Gosh, how did we ever get the idea that Northerners are arrogant? :rolleyes:
-
I think people are trying to say the South didn’t commit treason because the civil war wasn’t technically a war. A war has to be between two soveriegn groups, after winning the north declared that the south had never been sovereign, thus there was no war. I think you would also be hard pressed to make an arguement that the southern states were an “enemy” of the north. It’s kinda hard to be your own enemy, and as the South was still part of the US anyone fighting the North OR the South could be viewed as enemies of the country…
-
SoxFan, the ninth amendment and any implied powers are irrelevent under a 10th amendment claim that secession is constitutional. “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.” Implied powers are NOT delegated.
-
Oh, I’d also like to point out that the 10th amendment reserves the power to interperet the constitution for the states themselves, thus whatever the Supreme Court says on the issue is irrelevent.
-
I can’t see how the 10th amendment could possibly be interpereted to hinder secession. Take the relevent power (secession) and plug it it “The powers [to remove a state from the union, which is] not delegated to the United States by the Constitution, nor [are they] prohibited by it to the States, [therefor the powers to remove a state from union] are reserved to the States respectively, or to the people.”
Kerinsky
[bold] to Lonesome Polecat [/bold]
I apologize for my cheekiness. You have explained yourself and your position quite well in the other Civil War/Slavery thread in this forum. I think we probably would agree on many of the facts associated with the controversies that surround the Civil War. It appears, however, that our sympathies lie on different sides of the Mason-Dixon line.
This is not meant to incite anger or flaming responses; but why do southern folks still view the Confederacy still viewed in a positive light today? The political and socio-economic principles that the south supported seem patently wrong to me, or (if you subtract the issues of slavery and the destruction of the Union) at best, they were outdated, and the southern leaders were short sighted in precipitating a war to defend them. Or is it just the warm memory of remembering noble men who fought to defend their “homeland?”
And if someone responds to this question, I’d appreciate a focus on why the South was right, and not why the North was wrong. I can appreciate the fact that the Union politicians were often less than exemplary, and that social conditions in the north were often quite inequitable. I would, however, appreciate a defense for the Confederacy that explains to me (a person who had he been alive in 1861, would have been a staunch “Union man,” and may have volunteered to fight in the Union army) why what the Southern states did was the “right thing to do.”
[bold] to 2sense & spoke [/bold]
I’d be happy to debate this concept further, but realize that I have some predispositions in this argument born of my profession (I’m an attorney by trade). It is accepted by just about everyone under the jurisdiction of our government today that the Courts (and in particular, the Supreme Court)have the final say in interpreting the Constitution. As such, I tend to be partial to what the U.S. Supremes have to say about the particulars of the 9th and the 10th amendment. In a nutshell, the 10th Amendment has been interpreted into a nullity. The Court has tacitly taken the approach that all power belongs to the federal government, unless there is an express reseration of such power in the Constitution or a statute. The last time the Court used the 10th amendment to invalidate the feds’ intrusion on what had been determined in the past to be exclusively state authority, the Court reversed itself just a few years later.
Another reason for this is the 14th amendment, which has been broadly interpreted. The original Bill of Rights was designed to limit FEDERAL power, that is, they did not apply to state governments. That is why, for decades after the ratification of the constitution, many individual states still recognized official “state churches,” depsite the limits of the first amendment. On a case by case basis, the court has applied the limitations of the bill of rights, originally only meant for the Federal Government, to also apply to the states. This often wasn’t accomplished until the middle of the 20th century. Some of us would find it hard to imagine, but in or parents’ or grandparents’ generation, the concept of seperation of church and state was not clear (school-sponsored public school prayer was not banned by the Supremes until 1962), the search and siezure/Miranda rights issues were not settled until the mid 60s (applying the protections of the 4th and 5th amendments). 6th amendment rights regarding self-incriminaton and the right to counsel were also not settled until this time, as well as the excessive bail/cruel and unusual punishment guarantees of the 8th amendment. (Interestingly, the Court has refused to apply the 2nd amendment (right to bear arms), grand jury clause of the 5th amendment, and the seventh amendment (jury in civil cases) to the states. There has never been a case yet regarding the issue of quartering soldiers under the 3rd).
Thus, the mindset of the Court in light of the 14th amendment is that the protection of the federal law and its extension to every citizen is paramount. Combine this with the sentiments of the “perpetual union” which are ingrained today in so much of our jurisprudence (mostly because of the lessons we learned in the Civil War), and I can’t ever see the Court recognizing that secession could ever be permissible in any form.
If you look at a more modern day argument, we see the same result.
Abortion is a real hot-button issue today, much in the same way that slavery was in the 1850s. Indeed, I can’t think of a more devisive political issue in our history except for slavery.
