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And here's the deal, the very fact that it wasn't a sure thing is a good reason for a President not to let it go to the court. Taney is just one vote in the final decision. But Chief Justices are the most influential jurists on the court. Taney/influential. Taney/pro-secession. Taney means that the President cannot depend on the court to back him up. And the time it would take for a decision to be issued, is time that Lincoln cannot afford. Every day that passes with the Confederacy further establishing itself, is just that more credibility the Confederate government gains, within the United States and around the world.
It looks more and more to me that it would have all hinged on Samuel Nelson's opinion.
I was wrong about Nelson in the Prizes Case - I had said that he wrote the majority opinion, but have since found that Nelson wrote a dissenting opinion that case. Even then, Nelson found in his dissenting opinion that Lincoln was justified in his naval blockade as he was putting down a rebellion. This is a telling point - if Nelson truly believed in the legal right of secession, then why wouldn't he have claimed that it was a war and not a rebellion?
Second, while you are right that no law was ever passed that said "oh, btw, secession is illegal"; I have heard it argued that the 14th Amendment does more clearly nullify the concept of a right to secession...
14th Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is basically saying that citizenship in the United States as a national body is supreme to the citizenship/affiliation to the State in which they reside. It also goes on to clarify that no State can make or enforce any law that would deny the rights of citizenship to citizens of the United States.
Hence, we are all citizens of the United States first and of our State second. Our State has no ability to take any action that would deny us our rights as citizens of the United States, including taking away our status as citizens of the United States.
No, it's still not a "secession isn't possible" law, but it is FAR clearer than the Constitution was previously on the concept of a national body supreme to the individual components.
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All true but your final sentence reveals that secession is still something which would be argued on the basis of what other language implies, not on the basis of its conformity to a specific, unambiguous law. That was the situation which prevailed before the war, both sides looking at the Constitution and finding language which implied that secession was illegal/legal. The language of the 14th amendment gives more implication ammunition to the argument that secession was illegal, but does not settle the matter in such a way that someone contemplating secession would be restrained because the law was clearly against he or she.
What restraint there is these days is a product of the outcome of the war, not any subsequent legislation.
A large part of my argument? Hardly. A minor part of my argument. For Lincoln, the clock was ticking. His actions were about urgency, not stalling. Congress wasn't merely on recess. In those days, Congress was gone. DC wasn't a plane ride away. There were no phones. When Congress left DC, they left the secession issue in limbo. Lincoln saw that the limbo worked FOR the Confederacy, by giving them the time to establish themselves, to document themselves, not just to other Southerners, but to the nation as a whole and to the rest of the world. The clock was ticking.
This is a distinct moderation of your stance. Not even a couple of posts back you said this...
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Lincoln didn't accidentally wait until Congress was in recess. The fort had been sitting for months, while Congress was in session, awaiting instructions to evacuate or awaiting new supplies. Lincoln never pushed the matter. He waited. Because he was strategizing, figuring out how to get the South to do what he needed, so that he could act.
This is not the first time you made such statements and basically amounts to you arguing that Lincoln hatched some sort of plot that required him to wait until Congress wasn't in session. My primary issue with much of your argument so far has been the implication that Lincoln acted maliciously. I feel you have done a very poor job substantiating that and in the latest post moderated your position. You can't claim Lincoln was biding his time and scheming when he made his choice three weeks into his presidency and you can't imply he went behind the back of Congress when they were never even in secession since he took the office. Both of those points were central to the part of your argument that I took exception to because it implied malice.
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All you have to do is acknowledge the possibility that Lincoln did strategize and plan the supply ship to Ft Sumter, and then to start looking at all the evidence, and how it makes sense as a provocation of the South. I'm not ignoring the South's culpability in all this. I blame the hotheads in South Carolina for simply not blockading the fort off from the warship, and letting the fort run out of supplies. Stupid! Lincoln knew they were hotheads going in. And Lincoln had to delegitimize the Confederacy. Lincoln's acts were provocative at Ft Sumter. I don't think Lincoln ever acted without intention. Therefore, I believe Lincoln was intentionally provocative at Ft Sumter. And that's all that the thread asks.
