Was the secession of the Confederacy legal?

[aginghippy69]

You answered, “This issue was settled by the Supreme Court in 1869.”

• a court led by Salmon P. Chase, a member of Lincoln’s War Cabinet
• after 620,000 battlefield deaths
• while Reconstruction was in effect.

I have always wondered what the Taney Court would have decided in 1861 had the Confederacy decided to sue instead of fight. A court that gave us Dred Scott may have ruled differently.

[33ID]

Legal theory must eventually give way to political fact. After Appomattox the fact was that the states did not in fact have said right.

[samclem]

Welcome to both of our guests.

It helps to link to the column you’re discussing. It’s easy as cuting and pasting the url.
http://www.straightdope.com/mailbag/msecession.html

[John_W.Kennedy]

@aginghippy69

I have always wondered what the Taney Court would have decided in 1861 had the Confederacy decided to sue instead of fight. A court that gave us Dred Scott may have ruled differently.

Not necessarily. Taney was, himself, anti-slavery. The Dred Scott decision was based on what he sincerely believed to be the state of the law, not on what he thought was right.

[Elendil_s_Heir]

Good column. Boston Legal’s episode tomorrow night is about the attempted secession of one town from the entire United States, according to the preview. As a South Carolina unionist said in 1861, “Too small for a republic, too big for a lunatic asylum!”

[Sampiro]

@aginghippy69

• after 620,000 battlefield deaths

Just a nitpick: only about 1/3 of these, if that, were battlefield deaths. The rest were mostly from disease.

[Captain_Amazing]

@John W. Kennedy

Not necessarily. Taney was, himself, anti-slavery. The Dred Scott decision was based on what he sincerely believed to be the state of the law, not on what he thought was right.

Taney was anti-slavery as a young man. I don’t know that he was so anti-slavery at the time the decision came out. And I think his decision was based not so much on what he believed to be the state of the law, but more as an attempt to solve the slavery question. It was a clearly political decision.

[Elendil_s_Heir]

@Captain Amazing

Taney was anti-slavery as a young man. I don’t know that he was so anti-slavery at the time the decision came out. And I think his decision was based not so much on what he believed to be the state of the law, but more as an attempt to solve the slavery question. It was a clearly political decision.

Chief Justice Taney even consulted, through a mutual friend, with President-elect James Buchanan about Dred Scott, IIRC. Buchanan then alluded to the forthcoming decision, already knowing what the holding would be, in his inaugural address.

[Baffle]

@Gfactor

[Texas] wouldn’t be officially readmitted to the union until 1870.

If the secession was illegal, why did the state have to wait to be readmitted?

[Gfactor]

@Baffle

If the secession was illegal, why did the state have to wait to be readmitted?

The Court held that the rebel states were still part of the union, however, Congress had passed some laws:

On the contrary, Congress passed, in March 1867, three certain acts, known as the Reconstruction Acts. By the first of these, reciting that no legal State governments or adequate protection for life or property then existed in the rebel States of Texas, and nine other States named, and that it was necessary that peace and good order should be enforced in them until loyal and republican State governments could be legally established, Congress divided the States named into five military districts (Texas with Louisiana being the fifth), and made it the duty of the President to assign to each an officer of the army, and to detail a sufficient military force to enable him to perform his duties and enforce authority within his district. The act made it the duty of this officer to protect all persons in their rights, to suppress insurrection, disorder, violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, either through the local civil tribunals or through military commissions, which the act authorized. It provided, further, that when the people of any one of these States had formed a constitution in conformity with that of the United States, framed in a way which the statute went on to specify, and when the State had adopted a certain article of amendment named, to the Constitution of the United States, and when such article should have become a part of the Constitution of the United States, then that the States respectively should be declared entitled to representation in Congress, and the preceding part of the act become inoperative; and that until they were so admitted any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States, at any time to abolish, modify, control, or supersede them.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=74&invol=700

Part of the text of the law said:

That, until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same; and in all elections to any office under such provisional governments all persons shall be entitled to vote, and none others, who are entitled to vote under the provisions of the fifth section of this act; and no person shall be eligible to any office under any provisional governments who would be disqualified from holding office under the provisions of the third article of said constitutional amendment.

(Emphasis added.) Reconstruction Acts - Wikipedia

[Saint_Cad]

I’m interested in hearing Gfactor’s response to the issue raised in Texas v. White wherein Justice Chase pointed to the Articles of Confederation that disallowed succession and that the Constitution was a “more perfect union” and it could not be more perfect if it allowed succession. Ummm . . . but the Constitution was ratified by 9 states originally. Didn’t these 9 states in effect succeed from the United States under the AOC?

If so, would Chase have considered this to be approval of the states he mentioned in Texas? If the states had never suceeded, then was President Johnson correct in his assesment that the 13th amendment did not receive the proper percentage of ratifying states? (moot now under “political question” doctrine and subsequent ratifications, but at the time, this was the basis for the slam-dunk stone-cold-lock article of impeachment the Republicans felt would get them the conviction)

[DSYoungEsq]

@Saint Cad

I’m interested in hearing Gfactor’s response to the issue raised in Texas v. White wherein Justice Chase pointed to the Articles of Confederation that disallowed succession and that the Constitution was a “more perfect union” and it could not be more perfect if it allowed succession. Ummm . . . but the Constitution was ratified by 9 states originally. Didn’t these 9 states in effect succeed from the United States under the AOC?

