Paul's explanation very nicely and professionally corrects my
error. It is always a good and useful thing to be corrected
by experts, and we should all be grateful to have a
constitutional scholar of his stature active in this conversation.
The question of whether or not a state can leave the Federal
Union is clear enough as a matter of constitutional law, both
then and now. The fact that the southern states were careful
to follow a democratic process does not mitigate the
unconstitutional end to which they committed themselves.
Lincoln was correct to oppose secession.
The logic of his position was articulated powerfully during
the Philadelphia Convention in 1787 by any of a number of the
founders, including numerous southerners. To my recollection,
the person most clearly and powerfully to articulate the
argument that the Union was indivisible was James Wilson of
Pennsylvania, but Wilson had plenty of support. If you resort
to the Federalist papers, you will find quite a bit of mention
of the ills that would beset the several states, were they to
split up into smaller regional confederations. Those
arguments were compelling at the time, and contributed to the
ratification of the Constitution in the various states.
If I am remembering properly--again, Paul's wisdom and
expertise may be useful here--the Virginian jurist and amatuer
constitutional gadfly John Marshal contributed to that
argument during the 1790s. Oh, wait--I guess we have to
accord Marshal a bit more respect than that, don't we? He
was, after all, a rather important Chief Justice of the
Supreme Court.
The South was the agressor in the conflict from the beginning.
Who fired the first shot, and why, is irrelevant.
Southerners committed themselves to the an irresponsible and
illegal course of action that anyone sworn to uphold the
constutituion would have had to have opposed. Lincoln's
charity towards traitors was magnanimous--malice to none and
all that. But his decision to oppose secession, by force if
need be, was the correct decision, and an act of courage and
principle.
We should also note that the southern decision to secede was
self-consciously and manifestly to defend the right of some
people to enslave other people. Charles Dew's book APOSTLES
OF DISUNION does a great job of demonstrating that beyond any
shadow of doubt (it is regretable that in this day and age, a
book like Dew's is necessary). But you do not need to take
his word for it--go look at any of the state secession
convention reports. I recommend that of South Carolina, as
being especially clear on this issue.
South Carolina spelled out her reasons for secession in a
Declaration, issued on 24 December 1860. Its authors argued
that the Union was a compact between the states, and that a
compact was akin to a contract. Here is what they wrote:
"In the present case, that fact is established with certainty.
We assert that fourteen of the States have deliberately
refused, for years past, to fulfill their constitutional
obligations, and we refer to their own Statutes for the proof."
That is to say, if one party broke the contract, that freed
the other party from observing it. South Carolina's spokesmen
then spelled out the way in which, they believed, the Northern
states had violated the compact. Here is the relevant language:
"The Constitution of the United States, in its fourth Article,
provides as follows: "No person held to service or labor in
one State, under the laws thereof, escaping into another,
shall, in consequence of any law or regulation therein, be
discharged from such service or labor, but shall be delivered
up, on claim of the party to whom such service or labor may be
due."
Since this is the central issue that the author's of the
document raised, they went out of their way to emphasize its
importance:
"This stipulation was so material to the compact, that without
it that compact would not have been made. The greater number
of the contracting parties held slaves, and they had
previously evinced their estimate of the value of such a
stipulation by making it a condition in the Ordinance for the
government of the territory ceded by Virginia, which now
composes the States north of the Ohio River," and "The same
article of the Constitution stipulates also for rendition by
the several States of fugitives from justice from the other
States."
The issue was the fugitive slave clause of the Constitution of
the United States. The authors of South Carolina's
"Declaration of Secession" wanted to keep their slaves, and
saw no contradiction at all between the democratic values that
otherwise permeate their writing and their ownership of other
human beings as perpetual chattel.
The Civil War was about slavery. The South was wrong in its
constitutional interpretation, and even more so, it was wrong
in its understanding of natural law. Both errors justified
the actions of Lincoln, and either would have been sufficient.
Lincoln had both law and morality on his side.
All best,
Kevin
---- Original message ----
>Date: Wed, 14 Feb 2007 20:41:32 -0500
>From: Paul Finkelman <[log in to unmask]>
>Subject: Re: Long memories
>To: [log in to unmask]
>
>Actually, ex parte milligan did not rule that suspension was
>unconstitutional -- that was no the issue in the case; but
rather that
>because the civil courts were open at the time, Milligan was
entitled to
>a trial by a civilian court. In other words, you cannot try
civilians
>by military court *if* the civilian courts are functioning.
That is
>correct. It is not, by the way, clear that Lincoln had much
to do with
>Milligan's trial; Milligan was a small potatoes traitor
accused of
>trying to organize an army in Indiana to make war on the
United States.