I acknowledge that Lincoln strategizied and planned sending the ships. However, the question is not whether he "provoked the South at Sumter" but whether he "provoked the Civil War". In my view, nothing Lincoln did was anymore provocative than what Davis was doing. Yes, Lincoln forced the hand of the South to make a choice at Sumter, but he didn't force them to choose war. My argument is that I will not accept that Lincoln was provocative if I also need to lay blame for the war at his feet. Lincoln knew what he was doing, but the choice of going to war was not made by him.
It looks more and more to me that it would have all hinged on Samuel Nelson's opinion.
I was wrong about Nelson in the Prizes Case - I had said that he wrote the majority opinion, but have since found that Nelson wrote a dissenting opinion that case. Even then, Nelson found in his dissenting opinion that Lincoln was justified in his naval blockade as he was putting down a rebellion. This is a telling point - if Nelson truly believed in the legal right of secession, then why wouldn't he have claimed that it was a war and not a rebellion?
While it is interesting to wonder how the different justices would have ruled, it does absolutely nothing to rebut the argument that the Supreme Court could not have been relied upon to give Lincoln the decision he wanted. And that Taney's influence with the other justices and his antagonism to Lincoln would have prevented Lincoln from turning to the Supreme Court to stop secession.
All true but your final sentence reveals that secession is still something which would be argued on the basis of what other language implies, not on the basis of its conformity to a specific, unambiguous law. That was the situation which prevailed before the war, both sides looking at the Constitution and finding language which implied that secession was illegal/legal. The language of the 14th amendment gives more implication ammunition to the argument that secession was illegal, but does not settle the matter in such a way that someone contemplating secession would be restrained because the law was clearly against he or she.
What restraint there is these days is a product of the outcome of the war, not any subsequent legislation.
The 14th Amendment was not passed until 1868. AFTER the Civil War. It's language would reflect the sentiment of the country AFTER the Civil War. Not before.
Honey, I answered your question regarding the legal process to bring the case to the US Supreme Court. I pointed out, the FEDERAL government would have had to sue. The FEDERAL government sues states all the time.
First......."honey?" Were you going for "honestly" or are you boldly and publicly revealing some crush on me?
Second...You are mistaken. The Confederate position was that they were no longer in the Union at all. Thus their position was that they were no longer under the jurisdiction of the courts of the United States. They would have no reason at all to react in any manner to such a lawsuit. All subpoenas would be ignored, no one would show up to represent the Confederate side because to do so would be to invalidate what they were claiming...that they are no longer subject to US jurisdiction.
DC...I suspect that the problem is that you seem to be viewing all this as though nothing else had changed, that with or without secession the courts, and the recognition of the authority of the courts, would be unchanged and matters could be settled by some agreed upon legal process. I have been trying to get you to understand that all of that goes out the window the moment secession is declared. When that happens we have complete legal chaos. We have competing claims of jurisdiction.
Only if the courts had been approached before secession took place would the jurisdictional stability exist for that court to have authority both north and south of the Mason Dixon line. Once you have declared yourself out the union, you forfeit the protection of the courts in that union, you have renounced their jurisdiction over you.
You can't be in the union and subject to its courts, and out of the union using those courts to justify your legality, simultaneously. You can be one or the other, but clearly not both.
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As for the Supreme Court justices, are you conceding that since the justices are appointed for LIFE, and that there is no provision that says they have to resign if their nationality should change (and a change of nationality should be considered voluntary, by the way, those justices, in the wake of secession, could easily have stated they were now residents of Washington DC, and not of Alabama, Georgia, Maryland, etc.)that they would have been allowed to rule or recuse themselves as they saw fit. Your assumption that they would have been disqualified wasn't based on the Constitution or the law.
None of the above matters, as I keep pointing out, once secession has been declared, all of the normal operations of the court are altered. You suddenly have a situation where you have sitting members on the US Supreme Court who have just announced a decision which turns them retroactively into foreign nationals. That means that at the time of any decision about the legality of secession, they were already disqualified from sitting on the court. And they cannot turn themselves into US citizens simply by declaring that they are now Washing DC residents, that isn't how one becomes a US citizen.
But...most importantly, regardless of the specifics of this argument, merely that there is an argument, and there would have been an argument in 1860, is sufficient to tell you that the losing side of the case would never have accepted the verdict. The South would have claimed non jurisdiction, the north would have claimed illegally sitting justices. Neither side would have been satisfied that they lost fairly and the matter is now settled.
