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Old 06-25-2019, 10:08 AM
 
50 posts, read 24,706 times
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Quote:
Originally Posted by jbgusa View Post
Was Lincoln duty-bound to recognize Fort Sumter as foreign territory?
If the Constitution explicitly said that "secession is rebellion against the Union", or something like that, then I'd have to deal with it somehow.

But the Constitution doesn't contain the word "secession" at all. Moreover, secession is a power of the states which was not delegated to the federal government, and the Constitution didn't prohibit this power to the states. Therefore, it is reserved to the states, and every state has the right to secede.

Therefore, the Confederacy was indeed a genuine foreign country, and Lincoln did have the obligation to recognize Fort Sumter as foreign territory.

I recognize that others on this forum have a decidedly different opinion, but this is how I see it.
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Old 06-25-2019, 10:42 AM
 
Location: Parts Unknown, Northern California
48,564 posts, read 24,122,692 times
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Quote:
Originally Posted by TedF0ster View Post
If the Constitution explicitly said that "secession is rebellion against the Union", or something like that, then I'd have to deal with it somehow.

But the Constitution doesn't contain the word "secession" at all. Moreover, secession is a power of the states which was not delegated to the federal government, and the Constitution didn't prohibit this power to the states. Therefore, it is reserved to the states, and every state has the right to secede.

Therefore, the Confederacy was indeed a genuine foreign country, and Lincoln did have the obligation to recognize Fort Sumter as foreign territory.

I recognize that others on this forum have a decidedly different opinion, but this is how I see it.
Your analysis of the legality of secession is unsophisticated and reflective of what you want it to be rather than some proven dynamic. The Constitution is silent on the issue of secession, therefore it is impossible to state that it was legal or illegal. Citing the reserved powers clause implies that apart from what was listed as the Federal powers, States were then left with unlimited power to do anything, even break up the nation.

Obviously that clause was meant to reference a state conducting its internal affairs and not meant to reference a state's power to defy the Federal government. Interpreting it in the manner in which you, and the South of 1860 did, is simply people claiming something as literal and absolute, when in fact none of our rights are absolute. Is free speech absolute? If so, then we could not have libel laws, or copyright laws. Is freedom of religion absolute? Sure, until some religion decides it has to sacrifice a virgin. All of our rights are subject to interpretation, which is why we have a Supreme Court. Did the South attempt to avail itself of the courts? To make secession a national rather than local question? They did not.

You also conveniently overlook the fact that South Carolina did not build Fort Sumter, did not pay for Fort Sumter, and therefore did not own Fort Sumter simply by declaring themselves out of the union. Fort Sumter was a Federal installation, paid for by national taxes. Please cite the law found anywhere which states "In case of secession, Federal property becomes the property of the state."
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Old 06-25-2019, 01:41 PM
 
14,400 posts, read 14,306,076 times
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Quote:
Originally Posted by Grandstander View Post
Your analysis of the legality of secession is unsophisticated and reflective of what you want it to be rather than some proven dynamic. The Constitution is silent on the issue of secession, therefore it is impossible to state that it was legal or illegal. Citing the reserved powers clause implies that apart from what was listed as the Federal powers, States were then left with unlimited power to do anything, even break up the nation.

Obviously that clause was meant to reference a state conducting its internal affairs and not meant to reference a state's power to defy the Federal government. Interpreting it in the manner in which you, and the South of 1860 did, is simply people claiming something as literal and absolute, when in fact none of our rights are absolute. Is free speech absolute? If so, then we could not have libel laws, or copyright laws. Is freedom of religion absolute? Sure, until some religion decides it has to sacrifice a virgin. All of our rights are subject to interpretation, which is why we have a Supreme Court. Did the South attempt to avail itself of the courts? To make secession a national rather than local question? They did not.

