An Appropriate Petition

14 Responses to An Appropriate Petition

1. Derek Balling says:

   July 7, 2013 at 12:37 pm

   Union generals killed American troops as well.
   • Michael Froomkin says:

     July 7, 2013 at 2:37 pm

     The Union generals did not participate in leading a rebellion, which is I think they key difference.
     • Derek Balling says:

       July 7, 2013 at 7:41 pm

       They didn’t “lead a rebellion”. They tried to exercise their right of self-determination to break from the Union, a decision backed by their State legislatures as the representatives of the citizens of those States.

       The Union, refusing to “get over” the fact that their soon-to-be-ex-spouse, the South, didn’t want to be with them any more, smacked them around until they cried that it was ok, they were willing to stick around, all the while being told by that abusive spouse how much the Union loved them and this was all for their own good.
       • Michael Froomkin says:

         July 7, 2013 at 8:50 pm

         When you say that “They tried to exercise their right of self-determination to break from the Union, a decision backed by their State legislatures as the representatives of the citizens of those States,” just who do you mean by “they” and what do you mean by “self-determination”? Does it include the slaves? If not, why don’t they count?

         The pre-Civil-War Constitution was silent on whether states could leave the Union unilaterally. Perhaps opinions, perhaps even reasonable opinions, might once have differed as to how to read this silence as a matter of Constitutional construction.

         But as a matter of morality, it should seem unarguable today that the Southern power structure’s tenacity in holding on to slavery was a moral bad; and as a matter of fact there can be no doubt that it did not reflect the rights or wants of the Americans held in bondage (who were, incidentally, victims of real rather than metaphorical battering, and worse). There is no reason why today we should glorify the leaders of that evil cause — whether you define the evil as rebellion designed to protect slavery, or rebellion pure and simple — and indeed good reason why we should not.
         • Vic says:

           July 8, 2013 at 5:59 pm

           But is it the existence of a moral wrong (even if we all agree) within a State that is the force which precludes secession? If the Southern States had been slave-free, would they have been allowed to leave then?

           What if slavery were outlawed in the South in 1860, then the States seceded, then in 1870 or so a new Southern Government had reinstated slavery? Would that have been grounds to rescind secession?

           The problem with tying it all to slavery is that it’s a moral position, not a legal one. Slavery, morally corrupt though it was (and remains today in those places it still exists), was legal. We can both agree that it was an abomination, but we shouldn’t be so quick to determine that such precludes Rights which conflict with the rectification of that moral wrong.

           Look at that case in NV you cited in another post. You (and I) have no problem saying the police acted out of line, if not completely unconstitutionally. However, all of it was to catch a wife-beater. We all agree THAT’S a bad thing…so should the castle doctrine be suppressed when stopping a bad thing is reasonable? (and please do not raise the obvious straw man argument…I KNOW slavery and wife-beating are not the same thing…)

           I have never actually heard a sensible argument against a State’s right to secede that doesn’t include the “yeah…but they had SLAVES!” argument. What is the legal case against secession? Is there one? the Constitution only mentions joining, not leaving. Is joining the Union, in effect, a pact unto death?

           I think that’s a far more interesting and original argument than whether slavery was OK. The only places still working THAT out also chose “hand” in the great toilet paper versus hand debate, so I don’t think we need worry about their opinions.
           • Michael Froomkin says:

             July 8, 2013 at 7:31 pm

             Because it has a long inset quote, I’m going to put my reply to this in a fresh thread.
2. Derek Balling says:

   July 8, 2013 at 9:09 am

   First, make no mistake that I’m not in any way condoning slavery. I should hope that would be obvious, but just in case there is any lack of clarity on that point…

   That said, slavery had existed for literally thousands of years. We don’t look back on Revolutionary War America and ask “did the slaves want to be free of ties to England?”. It’s a little bit unjust to hold the CSA to a different set of morals than the fledgling USA was held to.

   So, that said, the body politic, the citizenry, of the breakaway States used the then-normative method for determining the course of action for the government, and decided to walk away from their controlling spouse to the north. In much the same way as white, land-owning, slave-owning males decided to support the Revolutionary War Army, without much consultation of anyone else besides their own opinions.

