from mfitz
Well done mfitz! thats how you post a debate in SDMB. Now give me 2 hours to read all those 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
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.
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
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?
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.”
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
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.
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.
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.
Respectfully disagree, DCU. Texas v. White went on at length differentiating the concept of the State with the government of the State.
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:
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.
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.
MFitz,
The second try’s a much mo better formatted OP, IMHO.
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
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
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.
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.
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.”
So the South seceded for slavery, and the North fought against secession?
What we have here is failure to communicate. Apparently.
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
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
Sure.
Welcome to Great Debates. 
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.
“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/~usa/D/1801-1825/marshallcases/mar05.htm
and
Dartmouth v. Woodward http://odur.let.rug.nl/~usa/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.
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 **
http://gi.grolier.com/presidents/ea/side/whig.html
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:
- Timeline 1815-1841
- 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*