Removal of Confederate statues and flags?

AlpinLuke

Ad Honoris
Oct 2011
24,126
Lago Maggiore, Italy
#81
You are right, the US didn't give back part of the continent to the Natives. A sad moment in US history for sure. And I'm not sure what that has to do with the Confederacy founding itself on slavery and killing hundreds of thousands of Americans to protect it. Seems more of a red herring there.

And why did the north need to abolish the economical base of the southern states before the war? It's like saying Northeastern states should stop eating citrus to hamstring the economies of the south... What good does that do for Northern states financially to hurt the US economy? That doesn't really make sense especially when the South's economy was weaker already. What abolitionists said the end of slavery was needed as a financial move to hurt the south before the war?

The northern states were taking time to abolish slavery during the Revolutionary war, how was that political? They were fighting against allowing slavery from the start of the nation. Finally agreeing on compromises with it when it was going to be something that divided the US as soon as the rev war was over.
I'm discussing and reasoning here. I was looking for a different comparison about a flag and its historical value. A flag is a matter of perspective: imagine how Natives considered the flag of the United States while they were fighting against the European invaders ... and btw, just the conclusion of the Civil War [or Secession War, as we call it in Italy] allowed the US to have the whole army available to fight against the Natives. The American Indian Wars knew a remarkable aceleration in that period.

Then, as history teaches, victors are right. So that today we don't see a Native flag on the White House ... But obviously this is just a paradoxical comparison.

Let's go back to the flag of the Confederation. If US weren't a federation, I would agree to remove those flagas without troubles [and probably on a legal base, in Italy it's illegal, on official buildings, to show the flag of the past Italian Kingdom, but after a period of "exile", the urban decor of our cities is seeing again many statues of the kings which had hidden for decades ...]. Being a federation the matter should be left to the states. And this means that the governors should listen to local feelings. I would suggest a referendum to take a decision.

In other words, in democracy opinions are opinions, but decisions should be taken following the suitable procedures.
 

robto

Ad Honorem
Jun 2014
5,711
Lisbon, Portugal
#82
It is complicated.

On one hand, we can not compare US slavery with Nazism for one simple reason, in 1861 slavery was widespread in the world. 40% of Brazilian population were slaves, for example. So, we are talking not about criminals, but about people who lived and thought differently.
Slavery was not widespread across the civilized and industrialized world at 1861...And Brazil was the last western country to abolish slavery...not a good example to be compared to...
 
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Code Blue

Ad Honorem
Feb 2015
3,529
Caribbean
#83
That's simple. Article 3 of the Constitution gives the Supreme Court the jurisdiction both as to Law and Fact.

When the legality of secession was challenged in Texas V White, the Supreme Court said that secession which preceded the Civil war and formed the Confederacy was Unconstitutional. That is based on the powers given them to determine what is fact by the Constitution of the US.
It's unimaginable to me that the court in 1868 was going to rule any other way - and if you read the text of the opinion, it is more one of making up theory rather than citing the Constitution. IMO, history demonstrates that it might be possible to find judges who rock the boat when it is the size of the Amistad, but it is virtually impossible to find judges who are willing to rock the ship of state.

At the same time, the US government was proceeding in US v White, it made the decision not to indict Jefferson Davis for treason out of fear of the defense arguing - the secession was legal/constitutional.

IMO, it would have made history a lot more interesting and today's discussion a lot more fun if Davis had been tried and the prosecution did not win a conviction, an outcome I think likely.
 
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Code Blue

Ad Honorem
Feb 2015
3,529
Caribbean
#84
Actually it is massive. Confederacy spent it's time only doing one thing. Rebelling against the USA
Are you sure they weren't rebelling against the Republicans? It's a valid question, and your is not the only possible answer.

For some, it just doesn't seem like enough to win the war. They insist on wiping out the entire way of life of the conquered. I recall some some battles in the Old Testament, where they killed every person and every animal in the city.
 
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Maki

Ad Honorem
Jan 2017
2,033
Republika Srpska
#85
Are you sure they weren't rebelling against the Republicans? It's a valid question, and your is not the only possible answer.
Had they only rebelled against Republicans, they would have accepted reunion in case of a Copperhead victory in the elections. However, as Lee wrote to Davis, the Copperheads wanted reunion, while the South wanted independence.
 