In 1965, the U.S. Supreme Court recognized a federally protected “right to privacy” under the 14th amendment. This was in the Griswold case I cited in my last post, a case where the state of Connecticut had banned the sale of contraceptives to married persons. In striking down what one dissenting justice called “a very silly law,” the court determined that the states could not interfere with decisions made regarding reproduction and family life. While that decision itself only dealt with the right for married guys to buy condoms, the language of the decision was sweeping, creating a new privacy right where none had existed before.
And, as the dissent in that case pointed out, this right is found nowhere in the language of the Constitution. Justice Douglass came up with the novel argument that such rights are implied in the “penumbra,” or shadow of the 14th amendment, and in the “penumbras” of the protections from govenrmental overreaching regarding searches and siezures and arrests in the 4th and 5th amendments.
Even the most ardent supporter of this decision, if intellectual honest, has to call it a logical stretch, if the basis of this right is the language of the Constitution.
The logic for this case was broadened in 1972 to apply to abortion rights in Roe v. Wade.
I give this example simply to say, that to cite to the language of the Constitution alone ain’t always enough. I know the Constitution says nothing about secession, and the plain language of the 9th, 10th, and heck, even the 11th amendment would indicate that the question of secession was never meant to be covered by the Bill of rights, therefore, its at least an open question. But, you can make the same argument about abortion and the “right to privacy.” There is no basis for it in the plain language of the Constitution. Yet, it is the law of the land, and pretty much exclusively by judicial fiat. Any argument to prove that secession could be legal would inevitably fail in the same way that arguing that the right to an abortion is not constitutionally protected will inevitably fail.
Bingo. Most Southerners who glorify the Civil War focus on battlefield valor.
Furthermore, while it is certainly true that the slavery issue was the proximate cause of the war, it is not accurate to say that the average Confederate soldier was fighting to defend slavery. Only a very small percentage of Southerners owned slaves. The average foot soldier, if asked why he was fighting, would have told you that he was fighting to defend his country from an invasion.
Many Southerners today take pride that their ancestors fought honorably to defend their native soil. If you examine the issue closely, though, you see that poor southern soldiers were being used as tools of the wealthy slaveholders. Should we hate those soldiers for that? Or should we be allowed to honor them for their valor?
Slavery was doomed, Civil War or not. It would have died out before the Civil War, if the cotton gin had not come along and made it (at least temporarily) profitable again. (Thanks Eli Whitney.:rolleyes:) My view is that slavery would have been eliminated gradually with the coming of automation, and would have probably been extinct by the 1880’s or 1890’s at the latest.
The anti-slavery movement in New England was counter-productive, in my view, because its very stridency provoked Southerners into hardening their position on the matter. Calling someone “evil” is not the best way to get them to do what you want them to do, but abolitionists never minced words. Their moral outrage is understandable, and justified, but you have to take a more moderate approach to win over your ideological enemies. If there had been some calm discussion of a gradual end to slavery (as was carried out later in Brazil), the whole matter might have been settled peacefully.
The stridency of the abolitionists caused a defensive response in Southerners. (A pattern which was repeated in the Civil Rights era, and again with the flap over the Confederate battle flag. White Southerners have always had a hard time with “outsiders” telling them what to do.)
As to the question of whether the secession was lawful, I think there was a strong legal argument to be made at the time of the war that it was. SoxFan59, you are using the 14th Amendment to argue that secession was not lawful, but that amendment was not passed until after the War.
Nor does the 9th Amendment support your argument. The 9th Amendment was included in the Constitution to overcome opposition to the Bill of Rights. Some argued that it was a mistake to try to list all rights, because some “natural” rights might inadvertently be left of the list. Therefore, a ninth amendment was added which essentially said that the rights listed in the Bill of Rights are not exhaustive. As an example of how this works, most folks would agree that they have a right to privacy. Yet, no such right is explicitly listed in the Bill of Rights. As you know, the Supreme Court held in Griswold v. Connecticut that a right to privacy does exist, despite not being expressly mentioned. They did so by citing the 9th Amendment. http://caselaw.findlaw.com/data/constitution/amendment09/
The 9th Amendment is concerned with rights. In my view, you cannot use it to argue that there is an implicit understanding in the Constitution that the Union was indissoluble, because that issue has nothing to do with the rights with which the 9th Amendment is concerned.
As to the morality of slave labor in the South as compared to the “wage slaves” of the North: Without defending slavery (which is not possible) I will say that slave owners had some incentive to treat their slaves decently, which northern factory owners lacked with regard to their workers. If you put a hired worker in a dangerous situation and he is killed or maimed, you can always hire a relacement, at no additional expense to you. On the other hand, if a slave owner puts a slave in a position to be killed or maimed, he has to purchase a replacement-- a very expensive proposition. For the same reason, it would have also been in the best interest of the slave owner to try to keep his slaves reasonably happy. A runaway slave is a huge financial loss, after all. Again, I am not defending slavery, but I’m not sure the factory workers in the North had significantly better lives.