You also conveniently overlook the fact that South Carolina did not build Fort Sumter, did not pay for Fort Sumter, and therefore did not own Fort Sumter simply by declaring themselves out of the union. Fort Sumter was a Federal installation, paid for by national taxes. Please cite the law found anywhere which states "In case of secession, Federal property becomes the property of the state."
As I said in an earlier post, the Supreme Court ruled on the legality of secession and ruled that it violated the Constitution. Texas v. White 74 US 700 (1869)

I don't spend a lot of time disputing opinions by someone like that poster because not only is it a poor opinion that lacks much analysis, the Supreme Court--which has the final word--has said something different. Posters like that make me chuckle. They expect us to believe that their own analysis is better than that of the body that was created to adjudicate such disputes. I can guarantee you that this poster who has such an adamant opinion has never bothered to even read Texas v. White. Otherwise, he would frame his argument differently. He would describe the court's reasoning in this case. Than he would proceed to explain why the reasoning was incorrect. He doesn't do that because he is either ignorant that the Court has ruled on the legality of secession or worse, he simply doesn't care. After all, he has an "opinion" that he wants all of us to hear. He obviously thinks his opinion is more weighty than that of the Supreme Court or any other person or institution. It smacks of a sort of arrogance that makes me tune someone out. I also looked up his posts. He joined CDF over a year ago and this is the only historical topic he has bothered to post on. He appears to be from Oklahoma, so I will say he is a southerner. I don't think more needs to be said.

Last edited by markg91359; 06-25-2019 at 01:52 PM..
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Old 06-26-2019, 02:53 PM
 
Location: Parts Unknown, Northern California
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Quote:
Originally Posted by markg91359 View Post
As I said in an earlier post, the Supreme Court ruled on the legality of secession and ruled that it violated the Constitution. Texas v. White 74 US 700 (1869)
The ruling in Texas vs White is among the reasons that there was never a post war attempt to amend the constitution by adding prohibitive language regarding secession. President Lincoln and the Republicans took the position from the outset that none of the states in rebellion were legally out of the union, the position which was affirmed by Texas vs White. If the constitution had been modified with an amendment prohibiting secession, that would have implied that it had been legal in the past, but no longer was.
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Old 06-27-2019, 08:51 AM
 
Location: New York Area
35,064 posts, read 17,014,369 times
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Quote:
Originally Posted by markg91359 View Post
As I said in an earlier post, the Supreme Court ruled on the legality of secession and ruled that it violated the Constitution. Texas v. White 74 US 700 (1869)
Quite correct. The Supreme Court stated:
Quote:
Originally Posted by Supreme Court of the United States in Texas v. White


The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

Texas v. White, 74 U.S. 700, 725, 726 1868 WL 11083, at *18, 19 (U.S)
That remains the law of the land.


Last edited by jbgusa; 06-27-2019 at 09:40 AM..
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Old 06-27-2019, 01:26 PM
 
50 posts, read 24,706 times
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On the question of the Constitutionality of secession, we seem to have reached an impasse, so I will restate and add to my position, and then move on to something else.

On this question, the only binding document is the Constitution itself. Certainly the States that ratified it hoped for a perpetual union, but nowhere does the document itself specifically demand or require it. Although the document does not contain the word “secession”, it does have the Tenth Amendment. According to this Amendment, all powers not specifically delegated to the federal government and not prohibited by the Constitution to the States are retained by the States.

Since the original States created the federal government, they and the other States occupy a superior legal position relative to it. Each State can do whatever it wishes, as long as what it has in mind has not been specifically delegated or prohibited. Secession is one such prerogative.

The Constitution has a fixed and objective meaning that stands above and apart from Supreme Court decisions. Constitutionally, the most that a Court can do is to discover that pre-existing meaning, and apply it to the case at hand. Although each Justice has a legal education, credentials, and judicial experience, these things do not render him or her infallible. The Justices of a Court are only mortal, and they can still make mistakes. According to the Wiki articles about Plessy v. Ferguson (1896) and Dred Scott v. Sandford (1857), they are considered to be two of the worst decisions that the Court has ever made.

Last edited by TedF0ster; 06-27-2019 at 01:35 PM..
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Old 06-27-2019, 01:42 PM
 
Location: Parts Unknown, Northern California
48,564 posts, read 24,122,692 times
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Quote:
Originally Posted by TedF0ster View Post

On this question, the only binding document is the Constitution itself. Certainly the States that ratified it hoped for a perpetual union, but nowhere does the document itself specifically demand or require it. Although the document does not contain the word “secession”, it does have the Tenth Amendment. According to this Amendment, all powers not specifically delegated to the federal government and not prohibited by the Constitution to the States are retained by the States.
Do you really think that the tenth amendment meant that any state had the individual power to unmake the nation? Do you really think that is what the authors had in mind? If they did have that in mind, since it is rather a momentous matter, don't you think that they would have been specific about it? As in "Any state may leave the union on its own power, and here is the process by which they may do it."