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Code Blue

Ad Honorem
Feb 2015
3,529
Caribbean
#86
Had they only rebelled against Republicans, they would have accepted reunion in case of a Copperhead victory in the elections. However, as Lee wrote to Davis, the Copperheads wanted reunion, while the South wanted independence.
The logic seems off, but if you mean - the southern secessionists who did not trust and did not want to be in a union with Republicans and Abolitionists in 1861 still didn't want to be in a union with them in 1864 - I believe that is true.
 

arkteia

Ad Honorem
Nov 2012
4,386
Seattle
#87
Slavery was not widespread across the civilized and industrialized world at 1861...And Brazil was the last western country to abolish slavery...not a good example to be compared to...
Yes and no, @robto, as we are discussing, likely, 50 years before and 20 years after the Civil War, a short time in the span of human civilization. Here is the timeline:

Slave trade:

The first country to abolish the slave trade was Denmark in 1792. Britain followed in 1807. The USA abolished the slave trade in 1808. Sweden abolished the slave trade in 1813, The Netherlands in 1814, France in 1815 and Spain in 1820. Brazil ended the slave trade in 1851.

Slavery:

Slavery was abolished throughout the British Empire in 1834. France finally abolished slavery in its colonies in 1848. The same year, 1848 Denmark abolished slavery in its colonies.

Slavery was abolished in Chile in 1823 in Mexico in 1829, in Bolivia in 1831 in Uruguay in 1842, in Argentina in 1853, in Peru and Venezuela in 1854. The Dutch abolished slavery in colonies in 1863. Paraguay ended it in 1869, Cuba in 1886, Brazil abolished slavery in 1888.

But since you have mentioned civilized and industrialized world, one country, very civilized, stands apart and close to Arabs on its contribution to the slave trade. Britain.

The Stuart-owned Royal African Company.

Just the numbers. Royal African Company - Wikipedia What percentage of American slaves was supplied by the Brits? And whether Irish political prisoners were indentured servants or slaves (Ireland believes they were slaves), they, too, were brought to the Americas by the British.

Civilization rests upon a very thin layer.
 

AlpinLuke

Ad Honoris
Oct 2011
24,126
Lago Maggiore, Italy
#88
Back to the flag ... out of curiosity I have checked if the Supreme Court has had occasion to deal with the matter and actually it had rejected a case in November 2017. Supreme Court rejects case challenging use of Confederate emblem in Mississippi flag

In 2015 there was an other decision of the Supreme Court ...


The Supreme Court on Thursday upheld Texas’ refusal to issue a license plate bearing the Confederate battle flag, rejecting a free-speech challenge.

The court said in a 5-4 ruling that Texas can limit the content of license plates because they are state property and not the equivalent of bumper stickers.

The Sons of Confederate Veterans had sought a Texas plate bearing its logo with the battle flag. A state board rejected it over concerns that the license plate would offend many Texans.
Supreme Court Rules Texas Can Reject Confederate Flag License Plate | WNYC | New York Public Radio, Podcasts, Live Streaming Radio, News

I would say that the SC has ruled following a general principle: citizens cannot force a public authority to do something if there isn't a law giving them such a possibility.

The explanation ...
Texas’ main argument to the Supreme Court is that the license plate is not like a bumper sticker slapped on the car by its driver. Instead, the state said, license plates are government property, and so what appears on them is not private individuals’ speech but the government’s. The First Amendment applies when governments try to regulate the speech of others, but not when governments are doing the talking.
So, it's anyway a matter at level of state, if a state allows the Confederate Flag to stay on its state flag ... the SC says nothing [like in 2017].
 

Fiver

Ad Honorem
Jul 2012
3,632
#89
The constitution says nothing explicit about the issue of secession and its something has been argued back and forth on various Civil War related threads...

On the Unconstitutionality of Secession...
Those that have argued on it being unconstitutional have pointed to various quotes and arguments, made by various politicians of the 1700s and 1800s, including James Buchanan, that have pointed to their reasoning for why secession would be unconstitutional. Though many of these arguments often just the interpretations of the people in question.

The most "direct" argument would be in relation to looking at both the Supremacy Clause, which essentially states that the Federal government is supreme with regard to the power it holds within the US, along with pointing to the Constitution's preamble for "a more perfect Union," with a historical reference to the circumstances under which the Constitutional Convention was brought together due to the weaknesses in the Articles of Confederation, which named the Union as "perpetual."

The Weakness in the Argument...
The words that are often used from other politicians are largely just random quotes in philosophical discussion. They are not in actual court cases directly pertaining to the issue of secession as a matter of law. As such, while they make a very compelling argument, it's purely philosophical, not legal.

The issue with "a more perfect Union" and the reference to the Articles of Confederation is that the Constitution is so vague on the exact nature of the Union, that it would be hard to tell as to what was meant in the Constitution's preamble as nothing is truly clear. One could argue that the Constitution is intended to preserve the Articles' "perpetual Union" or that the "perpetual Union" was part of the problem and not really have a wrong argument because the Constitution is so vague on the subject.