Spoke said:
“As to the question of whether the secession was lawful, I think there was a strong legal argument to be made at the time of the war that it was. SoxFan59, you are using the 14th Amendment to argue that secession was not lawful, but that amendment was not passed until after the War.”
I admit that my view of federal vs. state jurisprudence is colored by the case law that interpretes the 14th amendment. But you must admit that the OP focused on modern efforts of this new “Southern party” to secede from the Union all over again. Several early posters suggested that the question of the legality of secession has never been addressed by the courts. I pointed out that the U.S. supremes repeatedly found the Confederacy “void ab initio” in the 1860s and 1870s in a series of cases dealing with left over Confederate bond and contract issues, and based this argument on the “perpetual union” principle.
Now you and 2sense and others raise what would have been great legal arguments in support of secession in 1854, or even 1868. But even if you consider the 9th and 10th amendment issues in light of the time period, the argument you make to me about the 14th amendment is true of the other amendments, that is, the court had not yet considered the ramifications of this language until much later (e.g. mid to late 20th century). Your version of the Griswold style analysis is emminently logical. My guess is, though, had the 9th or 10th amendment been raised to the court in Texas v. White, the Court would have used an analysis similar to my arguments to hold that secession was not constiutionally viable. Why? To preserve the “perpetual union.” The argument becomes circular, and the logic result-oriented. But unless the right or issue is expressly spelled out in the Constitution, that appear (to me anyway) to be how the court invariably behaves.
i would also argue that secession is indeed a question of rights. The right to privacy is essentially the right to be “left alone.” Secession, in whatever form, is the ultimate expression of one’s rights to be “left alone,” by withdrawing from the system. i suppose that if the bare language of the 9th amendment was considered in light of a right like privacy, then the conclusion of the court should be the same - - secession should be a protected right. But all of constitutional guarantees must be read together, which ultimate returns me to the protections of the 14th amendment, or, if you like, the first amendment, or the 4th and 5th. To withdraw from the Union would deprive citizens of those protections. It would ultimately have to have been unconstitutional.
Also remember that Griswold was decided in light of the 14th amendment as well. I admit, the 9th amendment analysis I used earlier to support an argument that secession was illegal would have recognized the force and effect of the 14th amendment. To argue with me that I shouldn’t throw the 14th amendment in the mix really means the 9th amendment can’t be used to support the argument that secession is illegal. That’s because the bill of rights, as understood prior to the 14th amendment, applied only to the Federal government.
The issue of the 10th amendment (which is probably the best argument on a purely express language basis) was never argued prior to the passage of the 14th amendment. But, by hanging thier hat on the “perpetual union” argument, the Supremes settled the issue. So, until Marbury v. Madison is overturned, or the Constitution is amended to allow for secession, the matter is effectively settled.
I had said:
quote:
Or is it just the warm memory of remembering noble men who fought to defend their “homeland?”
Spoke replied:
“Bingo. Most Southerners who glorify the Civil War focus on battlefield valor.”
I don’t have a big problem with that. In fact, I would tend to encourage it.
But in my visits to southern communities, it appears that often this is all they celebrate, that is, the valor of Civil War soldiers. Well, at least in the war memorial statues and plaques. The war memorial in my home town honors those who served from our community in every war, from the Mexican War to the Gulf War. Where there are specific “Civl War” memorials in northern towns, there are often accompanying memorials regarding other wars. But, e.g., the war memorial in downtown Franklin TN, is a salute to the Confederate soldier. Its pretty elaborate. What about honoring the memory of the the veterans who gave thier lives in the wars fought since then, as a part of the “Union?”
This is my personal observation, but it seems that a lot of the rememberance of fallen comrades is used as an opportunity to glorify the negative aspects of the war.
I have to disagree with you on that one. Look at the casualty figures from the war. No other American war even comes close to the amount of devastation caused by the Civil War. Many communities lost virtually an entire generation of men. Small wonder that they saw fit to memorialize that loss. Most of the memorials you see date to the latter part of the 19th century, or the early part of the 20th, and have nothing to do with glorifying racism or slavery, but are rather intended to honor the slain.
Granted, the symbols of the Confederacy have in many cases been coopted by racist idiots. Californians seem to associate them strongly with skinheads. I can only assume that California skinheads are using the Confederate flag in their “cause”. Ironically, you don’t see that in the South as much as you do in other parts of the country. Here, most people who fly the flag do so out of a genuine regard for Confederate soldiers, and as an emblem of Southern culture, and not to imply racism or to glorify slavery. On the other hand, I understand that the intentions of the flag-wavers do not match the perceptions of others.
I also recognize that Confederate flags went up over state houses as a protest against integration. Those flags should come down.
I’ll stop hijacking the thread now. Sorry about that.