Again, you’re begging the question. You’re simply saying that anything that is defined as a power is legal and then defining secession as a power. By that loose standard, you could make virtually anything legal.
The Tenth Amendment says 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. It doesn’t contain any definition of what a power is. It simply divides up the responsibility of what level of government controls those things which are goverment powers. But that doesn’t mean that everything is a government power.
There is one thing I have always wondered about this matter. Why was the matter left in any doubt at all ? After 620,000 deaths, wasn’t their any pressure to explictally add an amendment to the constitution that forbade secession, and force the rebel states to accept it before they were readmitted to the union ?
No, because that would have been a tacit admission that secession had somehow been legal before it was specifically prohibited. Nobody on a winning side would ever consider that as an option. A Supreme Court decision saying that it had been wrong the whole time was exactly what they wanted.
In fact, that is more or less what the seceeding states claimed: that the abolitionists (whom they regarded as insane fanatics) were conspiring to impose a “tyranny of the majority” on the slaveholding south. By refusing to allow slavery to expand into the territories, the north would eventually obtain a constitutional supermajority that would allow them to impose abolition on the south. They pointed to Lincoln’s very election as a prime example: a man who did not receive a single southern vote gained the presidency on a platform of working to (eventually) end slavery.
Since the letter of the Constitution is silent on the question, both sides invoked extraconstitutional arguments for their stance: in the purest libertarian sense, the South had a valid point: if the overwhelming majority of citizens of the south supported succession, how could a government claiming to be a democracy force them to remain? But the North’s stance was, how could any democracy survive if everytime someone lost a vote they took to arms and rebelled? It was what Lincoln touched upon in his Gettysburg address when he claimed that the war was nothing less than a test of whether democracy itself was viable.
It could be said that Lincoln treated democracy the same way Franklin Roosevelt treated the free market: compromising it just enough to allow it’s survival in a time of crisis.
You know, I’ve been think about this from a different angle:
War of 1812: we invade the British possession of Canada and would possibly seize territory if successful.
Mexican-American War: We go to war with the sovereign nation of Mexico over the annexation of Texas. Whether Texas was independent or not was immaterial. We won and received a lot more territory than just Texas.
Spanish-American War: We go to war with the sovereign nation of Spain over the bombing of one of our battleships. The result is the seizure of the Phillipines, Puerto Rico, and Guam.
My point is that opponants of the legal secession ideology point out that the legality was decided in 1865. I have to call bullshit. As I have shown, at least three times the United States went to war with a sovereign foreign with an intention of annexing more territory. I could just as easily say this about 1865:
The CSA legally seceeded
The sovereign nation of the Confederate States of America fired upon an United States ship (Star of the West) within their territorial waters
Rather than asking Congress for a declaration of war, Lincoln waited until Congress was in recess
During the Congressional recess, the CSA fired upon US troops. Even assuming Fort Sumter belonged to South Carolina, this may still be considered an act of war (e.g. suppose US troops were stationed in Turkey. Turkey reclaimed the American base and the Turkish regular army fire upon them) OR an acknowledgement of a state of war by the unlawful continued occupation by US troops.
Either way, Lincoln acknowledge that the US is in a state of war and proceeds as Commander-in-Chief
Upon its return, Congress acknowledges that the US is de facto in a state of war and takes the necessary steps to legalize it under the US Constitution
The US invades the CSA like it did to Canada and Mexico and will do later to Spain.
The US wins the war (like 2.5 out of the 3 examples above - the US beat Britain but never occupied Canada) and demands territory in the peace. In this case for political purposes, the entire of the CSA
During Reconstruction, the conquered territory is treated more like an occupation than states in which a rebellion has been put down.
So 1865 did not “prove” anything other than (yet again) the US can conquer a sovereign nation and seize new territory, the legality (of course) being up to international law at the time.
I didn’t. And no one showed it was illegal either (except for Texas v White but there are issues with that ruling raised elsewhere in the thread). It had certainly been considered an option as early as 1812 by New England states. My main point is that the claim that US victory established that secession is illegal is fallicious since I can just as validly point out that the same event can validate that the US conquered a sovereign nation.
Thus the legality of secession must be based on an argument other than the US won the Civil War.
Actually it was pretty much the exact opposite. The southern states didn’t want states rights. They wanted a strong federal government that would protect slavery - even in states and territories where the local citizens didn’t want it. South Carolina made a statement in opposition to states rights when it seceded.
The South was hardly libertarian or democratic. They disenfranchised a substantial portion of their population and prohibited their liberty. Even white citizens were less free than their northern counterparts. Most southern states had passed laws making it illegal to make any public statement opposing slavery - you could be pro-slavery in the north but you couldn’t be anti-slavery in the south.
Lincoln made have compromised some civil rights but not democracy. He had popular support and held elections on schedule during the war, including his own.
You could include World War II on your list. Japan occupied Wake Island and claimed it as their own during the war. We took it back. By your definition, we thereby conquered a sovereign nation and seized their territory.
Or you could think about it for a minute and realize that the United States didn’t go to war in 1861 or 1941 to conquer any new territory. We already owned at the start of the war all of the territory we would occupy by the end of the war. We went to war in both cases because somebody attacked an American military base - both wars were defensive wars.
