From: KARLIN@BNLCL6.BNL.GOV (P.L. Cowan)
Subject: Re: ------> Re: You started it, we finished it (was Re: Conf
Organization: BROOKHAVEN NATIONAL LABORATORY
Date: Wed, 12 Aug 1992 22:33:45 GMT
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In <10AUG199212020065@vxcrna.cern.ch> casper@vxcrna.cern.ch writes:

: In article <1992Aug9.204718.8719@bnlux1.bnl.gov>, KARLIN@BNLCL6.BNL.GOV (07850_LS) writes...
: 
: Well, let me begin by saying perhaps I sidetracked this discussion by responding
: to Bobbie Mann's eulogy of R.E. Lee.  It was initially about the Confederate
: flag, which is a current issue that is probably worth more discussion than
: the 125 year-old argument about secession...  

{I have edited Mr Casper's most recent post, but I have attempted not to remove
any statements from their context.}

Let me say that I also truly dislike displays of the Confederate Battle Flag, 
especially when I see it in my native state of Pennsylvania (for which my 
great-grandfather fought).

: I find the Texas declaration which was recently posted quite telling.  

Yes, as is the South Carolina Declaration of Causes. There is no question that 
the Southern aristocrats who led the secession movement were appalling racists. 
I also concur with the argument of Mr. Murphy that the then government of the
State of South Carolina (to name but one) was what we would term a
"white-minority government" since the slave population outnumbered the free.
To be fair, much of the Anti-Slavery sentiment was also racist. Many condemned
slavery because it resulted in a growth of the black population in America.
Furthermore, the US Constitution circa 1860 (which was the subject of your
question) was implicitly racist in that it recognized slavery.

: >>Civics Exam for Aspiring Confederate Apologists:
: >>
: >>Please cite the provision in the 1860 US Constitution granting states the
: >>right to unilaterally leave the Union, seize Federal property, and fire on
: >>Federal troops?  (Hint: do not confuse the Declaration of Independence with
: >>the Constitution)
: > 
: >First, to directly answer your question, the Tenth Amendment to the US
: >Constitution (enacted in 1791, well before 1860) 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.
: 
: [I cited this clause previously...]
: 
: >>	This Constitution, and the Laws of the United States which shall be
: >>	made in Pursuance thereof; and all Treaties made, or which shall be
: >>	made, under the authority of the United States, shall be the supreme
: >>	Law of the Land; and the Judges in every State shall be bound thereby,
: >>	any Thing in the Constitution or Laws of any State to the Contrary
: >>	notwithstanding.
: 
: I would say that the clause I cited above would forbid this.  The Constitution
: is a compact between the states.  In this sense, a unilateral act of secession
: by any state would be superceded by the Constitution.
: 

There is no question the Federal government would have had the legal power to 
supress secession had the Constitution expressly given it such power. (If the
Constitution had had such a clause, it is doubtful that any state, north or
south, would have ratified it.)

My response to your "Civics Exam" was intended to make the point that from the
strictly legal point of view, as the law existed in 1860, secession of South
Carolina (and several other states) had a strong legal basis. This is not to say
that there was not also a strong case against it, but I don't think one can
base it on Article VI, which you cite. 

The Constitution gave the Federal Government specific powers (regulate
inter-state commerce, coin money, declare war etc.) When Article VI states
"Laws of the United States which shall be made in Pursuance " of the
Constitution are supreme, it refers to laws pertaining to these specific
Federal powers. 

The Southern states (like the New England states before them) argued that
powers of secession, nullification etc, were not to be regulated or restricted
by the Federal government and therefore fell to the states, or to the people
(Virginia voted to secede by referendum). These legal arguments can be traced
to no less a luminary than Thomas Jefferson, who surely knew something about
the "original intent of the framers", particularly in connection with the Tenth
Amendment.

: In a parliamentary sense, the admission of a state required action by both the
: erstwhile territorial legislature, and the Congress.  To reconsider or repeal
: such an act would seem to require acquiescence by both bodies as well.

This is a clear statement of one point of the North's legal case against
permitting  secession along the lines attempted by several Southern states.
Many legal questions have apparently plausible arguments for both sides. I
contend that one must concede the question of secession was legally ambiguous
in 1860, and was unfortunately decided on the battlefield.

Consider this. Article IV Section 4 states 

	The United States shall guarentee to every State in the Union a
	Republican Form of Government, ...

If the electively representative governments of the several states voted 
according to republican principles (or in the case of Virginia if the electorate
voted in a democratic referendum) to withdraw from the Union, how could the 
other states deny their "acquiescence" to this withdrawal, without 
simultaneously breaking their guarentee to a "republican form of government" in
those states?

