"General Robert E. Lee - Patriot or traitor?" Topic

His discussion of the timeline of Lee's resignation is on point. Likewise the reasons the Confederate leaders weren't tried is on point. Lee's possible duplicity about leading the US Army and then defecting is also on point.

You are being a bit silly APDC. His position was well thought out and intellectually defensible.

That audience member repeatedly misquoted the constitution. The same misquotes that all CSA fans, anti-government types and all around, self appointed constitutional skolars misquote.

The matter of reserved rights of States to secede from the Union was settled in 1865, not in 1860 or even 1787 and the questioner was astute in pointing this out. In some ways this issue is another fudge of the 1787 Constitution which tried to meld two differing visions of the country into one document.

At the Constitutional Convention, secession was discussed and rejected. Even if it were permitted, it would've needed to go through the Courts to finalize such a large change to the Union. It is telling that the Slave States who had always been the biggest proponents in going to the courts to assert their slave rights suddenly weren't interested in judicial review over the Constitutionality of secession.

Although large numbers of pro-CSA persons mindlessly recite the secession was 100% Constitutional mantra, I've never seen one explain why they think such an important decision to the national makeup wouldn't need to be bilaterally decided or judicially reviewed.

I think the timeline of Lee's resignation is completely irrelevant to the matter of Lee's guilt. There was no duplicity in Lee's mind which is the question when it comes to establishing criminal intent. He expected his resignation to be immediate and had every reason to think so.

What exactly what the questioner's misquoting of the Constitution?

I am not aware of any votes on the matter of secession in the 1787 Constitutional Convention. Even if that were the case this matter falls beyond the purview of the Convention. This is something that I noticed that you continually overlook. The 1787 Constitution (as well as the AoC) are about the establishment of a federal government and what powers have been delegated to it from the States. All national powers are delegated from the States. I realize now that GP's language is mischaracterizing the transference of the sovereign State authority. There is no ceding per se. It is delegated authority as the 10th Amendment makes clear. So it wouldn't surprise me that there is no mention of secession in the 1787 Constitution. Why would it be in there? This is a reserved right of the States. They can delegate their sovereign powers to the USA or they can withdraw this delegation at their discretion. What they can't do is what SC tried to do in 1832 through nullification. You are either in or out of the Constitution.

If you are going to form a new country Don, you can't have a fort occupied by another power sitting the middle of your most important port. That doesn't make any sense.

My point exactly! But South Carolina tried to do it anyway! The forts were there, the troops were there, but the SC legislature (and governor) tried to secede while still anchored to the Federal government by the forts in Charleston Harbor and the Federal troops stationed in them.

At the very least, SC needed to negotiate a transfer of possession with the Federal government. It tried to do so, but the government didn't want to sell (let alone give away) its forts, and there is no law, principle, or custom that I know of that would require it to sell or give away something it wanted to keep. If I want to buy your house, but you don't want to sell, you don't have to, and I can just do without it.

I think the timeline of Lee's resignation is completely irrelevant to the matter of Lee's guilt. There was no duplicity in Lee's mind which is the question when it comes to establishing criminal intent. He expected his resignation to be immediate and had every reason to think so.

Is this about what you think or what the US Army and Government thought? They thought he was a traitor. Someone said the idea that he was a traitor was anachronistic.

Also, I didn't realize Lee had to think he was a traitor to be a traitor. Do you think traitors routinely look both ways sneakily and go "Muahaha, I'm a traitor!"?

You are chronically bringing up relevance but a lot of what youre bringing up now is kind of irrelevant to whether people then or now consider Lee a traitor. I havent done nearly as much pointing out about what a grasping for straws some of all this by you has become. Now I'm in a full blown Natural rights/Secession-was-Legal rationalization with someone who aint a Neo-confederate. It's a mighty curious thing.

Fact is, as put by 35thOVI, that Americans consider Lee a traitor while Confederates, Neo-confederates and anti-government nationalists consider him a hero. If you accept that definition, then we've made progress.

Although it makes sense because you do think that the CSA gets to unilaterally declare what the Constitution says and what's legal. But, how is it that they relied on the courts for so much pro slavery law but when it came to secession, it suddenly wasn't obvious enough to get settled by the same courts? You'd have thought they'd be pushing everyone out of their way to have the courts declare secession constitutional. Either that or ask the Northern States to take a vote with them for Secession.

It could be that the "juice" they enjoyed from over-representation as a result of the 3/5ths compromise was starting to run out and they knew they couldn't keep fixing the law the way they wanted to do what they wanted.

Or didn't the Northern States consider secession constitutional? Coincidence? Is it proof that the Slave Sates didn't really care beforehand whether secession was or wasn't legal? Could it be that there explanation was an afterthought?

What exactly what the questioner's misquoting of the Constitution?

He kept reciting that powers not specifically granted to the Federal government are reserved to the states. It doesn't say "Specifically or "Expressly" granted in the 10th Amendment. In fact, it did say "Expressly" in the AoC but that word was both debated hotly and purposefully removed in the final Constitutional language.

Go back, take a look: YouTube link

In fact, this is a typical anti-government mistake. Most of those "States Rights" types always try to add the word "expressly" or similar in the Tenth Amendment. But it isn't there, and even if it were, the residual powers are not reserved to the States alone but to both the States and the people.

And even if it did mean that the states had the right to do all sorts of things, they still had to submit to the SCOTUS to litigate it with the US government.

Also, if Secession was such an important important, why is the Confederate Constitution Silent on that right?

Incidentally, because they cannot independently alter the Constitution and are bound by it even when they vote against a provision, the States did surrender their sovereignty.

Among other States, New York discussed a Secession provision for the Constitution which was roundly pushed back on by Madison as a Constitutional impossibility. It was withdrawn by New York.

That's all you need to understand that unilateral secession was both considered and rejected for the final version of the Constitution.

It could be that bilateral secession would've been permitted, if the South had asked nicely.

Any criminal conviction rests on intent. Without intent there is no conviction. I think it would be near impossible to show that Lee intended to commit treason against the US government for reasons cited in the Guelzo video.

You completely misunderstand the meaning of "expressly" in the 10th Amendment (note this an amendment and not part of the main body of the 1787 Constitution.) The reason expressly was removed was to give some leeway to the new federal government to operate. It in no way restricted the reserved rights of States. The Constitution is principally about delimitating the delegated powers of the Federal Government. State powers are only limited where they not "prohibited by it to the States." Show me anywhere in the 1787 document where States are prohibited from leaving the Union. And secession or withdrawal was not included in the CSA Constitution either because it didn't need to be articulated. This was a reserved right belonging the States and everyone understood this.

So in the simplest of terms, the US Constitution is principally focused on delimiting the powers of the federal government. It is only incidentally interested in the powers of the States and only to the degree that they would interfere with a federal government operating under the proposed constitutional frame.

LOL he literally took up arms against the USA.

Marcus, you know I never said the below. 😉

APDC quote:

"Fact is, as put by 35thOVI, that Americans consider Lee a traitor while Confederates, Neo-confederates and anti-government nationalists consider him a hero. If you accept that definition, then we've made progress."

My original quote:
"Wow! Now that was insightful. Those in the North considered him a traitor. Wow I bet they considered the rest of the Confederate officers traitors too."

