The 13th Amendment is part of the Constitution and duly ratified because everybody agrees that it is. Just like the Constitution coming into effect after 9 states ratified it. Courts look upon these matters as political questions. These aren’t legal questions.
The rest of the above argument doesn’t make a lot of sense.
A “state” could in fact have slavery? A state in what country? The non-existent United States? Which is governed by a non-existent Constitution which would be invalid if it existed?
Why not just conceive ofthe post-1865 country as a different country than the pre-1860 country, and it’s just a coincidence that they have the same name and the same Constitution (body and first 12 amendments)? So, whatever the validity of the old United States of America, the brand-new USA was founded December 1865 as a slave-free zone with a brand-new but similar-looking Constitution. I don’t conceive of things this way, but you can. Otherwise I don’t see any way to deal with conflicting claims that the United States doesn’t exist but that it was morally imperative to nullify it.
Why “by any means”? The means Booth chose to stop Lincoln did not succeed in doing anything other than widowmaking and giving more firepower to the radical Reconstructionists. The 13th Amendment still became part of (most people’s concept of) the Constitution. Booth didn’t even believe he was defending the U.S. Constitution; he (and the radical Republicans at the opposite end of the political spectrum) believed that the secessions were legal and the South was a conquered foreign power. The President has no obligation to allow foreign countries the right to vote.
Hi BobT,
This is the United States of America. Any question can be a legal question. The view that inconsistancies are inapplicable is a justification. Of course the Supreme Court is not going to rule that secession is legal, no matter what the laws might state.
The Constitution was unconstitutional. That does not mean that it is not valid. People accept it so it is valid. If enough people change their minds then it will stop being valid. We decide, not the law.
Lonesome Polecat:
Your example is from the end of the war. Do you think that Southern leaders felt the same way before it began?
MysterEcks:
You have not addressed the Crittenden Compromise. Lincoln was not willing to preserve the Union at the cost of perpetual slavery.
As a native Marylander, I have some input to offer on the subject of Maryland in the Civil War. While it is true that Maryland was a “border state”, it was mostly on the side of the South. However, it was too valuable to the North for it to succeed (only protection D.C. has from Virginia). Therefore, if you go up to Federal Hill in downdown baltimore, you can still see tha cannons pointed at the cuty. The idea was, “go ahead, join the Confederacy, we’ll blow your only real city sky-high”.
Moreover, I believe the mayor of Baltimore along with other prominent officials were jailed in Fort McHenry without benefit of trial or being charged.
This is not to say that there were not parts of Maryland that were Northern supporters–Lee had the misfortune to march into one of these areas on his was to Antietam (used to live in Sharpsburg, 5 minute walk from the battlefield–nice place, if you ignore the fact that so many people died there…great for flying kites).
However, the majority of Maryland did support the South.
The constitution coming into effect after 9 states ratify is actually written into the constitution, their is no provision in the constitution that “everybody agreeing” to something makes due process of law. Their are only four valid ways for an amendment to be made to the constitution, none of these were followed so the constitution was not duly ratified.
Furthermore our political system is defined by our laws so not “political” question can be disengaged from law. Courts also have no jurisdiction over “political” issues, they are bound to uphold the law. The constitution says that there are only four ways to amend the constitution, none of these methods were employed properly so the thirteenth amendment cannot be part of the constitution, according to the constitution. I cannot fathom that you seem to hold it as a valid legal principle that because everyone thinks the constitution says something then legaly that is what it says.
I doubt either of us will be able to convince the other, we seem to hold entirely different views of the world.
The adoption of the Constitution and the addition of amendments is definitely not a “legal” issue. You can’t go to court and argue that the Constitution was not duly ratified or some Amendment was not properly ratified. The judge (at least a Federal judge) will reject the case as something not subject to judicial review.
You can argue in the court of public opinion that the Constitution was not legally adopted or that the 13th Amendment was illegally ratified. However, you probably won’t get anywhere.
In the 1939 case of Coleman v. Miller, the Supreme Court ruled that challenges to any state’s ratification or rejection were “nonjusticiable”.
That was the point I was trying to make.
The Constitution works because everybody buys into the idea. During the Civil War, not everybody did. The results of the Civil War settled that problem.
It would be easier for us to address your reservations about the 13th Amendment if you’d be more detailed about how it was improperly ratified. The powers that ran the United States in 1865 treated the South as a conquered foreign power, in defiance of your view that the South were just ordinary states, so the 13th Amendment is invalid? Am I reading you right?
Ok, thanks for pointing that out. I guess I’m argueing two different things at different points. On one hand I take the position that once the constitution is broken (at least broken extremely) that the constitution has been thrown out the window and you have to write a new one.
