U.S. Civil War - Did the South Have the Right to Secede?

[MichaeltheGreat]

Originally posted by chegitz guevara
Not everyone. Andrew Jackson made a pretty clear statement about what he thought of the "right" to secede.

Well, given Jackson's own history - genocidal murderer, philanderer (with a wife of one of his own cabinet members - that puts Clinton way down into the minor leagues), and all around scum, who cares what he thought or said in any event?

[Berzerker]

That's more concise than my last point, but that's basically it. The question is whether you think that the former territories of the US that became states had the right to secede prior to statehood.

Of course not, they weren't in the Union yet.

Did they have such a sovereignty right as a territory? I don't think they did. Hence, they can't reserve such power because they didn't have it.

Territories didn't reserve the right of secession, they obtained it when they became states.

Read the rest of the list... they are all military buildings. Do you REALLY think that the phrase was put in there to refer to any other building the government decides is 'needful'?

Of course, thats what it says. And post offices are needful, so are any other buildings the federal government needs to fulfill its duties - like customs/inspections buildings, tax collection buildings, trade posts, etc...

Obvious, 'other needful buildings' refers to other military buildings not named in the list.

Thats your opinion, but the feds have all sorts of needs for buildings so I suggest the wiser interpretation is the literal one.

"are reserved to the States". Seems to indicate not a granting of new powers, but rather that States have unenumerated powers reserved to them

Having just gained their independence, do you suppose that was a viewed as a new power? They were free entities before any Constitution and therefore they reserved the freedom to secede. And the evidence is clear on the matter, the fact some of the states wrote secession clauses right into their own constitutions shows what "the consensus" was back then.

That reading that che has stated is also the consensus of legal scholars, many of whom have studied the debates on the Bill of Rights in coming to such conclusion.

Would that be the scholars who say there is no right to bear arms in the 2nd amendment?

[Berzerker]

Not everyone. Andrew Jackson made a pretty clear statement about what he thought of the "right" to secede.

Sorry, but that was your comeback to Deity Dude's list of secessionist movements?

[Imran Siddiqui]

Territories didn't reserve the right of secession, they obtained it when they became states.

The 10th Amendment does say powers are reserved to the states, right? I fail to see how you can 'reserve' a power you never had.

And post offices are needful

Hence the clause that deals with Post Offices.

so are any other buildings the federal government needs to fulfill its duties - like customs/inspections buildings, tax collection buildings, trade posts, etc...

That would be called the 'necessary and proper clause'. Read McCulloch v. Maryland, that is what was cited by Marshall, not the whole necessary buildings things, which is obviously about military buildings.

They were free entities before any Constitution and therefore they reserved the freedom to secede.

Err... hence what I said a day (or so) back. Yet former territories were not free entities before the Constitution.

[SlowwHand]

Get rid of your first point. It doesn't make sense. You're agreeing to argue it wasn't reserved by a territory, it was given to as a state.

[Imran Siddiqui]

Point taken.

But, I'll add this

United States v. Darby, 312 U.S. 100, 124 (1941)

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

[Deity Dude]

To sum up this debate:

I think the vast majority agree that the 13 original states plus other states that were independent before they entered the union have/had the right to secede.

I'll add, except for those that gave up that right when they were readmitted to the Union No one seems to have commented on this

The debate now seems to be centered on whether or not a state that was a territory before it became a state has/had the right to secede.

[MichaeltheGreat]

Originally posted by Wycoff


Congress is explicilty empowered by Art. 1 §8 cl. 15 to call forth militia to supress insurrections. Though secession is not addressed, this clause gives Congress great power in determining what to do when a state decides to seceed. If Congress determines that there is an insurrection, then Congress is empowered to suppress it. The key then is to decide what constitutes an insurrection.

Actually, it isn't. Congress is given the power "to provide for" the calling forth of the militia, through exercise of its lawmaking authority.

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

Prior to the War of Yankee Aggression, Congress exercised its power by passing three statutes on the sujbect, in 1792, 1795 and 1807. None of which even approached the subject of peaceful secession.

[MichaeltheGreat]

Originally posted by Deity Dude
To sum up this debate:

I think the vast majority agree that the 13 original states plus other states that were independent before they entered the union have/had the right to secede.

I'll add, except for those that gave up that right when they were readmitted to the Union No one seems to have commented on this

Secession as a practical matter was determined with the blood of 600,000 dead on the battlefield and in the camps, plus an unknown and largely untallied number of civilian dead, both white and slave or former slave.

The debate now seems to be centered on whether or not a state that was a territory before it became a state has/had the right to secede.

