles14.html. He believed in a right of secession, and that that formulation would not permit secession. (see also North Carolina and Virginia ratification conventions). His side lost, and Virginia ratified.
As discussed in my previous post (3rd post on page 2), James Madison argued that the Constitution implicitly prohibited secession. In addition to that previous quotation, I offer from his letter to Daniel Webster: “I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession". But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy.” In other words, secession may only be by revolution – and Madison wrote the sunovabitch. . Right of Revolution: James Madison to Daniel Webster Of course a lot of equally prominent thinkers firmly believed in a right of secession, which is why we had a war, of course.


The good news is that, perhaps you would agree, the post-Civil War Amendments have created more constitutional support for the illegality of secession. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. [14th Amendment]. Clearly secession would divest citizens of the seceding state of the P&I’s of United States citizenship, and any such action, one could argue (and this one does) that such a law could therefore not be made or enforced by the state after 1868. This doesn’t answer Chop’s original question, but at least I am now safe from the vagaries of the Texas Lege, if a 2/3 majority of Hornfans (as required by the XXVII Amendment) can agree that the 14th had that affect . E Pluribus Unum, man.

 

[Chop]

I appreciate your thoughtful and considered input.

I can only speak for myself. I'm neither conservative (whatever that term means these days) nor libertarian. As I've said in multiple posts, I think secession was a bad idea in the 1860s, and I think it would be an even worse idea today. (We should have listened to Sam Houston!). I do, however, know ******** when I smell it. Justice Chase's strained reliance on the Articles of Confederation smacks of an obvious results-oriented decision. Like I said, they weren't about to judicially undo the result of the Civil War. The result of Texas v White was pre-ordained. If it wasn't this strained reasoning, it would have been something else.

As an analogy, consider the thoughtful pro-choice person who readily admits that Roe v Wade (and Griswold v Connecticut) is lousy law and based on shaky legal reasoning. I have met many such people. They have earned my respect. I even used to be one of them.

I'm not sure what (if anything) you have internallly invested in the idea that the Supreme Court is pure or that the Constitution fell squarely on the Union side in the Civil War.? I agree it's an open question, but it leans towards the side I've been arguing. It doesn't surprise or shock me one bit that: (I) the SCOTUS makes a results-oriented decision, or (ii) the federal government wages a war in a power move to get what it wants. That's kind of how it works in the real world. I accept that reality, try to make it better in the very small (and largely insignificant) ways I can. I've sailed under the US flag, and love our country despite its flaws.

 

[towersniper]

I am not invested in that notion of Supreme Court purity at all, Chop. In fact, my first post in this thread started: "The Supreme Court wrote on this issue in the context of bonds issued during the war, but it was after the war, and therefore a packed court, and was arguably merely ratifying the result of the war. The pre-war court, as noted, was a different animal." I think that I reiterated several times that the answer to your fascinating original question could very easily be that the Court would have permitted secession, Deez's comments regarding Dred Scott being very persuasive. I am rather invested in the Union, however, and my gut (and yeah, probable bias) tells me that the "correct" answer lies with James Madison's view. I get the cogent arguments many of you have made on this thread, however. How does the point about the post-war 14th amendment and the Privileges and Immunities clause sit with you, though I know it has nothing to do with your original question?

 

[Mr. Deez]

TS, you're making the anti-secession case as well as it can be made. There's no doubt that the issue of secession was far from settled by the founding fathers. However, I don't see much of a way around the fact that the delegates could have expressly restricted the states' right to secede and chose not to. Remember, the intent of the legislative body is what matters, not the intent of the legislation's author, even if that author happens to be James Madison.

I don't see how the privileges and immunities clause makes a difference. It applies to states that are in the Union. It doesn't apply to states that have left the Union. Again, you're having to infer this restriction on state power rather than having express language to resolve the matter. The Reconstruction Congress obviously had secession on their minds. We had just fought a war about it, but why not simply prohibit secession by clear language? It's quite possible that they intended to keep the South in the Union but didn't want to put the issue completely to bed in the event that some states decide to leave for reasons those lawmakers sympathized with.

 

[Monahorns]

Lincoln is guilty of huge irony and hypocrisy if the Constitution really did eliminate the possibility of Secession because in that case he violated the Constitution in various ways multiple times in order to carry keep the Southern States from violating the Constitution through Secession.

He looks even worse if the Constitution permits Secession. In that case he violated it even though the Southern States were exercising their rights as sovereign States.

He really was a scoundrel.

 

[Mr. Deez]

He really was a scoundrel.

I'm not sure that I'd call him a scoundrel, but he is certainly over-celebrated. One consolation is that the post-Lincoln Reconstruction Congress was worse.

 

[Monahorns]

Did did several things that hurt our country even today. Mainly from increasing the power of the Executive through ignoring the Constitution. He was a scoundrel in my book. His only goal was to keep the Union, and I suspect it was either greed (75% of taxes go away) or pride (didn't want to be remembered as President who let the country split). Either way, he is responsible for multiple injustices.

 

[LongestHorn]

Today is the anniversary of the capture of the traitor Jeff Davis in Georgia. He was in drag.

 

[Chop]

Today is the anniversary of the capture of the traitor Jeff Davis in Georgia. He was in drag.

Maybe the leftists of the day gave him points for being a transsexual.

Interesting how he was never put on trial. Pretty good shot that the federals were afraid they would lose in the federal courts under arguments similar to those found in this thread. Other possible explanation--the need to mend the country after a bitter war. He wasn't pardoned right away.

Jeff Davis' bail was set at $100,000 (a fortune in those days). Among those who chipped in to pay it were none other than New Yorkers Cornelius Vanderbilt and Horace Greeley!

From Smithsonian article: "In 1867, he was prepared to argue that he did not betray the country because once Mississippi left it, he was no longer a U.S. citizen. “Everybody thought it was going to be the test case on the legality of secession,” says Cynthia Nicoletti, a University of Virginia legal scholar whose book Secession on Trial is due out in August [2017]. Serious people believed he had a chance of winning."

The Trial of the Century That Wasn't | History | Smithsonian

Again, no way the federals were going to risk allowing the SCOTUS to judicially undo the result of the Civil War, so they pardoned J. Davis and the rest.