How would history have gone differently if the Confederacy had been held accountable for the war??

Maki

Ad Honorem
Jan 2017
3,954
Republika Srpska
Okay, one last post.

Madison and the constututionality of secession:
"And, in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all - an appeal from the canceled obligations of the Constitutional compact to original rights and the law of self-preservation. This is the ultima ratio under all Governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, AS AN EXTRA AND ULTRA-CONSTITUTIONAL RIGHT, to make the appeal."
 

pikeshot1600

Ad Honoris
Jul 2009
10,081
Political philosophy is often modified by actual events and the precedents thereby set. Mr. Madison, while a considerable intellect, was active in the "early learning curve" of the Republic. Secession and rumors of secession played out first in the death throes of the Federalists after the 1812 war. Second, the Nullification Crisis and threat of South Carolina's secession resulted in a political defeat for troublesome southerners. This was when compromise was still a reasonable approach. Third, the 1861-65 war ended the matter of secession. The costs included the trauma of a national catastrophe and 618,000 soldiers on both sides (two or three percent of the entire population).

The Union did not recognize that the Confederate States were other than states of the Union involved in what amounted to an armed insurrection against the lawful national government. It is probable that each of these southern states was viewed individually for legal and political purposes (not sure). The absence of official charges of treason and so on enabled an eventual reconciliation (if lengthy feelings of resentment) in the decades after hostilities ended.

Back to the OP, there was no Confederacy to hold accountable, as the Confederacy was never acknowledged by the Union itself. The precedents to addressing secessionist conflict - including most importantly the ACW - resulted in philosophical musings over leaving the Union of states being rendered moot. The United States WAS (not were) becoming a more modern society with more realistic politics.

Secession would have cost the US strategic control of the Mississippi Valley, the primary route for America's principal agricultural exports from the Midwestern states. Secession would have - undoubtedly - encouraged foreign intervention in the affairs of southern states to foreign advantage, and to the political and strategic disadvantage to the US.

Visceral issues, such as slavery and southern landed privilege, regardless of how they were emphasized, were secondary. However, such issues benefitted too few people to damage the interests of the country as a whole. The Union had to remain one, whatever the costs. Only by maximizing the land area, population and resources of the entire country could the US better defend its interests and provide for its future. Secession became anathema, and States leaving the Union could not be accepted at all.
 

Code Blue

Ad Honorem
Feb 2015
4,514
Caribbean
Madison and the constututionality of secession:
And how is that a reference to secession?

I find it interesting that in this thread and elsewhere that people argue the lack of "mechanism" or "express" reference to a right of secession in the Constitution as an indication of a lack of States' Right to repeal its own domestic legislation - while on the other hand - can find arguments supposedly invalidating the States' Right on connection that seems non-existent.

Here is Madison and 100 of his colleagues on so-called secession in a legal enactment.
"WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will..."
I would add that the almost equal number voting against this were not doing so because the Constitution cut into States' Rights enough, but because it potentially could lead to claims that would cut into States' Rights too much. Also, this is the exact law by which Virginia adopted the Constitution and that one cannot just throw out the clauses one does not like and keep the clauses one likes. And lastly, four states included such "express" reservation and none of the other States objected.

I put your quote into a search engine and it first returned your post, and second returned a book called-
"Secession and Constitutional Liberty
In Which is Shown the Right of a Nation to Secede from a Compact of Federation and That Such Right is Necessary to Constitutional Liberty and Surety of Union."
by Bunford Samuel
Volume II. (435 pages, following Volume 1 at 403 pages).

I never heard of this book though much of its contents seem familiar, and I will read it. Interesting that YOUR quote led me to an 840-page argument that in a (con)federation secession is rightful. Interesting to that the context of the discussion from which that quote occurred is a discussion that contradicts your position.

Since you have expressed the desire to cease engagement on this point, I would like to briefly address you comment about going in "circles." I have not gone in circles. The claim I make is that from the Declaration and for the next 50 years, there is an absence of challenge to the idea that States can resume their free and independent status which began in 1776 when the became constitutional republics. Your two quotes from Madison and Jackson are not only off point, but no in the time frame. You quote from Marshall is within the time frame, but not on point. You might consider that I was aware of all these quotes and that they fit within the claim BEFORE I stated it. If you sense circular motion, it has nothing to do with my arguments.
 

