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MFitz
01-03-2004, 11:48 PM
I've been reading a lot lately on the Civil War. I picked up an old American History book while in Ireland and found something suspicious about the way Congress passed the 14th Amendment. Research led me to this article which explains it best:

THE "INFAMOUS" 14TH AMENDMENT! (http://www.etherzone.com/2002/burn110802.shtml)

Another example of the S.C. not doing their jobs, no?

MFitz

Duckster
01-03-2004, 11:51 PM
You forgot to wear your tinfoil hat when you posted this.

pervert
01-04-2004, 12:00 AM
Just so you know. You need to find a cite which supports your claim and has a more scholarly look. There are many opinions about what this means. Many of these involve the owner of the particular gored ox. But on the whole, I recomend that you find a cite which includes links to the sources of the information (or at least mentions them) so that others could theorectically at least look the information up. You need to stay away from articles which only refernce themselves or other articles from the same author.

You might want to stay away from authors whose reference sounds like this:

Taken form the linked article about its own authorAlbert V. Burns writes from Utah and is a regular columnist for the Spanish Fork Press. He has an extensive knowledge of the conspiracy which has been working so hard to destroy this nation and incorporate it into a one world government. He has developed an extensive personal research library and the knowledge to find what he needs, to write his columns

tomndebb
01-04-2004, 12:02 AM
Of course, the Constitutional Convention exceeded its mandate when it actually discarded the Articles of Confederation and the Declaration of Independence was a blatantly illegal act.

Obviously, we should throw ourselves on the mercy of the Queen and beg to be reunited with our former legal authority. (Unless you want to get picky and appeal to the authorities of the Iroquois, Cherokee, Natchez, and similar bodies to grant us leave to actually live here, first.)

Zoe
01-04-2004, 12:31 AM
MFitz, welcome to SDMB. I hope you enjoy your participation here.

You really need more reliable sources than Albert V. Burns. He presents no academic or legal credentials. You might as well be quoting your next door neighbor.

I am curious about why you would choose to believe someone like this?

MFitz
01-04-2004, 12:50 AM
This article is a synopsis, but every historical point in it is accurate. You need only do a few minutes of research yourself to verify it.

The simple truth is that an intellectually honest person would respond with rebuttals based on historical fact, rather than insults and outright dismisal.

The left-wingers are incapable of substantive argument, a fact they prove constantly. Perhaps this is not the place for a discussion of real content, but know this: at least a couple of people here will read this, do the research, and appreciate it for its content.

MFitz

pervert
01-04-2004, 01:09 AM
Let me give you an example.This cite (http://www.barefootsworld.net/14uncon.html) may in fact be just as full of crap as the one you linked to, but it at least references many online documents that it purports to be reliable. Anyone who questions it authority can do so at their leasure.

Please do not refer to me as a leftist. I am a loony libertarian or an obtuse Objectivist at least.

Also if you recieve constructive criticism it can be helpful to listen to it and post some other links instead of attacking those who were only asking a few questions.

Brutus
01-04-2004, 01:19 AM
An Amendment cannot be unconstitutional, even if Senators from the various treasonous states are excluded from the process. You may not like the Reconstruction Act, but dem is da breaks when you are on the losing side of a war. And if you call me a 'left-winger', I'll drop-kick your puppy.

Lynn Bodoni
01-04-2004, 01:20 AM
On this message board, if you claim something, you'd better be prepared to offer cites to back it up. You cannot demand that your opponents provide cites to prove you wrong until you do th is.

And the rule of thumb is "Extraordinary claims demand extraordinary intelligence."

Lynn
For the Straight Dope

spectrum
01-04-2004, 01:31 AM
Originally posted by MFitz
This article is a synopsis, but every historical point in it is accurate. You need only do a few minutes of research yourself to verify it.

Every fact may be "accurate," but the facts may also be incomplete. For instance, it argues that only 120 Representatives voted "for" the amendment. But it never says how many voted against it. Were there 184 votes or not? If four of those seats abstained or were not filled (death, absence, etc), or were votes cast by proxy, then those 120 Congressmen voting "for" the amendment may well have constituted 2/3 of the body as it stood at that point. Since it is the author, and you, who are making the outrageous claims, it is on you to fastidiously document every assertion from every angle possible.

What you've linked to is a propaganda piece. I could drum up some lefty propaganda that claims, based on assertions that are wholly true, if not the whole truth, that George Bush knew that Sept. 11 was going to happen and let it occur for political reasons. Of course, such an accusation is true. But if you're selective enough with your evidence, you can paint that picture.

The left-wingers are incapable of substantive argument, a fact they prove constantly.

Then how come more folks voted for us instead of you in the last presidential election, if we had no substantive positions or arguments? Sheer luck?

You should be careful. You're coming off as a shrill, propagandist partisan. This board doesn't need an Ann Coulter.

spectrum
01-04-2004, 01:33 AM
Originally posted by pervert
Let me give you an example.This cite (http://www.barefootsworld.net/14uncon.html) may in fact be just as full of crap as the one you linked to, but it at least references many online documents that it purports to be reliable.

That article is more revealing, but still so interested in pushing an agenda that it doesn't present refuting evidence to its own position, a sign of weak scholarship.

Strange that it fails to mention MFritz's article's damning 120 votes charge.

E-Sabbath
01-04-2004, 01:33 AM
There is, of course, the point that it is constitutional and legal _now._ Sort of like the Lousiana Purchase.

Leaper
01-04-2004, 01:39 AM
Originally posted by spectrum
I could drum up some lefty propaganda that claims, based on assertions that are wholly true, if not the whole truth, that George Bush knew that Sept. 11 was going to happen and let it occur for political reasons. Of course, such an accusation is true.

:eek:

You know something we don't?!

pervert
01-04-2004, 01:44 AM
spectrum Yea, my bad. The article I linked to is not much better than MFitz's. I was taken in by my own brief scanning and what looked like links to cites. they turned out to be simply links to the bibliography. But at least there was a bibliography.

I don't tend to trust articles which include both sides of an argument. I've found that most times the characterization of the opposition is incorrect. I much prefer a short sentence and a link to some proponent of the opposite viewpoint. This may be a result of my propensity towards philosophical or political arguments instead of more direct evidence based arguments.

spectrum
01-04-2004, 01:49 AM
Originally posted by Leaper
:eek:

You know something we don't?!

ARGHHH! I meant to say "which of course is not true."

Bush is bad, but not happy-go-lucky-let-3000-Americans-needlessly-die bad. The man's not evil!