>He was arrested by the military, and tried by the military,
when he
>ought to have been arrested by civilians and tried by a
regular court.
>
>One of the problems here Lincoln faced was that there were
virtually no
>federal laws and there was virtually no federal law
enforcement to stop
>treasonous activity when the war began. Today someone like
Merryman in
>Maryland or Milligan in Indiana would be arrested by the FBI,
hauled
>into U.S. District Court, charged with various federal
crimes, put in a
>federal holding facility, and then tried in federal court.
Timothy
>McVeigh comes to mind. But Merryman, who like McVeigh was a
terrorist
>trying to blow things up, could not be arrested by a
non-existent FBI,
>or charged under laws that were not on the books; hence
suspension of
>HC. Milligan could have been tried under existing law by
1864 and
>should have been, and the SUpreme court correctly ruled that
way.
>
>Paul Finkelman
>President William McKinley Distinguished Professor of Law
> and Public Policy
>Albany Law School
>80 New Scotland Avenue
>Albany, New York 12208-3494
>
>518-445-3386
>[log in to unmask]
>>>> [log in to unmask] 02/14/07 7:12 PM >>>
>I am sure Paul can recite the proper Constitutional history
>better than can I. That said, what Mr. Forest writes below is
>misleading.
>
>The opinion in Ex Parte Milligan was written by Justice David
>Davis, who declared "the Constitution of the United States is
>a law for rulers and people, equally in war and peace." On
>this basis, he ruled that Lincoln's suspension of the writ of
>Habeus Corpus in southern Indiana was unconstitutional.
>
>This view, however, survived only until World War I, when
>justice Holmes drew a distinction between the law during time
>of war and the law during peacetime. Holmes noted "when a
>nation is at war many things that might be said in times of
>peace are such a hinderance to its effort that no court could
>regard them as protected by any constitutional right." While
>Holmes was talking here about the first amendment, subsequent
>courts took the spirit of his declaration to apply to a wide
>range of executive action during time of war, eg., Korematsu
>v. United States.
>
>Thus, it is not at all clear, from the perspective of modern
>jurisprudence, that Lincoln's action with regard to Milligan,
>or earlier with Merryman, was improper. Davis' decision in Ex
>Parte Milligan simply was not the last word on the issue.
>
>Mr. Forest is thus incorrect to suggest that Lincoln violated
>his oath to uphold the Constitution. The traitors to the
>Constitution, to the contrary, were the men who led the
>Southern states out of the Union on a deeply misguided and
>incorrect understanding of the nature of the Constitution.
>The Union was perpetual, and everyone involved at its founding
>understood with much greater clarity than do modern apologists
>for the Confederacy (or most Americans today, for that matter)
>that the dissolution of the nation into two or more
>confederacies would be disastrous in all sorts of ways. The
>fate of the Southern Confederacy more than confirmed the worst
>fears of the Founders.
>
>Mr. Forest, and anyone else interested in this, would be well
>advised to read James Madison's notes from the Philadelphia
>convention. Hendrickson's recent book PEACE PACT is another
>useful resource on this question.
>
>All best,
>Kevin
>
>
>
>---- Original message ----
>>Date: Wed, 14 Feb 2007 18:33:26 EST
>>From: Basil Forest <[log in to unmask]>
>>Subject: Re: Long memories
>>To: [log in to unmask]
>>
>>It may be hard for you to imagine, but the Supreme Court,
>charged with
>>deciding that issue, found Lincoln lacked the Constitutional
>authority and that
>>was, and always is, the final word in Constitutional
>debates. So, any debate
>>about it was ended and Lincoln was required to comply with
>the Court's
>>decision. He refused to do so, a clearly impeachable action
>by any standard.
>>
>>I fail to find anything meritorious in Lincoln's continual
>actions in
>>ignoring the Constitution and his oath of office to follow
>his own feelings on what
>>he could and could not do.
>>
>>I am sure the 600,000 dead Americans in the Civil War would
>agree.
>>
>>
>>
>>To subscribe, change options, or unsubscribe, please see the
>instructions
>>at http://listlva.lib.va.us/archives/va-hist.html
>Kevin R. Hardwick, Ph.D.
>Department of History
>James Madison University
>
>To subscribe, change options, or unsubscribe, please see the
>instructions
>at http://listlva.lib.va.us/archives/va-hist.html
>
>To subscribe, change options, or unsubscribe, please see the
instructions
>at http://listlva.lib.va.us/archives/va-hist.html
Kevin R. Hardwick, Ph.D.
Department of History
James Madison University
To subscribe, change options, or unsubscribe, please see the instructions
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