So yes I think it is fair to say, at the end of the war "most" northerners considered Lee a traitor. But not all. Probably some Copperheads who didn't and some southern sympathizers who didn't. Most, but not all, Southerners considered him a hero.

But to say that "Americans considered Lee a traitor"? I would say that is extremely far fetched. Dig up those percentages of South Americans, Central Americans and Canadians who considered Lee a traitor, or actually even cared one way or another. I mean they are "Americans", correct?

How about Native Americans?

"A total of at least 7,860 Native Americans from the Indian Territory participated in the Confederate Army, as both officers and enlisted men; most came from the Five Civilized Tribes: the Cherokee, Chickasaw, Choctaw, Creek, and Seminole nations."

"Native American allegiances varied during the Civil War, but were often motivated by a common desire to protect tribal lands and lifeways. Approximately 3,503 Native Americans served in the Union Army."

Of course a large percentage of them hated both sides.

But based on percentages who fought on both sides, I would hazard to guess, the larger percent did NOT view Lee as a traitor.

I will disregard those citizens of the United States out west in the territories and in California who probably did not care one way or another. Who knows how they felt.

So we should not speak for "Americans", that is pompous of us to believe we are the only Americans and to say we speak for all. A common mistake.

Any criminal conviction rests on intent. Without intent there is no conviction. I think it would be near impossible to show that Lee intended to commit treason against the US government for reasons cited in the Guelzo video.

Lack of intent wasnt the reason he wasnt tried for treason. Irrespective, we are right back to where you want to dwell. You dont have to be convicted to be considered a traitor; see Benedict Arnold. Do you think he was a traitor?

Do you think Jefferson Davis was a traitor?

You completely misunderstand the meaning of "expressly" in the 10th Amendment (note this an amendment and not part of the main body of the 1787 Constitution.)

I misunderstand the meaning of the word expressly? A couple of posts ago, you didnt pick up that your "astute" States Rights guy in the audience was repeatedly saying "specifically granted". Now I dont understand expressly? I understand that it isnt in the 10th Amendment.

I know they expressly removed it from the AoC to expressly give the Federal government more expressly and implied powers. Is that expressly clear enough for you?

That babbling baboon didn't even know what the 10th Amendment said. I suppose you think he understood just fine though?

The 10th Amendment isnt part of the main body of the Constitution?

WTH is that supposed to mean? What a breakthrough.

The Constitution is principally about delimitating the delegated powers of the Federal Government.

Yeah, I dont know what sort of twisty pretzel-esque thing you're doing here but the powers for the Federal government are both express AND implied. The powers that aren't prohibited by the Constitution to the states are reserved for BOTH the States and the People of the USA. That doesnt mean the CSA gets to say and do whatever they want unilaterally, it just dont.

Once again, secession was brought up by several states because they felt it wasn't clearly granted in either the Constitution or the proposed Amendments. The Federalists beat them all down and they were withdrawn. They, the federalists, did not think that states should unilaterally have the power to secede. Remember that implied thing?

You cannot keep giving the circular argument that if the Constitution is silent on something, the states get to do whatever they want. Even if they could, they need to go through the courts. Every Constitutional tussle between the states and the Feds goes to the courts.

Now it's my turn to ask you if you understand? You keep making a confederate argument about the Constitution made by no one else but confederates, Neo-confederates, and anti-government persons.

I say this partly because what you seem to be doing is fighting tooth and nail for the Constitutional right of the CSA to break away and create the biggest train wreck the country has ever known. Further, you are using their CSA logic to justify the move; logic which is bent, faulty and has never been used by anyone else but them. They were going to leave no matter what it said in the Constitution; their rationale was a smoke screen. Ignore this at your own peril.

Now, seeing as you are neutral about the CSA, what exactly is the big point here? That the CSA was 100% in the right? Is there some intended good that they accomplished? How did their righteousness work out for them? None of this matters to you; it's their legal right that your concerned with?

Additionally, you've ignored a number of important points in my last post. I can only surmise that you are unable to answer them.

And secession or withdrawal was not included in the CSA Constitution either because it didn't need to be articulated. This was a reserved right belonging the States and everyone understood this.

That's odd considering they felt the need to amp up CSA congressional powers over the CSA member states, include more language on slavery and also fight WVA's vote to secede. Maybe only Confederates can secede? In any case, by your logic, you leave the important stuff out bc it is super obvious and include the unimportant stuff like lots O' new slavery rules.

Hey, maybe the US Constitution is the same, maybe all the unimportant stuff is expressed and the really important stuff is implied…like no unilateral secession.

LOL he literally took up arms against the USA.

Yeah but he kinda, sorta resigned.

And because he was never convicted of treason, we have to salute him.

I didnt realize how many States celebrate Robert E. Lee's Birthday. There is something similar about those states; can't quite put my finger on it.

I wonder why they dont have a Ulysses S Grant B-Day too…weird.

A couple seem to combine his B-Day with MLK, Jr's B-Day…so progressive.

link

Hey, maybe the US Constitution is the same, maybe all the unimportant stuff is expressed and the really important stuff is implied…like no unilateral secession.

Again, ADPC, you are ignoring the purpose of the 1787 Constitution which is principally to lay out the powers of a federal government. The 1787 Constitution is not principally about state sovereignty or powers. The term "expressly" was not included in the 10th Amendment because of the experience of the AoC. The Founders wanted a strong federal government.

This point was born out in McCulloch vs Maryland when the Marshall Court rejected the state of Maryland's claim that the chartering of a bank by the federal government went beyond its authority because there was nothing in Congress' enumerated powers that allowed it do so. That is exactly what the founders wanted the 1787 constitution to protect against. Note in all this that the question is about federal authority and what the federal government can do? It has nothing to do with what state governments can do. States are free to do anything they want to except that which is prohibited to them the 1787 constitution and any limitations in their own constitutions. The States did delegate certain authority to the federal government and they are bound by the limitations placed on them by the Constitution.

This had absolutely nothing to do with secession or withdrawal from the constitutional compact that was created in 1787.

At the very least, SC needed to negotiate a transfer of possession with the Federal government. It tried to do so, but the government didn't want to sell (let alone give away) its forts, and there is no law, principle, or custom that I know of that would require it to sell or give away something it wanted to keep.

I mostly agree with your thinking. It was a reckless and naive act on the part of Southern nationalists who pushed the South into war. I think waiting might have served the South's interests better. Just ignore Lincoln and the United States and create a stalemate situation.

And ADPC, it is clear that southern States could have seceded from the CSA. Yet nothing in their constitution explicitly permits this. How do you account for this?

Someone (I don't remember who) commented, at the time South Carolina seceded: "South Carolina is too small to be a republic [i.e. independent] and too large to be an insane asylum.

Good old Tango. He certainly started something here.

I once had a Battle Flag of the Confederacy on my bedroom wall, but that was 50 years ago. I still have a CSA brass belt buckle (I wish it was real) but would never display such memorabilia these days. Somehow, over here, we divorced the "cool" CSA from slavery, back then.

But is an individual's first duty to his country (right or wrong) or is that duty to follow his conscience? International law now suggests the latter.