Maki

Ad Honorem
Jan 2017
3,954
Republika Srpska
Since my sources have been called into question, I will give a full source:
R. W. Lincoln, Lives of the Presidents of the United States: With Biographical Notices of the Signers of the Declaration of Independence; Sketches of the Most Remarkable Events in the History of the Country, New York, 1836, pg. 174
That is where I first read the quote, but it was originally from a letter of Madison from August 1830. Since I have checked multiple sources, both primary and secondary, I believe the quote is legitimate.


When I said we were moving in circles, I was not making the claim that your argument is logically inconsistent. Quite the opposite. You do have a compelling argument, even if I do not agree with it. But this is our 3rd or 4th discussion on the same topic across different threads and I feel we are simply repeating arguments from other threads. It just is not very productive anymore.
 
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Code Blue

Ad Honorem
Feb 2015
4,514
Caribbean
Since my sources have been called into question, I will give a full source:
I didn't call the source into question, but rather the use of the quote for support. The quote is authentic and appears as part of a discussion in which Madison goes no to say the opposite of what you want him to say.

t just is not very productive anymore.
I can understand that it might not be productive for you anymore or maybe never was. It is productive, for me, though. Every time you quote something that is not a reference to secession stating or implying that it is, or quote someone's personal opinion absent any citation of the Constitution or relevant legal document - it helps to show me that all the evidence is on side of the argument and none of it is on the other. So, it is productive for some things and not productive for others.
 
Feb 2011
1,187
Scotland
I don't think you are taking the point. It is the opinion of the Founders that they had these rights. I know this, because they 1) wrote them down, and 2) acted in accordance with their written opinions, when they codified their opinions into law. It would certainly help if you would explain which part you think is Code Blue's opinion.
My apologies for not being able to respond sooner. Au contraire, I feel you are not taking my point. Everything you have been saying is your opinion and based upon opinions of others. That is just fine, I have my opinions too. I do not agree that the Founders' various opinions were all codified into law. Despite assertions here that Founders all supported the notion of secession, they omitted to include any such reference in the US Constitution. Since the US Constitution is the basis of US Constitutional Law, this absence may be deemed purposeful on the part of the Founders.

It is certainly not my opinion that four states encoded into the same law by which they adopted the Constitution that they had not relinquished the right to resume the powers they had delegated, and none of the others objected. It' black letter law.
That is the first time you have mentioned four states and it may be that this is the case. However, State Ratifications of the Constitution are not a part of that Constitution, nor are they referred to within that document as a source of legal justification, and therefore they are not a direct source of US Constitutional law. These States may have stated that they had not reliniquished certain rights, but the legal power to secede is not so reflected within the US Constitution, and does not therefore make it legal under US law, even if it does so under State law. It is therefore, in that respect, your opinion. These ordinances cannot therefore be drawn upon directly as a legal justification of secession under the US Constitution, regardless of how those individual states ( 4 out of the 11 that seceded) choose to interpret their own law. Any treatment of secession under the Constitution would probably have looked to apply to all states equally, not by relation to individual ratification ordinances.


The point of the exercise is not to get anyone else to bow. I was wondering if someone might be able to nudge me with a sound point. And by the way, where is your critique of the counter argument. Where is their cogency and erudition? What are they using to derive conclusions?
That is not the point I am trying to get across. As I have said earlier, I do not consider that trading politicians' opinions (even those of Founders) constitute US Law. Neither are quotations from the Declaration of Independence, Articles of Confederation or the Federalist Papers a direct source of law under the US Constitution. They form a part of arguments to uphold opinions or base interpretations of Law (here we are talking of Constitutional Law) , but they are not, in and of themselves, the Law itself. That derives from the US Constitution, US Statutes and US Court Case Law.

To Quote Wikipedia on the Federalist Papers-
The amount of deference that should be given to The Federalist Papers in constitutional interpretation has always been somewhat controversial. As early as 1819, Chief Justice John Marshall noted in the famous case McCulloch v. Maryland, that "the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained.

They are certainly the opinions and thoughts of very great men, Federalists writing to attract support for the Constitution, but nevertheless, opinions they are , albeit those of experts of their time. They are not law.

However polities, law and people also evolve politically and the views of 1788 may no longer be so cogent in 1861 or 2020.