(checks to make sure I put "not" in that last sentence)

PatriotX
01-04-2004, 08:28 AM
Originally posted by MFitz

The left-wingers are incapable of substantive argument, a fact they prove constantly.

So if someone is capable of substantive argument, that automatically renders them a non-"left-winger"?
I've seen a number of those who at least claim to be "left-wingers" make substantive arguments. Now, I know that they were lying and not really "left-wingers" at all.
Thanks MFitz.

I can't help but notice, that you didn't make a substantive argument. You must be a "left-winger"!

Oh, wait a minute. How do I know that you're telling the truth about "left-wingers" not being able to make substantive arguments?
Could you provide some sort of citation of meaningful evidence that backs up your blanket generalization about millions of people you've never met?

It seems an intellectually honest person would respond to "left-wingers" with rebuttals based on historical fact, rather than insults and outright dismissal.

Originally posted by MFitz

Perhaps this is not the place for a discussion of real content...

Perhaps you're currently hamstrung in your ability to initiate "a discussion of real content."

Hang about, and lurk a bit and see how it's done. You can always practice in The Pit (http://boards.straightdope.com/sdmb/forumdisplay.php?s=&forumid=5) where the standards of discourse aren't quite as high.

Also, if you have a specifically legal issue, you can directly ask for the participation of the various lawyerly Dopers that reside here, by including a bit in your OP's title like, "Legal Dopers: 14th Ammendment Unconstitutional?"


Welcome to the SDMB GD.

Northern Piper
01-04-2004, 08:53 AM
Originally posted by Brutus
And if you call me a 'left-winger', I'll drop-kick your puppy. New sig for Brutus!

:)

Liberal
01-04-2004, 09:04 AM
Originally posted by pervert
spectrum Yea, my bad. The article I linked to is not much better than MFitz's. I was taken in by my own brief scanning and what looked like links to cites. they turned out to be simply links to the bibliography. But at least there was a bibliography.

I don't tend to trust articles which include both sides of an argument. I've found that most times the characterization of the opposition is incorrect. I much prefer a short sentence and a link to some proponent of the opposite viewpoint. This may be a result of my propensity towards philosophical or political arguments instead of more direct evidence based arguments. It was a much better cite. Not only was there a comprehensive bibliography, but some of the links were to documents, like a photograph of Lincoln's signature on a resolution.

John Mace
01-04-2004, 11:36 AM
MFitz wrote:
The simple truth is that an intellectually honest person would respond with rebuttals based on historical fact, rather than insults and outright dismisal.

The left-wingers are incapable of substantive argument, a fact they prove constantly.
Did no one else appreciate the irony of these two statements?:)

PatriotX
01-04-2004, 12:36 PM
JM
Boy, I did.
What's the betting on Mfitz showing back up again?

minty green
01-04-2004, 12:39 PM
Cecil Speaks: Is U.S. income tax invalid because Ohio wasn't legally a state when the 16th amendment was ratified? (http://www.straightdope.com/classics/a5_127.html)

I also would have sworn that there was an old thread on the ratification of the Reconstruction amendments (I recall in particular a Utah or Nevada Supreme Court opinion from the 60s that was bitching about their ratification), but darned if I can find it now. Maybe it was lost during the Winter of Missed Content.

jayjay
01-04-2004, 12:52 PM
Cecil talks about an objection to the IRS because of its "establishment of religion" in that link.

How does that argument work? What religion is the IRS establishing? I mean, I know it's crackpot, but I'd love to hear the pseudo-reasoning behind that one.

minty green
01-04-2004, 01:07 PM
Beats me. Render unto Ceasar, and all that?

John Mace
01-04-2004, 01:10 PM
Originally posted by SimonX
[b]JM
Boy, I did.
Sorry. Didn't mean to steal the thunder from your earlier post.

What's the betting on Mfitz showing back up again?
Ftizie's argument sure had nothing to add to rational debate.

John Mace
01-04-2004, 01:11 PM
Originally posted by jayjay
Cecil talks about an objection to the IRS because of its "establishment of religion" in that link.

How does that argument work? What religion is the IRS establishing? I mean, I know it's crackpot, but I'd love to hear the pseudo-reasoning behind that one.
Could it be the tax exempt status of Religious organizations? That might be construed as an indirect subsidy.

'possum stalker
01-04-2004, 01:45 PM
More cutting-edge news from engineer and conspiracy theorist Al Burns:

His oh-so-brilliant but belated defence of Joe McCarthy. (http://www.opinioneditorials.com/freedomwriters/burns_20030513.html)

How ther Alinsky method and "change agents" are destroying freedom. (http://www.tysknews.com/Depts/Educate/alinsky_method.htm)

Here's a hoary trope: the old Gold Standard rant. Curse the Know-Nothing Party! (http://www.prisonplanet.com/analysis_burns_010303_collapse.html)

More on RAND corp.'s fearsome Delphi technique, used to, uh, subvert Robert's Rules, I guess. Or did RAND perfect the Jedi Mind Trick? (http://www.citizenreviewonline.org/nov_2002/lets_stop.htm)

Defending the Constitution, which Men in Black Helicopter wish to destroy. (http://www.greaterthings.com/Constitution/Associates/Bricker_amendment.htm)

The Feds are going to end private property- using zoning laws and HUD. I knew it! (http://www.enterstageright.com/archive/articles/0402/0402privprop.htm)

"The only thing which can save our nation and our freedom is to, somehow, get enough people away from being mesmerized by the boob tube and aware of the impending juggernaut of world government which is barreling down the road toward us." (http://www.pushhamburger.com/talking.htm) You tell 'em, Albert!


Oh, I could go on all day, but it's sapping my will to live. Suffice it to say that it would be more productive to cite/ debate Rush lyrics (http://www.lyricscafe.com/r/rush/044.htm?lyricscafe=61448daabed485ea698c9c0e5ff63f3b) than the works of the august Albert V. Burns.

Apos
01-04-2004, 03:21 PM
What the heck is it with the gold standard anyway? The Wall Street Journal used to be plauged with collumnists who would work a reference to it into almost any unrelated subject, and whenever I go to NewsMax or some other far-right site, it's peppered with ads telling me to buy gold! gold! gold!

cheddarsnax
01-04-2004, 04:09 PM
When the New World Order seizes control of the United States and places it under control of a fascist UN-appointed leader, that American money ain't gon' be worth nuttin'. But GOLD, well see thats the STANDARD, and the UN can't do shizzit about that now can they?!

At least that's how I understand it, Apos. Could be wrong.

sailor
01-04-2004, 05:00 PM
Well, wait a minute. Things are or they aren't true. My gut feeling is that the link in the OP is garbage but it contains assertions which should be easily disprovable or explained why they are without merit.