I don't think there's much debate there, either, just that the question is different for a sovereign entity which predated the formation of the United States. When states petitioned to join the union and were admitted, their admission may have been subject to restrictions or conditions not specified in the Constitution (i.e. the requirement on Utah to outlaw polygamy, while marriage was clearly exclusively within the sovereign rights of the several states to regulate as they saw fit, and still is, except in the view of modern religious wingnuts flipped out over about fudgepacker marriage)

If a state agreed, as a condition of statehood, to renounce any claim of a right or sovereign power to secede from the Union once admitted, then clearly it had no right to secede. If that requirement was not explicitly imposed, the state gained, upon admission, all the sovereign powers recognized as belonging to a state. Including the power to secede, if that hadn't been waived as a requirement to admission.

[SlowwHand]

Originally posted by Elok
It was sort of like the way the South claimed to be civilizing the black race by enslaving it. The North was teaching you hillbillies to know your place by hurting you and setting fire to your cities. Simple as that.

If you hadn't been staggering in late, you might know something.
As it is, you're just stupid.

[Wycoff]

Originally posted by MichaeltheGreat
A state, by definition, can not be a party to an insurrection.

An insurrection is a rising by a group of individuals against the lawful authority of the state.

That's not completely true. While the United States couldn't be in insurrection against the United States, an individual state government could be in insurrection against the United States when a "gourp of individuals" in control of that state's government decides to no longer obey the lawful orders of the federal government. The group of individual Southern states were in an uprising against the lawful authority of the United States. The actions of the political leaders of the South could fairly be called insurrectionist.

Lincoln did not call forth the militia and Federalize it, precisely because he knew he had no legal authority to do so.

Yes, the Federal Government did. They started using volunteers, and they ended up using compulsory conscription. Congress created army. There's no real difference between the an army of consripts and a militia, at least as far as this discussion is concerned. Congress exercised it's Constitutionally granted powers to crush what it considered to be an insurrection. The only relevant question left is whether this was actually an insurrection.

[Wycoff]

Originally posted by MichaeltheGreat


Actually, it isn't. Congress is given the power "to provide for" the calling forth of the militia, through exercise of its lawmaking authority.

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

Are you trying to argue that "provide for" means that Congress is only empowered to create some militia framework, and then passively bow out from deciding when and where the "militia" may be used? "Provide for" is a very vague phrase, and it leaves a whole lot of room for Congressional interpretation. Have you ever seen how the commerce clause has been used? With that in mind, this clause makes it absolutely clear that Congress can call forth the Militia to execute the laws of the Union and supress insurrections. We can argue over what is meant by Militia, but this says that Congress is empowered to supress insurrections in some manner.

[Berzerker]

If a state agreed, as a condition of statehood, to renounce any claim of a right or sovereign power to secede from the Union once admitted, then clearly it had no right to secede.

the reason the Framers added an amendment process to the Constitution is that no generation may obligate the next. This country was created by a secessionist movement, so I'd need actual language in the Constitution that says Congress can impose a restriction in violation of the founding principles.

Hence the clause that deals with Post Offices.

That would be called the 'necessary and proper clause'. Read McCulloch v. Maryland, that is what was cited by Marshall, not the whole necessary buildings things, which is obviously about military buildings.

No, its called "and other needful buildings". The N & P clause says Congress can pass laws to fulfill the preceding powers, you just combined the last power with the N & P clause... or should I say, you combined the N & P clause with the last 4 words of the last power enumerated.

Err... hence what I said a day (or so) back. Yet former territories were not free entities before the Constitution.

they became property of the USA under the constitution, not states. The states are the co-owners of the territories...

[chequita guevara]

Originally posted by Berzerker




Sorry, but that was your comeback to Deity Dude's list of secessionist movements?

Ever hear of x-post?

[Dr Strangelove]

IIRC the Declaration of Independence gave a list of greivances which the authors declared to be sufficient cause to break the "natural bonds" between themselves and the mother country. Their grievances included lack of representation, the quartering of British troops in their homes and arbitrary government in general. There is no place in the D of I where it says "we're seceding because we just want to", nor was their any mention of possible infringement on an imaginary right to own other human beings. It's true that the D of I is not part of the legal framework of the US goverment, but it does give us an good idea of what the founding fathers thought of the nature of the relationship between goverment and the governed and under which circumstances such a relationship might be broken. I submit to you that the authors of the Constitution would have never agreed that whimsical secession was a right, nor would thewy have agreed that the seceding states had just cause for their actions.