It's not that McPherson is wrong, but it is a misleading way of being right. You should have noticed I have offered numerous references starting in 1796 and running through about 1847 including Lincoln himself - to show that the consensus. Even in 1861, as the book Northern Editorials shows, it was still the consensus. This book has 500 editorials, approximately 70% of which, argue the legal justification of secession. I don't know exactly how many of these were papers that Lincoln used the army to shut down, after he changed his "opinion. But they forgot to burn the old newspapers.
References consisting of individual opinions are helpful; one Lincoln quote taken out of context of the rest of his career cannot prove a great deal except to illustrate that the words of politicians may alter to adapt to circumstances and indeed individuals themselves often change over time. It certainly doesn't prove secession is legal under the framework of US law at that time. Nor do further opinions culled from 'Northern Editorials'. They are interesting, but the editorial policy involved in the compilation is not clear nor the basis on which you have decided upon their support of your contention. In any event, this is not relevant. A straw poll of this sort is also not law in any way shape or form. It simply illustrates the fundamental nature of uncertainty pertaining to this subject consequent upon the absence of any such trigger mechanism within the US Constitution. As a democracy, all views could be indulged.


Given the degree to which you cast aspersion on "opinions," why do you think an opinion from a politician would help, even one wearing a black robe. The court in White v Texas does not quote the Constitution. Why would that be? How can a court ever uphold a law without quoting it?
Perhaps you can demonstrate where I have ever 'cast aspersions' upon 'opinions'? I have simply defined what an opinion is and what it is not. In so doing, I stated that it was NOT intended to cast aspersions upon your views. An opinion from a Politician does not help, but legislation from them can make Law. So can the gentlemen in black robes, whose case law may bring enlightenment and certainty upon areas left uncertain by legislation or gaps in the legal framework; ie upon areas not specifically mentioned.
Hence Texas v White can create case precedent under common law but not quote the Constitution which is silent upon the topic.

Had the Southern grandees opted to test their view that secession was legal in Court before such gentlemen in black robes, then your views and the opinions you have quoted would no doubt have been voiced and may indeed have proven effective in obtaining some form of ruling which might have proven beneficial to them. Perhaps the Court would have invoked views similar to those seen in Corporate Minority Protection today.
 
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Code Blue

Ad Honorem
Feb 2015
4,514
Caribbean
My apologies for not being able to respond sooner. Au contraire, I feel you are not taking my point. Everything you have been saying is your opinion and based upon opinions of others. That is just fine, I have my opinions too. I do not agree that the Founders' various opinions were all codified into law. Despite assertions here that Founders all supported the notion of secession, they omitted to include any such reference in the US Constitution. Since the US Constitution is the basis of US Constitutional Law, this absence may be deemed purposeful on the part of the Founders.
I was posting mainly on weekends and holidays, so the delay is not a factor.

I didn't say “all.” I referred to specific relevant opinions that were codified and either quoted them or said what they were and where they could be found. Those should not be confused with the dozens of other opinions I cited which were in support of a different point - that the legality of secession was widely known and almost never contested for 70 years. They are parallel, but different points, supported by different material.

That is the first time you have mentioned four states and it may be that this is the case. However, State Ratifications of the Constitution are not a part of that Constitution, nor are they referred to within that document as a source of legal justification, and therefore they are not a direct source of US Constitutional law.
What you call an absence of a secession clause has more to do with the Founders expressing their views, in their vocabulary and in their style - and not with your vocabulary in your way.

In keeping with that, it is flatly wrong to say that the sanctity of State legislation is not in the Constitution. That indicates a lack of diligence in reading the document and supporting work. I have already mentioned Article VII, under which these ratification statutes - State legislation - are recognized. The problem for your argument is that the ratification enactment has to be recogtnized in its entirety, not just parts the one likes, while nullifying the other parts.

You are wrong about this being the first time I referred to express State reservations of the power to repeal the ratification. I have posted it many times, as recently as three posts ago, #263. This is post 266. Who is not taking the point?

These States may have stated that they had not reliniquished certain rights, but the legal power to secede is not so reflected within the US Constitution, and does not therefore make it legal under US law, even if it does so under State law. It is therefore, in that respect, your opinion.
It is most certainly not a matter of opinion. It is a matter of fact. Again, see post 263.

As early as 1819, Chief Justice John Marshall noted in the famous case McCulloch v. Maryland,
But nowhere does Marshall say a state cannot secede. It is odd that you would quote this after saying you don't put much stock in the opinions of individuals. You line what Marshall said here, but you don't like what Lincoln said in Congress? Also, I would like to know how I have Lincoln out of context. In what context does the assertion of the right of political self-determination (the same one asserted in the Declaration) mean that the right doesn't exist? I put the quote in the context of 70 years of Americans asserting that right both informally and in legal documents.
 
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