On the other hand you have political reality where the constitution was shredded and thrown out the window, but we all pretend it wasn’t. My arguement that slavery could be legal rests on this, which as you point out is invalid. In “happyland” where we all pretend the constitution was never broken, you can’t use the fact that it was broken to show slavery as legal.
Ok, so I still hold we should write a new constitution (heck, I would argue for that even if we hadn’t had a civil war) but I’ll stop trying to be absurd and argue that slavery is legal.
I could only think of the post-1865 country as a new country with the same constitution if it had been re-radified by the states, but this isn’t the case.
As for the conflicting claim, I don’t see how it is… It can’t be morally imperitive to nullify the constitution untill it is possible to nullify it (ie it has been radified) thus from a moral standpoint the constitution was invalid from the begining. From a legal standpoint I would say it was valid until the supreme court decided to give itself jurisdiction over the constitution, and from a practical standpoint I would say it was valid until the civil war.
You seem to be argueing that the means are only justified by the ends. I think it’s irrelevent that Booth didn’t succeed in stopping the north from deneing the southern states the right to vote. A police officer is moraly justified in taking the life of someone to stop that person from murdering someone else. If a police officer shoots and morally wounds someone, who still succesfully commits the murder and dies does that change the fact the the police officer was justified to shoot? I think not.
As for the President having no obligation to allow foreign countries the right to vote. Lincoln claimed that the constitution did not allow secession therefore the states never seceded, thus they were always states and never a foreign country. As he refused to acknowledge their claims that they were a foreign country, he was breaking the constitution. If you try to hold that what Lincoln did didn’t break the constitution then you have to acknowledge a state’s right to secede, but if you do that then Licoln DID break the constitution.
I’m still thinking about Booth not being an “American Citizen”, and I’m coming up with some really weird arguements, but it’s 2:30 here and I need to eat, so maybe I’ll post something more this afternoon…
Anyway I always have fun debating these ridiculous topics, mainly for the fact that they are ridiculous, but also because they often lead to musings on what the “essence” of a country or law is. Anyway, thanks for the good post and I’ll be waiting for your response…
Kerinsky
The courts can say whatever they want, in the end when a question about the 13th amendment comes up the Supreme Courts does in fact make a descision about it’s validity. While you do bring up valid pragmatic points that the system basics works because it works, I can’t accept this due to some personal compulsion. Basicly it boils down to this, if the system works because everyone buys into it, then why don’t we put that in the constitution as a source of legal authority? And was is “it” about the constitution that people buy into?
That’s really what I try to get at when I debate this with people, I use this approach because very few people will respond if you simply say “what do you think the essence of governemnt is?” Perhaps I’m phrasing the question incorrectly.
Lincoln and the federal government held that states could not secede, thus they were part of the country and under the constitution’s jurisdiction during the entire war. After the war the southern states were denied their rights as states by the north, and forced to “vote” yes for the 13th amendment. Of course as you point out I can’t really argue that slavery is legal under the constitution because the 13th amendment was never passed…
Perhaps we are having a semantic problem?
I am using “legal” to mean “related to the law”. In 1789 the law of the land was the Articles of Confederation. The adoption of the Constitution violated this law. By my definition this issue must be related to the law.
Also, I am acutely aware of the problems associated with arguing against the Constitution in the court of public opinion.
2sense said (to me):
Are you the West Coast representative for the Crittenden Compromise? You seem to be very enthralled with it.
As it happens, I did so address the Crittenden Compromise the last time you brought it up, by saying:
I also note that Lincoln did not offer to be ritually disembowelled in the middle of Charleston, either, though that too might have made secessionists feel better.
Apparently we have to discuss the Crittenden Compromise, since you’re so hung up on it as proof of some sort. This was the name given a “compromise” suggested by Senator John J. Crittenden of Kentucky, who served on the Senate version of the so-called “Committee of Thirteen” which was sifting through assorted proposals. The measure would have done the following:
[ul]
[li]Permanently set lattitude 36¡ 30’ (the old Missouri Compromise line) as the line between slave and free territory. Slavery was permanently forbidden north of the line, and permanently protected south of the line, in all territories “now held, or hereafter acquired.” (That last part meant that if the US were to, say, take Mexico, the territories which resulted would be slave territories.)[/li]
[li]Forbidden Congress from banning slavery on federal property within slave states.[/li]
[li]Forbidden the abolition of slavery in the District of Columbia–a federal enclave not part of any state–unless it was approved by the inhabitants andslavery had already been abolished by both Maryland and Virginia.[/li]
[li]Prohibitted federal interference with the interstate slave trade.[/li]
[li]Compensated slaveowners who were prevented from recovering escaped slaves from free states.[/li]
[li]Accomplished all of the above by a series of constitutional amendments which were themselves permanently unamendable. (The only such unamendable part of the Constitution is found in the last sentence of Article V: “[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”)[/li][/ul]
(From James M. McPherson, Battle Cry Of Freedom–The Civil War Era Copyright © 1988 Oxford Unversity Press. All rights reserved. Ballantine Books softcover, 10th edition (Ballantine/Random House, New York.))