   To boil the entire Civil War down to slavery is obviously the height of naïveté. There were plenty of socio-economic reasons as well, and even Lincoln is known to have been willing to let the South keep their slaves if it would have preserved the Union. Slavery is the “moral high ground” that the victor in this conflict has used so as to ensure that the historical narrative paints them in a good light, but it was really a tiny straw on a camel’s broken back.
   • Michael Froomkin says:

     July 8, 2013 at 7:17 pm

     Well, to put things at their simplest then, we don’t have any bases named after Thomas Gage or William Howe. We don’t name bases after guys who led troops against us.

     (Incidentally, I don’t think it is at all naive to say that the root cause, and the main cause, of the Civil War was slavery (and anti-slavery). Much of the best scholarship I have read says exactly that, and I find it persuasive. )
     • Derek Balling says:

       July 8, 2013 at 7:30 pm

       Who is the “us” in that “against us” sentence?

       Because folks in the South would argue that we have quite a lot of bases named after people who fought “us”, where “us” is them.

       If the “best scholarship” you can find says that the main cause of the civil war, the root cause, was slavery, then you REALLY need to find better scholarly works to read. It was the straw that broke the camel’s back, but it was by no means the root cause.
       • Michael Froomkin says:

         July 8, 2013 at 8:59 pm

         On scholarship; I suggest you start with David Brion Davis. I doubt very much you could name a comparable contemporary historian who argues slavery wasn’t the major cause of the war, but I await your suggestions.

         On “us”: I mean, of course, those people not in rebellion and their political successors. (My family, mid-20th C immigrants or later, was continents away at the relevant times.)
3. Michael Froomkin says:

   July 8, 2013 at 7:34 pm

   Vic asks above what is/was the arguments against a state’s right to leave the Union.

   President Abraham Lincoln summarized many of the contemporary legal arguments against secession in his Special Message to Congress (July 4, 1861). Here’s part of it:

   It might seem at first thought to be of little difference whether the present movement at the South be called “secession” or “rebellion.” The movers, however, well understand the difference. At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and Government of their common country as any other civilized and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly, they commenced by an insidious debauching of the public mind. They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps through all the incidents to the complete destruction of the Union. The sophism itself is that any State of the Union may consistently with the National Constitution, and therefore lawfully and peacefully , withdraw from the Union without the consent of the Union or of any other State. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

   With rebellion thus sugar coated they have been drugging the public mind of their section for more than thirty years, and until at length they have brought many good men to a willingness to take up arms against the Government the day after some assemblage of men have enacted the farcical pretense of taking their State out of the Union who could have been brought to no such thing the day before .

   This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State—to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence, and the new ones each came into the Union directly from a condition of dependence, excepting Texas; and even Texas, in its temporary independence, was never designated a State. The new ones only took the designation of States on coming into the Union, while that name was first adopted for the old ones in and by the Declaration of Independence. Therein the “United Colonies” were declared to be “free and independent States;” but even then the object plainly was not to declare their independence of one another or of the Union, but directly the contrary, as their mutual pledge and their mutual action before, at the time, and afterwards abundantly show. The express plighting of faith by each and all of the original thirteen in the Articles of Confederation, two years later, that the Union shall be perpetual is most conclusive. Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of “State rights,” asserting a claim of power to lawfully destroy the Union itself? Much is said about the “sovereignty” of the States, but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is a “sovereignty” in the political sense of the term? Would it be far wrong to define it “a political community without a political superior”? Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the States, and, in fact, it created them as States. Originally some dependent colonies made the Union, and in turn the Union threw off their old dependence for them and made them States, such as they are. Not one of them ever had a State constitution independent of the Union. Of course it is not forgotten that all the new States framed their constitutions before they entered the Union, nevertheless dependent upon and preparatory to coming into the Union.

   Unquestionably the States have the powers and rights reserved to them in and by the National Constitution; but among these surely are not included all conceivable powers, however mischievous or destructive, but at most such only as were known in the world at the time as governmental powers; and certainly a power to destroy the Government itself had never been known as a governmental—as a merely administrative power. This relative matter of national power and State rights, as a principle, is no other than the principle of generality and locality . Whatever concerns the whole should be confided to the whole—to the General Government—while whatever concerns only the State should be left exclusively to the State. This is all there is of original principle about it. Whether the National Constitution in defining boundaries between the two has applied the principle with exact accuracy is not to be questioned. We are all bound by that defining without question.