I am the first one to believe something illegal would have been questioned and settled by the SCOTUS but there must be a better answer than calling the OP a loonie which he may or may not be but that does not answer the question. The Constitution mandates that proposed amendments must be approved by two thirds of both houses of Congress. In December of 1865, the radicals in control of Congress refused to allow the legally elected Representatives and Senators from the southern States to be seated. Hence, at that point, Congress itself was unconstitutional. However, even disregarding that technicality, when the vote of those who WERE seated as part of the House was taken, out of 184 Representatives, only 120 voted in favor of the resolution. Two thirds of the 184 would have required 123 to vote in favor. Is this true or not? Is it relevant or not? In spite of the failure to get sufficient votes to constitutionally pass the resolution, the leadership of Congress arbitrarily declared the Resolution passed. Congress then submitted the 14th Amendment to all the states for ratification, INCLUDING the States which had already been DENIED representation in the Congress!

The 14th Amendment was soundly defeated when it was rejected by all but one of the southern States and all of the so-called "border" States. Iowa and Massachusetts had also failed to ratify it by the beginning of March, 1867. The radicals had only 21 ratifications of the 28 needed. Is this true or not? Relevant or not? Why so? Why not?

Priam
01-04-2004, 05:19 PM
This is all from memory, sailor, so some of it might be wrong but I do know the 14th Amendment was passed during the Reconstruction period after the Civil War. This meant that the former CSA were not yet again full-fledged states. Their rights were curbed during the period, probably including the right to ratify amendments. Basically it means that whether or not the southern states liked it, their opinions meant jack. It also probably readjusted the number of states actually needed to ratify the amendment as well as the seats in Congress since I doubt those "duly-elected" representatives were allowed to sit in on any Congressional votes until several years later. In short, the 14th Amendment exists because we trashed the Confederacy and winners make the rules.

Regardless, if put to a vote today the Amendment would almost certainly stay in which makes it, in effect, legal under any modern standard.

minty green
01-04-2004, 05:34 PM
It's quite true that Congress did not permit the formerly Confederate states to send representatives and senators to Congress in 1865. They had, after all, seceded from the Union at the start of the Civil War, and they were not readmitted to the Union for several more years. And it's also quite correct that Congress sent the 14th Amendment to the Southern states for ratification. Indeed, ratification by them was a condition of their readmission to the Union.

None of that makes the ratification of the post-war amendments unconstitutional, of course. The Constitution is silent on who counts for what when states secede, and it's silent on counting states towards the 3/4ths rule for ratification, and it's silent on whether states can withdraw their ratification, and it's silent on just about every other objection raised in the OP. In light of that silence, the government just muddles on through and finds its own answers, which is exactly what happened in the case of the 14th Amendment. Then, 100 years later, people who don't like it claim they should have reached some other answer.

Duck Duck Goose
01-04-2004, 06:14 PM
My gut feeling is that the link in the OP is garbage but it contains assertions which should be easily disprovable or explained why they are without merit.[stands up and gives Sailor a round of applause]

Well said, dude. Scrolling through this thread, I was feeling increasingly disappointed in the Great Debaters--ridicule? References to tinfoil hats? Off-topic comments? That's the best you guys can do? C'mon, this is the Straight Dope, guys, we slay 'em with facts. Sic 'em! :D

[looking forward to seeing folks who know way more about this than me take up the cudgels with a point-by-point refutation of Mr. Burns' thesis]

Which parts of it aren't true, exactly?

'possum stalker
01-04-2004, 07:11 PM
Ohio ratified in 2003(!). (http://statenews.org/news/2003/september/opr-091703-02.html) So a sufficient number of states did ratify the amendment, no matter how you slice it. And certainly, after secession, the South had no right to start bitching about having their rights trampled. They didn't even recognize the Constitution at the time, etc.

I can't seem to find a record of the number of votes the 14th did or did not receive. So there may be some meat to that claim. But, as Lynn pointed out, it is up to MFitz to find a reliable source to show that there were insufficient votes. And I agree w/ minty that it is regarded as a valid amendment now, and arguments against it should consider that the U.S. was in the throws of its greatest Constitutional crisis.

Hey, sorry if I was overly critical of the dude, but I did attempt to do some googling to refute his claims directly, but just kept getting things like "Jerry's Aryan Battle Page," (http://statenews.org/news/2003/september/opr-091703-02.html) rather than any serious legal thought.

There is one page (http://www.civil-liberties.com/books/colony31.html) with various quotes re: the legality of XIV. I don't see how this relates to the author's hypothesis that the U.S. is still a British colony, but I guess that's why I'm not a lawyer.

'possum stalker
01-04-2004, 07:21 PM
Gosh, I mislinked the 14th amendment discussion from Jerry's Aryan Battle Page. (http://www.jabpage.org/posts/fourteen.html) Now we can all bask in his racist wisdom. Enjoy.

Billdo
01-04-2004, 07:25 PM
From United States Code Annotated (not available free online) on the XIV Amendment:

Proposal and Ratification

This amendment was proposed to the legislatures of the several States by the Thirty-ninth Congress, on June 13, 1866. On July 21, 1868, Congress adopted and transmitted to the Department of State a concurrent resolution, declaring that "the legislatures of the States of Connecticut, Tennessee, New Jersey, Oregon, Vermont, New York, Ohio, Illinois, West Virginia, Kansas, Maine, Nevada, Missouri, Indiana, Minnesota, New Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North Carolina, Alabama, South Carolina, and Louisiana, being three-fourths and more of the several States of the Union, have ratified the fourteenth article of amendment to the Constitution of the United States, duly proposed by two-thirds of each House of the Thirty-ninth Congress: Therefore, Resolved, That said fourteenth article is hereby declared to be a part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State." The Secretary of State accordingly issued a proclamation, dated July 28, 1868, declaring that the proposed fourteenth amendment had been ratified by the legislatures of thirty of the thirty-six States. The amendment was ratified by the State Legislatures on the following dates: Connecticut, June 25, 1866; New Hampshire, July 6, 1866; Tennessee, July 19, 1866; New Jersey, Sept. 11, 1866; Oregon, Sept. 19, 1866; Vermont, Oct. 30, 1866; Ohio, Jan. 4, 1867; New York, Jan. 10, 1867; Kansas, Jan. 11, 1867; Illinois, Jan. 15, 1867; West Virginia, Jan. 16, 1867; Michigan, Jan. 16, 1867; Minnesota, Jan. 16, 1867; Maine, Jan. 19, 1867; Nevada, Jan. 22, 1867; Indiana, Jan. 23, 1867; Missouri, Jan. 25, 1867; Rhode Island, Feb. 7, 1867; Wisconsin, Feb. 7, 1867; Pennsylvania, Feb. 12, 1867; Massachusetts, Mar. 20, 1867; Nebraska, June 15, 1867; Iowa, Mar. 16, 1868; Arkansas, Apr. 6, 1868; Florida, June 9, 1868; North Carolina, July 4, 1868; Louisiana, July 9, 1868; South Carolina, July 9, 1868; Alabama, July 13, 1868; Georgia, July 21, 1868. Subsequent to the proclamation the following States ratified this amendment: Virginia, Oct. 8, 1869; Mississippi, Jan. 17, 1870; Texas, Feb. 18, 1870; Delaware, Feb. 12, 1901; Maryland, Apr. 4, 1959; California, May 6, 1959; and Kentucky, Mar. 18, 1976.