Lee clearly felt that he (reluctantly) owed his first allegiance to his home state rather than to the Govt in Washington. Whatever his acceptance of slavery, that does not make him a traitor strictly speaking.

I think………

But is an individual's first duty to his country (right or wrong) or is that duty to follow his conscience? International law now suggests the latter.

Not an easy question. There are many who believe Lee to be a traitor and those who disapprove seem to think that in order to validly consider Lee a traitor there is a requirement for a legal conviction. However, it doesn't seem like the people who made his B-Day a national holiday have to prove he is a hero.

Lee clearly felt that he (reluctantly) owed his first allegiance to his home state rather than to the Govt in Washington. Whatever his acceptance of slavery, that does not make him a traitor strictly speaking.

And his home state considers him a hero to be celebrated. I don' think he was a big supporter of slavery but he was a next level racist.

He's more a traitor because people are paying attention now and notice that there are thousands of CSA statues on public lands and textbooks that praise these people. Like you referenced, there was a time when most of us thought the CSA was quaint and allowed the Lost Cause Mythos to thrive but that's changed now.

It's disturbing that there are many who think because the little 150+ joy ride for pro CSA fans is at an end that is has to be a sign of wokeism, socialism or whatnot. The times are just changing. With any luck, they'll secede from public view.

Marcus Brutus

I am ignoring nothing. I am considering all the circumstances. Rather it is you that wants to only focus on the same couple of narrow factors you seem to believe justify the CSA's behavior. Why this is important, I do not know.

I have mentioned that unilateral secession was rejected for the Constitution. You don't like that, then fine. I have pointed out that Congresses powers are both express and implied, you don't like that either.

We could argue back and forth but you think only the CSA understood the Constitution. The USA didn't understand it, the SCOTUS didn't, Lincoln didn't, I don't, anyone who disagrees with the CSA doesn't, no one understands the Constitution but the CSA and their fans. And once this is the case, they no longer have to pay attention to anyone else? They can effect one of the greatest changes any country can go through without any input from anyone else?

One would think that the fact that others disagreed about secession's legality would trigger enough for a controversy. But somehow, even though there existed a federal question, the Slave States didnt want to take this to the courts. Maybe they were so 100% right that that legal move was obviated. Maybe they were afraid that Congress and the courts would say, "Oh yes, you have the 100% legal right to secede but after giving you guys everything you've wanted since the DOI, we're finally going to make a decision you wont like"?

Would it have hurt to ask the Congress and the courts to decide if unilateral secession was legal? What was the rush? The CSA just realized that secession was legal and they had to get it all done within one year before the coupon expired? They could've seen what the courts decided and then if it went against them, they could've seceded anyway. Or do you think that if Secession were 100% illegal, the South would've said "Oh well, guess we have to give up on our slave dreams"?

They stood for slavery and autocracy,they stood against States Rights for everyone but themselves, they were badly organized and ill prepared but as long as they found a legal loophole in the Constitution, all's right with the world? I would like to pint out that the SCOTUS did decide in Texas V. White that unilateral secession was a Constitutional impossibility.

I wish you could point out one intended positive result of the Confederacy, one thing they stood for that wasn't sordid or self absorbed and tell me that it wasn't all a complete, bloody disaster from beginning to end to make it all worthwhile that they were legally entitled to secession. God help us all if in the future some OCD genius thinks they find a Constitutional loophole that entitles them to blow up the world.

What SCOTUS decisions are you thinking about between 1787 and 1860?

The key word to understand in all this is "delegate." As the 10th Amendment states

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.

The meaning of "delegate" is "to entrust (a task or responsibility) to another person, typically one who is less senior than oneself." In this case the Constitution is taking powers in very specific areas of governance that normally reside with the States and entrusting them to the United States. Again, the 1787 Constitution is principally about the powers and responsibilities of the United States. It speaks very little to the powers, reserved or otherwise, that belong to the States. Certainly, the most essential reserved power of a State is to decide whether to belong to the compact or not. There is absolutely nothing in the Constitution that permanently binds any State in perpetuity to the 1787 compact of states anymore than such States were bound the Articles of Confederation.

Since the powers of the United States are delegated powers that normally reside with States, any state can withdraw this delegation of powers by withdrawing from the 1787 Constitution. What a State can't do is what SC tried to do in 1832. Nullify the power of the United States but remain within the constitutional compact.

In 1860, a Texas v White was the decision that the Slave States might've most feared would be handed down and an explanation of why they didnt want to file suit to unilaterally secede.

"delegate" is only one of several key words which is meaningless until you acknowledge that the powers delegated were express, implied, inherent and both broad and sweeping.

PDF link

Consider this:

The Tenth Amendment does not impose any specific limitations on the authority of the federal government; though there had been an attempt to do so, Congress defeated a motion to modify the word delegated with expressly in the amendment. It thus does not grant states additional powers, nor does it alter the relationship that exists between the federal government and the states. It merely indicates that the states may establish and maintain their own laws and policies so long as they do not conflict with the authority of the federal government.

The Constitution was a permanent union and it bound the States. Look at it as contract. In addition when they elected to join the Union, the States surrendered some of their sovereignty.

Apparently you think you are on to something here. However, even if this were all true or viewed in a light most favorable to the Slave States, they would still have to submit to a neutral arbiter like the courts. In every case where there was a conflict over State vs Federal rights, it was either hashed out in Congress or went to the SCOTUS. I dont think they wanted to go to court and that actually ended up hurting them internationally when they strove to gain sovereign recognition.

Just so we are on the same page, there are a lot of powers that the Federal government might need, that haven't come up yet. That's one of the reasons "expressly" was removed from the language. That way, when something important comes up that might interfere with the Federal government's ability to operate, like unilaterally dissolving the country every time a State thinks it is getting a raw deal, there can be a judicial review (or a new law passed) over it to determine its constitutionality.

To be clear, in all cases where the states think they have a right and the federal government disagrees, it has to be litigated, otherwise it renders the US Constitution a useless chaotic instrument. If someone wants to bin the entire US Constitution to justify CSA secession, then they should please say so.

Additionally, you focus too much on very specific, limited provisions; the constitution is a living, integrated document, not a relic.

Texas v White was decided in 1869, not 1860. The whole constitutional question of secession was settled by the ACW. No one denies that secession post 1865 is unconstitutional. I ask again, what case between 1787 and 1860 did SCOTUS rule on a State's right to secede? I think you will be hard pressed to find one (because there aren't any.)

And to add, when I delegate a task to you I always have the right to withdraw that delegation and return the task to myself. When the States delegated certain powers and responsibilities to the federal government in 1787 Constitution like any other delegation it can always been withdrawn at the delegator's discretion. It does not require any other action than simply withdrawing the delegation (which is what secession is.)

Texas v White was decided in 1869, not 1860. The whole constitutional question of secession was settled by the ACW. No one denies that secession post 1865 is unconstitutional. I ask again, what case between 1787 and 1860 did SCOTUS rule on a State's right to secede? I think you will be hard pressed to find one (because there aren't any.)

Do you think the Court in Texas v White would've come to a different decision in 1860?

How did the ACW settle the Constitutional question?