This is a distinct moderation of your stance. Not even a couple of posts back you said this...
This is not the first time you made such statements and basically amounts to you arguing that Lincoln hatched some sort of plot that required him to wait until Congress wasn't in session. My primary issue with much of your argument so far has been the implication that Lincoln acted maliciously. I feel you have done a very poor job substantiating that and in the latest post moderated your position. You can't claim Lincoln was biding his time and scheming when he made his choice three weeks into his presidency and you can't imply he went behind the back of Congress when they were never even in secession since he took the office. Both of those points were central to the part of your argument that I took exception to because it implied malice.
I acknowledge that Lincoln strategizied and planned sending the ships. However, the question is not whether he "provoked the South at Sumter" but whether he "provoked the Civil War". In my view, nothing Lincoln did was anymore provocative than what Davis was doing. Yes, Lincoln forced the hand of the South to make a choice at Sumter, but he didn't force them to choose war. My argument is that I will not accept that Lincoln was provocative if I also need to lay blame for the war at his feet. Lincoln knew what he was doing, but the choice of going to war was not made by him.
It's not a distinct moderation. And it's such a minor point, I'm not even going to argue about it.
My argument has never implied that Lincoln acted maliciously. That's on you, dear. I'm a huge fan of Lincoln's. I have endless respect for the man. I think he was brilliant.
I also think that he always acted with intent. I don't think he bungled. I don't think he acted carelessly or recklessly. I think he was a deliberate man. Who saw that he had to act to preserve the nation. And he did act.
I've never said that he was solely responsible. I've always said that the South was just as culpable. But do I think Lincoln knew that his actions regarding Ft Sumter were provocative and could result in war. Absolutely. He was brilliant. And he didn't desire war, but he was willing to go to war to preserve the union. He felt that strongly about it, and he said as much. In his speeches, in his writings, in his personal letters. He knew the North had an overwhelming advantage, he didn't think the war was going to be as destructive as it turned out to be. THAT was something no one expected.
All true but your final sentence reveals that secession is still something which would be argued on the basis of what other language implies, not on the basis of its conformity to a specific, unambiguous law. That was the situation which prevailed before the war, both sides looking at the Constitution and finding language which implied that secession was illegal/legal. The language of the 14th amendment gives more implication ammunition to the argument that secession was illegal, but does not settle the matter in such a way that someone contemplating secession would be restrained because the law was clearly against he or she.
What restraint there is these days is a product of the outcome of the war, not any subsequent legislation.
Fair enough. The constitutionality of it all really is pointless anyway. A state, group, etc. that feels that secession is a legitimate recourse for a given situation will probably care less about any law saying it is or isn't possible. The outcome of a desire to secede will be that the main body either chooses to let them go or chooses to attempt to retain them. If the main body chooses to retain them, then the seceding group is faced with choosing between giving up their move for secession or enforcing their will through arms. If the seceding body chooses to enforce their will through arms, the main body can either back down or use their own arms to force a resolution.
Secession is really nothing more than a nicer word for revolution.
The 14th Amendment was not passed until 1868. AFTER the Civil War. It's language would reflect the sentiment of the country AFTER the Civil War. Not before.
I think you meant to direct this at Goat, it was his argument , not mine, I'm the one saying that the 14th amendment did not resolve the legality of secession, only added strength to the prevailing implication argument which did exist before the war and was used by both sides.
Fair enough. The constitutionality of it all really is pointless anyway. A state, group, etc. that feels that secession is a legitimate recourse for a given situation will probably care less about any law saying it is or isn't possible. The outcome of a desire to secede will be that the main body either chooses to let them go or chooses to attempt to retain them. If the main body chooses to retain them, then the seceding group is faced with choosing between giving up their move for secession or enforcing their will through arms. If the seceding body chooses to enforce their will through arms, the main body can either back down or use their own arms to force a resolution.
Secession is really nothing more than a nicer word for revolution.
We are in harmony on the above. There is the right to revolt, there is no right to be successful, you have to win your revolution, not expect the prevailing power to give up simply because you have announced your intent.
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