In mathematics there is a princple known as "Goedel's Theorem" which (roughly)
states that no logical system is, itself, logically complete. I think this is 
why lawyers become rich. My argument is only against the implication that there
was no legal basis for Southern Secession.

: Recall, for instance in the case of Texas, that US troops from the entire
: country participated in the Mexican War to secure Texas' separation from Mexico.

I expect many Texans will point out that they won their independence without 
US troops, thank you. The Mexican War, from the Mexican perspective, was to  
prevent the incorporation of the independent Republic of Texas into the US. It
is also true that something like 3/4 of the US troops that fought the Mexican
War came from the Southern states. This contributed to the Southern outrage
when slavery was excluded from California, which was part of the Mexican
Secession that was gained ("by Southern Blood") in that war.

: Similar arguments could be advanced about all the other states too: the
: Revolution was a collective effort, leading to the liberation of the coastal
: states and the Western Territories.  The Louisiana Territory was also purchased
: by the US government.

While I can accept the arguments about collective effort, that is not how
the South saw it. Virginia, as the wealthiest and most populous colony, carried 
a major share of that effort. Furthermore, the British deliberately waged most
of the battles of the war in the South, since they felt it would be easier to
break the support of the southerners for a rebellion started in Boston. I think
the British did succeed in planting some seeds of resentment between North and
South.

The last extracted sentence reminds me of one of my favorite quotes. A Northern
woman upon learning Louisiana had seceded said, "But I thought we BOUGHT
Louisiana."  I concede that the legal issues can get very murky. Of the
original 7 states of the Confederacy, the case for South Carolina and Georgia,
which were recognized as a "sovereign and independent states" by the Treaty of
Paris in 1783, and for Texas, would appear stronger than those states which
were formed from former Federal territories. However, these states claimed
equal status and powers to the original 13 (so if S.C. could do it, so could
La.).

: Taking another tack, if the Constitution is viewed as a treaty between
: sovereign states, since there is no expiration or exit clause, it must be
: binding in perpetuity.
  ^^^^^^^^^^^^^^^^^^^^^
This is a matter of fact in 1992, but it is a direct outcome of the Civil
War.  Prior to the (violent) resolution of this question, one could point out
that in law "silence indicates consent". If there was no clause preventing a
state from seceding, and no prescription of how one could secede, then the
South argued they could secede anyway they damn well chose to, and they felt
the 10th Amendment made this implict understanding, explicit.
 
: Finally a remark about the fugitive slave clause.  Given the obvious sympathy of
: the Taney Supreme Court to slaveholding (witness the Dred Scott decision), it
: seems hard to believe the matter couldn't have been resolved to the South's
: satisfaction through the courts.  Perhaps the problem was enforcing these
: decisions though...

Now we get to the "good stuff". IMHO the Civil War is a extreme example of
what can become of "stacking" the Supreme Court. In 1860 (and earlier at the 
time of Dred Scott) it was heavily stacked with justices from Slave States. This
led to a total lack of confidence in the court by the North, aiding the cause
of the Republicans. The Republicans made clear that they would not let the
Supreme Court have the final say on the issue of slavery in the territories. 
The South, seeing the North would not accept legal solutions handed down by
a court with Southern sympathies, felt impelled to take matters into their own
hands. 

++++++++++++ A lesson in Civics ala 1860 +++++++++++++++++

Today we are taught that the strength of the US Constitution lies in its system
of "checks and balances" between the Executive, Legislative and Judiciary
branches of the Federal government. In 1860 many would have said that similar
checks and balances existed between the state governments and the Federal
government. Jefferson wrote quite extensively on the necessity that states
have the power of nullifying unconstitutional laws. It was a fact that the
Supreme Court had been frequently ignored on questions of constitutionality,
so the States felt they needed to reserve the final say on constitutional
issues.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

South Carolina acted preemtorily (and IMHO, rashly) in seceding before the 
new Republican government even had a chance to attempt to make good their
promises. They felt that the Northern states had violated the Constitution
(specifically Article VI) and felt they were no longer bound by a document that
other states did not honor. The lesson for modern "strict constructionists" is
that the strong legal arguments given by the south for slavery and secession 
did not make them morally right.

I would argue that the outcome of the Civil War is that the North, by
appealing to "a higher law", was ultimately able to set right a number of
defects in the original Constitution. The 13th, 14th and 15th Amendments
(along with the subsequent 19th) stand out in human history as landmarks in
promising equal rights to all.  While I feel the legal question of a state's
power to secede could (and should) have been resolved without violence, these 
revolutionary changes to the US Constitution probably could not have.
Hopefully, one day we can honestly say that these promises have been fulfilled.


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P. L. Cowan	Please send replies, comments etc. (no flames thank you) to 
COWAN@ANL.GOV 	(I'm posting this from a friend's account)
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