And to add, when I delegate a task to you I always have the right to withdraw that delegation and return the task to myself. When the States delegated certain powers and responsibilities to the federal government in 1787 Constitution like any other delegation it can always been withdrawn at the delegator's discretion. It does not require any other action than simply withdrawing the delegation (which is what secession is.)

I think you might want to rethink this. I was tempted to respond but thought I would give you a chance.

Do you think the Court in Texas v White would've come to a different decision in 1860?

I thought so. You don't have a SCOTUS case prewar that "settles" the matter of secession. As far as how the Taney Court would have ruled on secession in 1860 who knows. It was a live question however.

The question of delegation is decisive in my opinion to the ultimate efficacy of States withdrawing from the Constitution. Also, you've shown no evidence that the States understood in 1787 that there were signing up to a permanent compact. You mentioned several times that secession was discussed in the New York ratifying convention. I have Michael Klarman's book "The Framer's Coup" right in front of me. There is an extensive discussion on the NY convention in Klarman's book and no mention of secession at the NY convention. That doesn't mean this discussion didn't happen but it does mean that it wasn't likely a major feature of the convention's discussion. As I mentioned to you above Virginia did pass a resolution outlining Virginia's reserved right to withdraw from the 1787 Compact.

In general, it seems like it has been in everyone's interest to be united. The drawbacks of splitting up have always interested me. Since I believe that slavery underlies all of the various causes of the ACW, with hindsight the war was just not worth keeping slavery.

The right to leave the Union means that each state is free to face a plethora of fundamental problems for little or no gain.

And leaving to form a different union is still a pathway to a weaker existence. The more recent talk of civil war and secession ignores the tremendous advantages for everyone in the United States. Whether secession is legal or not does not really matter. It is still a foolish path, IMO

That said, thanks for the great discussion!

I thought so. You don't have a SCOTUS case prewar that "settles" the matter of secession. As far as how the Taney Court would have ruled on secession in 1860 who knows. It was a live question however.

But why would the decision have been different after the war? Was there a change about secession in the Constitution?

If the Taney court might've come to a different conclusion, why didn't the Southern states file a lawsuit for unilateral secession?

If it was a live question, is that not a stronger reason to litigate it?

If unilateral secession was 100% legal and states could withdraw their support just by clapping their hands or snapping a twig, then why did the South submit to so many decisions SCOTUS beforehand, especially the ones that went the way of their interests?

Are you suggesting the South had their hands crossed behind their backs when they signed the Constitution and only planned to go along with the USA charade until it didn't please them anymore?

Further, if the Taney court would've been sympathetic to unilateral secession, isn't that an even stronger reason to take it to court?

Do you accept that unilateral secession is now unconstitutional? If not, then why wouldn't the USA have put express language in the constitution forbidding it; especially after a disastrous war?

The question of delegation is decisive in my opinion to the ultimate efficacy of States withdrawing from the Constitution.

I dont even know what this means but your statement in your last post above is incorrect. Delegation was permanent. And the word delegation does not mean revocable at any time. Additionally, "delegation" was just a facilitating term, what was at issue was what was delegated and that was expressed, implied and inherent powers. The enumerated powers were enumerated, the implied powers were suggested but not fully known until needed or challenged and the inherent powers were those things that were completely overlooked but necessary to centrally run a country.

The very nature of implied powers having been delegated meant that when an important issue arose between the states and the federal government, it needed to be hashed out in the courts. Smaller issues were litigated over the 10th Amendment one would think splitting the country in half would be worthy of a lawsuit.

There's also the issue of the supremacy clause.

Incidentally, it isnt just "delegation" It's "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's about what the Constitution delegates, not the individual states, whenever they want.

It's also about powers prohibited to the states. That could only be possible in a unilateral contract.

Some of this needed to be hashed out and the federal courts had original jurisdiction.

That alone suggests a two way street.

You're putting way too much emphasis on the 10th Amendment, it really isnt that important except for justifying the Confederacy.

Also, your approach that delegation means it can all be withdrawn at any time for any reason is an argument even the CSA didnt make. They never suggested that powers expressly delegated were reversible, rather they didnt want to stick around and find out if secession were prohibited to them by virtue of an implied federal power.

In some ways your argument is plus-confederates-que-les-confederates!

Regardless of whether secession was legal/constitutional or not, firing cannon at the U.S. Army was not!

In his proclamation calling on the states for militia after Ft. Sumter, Lincoln ignored the supposed secession:

"Whereas the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed, in the States of [the 7 Confederate states], by combinations too powerful to be suppressed by the ordinary courts of judicial proceedings, or by the powers vested in the Marshals by law, Now I…" blah, blah, blah …

Basler, ed., Collected Works of Abraham Lincoln, IV:331-2

OMG, I killed it!

No, it's a fine postscript. The book should be out soon….

Whether legal or not, they left and started shooting. Look for the sequel: Whose fault was it…really?

Regardless of whether secession was legal/constitutional or not

Even the CSA's general counsel thinks that one SCOTUS case settled secession's unconstitutionality. Imagine if they had filed suit before the ACW? Would've saved a lot of bother. I suppose everyone was far too busy to think of that.

But then, we are talking about someone who got McCulloch vs Maryland inside out.

In any case, it's difficult to defend dishonest, irrational, selfish actions by basically using the same arguments the CSA used. The CSA knew that they were going to secede anyway and that their rationalizations/justifications were both after the fact and a bid to gain international recognition. It's somewhat tragic when people think their reasons for secession were sincere.

Why would seceding States bring a suit before the Supreme Court for a federation they are leaving? There is no constitutional requirement to get permission to leave the United States. The 1787 Constitution was silent on this matter which must mean that it is reserved power of the States. If a State is withdrawing from the Union it doesn't need a federal court's permission to do. In fact, bringing such a suit before any Federal Court would tantamount to admitting that it needed the consent of some Federal body to leave. That is absurd.

There is no such thing as permanent or irrevocable delegation of responsibilities or powers. The delegated authority always ultimately rests with the one who delegates. If an executive delegates some important task to an person or body that executive is still ultimately responsible for the use of that authority or power and it can be retracted at the discretion of that executive. The States did not cede their authority or rights to the Federal government. They were delegated for the specific purposes of providing the benefits of common effort. If, in the opinion of the State(s) that delegated authority was being misused it can be withdrawn. In the case of the 1787 Constitution to withdraw the delegated power or authority means having to withdraw from the compact.

Incidentally, it isnt just "delegation" It's "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's about what the Constitution delegates, not the individual states, whenever they want.

It's also about powers prohibited to the states. That could only be possible in a unilateral contract.

You have it all backwards. It shows a complete misunderstanding of how the 1787 Constitution was constructed and operated in the 72 years before the ACW. The 1787 Constitution operates on the basis of delegated authority. It does not delegate anything with respect to the States. True, the States give up certain areas of jurisdiction as part of constitutional contract between them. They create a new level of government. But this is a delegation of their own powers for the common good. They agree to be bound by the constitutional frame as long as they are a part of it. While living within the 1787 compact they are prohibited from using powers that have been commonly delegated to the federal government. There is nothing in the act of delegation itself that makes this permanent or unilateral. That is a non sequitur.

Why would seceding States bring a suit before the Supreme Court for a federation they are leaving?