The Fourteenth Amendment originally was rejected by Delaware, Georgia, Louisiana, North Carolina, South Carolina, Texas and Virginia. However, the State Legislatures of the aforesaid States subsequently ratified the amendment on the dates set forth in the preceding paragraph. Kentucky and Maryland rejected this amendment on Jan. 10, 1867 and Mar. 23, 1867, respectively.

The States of New Jersey, Ohio and Oregon "withdrew" their consent to the ratification of this amendment on Mar. 24, 1868, Jan. 15, 1868, and Oct. 15, 1868, respectively.

The State of New Jersey expressed support for this amendment on Nov. 12, 1980.

Make of that what you will.

However, in any event, since 1868 the XIV Amendment has been considered a proper (and indeed integral) part of the Constitution, so any questions about its past history would be condidered merely academic.

jshore
01-04-2004, 09:33 PM
Monthly DSL internet access...$35.00
Membership in the SDMB...$0.00
Seeing pervert and Brutus called leftists...Priceless.

:)

akennett
01-04-2004, 10:57 PM
Allright sailor and Duck Duck Goose, I'll give it a shot. Please excuse any errors, I am writing this with nothing but memory, the article cited in the OP, and my handy copy of the Constitution.

1) Ratification by 2/3 vote. First, the fact that the Congress refused to seat the representatives of the southern states is irrelevant. Article I, section 5 states that each House of Congress "shall be the Judge of the...Qualifications of its own Members." This would permit them to deem the southern delegation unacceptable even if the members of the rebellion maintained statehood.

Article V states, "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution." Are Burns' numbers accurate? Unfortunately, I do not have this information. Not only would the 120 votes have to be verified, but the 184 members number. The amendment seems to state that two thirds of each house must vote in the affirmative, rather than two-thirds of the votes cast. Of course, this is open to interpretation, but I prefer a plain-English style of reading documents.

2. Ratification. As it stands now, the 14th has plenty of states positively ratifying it. Unlike some later amendments the 14th does not specify a time period within which it must be ratified (for example, the 18th (boo - prohibition sucks) required ratification within seven years). So the real question is when did the ratification occur?

Contrary to Burns' claim, there was nothing illegal or unconstitutional about Congress demanding a form of government that met with their approval prior to readmitting the Southern states. By seceding from the Union, these states rejected their attachment to the Constitution and the government formed under it. Article IV, section 3 provides that Congress has the power to admit states to the union and that the Congress can make all laws or regulations regarding the territories that they feel necessary. Section 4 of the same article actually requires the central government to protect the states from domestic violence (a possible justification for certain acts - like disenfranchising certain confederate officers/soldiers).

The only question left is whether or not a state can rescind ratification of an amendment. Clearly, this is not addressed in the Constitution, but the Constitution is an instrument of creation and power for national, rather than state, government. However, the ability of a state to unilaterally rescind a previous act ratifying an amendment does not make sense in the scheme of government envisioned by the Founders. They very clearly differentiated between a Constitution and an act of legislation by way of permanence and by means of creation and approval. The Constitution is meant to be a permanent fixture, created by a specially called body* and ratified directly by the states. They carry this differntiation further by requiring similar steps (in terms of the method of amendment) to alter the Constitution. This would seem to indicate to me that Burns' article and the claims made there in are complete and total bunk.

-----
*Yes, I realize that the Constitution was written in a meeting that clearly exceeded their authorized bounds. However, they were called and selected to modify the Articles of Confederation, a task on par with the creation of a constitution. Similarly these men, and those (Jefferson, for example) who would form the opposition to the Federalists under the Constituion, required similar lengths in the creation of state constitutions. The calling of a select body for the purpose of creating the document and the ratification directly by the interested parties (states in the case of the national government, and the people in the case of state governments) were the hallmarks of permanent constitutions.

Dewey Cheatem Undhow
01-05-2004, 12:50 PM
Originally posted by minty green
It's quite true that Congress did not permit the formerly Confederate states to send representatives and senators to Congress in 1865. They had, after all, seceded from the Union at the start of the Civil War, and they were not readmitted to the Union for several more years. Nitpick: legally speaking, the Supreme Court held in Texas v. White (http://supct.law.cornell.edu/supct/cases/name.htm#Case_Name-T) that the vote to secede was null and void: Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.According to the Supreme Court, the confederate states never ceased to be states during the Civil War. You can't cite to Texas v. White (as you have in the past) to prove that secession was illegal and then turn around and ignore it on questions of amendment ratification.

Having said that, the 14th amendment is clearly valid for the reasons cogently laid out by akennett. The Congress can determine what members it will seat, and time has long since cured any defects in the original ratification process.

MFitz
01-05-2004, 01:44 PM
What's the betting on Mfitz showing back up again? SimonX

Probably about the same as finding someone here who will concede this is a valid argument.

I recomend that you find a cite which includes links to the sources of the information (or at least mentions them) so that others could theorectically at least look the information up. Pervert

What I can't understand is how someone would reject the premise as ridiculous, and then ask me to provide links rather than studying the subject yourself. Why would you trust MY links?

Anyway, the basic problem with the Constitutionality of the 14th Amendment lies in the fact that Congress recognized their members (including those duly elected in the South) as legitimate in order to pass the 13th Amendment. Then, in direct opposition to both Lincoln's and Johnson's Proclamations of Amnesty, they refused to seat the members who would not ratify the 14th Amendment. They redefined Congress specifically for its passing, which Johnson vetoed. Then they overrode the veto and then moved to impeach Johnson.