This is a “compromise” in about the same sense holding a gun to someone’s head and demanding money is a “negotiation”–it’s all one-sided. It would have been what amounted to a complete cave by the Republicans, who were getting ready to assume power, to accept such a “compromise.”
Besides which, as McPherson points out, no “compromise” was going to stop secession in the lower South by that point anyway. One secessionist wrote: “We spit upon every plan to compromise.” Jefferson Davis said: "No human power can save the Union, all the cotton states will go. (McPherson, 254.) As McPherson puts it:
(McPherson, 254.) Looks something like what I’ve been saying, doesn’t it?
So the Crittenden Compromise would have (A) given absolutely nothing to the Republicans; (B) guaranteed that the expansion of slavery into territories south of 36¡ 30’ could not be halted, contrary to Republican doctrine; © virtually guaranteed future political turmoil; (D) would have taken time to implement as constitutional amendments, with no guarantee that three-fourths of the states would ratify them; and, finally, (E) would not have worked to keep the lower South from seceeding anyway. It was like a ransom note which only promised to considerreleasing the hostage alive if the money was paid. In effect, it was nothing.
All of which is to say that, above and beyond Lincoln’s distaste for protecting the spread of slavery, which has never been in question, there were very solid politicalreasons for him to reject the Crittenden Compromise.
I’m not going to get into the prevailing weirdness about whether the 13th Amendment–or the US Constitution as a whole–really exists or not until I either have more energy or a higher blood-alcohol content.
[QUOTE]
*Originally posted by MysterEcks *
**For the most part I’m gonna let everything go–my views on this matter are in my previous posts, and I haven’t changed my mind–but there are a few points I want to reply to.
SoxFan59
I apologize for making sweeping generalizations about Confederate Constitutuional law. The reality of political life in the Confederacy was the fact that it had a stronger central/federal government than the Union. Jefferson Davis’ administration administered sweeping, crushing federal taxes (10 percent at the time), the nationalization of the railroads and other industry, and the first selective service (military draft) in American history. When individual state leaders (most notably, the govenrment of North Carolina) objected to these matters, they were threatened with military occupation, imprisoned without the benefit of trial, and indicted for treason. The South would not permit one of its members to secede.
While you could argue that these measures were necessary considering the course of the war, and that the Union also implemented such measures within months of the confederates, my point is, if “States rights” and “nullification” was so important to the Confederate cause, how is this justified? Particuarly when there were exceptions built into the tax and conscription laws for the owners of SLAVES! The heart of the matter always comes back to the issue of slavery.
This is an apples-oranges comparison. The revolution was fought to protest a system that opressed the colonies without giving them a voice in representative government. The southern states in 1860, on the other hand, held all the politcal cards, and had more than adequate representation and constitutional protection. Its an oversimplifcation to say the colonists were right in the underlying principles of the revolution and the Confederates were wrong in the underlying principles of th civil war. But the two are not a fair comparison. In the revolution, the colonists fought for thier right of self determination and self government. In 1860, prior to secession, the southern states already had that in a cooperative union with all the other states. My point is that the only thing that the south was really concerned about, the only right of self-determination and “state’s right” if feared for, was the right to own slaves. Thus it is the foundational issue of the war. IMHO, it was an ill-fated and unwise basis to commit treason, and “what the south did with it” was a grave mistake.
[HIJACK]
I can’t belive people seriously belive this. The colonies did NOT want representation in the British government, they would have had to be stupid to want this. I’m certain that Benjamin Franklin (or anyone else in colonial gov’t) never asked the British for seats in their congress. Think about it, what would this have accomplished? The colonial representatives would have had absolutely no power, and it would have taken thunder out of our sails. I, for one, am glad the the British were to stupid to ever offer it. My Dad claims to have a reference of someone (I believe Jefferson) specifically ordering diplomats NOT to ask for representation, I’ll e-mail him to see if I can get a reference, until then don’t believe me 
Kerinsky
Perhaps my effort to express myself was no articulate. Its not that the colonists wanted representation in British government, but autonomy, and the freedom from the British from imposing thier long-distance government control over the colonies, with the colonists having no ability to object. The argument as presented by our forefathers was they needed represenation, or they wanted freedom. As you say, freedom was the better option.
I think our differences are just semantic as in nearly every other aspect of this thread we are in accordance.
Since it is the framework for our government, everybody has to agree to it. If the Supreme Court were to declare the Constitution null and void, it would also be declaring itself not to exist and all of its decisions and precedents would be null and void, in my opinion.
The Supreme Court, in theory, isn’t powerful enough to void the entire Constitution.