Because…Original jurisdiction:

Article III, Section 2, Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

link

There is no constitutional requirement to get permission to leave the United States.

You recently admitted that Texas v. White said there was. Nothing changed about Secession between CSA secession and this case.

Additionally
McCulloch v. Maryland, 17 U.S. 316 (1819):

The sovereignty of a State extends to everything which exists by its own authority or is introduced by its permission, but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a Government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them.

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Constitution was silent on this matter which must mean that it is reserved power of the States.

This isn't how the 10th Amendment or the Constitution work.

Additionally, by virtue of robust debate, the word "expressly" which existed in the AoC was removed for the 10th Amendment. Everyone removed it, both chambers of congress and Madison said that there had to be a provision for implied powers for unforeseen circumstances.

McCulloch v. Maryland speaks of necessary and proper clause
as the basis of implied powers. Please reread the case.

Additionally, the 10th Amendment is not an important Amendment. You seem to think that it wags the rest of the Constitution, it doesn't. The 10th Amendment is generally considered to be nothing more than a stamp of approval on the system of government set up by the other provisions of the Constitution.

Further, the 10th Amendment not only speaks of powers delegated to the federal government but prohibited to the states. The remainder is reserved to the States and to the people. To the people

In fact, bringing such a suit before any Federal Court would tantamount to admitting that it needed the consent of some Federal body to leave. That is absurd.

For the record, you can also bring it up with Congress. It's only absurd to those who are afraid of the resulting decision.

There is no such thing as permanent or irrevocable delegation of responsibilities or powers. The delegated authority always ultimately rests with the one who delegates. If an executive delegates some important task to an person or body that executive is still ultimately responsible for the use of that authority or power and it can be retracted at the discretion of that executive.

This is your own construct (I hope) but "delegate" doesnt mean "lend", rather it means "vest". The powers granted to the federal government are permanent within the Union.

The States did not cede their authority or rights to the Federal government. They were delegated for the specific purposes of providing the benefits of common effort.

Yes, they did. Your approach would suggest that not only is everything not specifically delegated to the federal government reserved to the states but that those powers actually delegated to the federal govt. are likewise reserved to the states. Basically, the US Constitution means nothing and anytime someone doesn't like something they can secede without warning, notice or review. Now that would be absurd.

In the case of the 1787 Constitution to withdraw the delegated power or authority means having to withdraw from the compact.

Not unilaterally.

You have it all backwards. It shows a complete misunderstanding of how the 1787 Constitution was constructed and operated in the 72 years before the ACW.

I have it backwards? Well, at least I'm not fabricating facts and events. The statements Ive made above are exactly the way the Constitution operated and was interpreted before the ACW.

Unfortunately, you are asserting Constitutional interpretations that were never upheld or followed.

True, the States give up certain areas of jurisdiction as part of constitutional contract between them. They create a new level of government. But this is a delegation of their own powers for the common good. They agree to be bound by the constitutional frame as long as they are a part of it. While living within the 1787 compact they are prohibited from using powers that have been commonly delegated to the federal government.

Yes, they surrendered some of their sovereignty.

Even if (and I'm only saying IF) one of the original 13 states could legally/constitutionally secede, what about all the other states, which were carved out of territory (or Territories) belonging to the Federal government? As one fellow said when he heard that Louisiana had seceded: "I thought we BOUGHT Louisiana!"

There is no original jurisdiction if States have withdrawn from the Union. The act of withdrawing nulls and voids the States participation in the 1787 Constitution. This is why this is called a reserved right. The States did not delegate this fundamental characteristic of sovereignty to the federal government.

With respect to White v Texas, the whole context of the lawsuit is completely changed in 1869 from 1860. Do you think any Court in the USA after the ACW would declare secession constitutional? I think there is a good chance that the Taney Court would have refused to hear any suit brought before concerning secession. That brings up a point, why didn't the USA bring suit against the seceding states in Federal Court? If it was a slam dunk case why not?

You assert permanency of delegated powers but provide no evidence. Again, look to the AoC. The States withdrew from this compact and entered into the 1787 Constitution on the basis on their own sovereignty. Otherwise, the AoC would have required unanimous consent for any changes. Instead of seeking to change the AoC a new constitution was written to replace it. On what authority did they do this? Not on the authority of Congress. Congress under the AoC had no such authority. It was the sovereign right of States to enter or leave constitutional arrangements that allowed the move from the AoC to the new 1787 Constitution.

Don, if the original 13 states had the right secede then all the states do. There is no distinction between the States in the 1787 Constitution. The basic principle at stake in this is the right to self determination.

As an aside, I think the question of Secession in the ACW is actually a complicated story and not easily reducible to tropes. I am taking up one side of the argument mainly because I object to revisionist, ahistorical, patronizing, simplistic interpretations. I object, historically speaking, to people who want to oversimplify human motivation to tropes.

Don, if the original 13 states had the right secede then all the states do. There is no distinction between the States in the 1787 Constitution. The basic principle at stake in this is the right to self determination.

That could work both ways: If the newer states don't have a right to secede then neither do the original 13.

The original 13 states never were independent countries. The Union won independence from Britain, not the individual states.

The only state that ever had true sovereignty/independence is Texas. (OK, a faction in California claimed independence, but it wasn't really independent.)

MB, I agree that, as with most human activities, especially when lawyers are involved, it's complicated. The Constitution did not say whether states had the right to withdraw/secede -- probably intentionally vague to avoid a potential stumbling block. Therefore, it was open to be interpreted according to individual preference -- whatever served your purpose.

In the long run, however, I fail to see what the Southern slave-owners hoped to gain by seceding. They would still have free states for neighbors, and without a fugitive-slave law!

Then starting a war with the United States was just plain stupid!

As an aside, I think the question of Secession in the ACW is actually a complicated story and not easily reducible to tropes. I am taking up one side of the argument mainly because I object to revisionist, ahistorical, patronizing, simplistic interpretations. I object, historically speaking, to people who want to oversimplify human motivation to tropes.

OK, this is truly going too far.

Sorry, you come across as someone completely sympathetic to the CSA. You hold them faultless and you only focus on the one matter you think justifies their behavior. Somehow you manage to eliminate all the baggage of one of the world's most perverted institutions and reduce it all to one arcane argument that the USA and its Constitution was never ratified, have no unity, no validity no power at all in some sort of single-minded need to prove that the CSA acted with perfect justification. Why this is the most important point ever, i have no idea. However, you've basically thrown the entire USA under the bus to save the CSA. This is no longer some conversation, it's you defending your baby.

Except that you use arguments and a vision that the courts of the USA and its Congress never used. You constantly ask for proof, but not only do you hold the minority, fringe argument but, for your answer, all you have to do is look at every SCOTUS and Congressional move from the ratification of the Constitution to the ACW.

This isn't a question of scholarship because your grasp on US, Constitutional and SCOTUS case law and history is extremely poor. You routinely get court decisions completely inverse and when it is pointed out to you you demonstrate absolutely no embarrassment. It would be one thing if you learned from your errors but you just retreat to see if you can ignore a devastating stake through the heart of one of your arguments or try to mount some sort of comeback. It sounds like when you said I was more interested in winning than having a discussion, you were projecting.