Akennet,

Your argument (which was the that of the Congress at the time) that Article I section 5 allows Congress to reconstruct itself when it feels like it implies the very construction of Congress is up to them to decide, which would nullify everything else the Constitution says about Congress. Can Congress therefore legitimately refuse to seat certain States today because they don't sign the next Patriot Act-type law?
No, this principle exceeds the powers granted to it by the Constituion.

OK, the links:

Lincoln's Proclamation of Amnesty
http://www.civil-liberties.com/books/colony37.html

May 1865: Andrew Johnson's Proclamation of Amnesty and Pardon for the Confederate States
http://search.eb.com/elections/pri/Q00076.html

December 1865: Congress Ratifies the 13th Amendment
http://www.nps.gov/malu/documents/amend13.htm

December 1865: Congress refuses admission of duly elected Southern Representatives and passes the 14th Amendment

Congress considered them legitimate when they passed the 13th Amendment

Andrew Johnson Vetoes it saying,
"I submit to Congress whether this measure is not in its whole character, scope and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive of those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure."
http://www.freerepublic.com/forum/a39ff18e04b5f.htm

Congress overrides his veto:

Additional Synopsis (Similar to original article)
1. http://www.texasls.org/reading_room/constitution/constitution0024.shtml

2.
http://www.chroniclesmagazine.org/Chronicles/March2002/032002Fallon.htm

3.
http://www.lewrockwell.com/orig/healy1.html

4.
http://www.freerepublic.com/forum/a39ff18e04b5f.htm

That should give you enough to do some reading.

MFitz

Duck Duck Goose
01-05-2004, 02:54 PM
Thanks, guys, for humoring me.

Now it looks more like a "debate"... :D

Dob
01-05-2004, 03:34 PM
from mfitz

That should give you enough to do some reading.

Well done mfitz! thats how you post a debate in SDMB. Now give me 2 hours to read all those links...

pervert
01-05-2004, 03:52 PM
Originally posted by MFitz
I recomend that you find a cite which includes links to the sources of the information (or at least mentions them) so that others could theorectically at least look the information up. Pervert

What I can't understand is how someone would reject the premise as ridiculous, and then ask me to provide links rather than studying the subject yourself. Why would you trust MY links?
Not to take this too far, but I was not rejecting your assertion at all. Simply pointing out (politely I thought) that you might want to get more believable sources before makeing radical assertions. The whole point being that I don't want to have to trust "your" links. That is, I would like the link to stand or fall on its own. Unfortunately the only link you provided gave very little in the way of substance to judge. Finally, I did do some research of my own (ok, just a quick google really) and posted a link which supports your argument.

Now to the subject at hand.

[QUTOE]the basic problem with the Constitutionality of the 14th Amendment lies in the fact that Congress recognized their members (including those duly elected in the South) as legitimate in order to pass the 13th Amendment. Then, in direct opposition to both Lincoln's and Johnson's Proclamations of Amnesty, they refused to seat the members who would not ratify the 14th Amendment.[/QUOTE]
One of your own links says
"“To get a clear idea of this of the succession of events let us review [President Andrew] Johnson's actions in respect to the ex-Confederate states. In May 1865, he issued a Proclamation of Amnesty to formal rebels. Then he established provisional governments in all Southern States. They were instructed to call constitutional conventions. They did. New State governments were elected. White men only had the suffrage [the 15th amendment establishing equal voting rights had not yet been passed]. Senators and Representatives were chosen, but when they appeared at the opening of Congress they were refused admission. The state governments, however, continued to function during 1866."

Doesn't this suggest that the state representitives which were party to the 13th ammendment were not in fact "duly elected" but merely representitves of the provisional governments. What I'm trying to suggest is that while sothern states were involved in passing the 13th ammendment, it was not the same governments which were then determined to be illegitimate and refused representation in Congress.

So, perhaps the real history goes like this:
- provisional governments set up in 1865.
- said provisional governments help pass the 13th ammendment
- Meanwhile constitutional conventions are held in formerly confederate states.
- Constitutions are accepted and elections held.
- Representitves from these newly constituted state governments show up in Washington.
- Congress refuses to seat them on the grounds that they have not approved the state constitutions.

Not quite like half the congress suddenly disenfranchising the other half.

I'm not trying to argue that the actions of the reconstructionist Republicans were noble or right or good. Just that they may have been legal. Or at least that a sound legal argument can be made for their actions.

MFitz
01-05-2004, 04:01 PM
Just 1... if only 1 person here agrees this is a legitimate argument...I'll be amazed. Fact is, (not that you care) I'm already impressed that as much time has already been given to it.

Also, do not think for a moment though that I disagree with the 13th Amendment. My motive is disgust with a "modern/progressive" interpretation that the 14th Amendment overides the 10th.

MFitz

Cervaise
01-05-2004, 04:13 PM
Originally posted by MFitz
I'm already impressed that as much time has already been given to it.Well, that's the way it works around here. Within reason, even the oddest arguments are given fair discussion. Other message boards, they simply say "Bullshit!" and proceed immediately to the mocking. Here, there may be a bit of mocking, but it isn't enough to say bullshit: We have a lot of very intelligent, very articulate people who will say exactly why an argument is bullshit, complete with names, dates, and page numbers.

Me, I think the 14th-amendment-is-invalid argument holds about as much water as the we-never-landed-on-the-moon argument, but hey, we devoted dozens of pages and hundreds of thousands of words to the moon hoax debate, so this should be fun, right?

Mtgman
01-05-2004, 04:28 PM
I had an American History teacher in High School who once propounded on the Civil War. It went something like this. A bunch of southern states wanted to seceed from the Union. The nothern states said "You can't do that". The southern states did it anyway. The northern states kicked their butts and said "see, we told you you can't do that". So now the southern states said, "well, you were right. We couldn't do that. So now we'll go back to being states again." The northern states said "wait a minute, you aren't states anymore because you seceeded. Jump through all these hoops and we'll re-admit you." "But you told us we couldn't leave in the first place, you even kicked our asses to prove it. How is it now that we ARE out, even though there is no mechanism by which we could possibly have left the union?" "Shut up and take a few carpetbaggers."

:confused:

There is a obvious discrepancy here. The legal definitions state that they didn't seceed. At no point were any of the southern states NOT members of the US. Some fineagling about who can or can't be seated makes some sense(although it would scare the crap out of me if the majority-Republican senate suddenly decided not to seat Arkansas(two Democrat senators) for some reason or another. I realize the extreme remoteness of such an action, but I'd prefer we have it in some sort of writing that this kind of thing can't occur) but I'm afraid I think ratification of an ammendment is a little too important an issue to play this kind of game with. Nothing to do about it now of course, and the situation has been resolved, but learning some lessons from it and putting procedures in place to keep such a thing from happening again seems a reasonable reaction.