And while the Supremacy Clause does set the Federal Government as the most powerful legal force within the country, that does not mean that it grants the Federal Government dictatorial powers over the country, and that even into the 20th Century, in an era where Federal Power grew vastly, various Constitutional Amendments, namely the 10th would be used as a check on Federal Power. In fact most of the laws passed during the New Deal that were declared unconstitutional were declared so because they violated the 10th Amendment.

On the Constitutionality of Secession...
Those that have argued in favor of secession have often cited arguments that the Union was formed on the basis of a contract, essentially "with the consent of the governed." Once Lincoln was elected in 1860, the Southern States felt that the Federal Government had lost their consent and thus ceased to abide by the original contract, and thus the election of Lincoln dissolved the Union, as the Southern States felt within their rights to dissolve the Union for their protection. It is this basis that sits at the heart of the "state's rights" argument as the cause of the American Civil War.

Though, the most direct argument with regards to the Constitution is in relation to the vagueness with which the Constitution refers to secession and the nature of the Union and combining it to the 10th Amendment. Since the 10th Amendment names any and all unnamed powers as being reserved to the states, and since the nature of the Union and secession are at best vaguely mentioned in the Constitution, that means that the states reserve the power to dissolve the Union under the 10th Amendment for any reason.

The Weakness in the Argument...
For one thing it was likely never expected at the Constitutional Convention that a situation like what happened in 1860 (or at other moments when secession was thought of) was ever expected. Many of the men who helped write the Constitution had fought through the Revolution, which they believed that if they did not remain united, they would have lost the war. In this, to them it was likely that they saw the Union as continuing on as a point of common sense, that America would be weaker if it dissolved. Thus, it was never expressly written because it was never thought of to be an issue with which the US would have tangle with. It's in this where many of those quotes that often argue against secession, even if only philosophical in nature, provide context for many elements within the Constitution itself.

There is also vagueness in the 10th Amendment as it includes references to both the States and the People. In this, when looking at the Secession Crisis of 1860, while the State Governments voted in favor of secession, the people of those states largely weren't consulted and in many cases were often ignored. It's in this factor that Lincoln really didn't do much on assuming office in 1861, as it was figured that the fire eaters that ran the state governments would be confronted by an angry population that did NOT want to leave the Union and would thus present a question just WHO was attempting to use the 10th Amendment in the Secession Crisis, the States or the People. And while this didn't happen in the South, with the exception of South Carolina, EVERY Southern State sent men north to fight for the Union and in one of the Confederate states in the county of Jones (either in Alabama or Mississippi) you had a country wide rebellion against the Confederacy with one Southern officer claiming "there were Lincolnites throughout the county." Which thus continues the argument as to who is employing the 10th Amendment.

There has also been the fact that the 10th Amendment does not nullify the Supremacy Clause. It's merely there to make sure that the Federal government doesn't assume dictatorial powers, which could mean that the amendment's intention was to deal with smaller issue things that typically the states already controlled, things like marriage licenses and so on... but it doesn't give the states the power to essentially dictate to the Federal government what Federal policy will be.

And if one is wishing to look at the "state's rights" argument, one needs to question as to what aspects of the "contract" had the election of Lincoln violated. There is no law that says the American President has to have a popular vote majority in the country. In fact the Electoral College essentially guards AGAINST that sort of "rule by the mob." There is also no rule that says that the President elect HAS to have heavy support in all parts of the country. And given that no southern state lost its senators, representatives, or elected governors with Lincoln's election, it would be hard to make any sort of legal case to indicate that Lincoln had violated any article of the Constitution in his election... which would really lower much of the Confederate argument to "sour grapes" for losing an election.

Court Application...
The "constitutionality" of secession only came into the Federal court system once... in the years immediately after the American Civil War. I can't remember the specifics of the case at the moment, but the end ruling did make the case that secession was unconstitutional, but given that it happened so soon after the American Civil War and the Confederacy's defeat, there is bound to be some claim of bias on the part of the court at the time... but since I'm not knowledgeable on the specifics of the case, I can't say for certain...
Thank you for an excellent summary.

There is a third argument - that secession is legal, but only if all parties give their consent

"A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it." - James Madison, 1832

"Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. " - Robert E Lee, 1861
 

Code Blue

Ad Honorem
Feb 2015
3,529
Caribbean
#90
T"A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it." - James Madison, 1832
An abuse of the compact is exactly what the secessionists complained about. Also, what is rightful is dependent on the express terms of the compact.

Madison expounded on compacts in Federalist 43, explaining how States could secede from the Union formed by the Articles of Confederation on a basis even less than abuse, which conjures that interesting moment in history when there were four states officially in a "perpetual union" created by the Articles and nine States who had seceded and formed a union created by the Constitution, both unions "styled," as they used to say, the United States.

"The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same. This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable. Two questions of a very delicate nature present themselves on this occasion:
  1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? [under an organic law that required unanimous consent]
  2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it? The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed."
 
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