Now, you're not required to be a Constitutional expert but when you struggle to understand its concepts and then declare you are right and that Im the one who doesnt understand the Constitution, we are entering a state of buffoonery that rivals Jefferson Davis' mawkish attempt to be the leader of history's most immature temper tantrum.

You continually infer that SCOTUS is a body that makes arbitrary decisions and yet you acknowledge that, without any Constitutional changes on the matter, one case settled unilateral secession. But, rather than agree that a SCOTUS case could've saved my country untold wreckage, you reiterate the CSA's 10th amendment right to secede without any formalities whatsoever.

Your read about the 10th Amendment is complete nonsense. It is the sort of thing a sovereign citizen or a militiaman says. Even if the 10th Amendment were an important Amendment, and it isn't, you pull one line out of it completely out of context. An argument no one has ever accepted.

Same for this AoC series of confusing comments. The Constitution is the Law of the Land. It was properly ratified. The states gave up their sovereignty. There isnt any other mainstream opinion to the contrary. But any arguments that the AoC was never overridden by the Constitution are only made by subversive parties desperate to get out of a jam. And, even they submitted to either Congress or the Courts.

I understand that you identify with the CSA; you are free to do so. However, you aren't free to make events up, make laws up, get the law wrong, demonstrate an inability to understand how the Constitution operates and insist that viewpoints never agreed upon or adopted have as much weight as the prevailing viewpoint.

To be clear, your opinions don't matter much to me but I think it is wrong to allow egregious misinformation like yours to go unchallenged/uncorrected because they can spread.

So when you say that i have :

ahistorical, patronizing, simplistic interpretations. I object, historically speaking, to people who want to oversimplify human motivation to tropes.

I have to laugh because you come across like someone unable to to properly analyze or synthesize information, understand how law and history integrate or even face the most salient of historical realities. And then you have the nerve to get nasty. Additionally, and this is the giveaway, you want fairness, tenderness and understanding for the CSA but freedom to condemn everything and everyone else.

Maybe you dont see it because you have so much difficulty expressing yourself but you're penning a love ballad to the Confederacy at the expense of the rest of US History. With this "poor baby" approach to the CSA, is it any wonder you don't think they were traitors? In contrast, I don't see you worrying one wit about anyone else in this picture, not slaves, not Lincoln, not the North, not abolitionists, not the nation as a whole, not democracy, nothing…nothing maters but the vindication of the CSA.

Oh, and outside of Neo-confederate circles, Lee is still a traitor.

So,AuPas…no, you don't have to laugh.

You make some great points. If you could just get a handle on the disdain. If you make this personal, you lose a lot of steam. MB does not deserve these characterizations. I find him literate and interesting, perfectly capable of handling information, even if I disagree with him sometimes.

Tort +1 👍

So,AuPas…no, you don't have to laugh.

You make some great points. If you could just get a handle on the disdain. If you make this personal, you lose a lot of steam.

When it comes to insults and snide comments from MB, Ive been more than tolerant:

Hey, Au Pas, I don't have time to address all of your meandering thoughts. You do use a lot of jargon language that I find difficult to unpack. So I pick and chose your most salient points and respond when I get the chance.

Actually Au Pas, I edit my comments and attempt to respond succinctly. I think your points would be more salient if you did the same.

Blutarski, I appreciate your translation. It seems that Au Pas would rather win than have a fruitful dialogue.

I want to use this moment as an opportunity to say that I am troubled when people come to topics like this and hurl insults like accusing others of being Neo-Confederate (and by implication allied with White Nationalists) or Southern apologists. I was born and live in Ontario, Canada. I have no affiliation with the North or South of the US. I love US history and am an aficionado of the ACW. My goal is historical accuracy and felicity with the truth. I am willing to learn and enjoy hearing other points of view. I don't appreciate it when people make careless and reckless comments to my character because my historical take on the ACW is different from theirs. Can we just to keep to the facts as we best understand them and leave the personal attacks alone?

What else can you call someone whose only talking points are the CSA ones? I think the rule is if youre going to only and always defend the CSA then you cant complain if someone starts to think of you as pro CSA.

There isnt an equal argument between the Union and the CSA. There is reality and then there is the propaganda manufactured by the South to justify their behavior. Some people have evidently swallowed it hook, line and sinker. There no body of law, history or authorship to support his positions; how he believes the rest of us have to prove to him that he isnt right about the CSA is one for the ages.

The idea that Lee was a "traitor" has become fashionable in certain circles of contemporary Civil War scholarship. But if we look at the whole swath of ACW scholarship over the past 150 years the idea that Lee was a traitor, in pure simple terms, makes up a tiny, tiny portion of the scholarship.

Right, I cant think, only MB can think…got it.

The idea that there are only two camps, Neo-Confederates and everyone else is absurd. In fact, it is that binary way of thinking that I find, historically speaking, most repugnant. Surely there is a whole world of possibilities between them.

Of course, there isnt. What he is saying sounds reasonable but what he really means is anyone who pushes back on the CSA is absurd. I get it, he's a fan.

You completely misunderstand the meaning of "expressly" in the 10th Amendment

You have it all backwards.

I am taking up one side of the argument mainly because I object to revisionist, ahistorical, patronizing, simplistic interpretations. I object, historically speaking, to people who want to oversimplify human motivation to tropes.

How am I supposed to react to this line of contempt towards myself; especially coming from someone who needed to write this?

It's ironic considering he has a limited rotisserie of square CSA platitudes that he tries to hammer into round pegs no matter what information he hadn't considered comes to light.

Really Tort, where have you been?

Tortorella said:

MB does not deserve these characterizations. I find him literate and interesting, perfectly capable of handling information, even if I disagree with him sometimes.

Oh really?

Lee fought for what he considered to be his home. How can one be hostile to such a basic human instinct?

TMP link

Sympathetic to Lee.

Again, historically speaking this conflation of slavery with the American Civil War is incorrect. It is too simplistic.

As simplistic as repeating a part of an unimportant Amendment in a way it was never interpreted by anyone ever except the CSA?

This is a 21st century reconstruction of events. Was slavery a contributing factor to the war? Yes. Was it determinative. Absolutely not.

Yeah, no Lost Cause to this.

The economic and social forces at work in the United States before the War were the dominant reason for it and there were many forces at play.

Wrong. The tariffs were soft on both the South and plantation owners. The tariffs had been rejiggered by a Southern slave owner.

Over 90% of Southern White households did have not own slaves. The vast majority of Southerners fighting in the war did not fight to save slavery.

Wrong-o. The number of slave owners in the South was much higher, something like 33% and most of the rest of white society aspired to owning a slave and did fight to preserve the economy and white supremacy. And I thought he was offended by revisionism.

TMP link

I've got to say here at this point that I am not particularly inclined to the South in the ACW. I have always gamed Union for instance. What I object to in this discussion is what I see as a revisionist project to simplify the War down to one element, slavery. I think this is a historically untenable position even though the current Zeit Geist seems to favour it. I think to do justice to both sides one has to understand each sides dilemmas. That requires some sympathy for the two protagonists in this conflict which I see completely absent in many comments.