Enjoy,
Steven

pervert
01-05-2004, 05:07 PM
I heard the same thing from my High School history teacher. If I might, there is another step in that story. The southern states fought back. This means that they were effectively in a state of war with the united states. If you read the amnesty Lincoln signed which MFitz kindly linked to you may note that it did not apply to everyone. Specifically officers in the army and diplomats or higherups in the confederacy were excempted from the amnesty. My point being that when the southern states finally enacted constitutions a good argument could be made that they were effectively re-applying for statehood.

It seems odd that they shoulc have to re-apply if they never left, but I think a good argument could be made that a state which declares and fights a war against the federal government might have to jump through a couple hoops before all of its rights are restored.

As to guarantees, I seem to recall something about states loosing representation in congress

Article I Section 5 says: "Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

So, if you accept that the confederate states were at war witht he federal government and therefore not entitled to representation in Congress, and then that a time expired between the end of the war and the reformation of the confederate states, then it may not be so weird to accept that Congress (without the formerly confederate representitves) had the power to exclude them.

IANAL, so I don't know if this argument stands up to legal scrutiny. But it seems reasonable to me.

pravnik
01-05-2004, 06:08 PM
The rationale concerning the apparent discrepancy goes as such: the States never seceded. The physical territory known as Texas was at all times during the Civil War a part of the United States. However, the government of the State of Texas need not necessarily be recognized as the legitimate government of the state, having just waged war against the United States and all. This meant that Texas was all along part of the United States, but had no state government until the United States recognized one. This made it (and the other former C.S.A. states) in effect a kind of U.S. territory under military occupation of the federal government.

So, want a recognized state government? Pass these constitutional amendments or remain under direct U.S. rule. The distiction between the state and the state's government may seem hairsplitting, but that's law for you. At any rate, it's all water under the bridge at this point. Ratification of the Constitution in all 13 colonies by the agreement of merely nine of them was arguably an act of revolution, but it's only of historical interest now. The courtroom argument that the 14th Amendment was not properly ratified will get you about as far as the gold fringe/naval flag argument.

Dewey Cheatem Undhow
01-05-2004, 07:37 PM
Ain't buying it, pravnik. Remaining "under direct U.S. rule" essentially means the southern states were transformed into federal territories, and Texas v. White clearly states that they remained capital-S States.

pravnik
01-05-2004, 08:29 PM
Respectfully disagree, DCU. Texas v. White went on at length differentiating the concept of the State with the government of the State.

"Constitution the term "state" most frequently expresses the combined idea just noticed of people, territory and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and States which compose it one people and one country."

The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties on tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind.

But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.

And there are Instances in which the principal sense of the words seems to be that primary one to which we have adverted, of a people or political community, as distinguished from a government.

In this latter sense the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.

In this clause a plain distinction is made between a State and the government of a State.

Having thus ascertained the senses in which, the word "state" is employed in the Constitution, we will proceed to consider the proper application of what has been said.

Chase went on to justify the State of Texas as a creature still extant depsite the lack of a legitimate government during the war, and the provisional nature of its govenment after it being contingent on the passing of the reconstruction amendments:

Our conclusion, therefore, is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National Government, but entirely In accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

But in order to the exercise, by a State, of the right to sue in this court, there needs to be a State Government, competent to represent the State in its relations with the National Government, so far at least as the institution and prosecution of a suit is concerned.

The new freemen necessarily became part of the people, and the people still constituted the State; for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And It was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.

There being, then, no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible; and before any such election could be properly held, it was necessary that the old Constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State.

In the exercise of the power conferred by the guaranty clause, as in the exercise of every oilier constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which Is either prohibited or unsanctioned by the Constitution.

The Legislature of Texas, at the time of the repeal, constituted one of the departments of a State Government, established in hostility to the Constitution of the United States. It cannot be regarded, therefore, in the courts of the United States, as a lawful Legislature, or its Acts as lawful Acts. And yet It is an historical fact that the Government of Texas, then in full control of the State, was Its only actual government; and certainly if Texas had been a separate State and not one of the United States, the new government, having displaced the regular authority, and having established itself in the customary seats of power and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government, and its acts, during the period of Its existence as such, would be effectual and, in almost all respects, valid. And, 10 some extent, this is true of the actual government of Texas, though unlawful and revolutionary as to the United States.

The point being that the court held that Texas, although still a State, had no legitimate govenrment during the war or Reconstruction, and the imposition of the Reconstruction amendments was a condition of Congress' recognition of that State's legitimate govenrment.

minty green
01-05-2004, 08:30 PM
Originally posted by Dewey Cheatem Undhow
You can't cite to Texas v. White (as you have in the past) to prove that secession was illegal and then turn around and ignore it on questions of amendment ratification.Sure I can. While secession itself was a nullity, the southern states voluntarily withdrew their representatives and senators from Congress. The result is that they could not avoid their obligations to the federal government and under federal law (see Texas v. White), but they relinquished their claim to participation in the federal government and the benefit of its protections (see the adoption of the 14th Amendment).

Indeed, that analysis (still a state, but you get no representatives) fits the available facts perfectly. The Southern reps were not counted in Congress, since they weren't allowed to be there. But the Southern states were counted towards the 3/4 majority needed for ratification of the amendment after it passed through Congress.

PatriotX
01-05-2004, 11:00 PM
MFitz,
The second try's a much mo better formatted OP, IMHO.

Mtgman
01-06-2004, 12:46 PM
Ok, I still don't get this. We've drawn a distinction between the states which are members of the US and their individual state governments(including, apparently, their representatives to the federal government). Now the governments did something which made them ineligible for participation in the federal government for a time. So how, exactly, did the states make decisions? And isn't it the very definition of democracy that you can't seperate the government from the goverened? The whole idea of a representative government is that the government IS the state. How can a state take action(ratifying a constitutional ammendment for instance) without a recognized government?

Enjoy,
Steven

MFitz
01-06-2004, 01:49 PM
That is essentially why I was intrigued when I stumbled across this issue. The Congress viewed the Southern Reps as legitimate when it suited them, and then called them illegitimate when it did not. It had nothing to do with the legality of the Representation itself. It had everything to do with Government's insatiable hunger for more power. It's the fulfilling of the anti-Federalists' warnings during and after the Constitutional Conventions, and just as significant today as it was then because not a year has passed since all of this that the Federal Government has not taken more power for itself unconstitutionally. In the meantime, both political parties are expanding the Federal Government's' size with the People's knowledge and blessings.