Not exactly. What if Wake Island had a plebecite and asked to become a part of Japan? That would be a better analogy.
I think the failure of my analogy is exactly the failure of the opposite view - they both beg the question. Just like my logic starts with the tacit assumption
Assuming secession is legal . . .
…
to conclude the US conquered a sovereign nation and seized their land.
others I have seen made the tacit assumption
Assuming secession is illegal . . .
…
to prove that the US put down a rebellion and secession is not legal.
I admit that mine is fallicious and is used to show the opposite argument summed up as “The North won the War therefore secession is illegal.” is likewise fallicious
Except that nobody but you considers conquering a foreign territory through war to be the equivalent of putting down an internal rebellion. If that notion fails - and all international history says it does - the rest of your logic similarly fails.
It’s not analogous at all. If that were to have happened, and everybody all the way up to the to top agreed it was a good thing, Japan and the United States could negotiate a treaty to transfer the territory. If not, they were out of luck.
Just as the Confederates were out of luck when the U.S. said no. That ended the issue, barring a local conflict settled at Appomattox Courthouse. Since then every reputable politician, judge, lawyer, historian, stamp- and flag-maker has agreed that secession is illegal under the U.S. Constitution. Belated arguments to the contrary are like tax protesters arguing that Ohio wasn’t properly admitted to the Union or that the 16th Amendment wasn’t ratified properly. No one in law agrees or allows these arguments any standing in court. The illegality of the secession of the Confederacy is of the same class. Even if anyone could come up with a legitimate argument - and I stress that your analogy doesn’t reach that status - the contrary principle is written into every law, and the approval of every law all the way up to the Supreme Court, since 1865. None of those can be undone. Not even by an Amendment, since those cannot apply retroactively.
This has been settled for over 150 years. Asserting otherwise gets you nowhere.
Are you under the mistaken impression that the southern states put the issue of secession to a popular vote?
It is fallacious and not one that most people make. Few people argue that secession was illegal because we won the war. We fought the war because secession was illegal. Winning the war stopped secession but had nothing to say about its legality (other than as an indication that there was widespread popular opposition to secession and this helped the war effort).
Keep in mind that the United States was not some disinterested party in the issue. The United States government has an obvious voice in defining what was legal and illegal in the United States. If the United States government declares that something is illegal in Canada or Russia under the laws of those countries, it can only speak as a third party. But if the United States government says that something is illegal in the United States it is declaring its authority over the decision. It’s not an unlimited authority because the United States government is not a monolith. But if the United States government takes the position that something is illegal in the United States then the burden of proof falls on those who disagree.
It seems to me that at least three people think the Civil War settled the question once and for all and two specifically say that the the results of the War settled the LEGAL right of the states to seceed. I’m sure that if I pulled up similar threads, I could come up with more people that use this argument.
Those people are wrong. Not in saying secession was illegal; but in the reason why they say it was illegal. Secession was not illegal because we won the war. There is no legal doctrine of “might makes right”.
Secession was illegal in 1860 before the war began. If the Confederacy had won the war and established its independence it wouldn’t have made their secession legal under American law. If California had tried to secede in 1870 then the United States wouldn’t have been required to let them go because it had lost the previous war. The war did not establish any legal precedents.
All the war proved was that secession didn’t work.
Well, there sort of is, but it’s exactly the opposite of what we’re talking about.
Unilateral secession has not been recognized as legally permissible under any State’s law unless it was expressly written into that State’s constitution. But under international law, secession may be *won * by war. If the seceding entity wins a war and other States recognize the new entity as a State, then international law recognizes the secession. So in that case, might does make right. But losing the war proves nothing other than that the entity failed to accomplish secession by war. In neither case does the war itself change or create any new legal doctrine.
Do you mean to say that the South would have gladly embraced a naked dictatorship, if that dictatorship was dedicated to preserving slavery? The secessionist states made constant reference to freedom and liberty (their own) and denounced the Union and Lincoln as “tyranny”. My impression was that they meant what they said. (Could you post a link to the South Carolina declaration please?)
Secondly, of course slaves were disenfranchised, but in the same breath many southerners upheld the sacredness of (white) liberty. Some went to far as to claim a direct connection between the two- all whites could be equal because the dirty jobs were done by slaves. African-Americans simply didn’t count, anymore than people cared about the status of horses or cows. In their eyes slavery was synonymous with civilization itself, and banned the advocacy of abolition in much the same manner that proponents of radical anarchism would later be muzzled.
Finally, my comment on Lincoln was meant in the context of Lincoln rejecting any claim that secession was legal, even by the popular will of those states. You’re completely right that Lincoln didn’t use the war as an excuse to ban political opposition, for which he deserves the acclaim of the ages.
Interesting hypothetical: If the Union had failed to suppress the rebellion, and at some point had had to give up, how would the Union legally regard the Confederacy? Would it have maintained a cold-war stance for decades of refusing to recognize it, like the US did towards communist China for twenty years? If the Union had signed a formal peace treaty with the Confederacy, would it nonetheless have internally retained the right to reconquer the South if it ever could someday? If the Union had formally recognized the Confederacy, how would it have reconciled the illegality of secession (under Union law) with such recognition?