Right, well we all know now that the war was caused by a simple misunderstanding, someone forgot to clearly prohibit unilateral secession; cleared up by an after war SCOTUS case. That'll teach ‘em to be clearer with the next Constitution.

Asked several times:

In your personal opinion, do you think the South fought for a just cause?

MB finally answered:

I don't see how I can easily answer your question since you want to assign a simple yes or no response to a complicated scenario. Did the North fight for a just cause? What exactly what was it? I am not sure I could answer that question either. Complicated.

Over the next several pages, MB was asked repeatedly if he thought the South foiught for a just cause. He refused to answer and continually suggested the North was the aggressor.

Oh, everything is so complex, well except cutting and pasting a portion of the 10th Amendment that justifies secession; no matter how much law, practice or logic dispels that myth.

Perhaps you think I mock him?

Here it is from the man himself:

The question of whether a state could secede from the Union was a point of contention that the Civil War settled. It is certainly true that the conventions which approved the 1787 constitution believed that they had the right to rescind that approval. I doubt any State would have joined if it had been made clear in the 1787 document that secession was not permitted. This is why almost 80 years later it was by convention that States withdrew their consent to be governed by the 1787 constitution and the Union government it created.

The conventions didn't believe this. It was brought up by three states and rejected. This deceit is denial on steroids. The only people who believed this were the CSA, after the fact and they made sure no one else had a say.

TMP link

When I asked him what books/authors said the war wasnt primarily about slavery, MB's answer was:

How about starting wtih The Causes of the Civil War edited by Kenneth Stampp. He lays out 7 potential causes and uses various sources to provide background on each one.

An arcane, Lost cause book with one essay in it about ACW causes. I suppose when one isnt a CSA sympathizer one essay is worth all the rest of the ACW authors rolled together. I asked him if this was the only book he could list and he didn't respond.

His language throughout the thread is peppered with contempt for the Union and praise for the CSA. He never takes the Union's side and always supports the CSA's motives and actions; that qualifies him for CSA sympathizer. Most of his arguments are CSA ones. Even that would be alright if it wasnt just a heap of myths, justifications, rationalizations and deceits. No one else ever makes these arguments but the CSA and MB continues to recite them even when debunked; demanding that I prove to him that the CSA wasn't in the right.

There's also a discounting of Madison and Hamilton, and I can only currently imagine how many other framers there is a discounting, due to whatever reasons might be provided, but when it comes to Lee and the CSA, he sympathizes.

As for Madison's comments previously provided … "And the U.S. Constitution certainly doesn't guarantee succession nor did the founders think that it was permitted. Madison said, "A Union of states containing such an ingredient seemed to provide for its own destruction." He also said in reference to state sovereignty that, "in fact they are only political societies. There is a graduation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in Congress." Madison went on further saying that the states, "are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general consideration. The states ought to be placed under the control of the general government-at least as much as they formerly were under the King and British Parliament", … there was this …

Can you cite Madison's quotation? If this quotation is properly ascribed to Madison my hunch is that it is Madison's words as remembered by Robert Yates during the Constitutional Convention. If that is the case, just remember that Madison later disavowed much of what was ascribed to him by Yates from that time.

The quote of Madison comes from a book by Robert Middlekauff called "The Glorious Cause", and he got it from Max Farrand. And if there's not a fuller understanding regarding the totality of what Madison was trying to accomplish over the scope of his involvement with politics during his lifetime, then a continued discount of his comments will occur, especially if such doesn't reflect one's own sympathy for the CSA.

And as for this …

While we are talking about it you also mentioned Hamilton is this quote.

"Even Hamilton wrote in Federalist 11, "Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!"

I like how you use the word "even". Hamilton was a staunch ultra nationalist. He favoured eliminating states all together and creating a unitary form of government. He believed that the national government should be able to annul state legislation. He also favoured elected kings for the head of state of the United States. Hamilton was outside the broad consensus of the Constitutional Convention and his views on state sovereignty are highly suspect.

Duh, no kidding, yet the idea his comments on state sovereignty written in Federalist 11 are discounted, because many of his other comments and ideas weren't the best, nor even passed (oops, there I go again using that word, "even", sheesh), that just helps a less than accurate viewpoint continue, regardless of Hamilton's good points.

By the way, a lesser known convention attendee named James Wilson said rhetorically, "Can we forget for whom we are forming a Government? Is it for men, or for the imaginary beings called States?"

As I said before … "The South was not revolutionarily reinventing itself, nor was it providing self-determination for all it's people, it was deciding to give up on the Union, so that it could continue the white upper class ruling over blacks. It wasn't a revolution over some other form of government, it was a secession to keep the status quo culturally and politically."

And there was this from MB …

From what I have read the question of State sovereignty and the ability of States to withdraw from the new proposed compact never really seems to have been seriously debated during the ratifying conventions. If, in fact, States were permanently ceding their sovereignty as GP suggests wouldn't the Anti-Federalists have made this a major issue in rallying support against the 1787 compact? I think that issue would have become a major argument against the new constitution beyond any particular criticisms and concerns. Yet the Anti-Federalists never seem to go there. The most likely explanation to me for this is that there must have been broad agreement on both sides of the constitutional debate that the various States always maintained their reserved right to leave the new compact if so desiring.

My understanding is they did in New York, yet feel free to prove me wrong. Hamilton, finding that the debate over ratification seemingly significantly divided in New York, asked Madison what he thought of a deal where the anti-federalists would ratify, and in return for the promise of a Bill of Rights, or otherwise secede. Madison did not endorse such a compromise and instead wrote, "I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification."

Au pas…there is plenty to refute about MB's positions. And you do a very good job of this. I am not in any way sympathetic to many of his ideas. I really want the ideas to be the discussion and leave out assumptions about personal qualities.

I have repeatedly stated my opinions here about the cause of the war and make no bones about it. Catton said that slavery lay underneath everything about the Civil War. It was the great contradiction of the founding of the nation, it had no defense, all were complicit, but the South, and Lee, turned their backs on the founders and the nation in defense of an inhumane and un-American practice. MB has a different position, which he states in good faith based on his own beliefs. MB and I do not agree, but I am not here to judge his personal capabilities.

So that's what I think. Anyone here can disagree. That is why we debate. But assumptions about our personal qualities are not a part of this. If you drift over this line too often, it takes away from the rest of your writing, which I find to be exceptional. That is my opinion on the matter and I wanted to make it known without losing the theme of this very compelling series of threads.

Au pas.. I don't mean to single you out. Others here, MB included, respond in kind sometimes or make personal comments on their own. The ideas are what matters and people can support to attack the instead of each other.

I agree Tort. Let's keep the personal, ad hominem attacks out of the conversation. Just the facts maam. Just the facts please! I will do my best to stay "good."

ADPC, you didn't answer my question above.

If Secession was clearly unconstitutional why didn't the Federal government bring suit against the seceding states in Federal Court?

I have been reading about Jefferson Davis' treason trial. As you all know, the treason trial never went forward. Again, as with many human endeavours, there are many reasons for this. Several scholars have mentioned there was concern among the prosecution team that Davis' basic defense, that with his state seceding from the Union he was no longer a citizen of the United States, had a chance of succeeding legally (interestingly this was Lee's likely legal defense if he should be have been tried for treason.)