The events we're discussing constituted the largest power grab to date (and entire restructuring of our form of government). Many Americans have no clue what the Civil War was all about. Slavery was NOT the reason it was fought. (However it was a necessary addition to motivate the North and play the Foreign powers that could have influenced the outcome) Northerners, including Lincoln, and these Republicans in Congress, were clearly racists by today's standards. In fact, De Toqueville wrote (Democracy in America):
"Whoever has inhabited the United States must have perceived that in those parts of the Union in which the Negroes are no longer slaves they have in no wise drawn nearer to the whites. On the contrary, the prejudice of race appears to be stronger in the states that have abolished slavery than in those where it still exists; and nowhere is it so intolerant as in those states where servitude has never been known."

The discussions here are only the ongoing debate between the Federalists and the anti-Federalists; those who seek more power for the Federal Government, and those who seek less, but everyone should be aware, and concerned, when powers are taken, rather than granted.

MFitz

minty green
01-06-2004, 08:10 PM
Originally posted by Mtgman
We've drawn a distinction between the states which are members of the US and their individual state governments(including, apparently, their representatives to the federal government). Now the governments did something which made them ineligible for participation in the federal government for a time. So how, exactly, did the states make decisions?The state legislatures in the South were quickly reconvened after the Civil War, though they were engineered to be controlled by legislators supporting Reconstruction. (If you're ever in Austin, drop by the Capitol and check out the photos of the Reconstruction-era legislators--lots of dark-skinned faces in there.) So the Southen states did have recognized governments, even if they weren't allowed to send senators and representatives to the U.S. Congress.

Plus, don't forget the whole martial law thing. To a large extent, the Southern states were not permitted to make decisions.

And isn't it the very definition of democracy that you can't seperate the government from the goverened?Not to get too particular about it, but the states and the federal government aren't exactly democracies. We're a bunch of democratic republics. Indeed, the federal government is constitutionally tasked with ensuring all states have a republican form of government.

tomndebb
01-06-2004, 08:36 PM
Slavery was NOT the reason it was fought. (However it was a necessary addition to motivate the North and play the Foreign powers that could have influenced the outcome)Not really. The North was not that interested in the issue of slavery at the beginning of the war. The South declared its secession for the purpose of preserving (and expanding) slavery. It is true that emancipation was an instrument that Lincoln used to keep Britain from interfering more than a deep desire on the part of the North, but the South clearly revolted over slavery.

While the Civil War certainly resulted in a great consolidation of power in the Federal power, that was a result more easily seen in hindsight. I can recall no papers of Lincoln or any of his cabinet in which they declared "Let's see if we can taunt the South into seceding so that we can enhance Federal power."

minty green
01-06-2004, 11:06 PM
Originally posted by tomndebb
The North was not that interested in the issue of slavery at the beginning of the war. The South declared its secession for the purpose of preserving (and expanding) slavery.So the South seceded for slavery, and the North fought against secession?

What we have here is failure to communicate. Apparently.

MFitz
01-07-2004, 06:04 PM
Yes and No. The South suceded because of the Federal Government's infringement on State's rights, among which (and importantly) was slavery. Keep in mind though that something like only 15% of Southerners owned slaves.
Percentage of Slave Owners (http://ourworld.cs.com/mikegriffith1/lunsfordreview.htm)

It was not about slavery to most Southerners... but the winners right the history books so the full story is rarely told.

Did anyone find this post informative? Was it worth my doing it here?

Mfitz

Duck Duck Goose
01-07-2004, 06:39 PM
Sure.

Welcome to Great Debates. :D

minty green
01-07-2004, 07:23 PM
The only "state's right" they gave a rat's ass about was slavery. Perhaps if I invoke the name of MEBuckner, he'll drop by with his collection of authorities making it plain that "state's rights" meant basically nothing but slavery.

MFitz
01-08-2004, 07:57 AM
"The only "state's right" they gave a rat's ass about was slavery." - minty green

Minty Green,

Like all those who think the Civil War was only about slavery, you're absolutely wrong. Certainly we would have been a lot better off had slavery been abolished sometime between the Declaration of Independence and the ratification of the Constitution. But with this view, you're discounting (or not aware of) decades of important American history where issues of States' rights had already polarized the U.S. It's easy to allow the emotional appeal of the pro-slave -vs- anti-slave position to define the nature of the Civil War, but that position comes with the price of joining the Federalists, Progressives, Socialists (Democrats), etc. in justifying centralizing power in the Federal Government at the expense of State's Rights, which is the antithesis of our form of government.

Some important historical items:

The Federalist/Anti-Federalist debates about the nature of the Federal Government
http://www.constitution.org/afp.htm
(Don't forget that the Anti-federalists were responsible for the Bill of Rights)
http://www.pbs.org/ktca/liberty/chronicle/episode6.html

Andrew Jackson's campaign to veto the rechartering of the Second Bank of the United States:
"Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit." -Andrew Jackson Bank Veto Message, July 10, 1832
http://odur.let.rug.nl/~usa/P/aj7/writings/veto.htm

Cheif Justice Marshal's ruling of the Supreme Court to declare States' laws unconstitutional in
McCulloch v. Maryland http://odur.let.rug.nl/%7Eusa/D/1801-1825/marshallcases/mar05.htm
and
Dartmouth v. Woodward http://odur.let.rug.nl/%7Eusa/D/1801-1825/marshallcases/mar02.htm

Legislation by Ohio, Kentucky, Connecticut, New Hampshire, South Carolina, New York, Pennsylvania, etc. taking the Sate's Rights stance against the BUS and Marshal's ruling.
http://www.lewrockwell.com/dilorenzo/dilorenzo45.html

The Hayne-Webster Debate in 1830
http://www.constitution.org/hwdebate/hwdebate.htm#What%20Was%20It%20About?

The Formation of the second two-party system (Whigs and Democrats) in 1834 [B]
http://gi.grolier.com/presidents/ea/side/whig.html

[B]The Nullification Crisis
http://www.publicbookshelf.com/public_html/The_Great_Republic_By_the_Master_Historians_Vol_III/nullificat_bj.html

General Link re: State's Rights
http://www.unknowncivilwar.com/states%20rights.htm

Timeline of the period:
1. http://www.pinzler.com/ushistory/timeline4.html
2. http://www.curie.cps.k12.il.us/Web%20Based%20Instruction/US%20History/topicnotes/4-3.htm

MFitz

"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body- working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated."