If so, would Chase have considered this to be approval of the states he mentioned in Texas? If the states had never suceeded, then was President Johnson correct in his assesment that the 13th amendment did not receive the proper percentage of ratifying states? (moot now under “political question” doctrine and subsequent ratifications, but at the time, this was the basis for the slam-dunk stone-cold-lock article of impeachment the Republicans felt would get them the conviction)

How did the fact that nine states ratified a new constitution have anything to do with secceding from the United States? The country is not the constitution. That’s why we celebrate its birth as of 7/4/1776, not the date the ninth state ratified the new constitution.

[Saint_Cad]

@DSYoungEsq

How did the fact that nine states ratified a new constitution have anything to do with secceding from the United States? The country is not the constitution. That’s why we celebrate its birth as of 7/4/1776, not the date the ninth state ratified the new constitution.

Because what if the other 4 states had not ratified the Constitution, which group would have been the United States, the 4 under the AOC or the 9 under the Constitution? or both?

[Giles]

@Saint Cad

Because what if the other 4 states had not ratified the Constitution, which group would have been the United States, the 4 under the AOC or the 9 under the Constitution? or both?

It would have been very odd, because Virginia and New York were not among the first 9, and the new United States would have been severely split geographically. So, in the long term, if Va and NY had held out, the US might not have been viable, and they might instead have reassembled into two or three regional federations.

[Gfactor]

From a previous thread:

The Framers were concered that the Constitution would be attacked as illegitimate because it was not adopted in accordance with the Articles because it did not require unanimous consent.

Rakove, in Original Meanings: Politics and Ideas in the Making of the Constitution, devotes an entire chapter to the concept of ratification and its origins. *Id. * at 96-130. Rakove says,

The adoption of the Constitution has been described, with good reason, as the result of a series of acts that were illegal, even revolutionary in character. Refusing to be bound by either the requirements of Article XIII, or the sanctioning resolution of the Continental Congress, or the formal credentials of their states, the framers seizedthe main chance and then developed procedural and conceptual innovations to give their revolutionary act as much legitimacy as they could muster. . . . the framers and many Federalists also knew they could never defend their decision to abandon the Articles of Confederation in strictly legal terms.

(Footnotes omitted). Id. at 128-129.

How could a not-yet ratified constitution determine the method of ratification?

While I’m at it:
Previous thread on secession: Could Texas secede next year? At all? Legally? Constitutionally: Any Reason Secession IS NOT legal?
Another previous thread on secssion: Why can’t any state secede if it wants to?

[DSYoungEsq]

It should be noted that North Carolina and Rhode Island did not ratify the Constitution for some time after it was put into effect (the minimal delay in ratification by Virginia and New York should be considered relatively irrelevant for practical purposes, as the mechanics of the new government weren’t in place, yet). Although the compact did not apply to them, I think you would have been hard pressed to get most people to assert that they were not still part of “the United States of America.” Whether or not that would have continued had they continued not to ratify the Constitution, who knows? Indeed, it was threat of being treated (read: taxed) as a foreign country that finally got Rhode Island to ratify. So clearly Rhode Island thought of themselves as member states of the union, even though they weren’t in agreement about how to run that union.

[Little_Nemo]

The Constitution clearly does not have any explicit right for a state to secede written into it. And James Madison, who wrote the Constitution, said that there was no implied right to secede in it. So it’s difficult to imagine where any right to secede could be hidden.

[Tom_Tildrum]

How about the opposite question: Can Congress strip a state of its statehood? Either to demote it back to territorial status or to sell it to another country?

Or a variant: Can Congress sell US land to another country? Could it sell the Aroostook forest in NW Maine to Canada? If so, could it sell all of Maine to Canada, even without revoking its statehood? (Assume that the treaty provides for private citizens to retain personal title to their land; I’m only positing a transfer of jurisdiction.)

ETA: I assume not, but I haven’t thought through the particulars as to why not.

[Gfactor]

@Tom Tildrum

How about the opposite question: Can Congress strip a state of its statehood? Either to demote it back to territorial status or to sell it to another country?

By implication, Texas v. White also prohibits expulsion of a state that wishes to remain part of the Union. Expulsion, satirically advanced recently in a column by Mike Thompson, also would seem to run afoul of Article V of the Constitution, which provides “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

http://writ.news.findlaw.com/dorf/20041124.html

Or a variant: Can Congress sell US land to another country? Could it sell the Aroostook forest in NW Maine to Canada? If so, could it sell all of Maine to Canada, even without revoking its statehood? (Assume that the treaty provides for private citizens to retain personal title to their land; I’m only positing a transfer of jurisdiction.)

I don’t have the answer to this one at my fingertips. I’ll get back to you, unless someone else answers it first.

[Gfactor]

@Tom Tildrum

Or a variant: Can Congress sell US land to another country? Could it sell the Aroostook forest in NW Maine to Canada? If so, could it sell all of Maine to Canada, even without revoking its statehood? (Assume that the treaty provides for private citizens to retain personal title to their land; I’m only positing a transfer of jurisdiction.)

This would be a problem for a few different reasons:

First, Article IV says:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Which isn’t directly on point, but does recognize that states have a say about changes in their boundaries.

and

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Which again recognizes the distinction between property owned by the federal government and property owned by the states.

and

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Which would be impossible if a foreign power obtained sovereignty over state land.

Here’s a case that talks about state’s property rights: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=163&invol=504#510

and see, http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=44&invol=212 (Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding.)

I’m sure there’s a lot more to this.