In a book review on Robert Icenhauer-Ramirez, "Treason on Trial: The United States v. Jefferson Davis" the reviewer states the following:

The question over the legality of secession, however, became a major hindrance to the prosecution, which Icenhauer-Ramirez analyzes in the last half of his book. That question was the reason attorney Clifford left the prosecution team; "Clifford foresaw that Davis's legal position would be that states had the right to secede. If this was correct, Davis could not be guilty of treason because he would owe no loyalty to a government from which he had legally separated" (p. 195). This looming question about secession hovered over the trial's preparation and was ultimately never answered.

I offer this quote to demonstrate that secession was not at all a settled matter in 1787 or 1860 (or even 1868.) I think Don is right. The ability of states to leave the Union was another fudge of the 1787 Constitution that left many important aspects of nationhood undefined.

@GamesPoet

You can see that I gave notice and sources for the matter of secession brought up and rejected by the Framers. MB decided to deny it, refute it, distort it and apparently, generally ignore it because it is a threat to the pro confederacy narrative that the silence on unilateral secession meant that it was permissible. He still hasn't checked it out which must mean he has no interest in any factual information that tends to de-legitimize the CSA's behavior.

TMP link

It's very hard to have discussions with someone about the Constitution who refuses to acknowledge the Constitutional structure, how it operates, its case law and its legislative history.

Here is a tidbit from him to me:

Au pas de Charge, you are misunderstanding the New York ratifying convention. When the Constitutional Convention adjourned at completion there was a common agreement amongst all the signers that the new Constitution had to be accepted as written without amendments.

I guess anytime he gets caught not knowing what he is talking about getting his non pro CSA viewpoint punctured, he needs to tell someone they dont understand something.

Someday he can explain to us how he can ignore the pre ACW case law around Constitutional unity and how the 10th Amendment was constantly interpreted to mean expansive federal powers both express and implied.

Additionally, when the states had a challenge to that federal power or how their state power faced prohibitions, they always took it either to Congress or the courts. How would the CSA justify skirting that interpretation and tradition? But perhaps that is too much to expect from someone who, until recently, hadnt heard of original jurisdiction then refuses to acknowledge it.

This is how patently non-obvious the issue of secession was viewed within the United States in 1860:

"The Right of Secession"
New-York Daily Tribune, December 17, 1860

The Albany Evening Journal courteously controverts our views on the subject of Secession. Here is the gist of its argument:

"Seven or eight States" have "pretty unanimously made up their minds" to leave the Union. Mr. Buchanan, in reply, says that "ours is a Government of popular opinion," and hence, if States rebel, there is no power residing either with the Executive or in Congress, to resist or punish. Why, then, is not this the end of the controversy? Those "seven or eight States" are going out. The Government remonstrates, but acquiesces. And THE TRIBUNE regards it "unwise to undertake to resist such Secession by Federal force."

If an individual, or "a single State," commits Treason, the same act in two or more individuals, or two or more States, is alike treasonable. And how is Treason against the Federal Government to be resisted, except by "Federal force?"

Precisely the same question was involved in the South Carolina Secession of 1833. But neither President Jackson, nor Congress, nor the People, took this view of it. The President issued a Proclamation declaring Secession Treason. Congress passed a Force Law; and South Carolina, instead of "madly shooting from its sphere," returned, if not to her senses, back into line.

—Does The Journal mean to say that if all the States and their People should become tired of the Union, it would be treason on their part to seek its dissolution?

—We have repeatedly asked those who dissent from our view of this matter to tell us frankly whether they do or do not assent to Mr. Jefferson's statement in the Declaration of Independence that governments "derive their just powers from the consent of the governed; and that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government," &c., &c. We do heartily accept this doctrine, believing it intrinsically sound, beneficent, and one that, universally accepted, is calculated to prevent the shedding of seas of human blood. And, if it justified the secession from the British Empire of Three Millions of colonists in 1776, we do not see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861. If we are mistaken on this point, why does not some one attempt to show wherein and why? For our own part, while we deny the right of slaveholders to hold slaves against the will of the latter, we cannot see how Twenty Millions of people can rightfully hold Ten or even Five in a detested union with them, by military force.

Of course, we understand that the principle of Jefferson, like any other broad generalization, may be pushed to extreme and baleful consequences. We can see why Governor's Island should not be at liberty to secede from the State and Nation and allow herself to be covered with French or British batteries commanding and threatening our City. There is hardly a great principle which may not be thus "run into the ground." But if seven or eight contiguous States shall present themselves authentically at Washington, saying, "We hate the Federal Union; we have withdrawn from it; we give you the choice between acquiescing in our secession and arranging amicably all incidental questions on the one hand, and attempting to subdue us on the other"—we could not stand up for coercion, for subjugation, for we do not think it would be just. We hold the right of Self-Government sacred, even when invoked in behalf of those who deny it to others. So much for the question of Principle.

Now as to the matter of Policy:

South Carolina will certainly secede. Several other Cotton States will probably follow her example. The Border States are evidently reluctant to do likewise. South Carolina has grossly insulted them by her dictatorial, reckless course. What she expects and desires is a clash of arms with the Federal Government, which will at once commend her to the sympathy and cooperation of every Slave State, and to the sympathy (at least) of the Pro-Slavery minority in the Free States. It is not difficult to see that this would speedily work a political revolution, which would restore to Slavery all, and more than all, it has lost by the canvass of 1860. We want to obviate this. We would expose the seceders to odium as disunionists, not commend them to pity as the gallant though mistaken upholders of the rights of their section in an unequal military conflict.

We fully realize that the dilemma of the incoming Administration will be a critical one. It must endeavor to uphold and enforce the laws, as well against rebellious slaveholders as fugitive slaves. The new President must fulfill the obligations assumed in his inauguration oath, no matter how shamefully his predecessor may have defied them. We fear that Southern madness may precipitate a bloody collision that all must deplore. But if ever "seven or eight States" send agents to Washington to say "We want to get out of the Union," we shall feel constrained by our devotion to Human Liberty to say, Let them go! And we do not see how we could take the other side without coming in direct conflict with those Rights of Man which we hold paramount to all political arrangements, however convenient and advantageous.

B

It's very hard to have discussions with someone about the Constitution who refuses to acknowledge the Constitutional structure, how it operates, its case law and its legislative history.

That is a specious argument ADPC. I am quite aware of the Constitutional structure, how it operates, its case law and its legislative history. What I am not aware of is any serious argument on your part that demonstrates conclusively that States entering into the 1787 agreed to permanently cede their sovereignty in perpetuity to this new constitutional compact. You have provided no evidence to this much against your protestations otherwise.

You might be interested to know that the quote immediately above in your last entry is not based on my own assessment but on Michael Klarman's masterful tomb, "The Framers' Coup."

You still fail to answer a basic question, why didn't the Federal government bring suit against the seceding States in Federal Court?

And I was mentioning above, there seems to be broad agreement in the academy that the treason trial against Jefferson Davis was withdrawn partly out of concern that a federal court might find secession constitutional. Again, that doesn't prove that secession was legal even within the 1787 Constitution but it does mean that it was a live unsettled issue, something that you continue to deny in the face of what I think is overwhelming evidence.