That’s all I was arguing.
MysterEcks:
You are a bad man! You need to be stopped before you can pull your devious little tricks again. Alternating hilarious jabs with cogent arguments is a devastating technique. Every time I cleaned my screen, I would be sucked in by your arguments and forget your wit. Only to be suckered again. LOL - several times. I thank you for the excellent answer. You raised points which I had not considered.
Please feel no need to address the Constitution for my benefit; Drunk or no, I accept its validity. I will quibble with your assertion that the Senate clause in Article 5 is unamendable. It can be changed only if the states unanimously agree to do so.
BobT:
I see that we are in agreement after all.
SoxFan59 said:
I wouldn’t agree that the Confederacy had a stronger central government than the Union–at least after Lincoln got done fiddling with it–but I see where you’re going. I think the answer is that the Confederacy could not possibly fight the war while still maintaining its priciples, so as usually happens in that case the principles got thrown out the window. As with many events on both sides, expediency won.
As far as I know, this is incorrect–where do you get this? Zebulon Vance, the Governor of North Carolina after 1862, did fight with Jefferson Davis on the matter of state versus central power, but he was never threatened or imprisoned. Indeed, Davis neededVance in the election of 1864–the opposition candidate, William Holden, favored North Carolina’s negotiating with the Union.
Nor, as far as I know, was Joseph Brown, the Governor of Georgia who detested Davis, ever arrested–not even after he created thousands of positions exempt from the draft laws, mainly to be difficult. Nor was Alexander Stephens, the Vice President of the Confederacy, who hated Davis so much that he left Richmond to go back to Georgia. Nor was secessionist Robert Toombs, who called Davis a “false and hypocritical…wretch” with “neither the ability nor the honesty to manage the revolution.”
(From McPherson, cited above, 692-698.)
I seem to recall that there were a number of newspapers in the Union which were shut down by the government during the war for having contrary editorial policies, while there were no newspapers shut down in the Confederacy for this reason. This is just from memory–I’ll have to see if I can find it.
There was a large slave-owner influence in the Confederacy–they were the richest part of society. Like everybody else, they got away with what they could…and favoring war didn’t mean theywanted to go of and get killed in it.
No, it’s not–the Revolution was indeed treason, albeit treason we approve of (as opposed to secession from our country, which we do notapprove of). I would define the Revolution in largely the same terms I do the Civil War–a power struggle, with all sorts of elements included under that basic umbrella. We like the results of both conflicts–the success of secession from the British Empire on the one hand and the failure of secession from the United States on the other–but that doesn’t change the similarities.
2sense said
You’re not gonna hit me with a rolled-up newspaper, are you? I hate when that happens.
It is unamendable in the usual manner–the only part of the Constitution which cannot be changed by an amendment approved by 3/4 of the states.
In theory, a state could surender a Senate seat all by itself. (I have no idea why a state would surrender a Senate seat, but I suppose anything’s possible.) You are correct in the case of a state being given additional Senate seats. If California, for instance, argued that it should receive more than two seats because of its large population, then all 49 other states would have to agree before it could happen. (That’s not likely either–the other states would have no incentive to go along. Unless maybe California threatened to secede…which, if nothing else, would be interesting material for threads in Great Debates.)
Ok…then we’ll call you the regional distributor of the Crittenden Compromise for Allegheny, Westmoreland, and Washington counties.
[QUOTE]
*Originally posted by MysterEcks *
**Soxfan59 said **
I’m struggling to locate these events in my reference materials, but I do know that Vance attempted to precipitate what amounted to North Carolina’s re-secession when Vance tried to claim that North Carolina had already sent enough men and materials to support the war effort. I was pretty sure that Davis and the Confederate central government threatened military action against North Carolina. I also thought this included accusations of treason and threats of imprisonment. I also am going from memory, so I could be wrong.
I also could be confusing myself with the Unions actions against the governer of Maryland, who I believe was imprisoned as a confederate sympathizer during the war. doesn’t support my end of the argument, I suppose, but my mind is foggy today.
Then I said:
MysterEcks replied:
Well, then I suppose we must agree to disagree. You are correct, in using much broader terms than I would, that both conflicts involved a “power struggle,” and both involved treason. But the subject matter, the heart of the “power struggle” in the Civil War was qualitatively different from the Revolution. I still believe the revolution was justified from the standpoint that the colonists had no choice, in that they had no political power to influence their destiny, and the British Empire was treating the colonies more like conquered subjects than citizens. Despite the sectional differences between North and South prior to the Civil War, the South had the political power to counter the North’s overbearing, and indeed, had held the Northern objectives at bay for nearly 40 years. And I don’t think the southern states could complain of the kind of problems the colonists had to put up with prior to the revolution.
2sense said
Sorry, I was supposed to edit out the last quote from my previous post.