---Thomas Jefferson

Captain Amazing
01-08-2004, 09:08 AM
Originally posted by MFitz
Keep in mind though that something like only 15% of Southerners owned slaves.
Percentage of Slave Owners (http://ourworld.cs.com/mikegriffith1/lunsfordreview.htm)

Right, but that 15% made up the majority of the economic and political power in the South. They had an influence beyond their raw numbers. And most of those people who didn't own slaves still supported slavery. It's true that a love of slavery wasn't the main motivator for most of the soldiers who fought, but it was the debates over slavery and especially the expansion of slavery that led to secession.

States rights really wasn't an issue after the 1830s. And, on the subject of states rights, even though the seceeding states gave them lip service, in practice, they were selective in their advocacy. The Dred Scott case was hailed throughout the South, even though that limited states rights, and a lot of Southerners were avid opponents of Stephen Douglas's "popular sovereignty" proposal, so much so that, when he won the nomination for President in 1860, Southern Democrats walked out of the convention and nominated someone else. So, I'd say that states rights was less of an issue than you, and a lot of Confederate apologists make it out to be.

MFitz
01-08-2004, 09:57 AM
"Right, but that 15% made up the majority of the economic and political power in the South. They had an influence beyond their raw numbers. And most of those people who didn't own slaves still supported slavery. It's true that a love of slavery wasn't the main motivator for most of the soldiers who fought, but it was the debates over slavery and especially the expansion of slavery that led to secession. -Captain Amazing

Absolutely. I objected to the claim that the South didn't care AT ALL about States' Rights and that the Civil War was ONLY about slavery.

"So, I'd say that states rights was less of an issue than you, and a lot of Confederate apologists make it out to be.

That's hysterical! Recognizing the issue that States' Rights played in the Civil War makes one a Confederate Apologist? Does recognizing infringement on States' Rights today make them a Radical, Right-Wing Fascist?

MFitz

"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body- working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated."

---Thomas Jefferson

Captain Amazing
01-08-2004, 04:30 PM
Originally posted by MFitz

Absolutely. I objected to the claim that the South didn't care AT ALL about States' Rights and that the Civil War was ONLY about slavery.

That's hysterical! Recognizing the issue that States' Rights played in the Civil War makes one a Confederate Apologist? Does recognizing infringement on States' Rights today make them a Radical, Right-Wing Fascist?


I don't think that by the time of the Civil War, the southern state governments did care about states' rights much more than state governments in the rest of the country. "States' Rights" was a Democratic Party rallying cry, to be sure, but by 1860, there was a general consensus on what the role of the national government in relation to the states should be. This consensus was challenged by the Civil War in both the USA and the CSA, and in both cases, the national government increased its power at the expense of state governments, but that was a result of the war.

If states' rights really were important to the Confederacy, you'd expect the Confederate Constitution to reflect that, either by limiting national power or increasing state power, but, other than in three specific issues (guaranteeing the existance of slavery, banning federal funds for domestic improvements, and restricting the President to a single, 6 year term), you don't see that the Confederate Constitution is different than the US Constitution.

And, really, only the domestic improvements clause is a states rights' issue. The single term presidency is a general reform to make sure the president doesn't do things just to win reelection, and the slavery guarantee, while it prevents the national government from outlawing slavery, prevents state governments from outlawing slavery also.

So, I would argue that, no, states' rights and the fear of a too large national government were not factors in the secession. Fear of a hostle, anti-slavery, non-southern controlled national government was, but that's hardly the same thing. States's rights were used as a slogan, but I don't see any real evidence that that was anything more than Confederate propaganda. You're welcome to disagree, of course, but I'd like to see your evidence.

And I didn't say you were a confederate apologist. I don't know, nor do I care, if you are. I just noted that Confederate apologists tend to make a similar argument as yours: that the issue of states' rights was a very important factor behind secession, and that the issue of slavery was an unimportant factor.

MFitz
01-08-2004, 08:51 PM
I understand where you're coming from now. I've also known folks who say that slavery had nothing to do with it. There is also evidence that the CSA respected individual liberties less than in the North (the draft, Andersonville, etc.) I think our differences in this regard is relatively small: only disagreeing on a few percentage points of how significant States' Rights were in the cause of the Civil War. The truth is, I live in the NE and both of my great grandfathers fought for the North. That having been said, the attention I give/gave to the States' rights issues has more to do with the fact that most people in the US at that time, both Northern and Southern would be appalled by the powers the Federal Government has since taken for itself. That is the source of my passion.

MFitz

"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body- working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated."

---Thomas Jefferson

minty green
01-08-2004, 09:11 PM
That the North and South had different points of contention in the first half of the 19th century has little or no bearing on the overwhelming point of contention in 1861.

Sofa King
01-09-2004, 01:13 PM
I'm not certain about this, but I think that the link in the OP is incorrect about the unconstitutional nature of the Congress which approved the amendment to start with. The link implies that Congress was unconstitutional because they refused to seat the Members from the southern states.

The assertion seems to me to be based upon a 1969 case, Powell v. McCormack (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/powellvmc.html). In that case the Supreme Court decided that Congress could only declare a potential Member "unqualified" if he or she failed to meet the basic membership requirements laid out in the Constitution itself.

Refusal to seat a Member is possible thanks to Article 1, Section 5, clause 1.:

Clause 1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Clause 2 in turn points out that it takes a 2/3 majority to expel a Member once seated.

Here's where my knowledge of the subject completely cracks up. Maybe you folks can help me out.

1) Sometimes Congress appeared to prefer refusal to seat over expulsion. For example, in 1919, Congress overwhelmingly declared socialist Representative and antiwar activist Victor Berger (http://us.history.wisc.edu/hist102/bios/html/berger8.html)'s seat "vacant." In other words, they refused to seat him after they had seated him, rather than simply expel him (there was only one vote in his favor). Why vacate his seat rather than throw his ass out? (See also Theodore Bilbo, a virulent "send 'em back to Africa" Senator from Missippi who was refused a seat in 1947.)

2) Congress has still refused to seat Members in the wake of Powell v. McCormack. Probably the most recent and notorious example is Richard McIntyre in 1985, which many claim was the inciting incident which eventually led to the Republican usurpation of the House of Representatives under the leadership of Newt Gingrich. As I understand it, McIntyre's election, though really too close to call, was certified by Indiana. So how did Congress get away with refusing to seat him in the wake of Powell?

3) None of this matters for jack, right? I'm sure there's some fun little latin phrase which translates to something like, "sorry, but that's water under the bridge, and our current judgment cannot annul past actions."

That third point, as I very poorly describe it, seems to be the the one that trips up the loons every time they want to declare Texas its own country, or not pay income taxes, or whatever. Anyway, thanks in advance for your help if you can point me in the direction of a firmer answer to my questions above.

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