Quote:
the original States created the federal government, they and the other States occupy a superior legal position relative to it.
Obviously untrue. The Constitution makes it crystal clear that state sovereignty co-exists, but is subordinate to federal authority. A state cannot make a law which defies the Federal government.

Quote:
The Constitution has a fixed and objective meaning that stands above and apart from Supreme Court decisions.
And if this were true, then the Supreme Court would have no power to interpret the Constitution. Since it obviously does, you are once more obviously mistaken.
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Old 06-27-2019, 03:37 PM
 
Location: Pennsylvania
5,725 posts, read 11,716,151 times
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Gotta admire Ted's persistence. Not everyone looks for so many ways to be wrong.
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Old 06-27-2019, 07:03 PM
 
14,400 posts, read 14,306,076 times
Reputation: 45727
Quote:
Originally Posted by TedF0ster View Post
On the question of the Constitutionality of secession, we seem to have reached an impasse, so I will restate and add to my position, and then move on to something else.

On this question, the only binding document is the Constitution itself. Certainly the States that ratified it hoped for a perpetual union, but nowhere does the document itself specifically demand or require it. Although the document does not contain the word “secession”, it does have the Tenth Amendment. According to this Amendment, all powers not specifically delegated to the federal government and not prohibited by the Constitution to the States are retained by the States.

Since the original States created the federal government, they and the other States occupy a superior legal position relative to it. Each State can do whatever it wishes, as long as what it has in mind has not been specifically delegated or prohibited. Secession is one such prerogative.

The Constitution has a fixed and objective meaning that stands above and apart from Supreme Court decisions. Constitutionally, the most that a Court can do is to discover that pre-existing meaning, and apply it to the case at hand. Although each Justice has a legal education, credentials, and judicial experience, these things do not render him or her infallible. The Justices of a Court are only mortal, and they can still make mistakes. According to the Wiki articles about Plessy v. Ferguson (1896) and Dred Scott v. Sandford (1857), they are considered to be two of the worst decisions that the Court has ever made.
This is laughable. However, it comes from someone who wants to talk about the legality of secession without even mentioning the Supreme Court ruled against it.

The refuge of those who disagree with the Supreme Court is always to try and point out decisions that they think were wrong. Unfortunately for them, when these decisions are viewed through the prism of history, they are not necessarily incorrect. Also, there are extremely few decisions that fit into this category.

The Dred Scott case is on example. Prior to the enactment of the Thirteenth Amendment in 1865, slavery was legal. That's it. Pure and simple. Even if a justice on the Supreme Court abhorred slavery he was powerless to rule that it was illegal. Because it was legal, the Supreme Court really had no alternative, but to decide that case the way that they did.

The states do not occupy a superior position to the federal government. A basic principle of jurisprudence that goes back to McCulloch v. Maryland, 17 US 316 (1819) is that federal law is superior to state law and prevails over state law when there is a conflict between the two. In fact, in any federal system that is the most basic principle.

Finally, if every section of the Constitution had a "fixed objective meaning" there wouldn't be any need for litigation and there wouldn't be a need for a Supreme Court. However, many phrases in the Constitution are written in broad language which I believe was deliberately done by the framers. Otherwise, the document wouldn't have lasted for over two hundred years. The genius of the Constitution was its broad language that can be molded to fit the needs of the day.
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Old 06-27-2019, 09:15 PM
 
Location: Parts Unknown, Northern California
48,564 posts, read 24,122,692 times
Reputation: 21239
Quote:
Originally Posted by markg91359 View Post
The Dred Scott case is on example. Prior to the enactment of the Thirteenth Amendment in 1865, slavery was legal. That's it. Pure and simple. Even if a justice on the Supreme Court abhorred slavery he was powerless to rule that it was illegal. Because it was legal, the Supreme Court really had no alternative, but to decide that case the way that they did.
The above is not quite accurate. The Dred Scott decision was bizarre in the extreme, regardless of how you felt about the issue of slavery. The Court first ruled that since Dred Scott was not a citizen, he had no standing before the US courts and no right to have sued in the first place. Having made such a ruling, the logical thing to have done was to then dismiss the case since they had in effect just said that there was no legal case. Instead, the Court went further and issued a ruling on a matter which wasn't even before the court...the legality of the Missouri Compromise. The Court declared it unconstitutional.
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