   What is now combated is the position that secession is consistent with the Constitution—is lawful and peaceful. It is not contended that there is any express law for it, and nothing should ever be implied as law which leads to unjust or absurd consequences. The nation purchased with money the countries out of which several of these States were formed. Is it just that they shall go off without leave and without refunding? The nation paid very large sums (in the aggregate, I believe, nearly a hundred millions) to relieve Florida of the aboriginal tribes. Is it just that she shall now be off without consent or without making any return? The nation is now in debt for money applied to the benefit of these so-called seceding States in common with the rest. Is it just either that creditors shall go unpaid or the remaining States pay the whole? A part of the present national debt was contracted to pay the old debts of Texas. Is it just that she shall leave and pay no part of this herself?

   Again: If one State may secede, so may another; and when all shall have seceded none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours when we borrowed their money? If we now recognize this doctrine by allowing the seceders to go in peace, it is difficult to see what we can do if others choose to go or to extort terms upon which they will promise to remain.

   The seceders insist that our Constitution admits of secession. They have assumed to make a national constitution of their own, in which of necessity they have either discarded or retained the right of secession, as they insist it exists in ours. If they have discarded it, they thereby admit that on principle it ought not to be in ours. If they have retained it, by their own construction of ours they show that to be consistent they must secede from one another whenever they shall find it the easiest way of settling their debts or effecting any other selfish or unjust object. The principle itself is one of disintegration, and upon which no government can possibly endure.

   If all the States save one should assert the power to drive that one out of the Union, it is presumed the whole class of seceder politicians would at once deny the power and denounce the act as the greatest outrage upon State rights. But suppose that precisely the same act, instead of being called “driving the one out,” should be called “the seceding of the others from that one,” it would be exactly what the seceders claim to do, unless, indeed, they make the point that the one, because it is a minority, may rightfully do what the others, because they are a majority, may not rightfully do. These politicians are subtle and profound on the rights of minorities. They are not partial to that power which made the Constitution and speaks from the preamble, calling itself “we, the people.”

   It may well be questioned whether there is to-day a majority of the legally qualified voters of any State, except, perhaps, South Carolina, in favor of disunion. There is much reason to believe that the Union men are the majority in many, if not in every other one, of the so-called seceded States. The contrary has not been demonstrated in any one of them. It is ventured to affirm this even of Virginia and Tennessee; for the result of an election held in military camps, where the bayonets are all on one side of the question voted upon, can scarcely be considered as demonstrating popular sentiment. At such an election all that large class who are at once for the Union and against coercion would be coerced to vote against the Union.

   It may be affirmed without extravagance that the free institutions we enjoy have developed the powers and improved the condition of our whole people beyond any example in the world. Of this we now have a striking and an impressive illustration. So large an army as the Government has now on foot was never before known without a soldier in it but who had taken his place there of his own free choice. But more than this, there are many single regiments whose members, one and another, possess full practical knowledge of all the arts, sciences, professions, and whatever else, whether useful or elegant, is known in the world; and there is scarcely one from which there could not be selected a President, a Cabinet, a Congress, and perhaps a court, abundantly competent to administer the Government itself. Nor do I say this is not true also in the army of our late friends, now adversaries in this contest; but if it is, so much better the reason why the Government which has conferred such benefits on both them and us should not be broken up. Whoever in any section proposes to abandon such a government would do well to consider in deference to what principle it is that he does it; what better he is likely to get in its stead; whether the substitute will give, or be intended to give, so much of good to the people. There are some foreshadowings on this subject. Our adversaries have adopted some declarations of independence in which, unlike the good old one penned by Jefferson, they omit the words “all men are created equal.” Why? They have adopted a temporary national constitution, in the preamble of which, unlike our good old one signed by Washington, they omit “We, the people,” and substitute “We, the deputies of the sovereign and independent States.” Why? Why this deliberate pressing out of view the rights of men and the authority of the people?

   This is essentially a people’s contest. On the side of the Union it is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men; to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start and a fair chance in the race of life. Yielding to partial and temporary departures, from necessity, this is the leading object of the Government for whose existence we contend.

   I am most happy to believe that the plain people understand and appreciate this. It is worthy of note that while in this the Government’s hour of trial large numbers of those in the Army and Navy who have been favored with the offices have resigned and proved false to the hand which had pampered them, not one common soldier or common sailor is known to have deserted his flag.

   Great honor is due to those officers who remained true despite the example of their treacherous associates; but the greatest honor and most important fact of all is the unanimous firmness of the common soldiers and common sailors. To the last man, so far as known, they have successfully resisted the traitorous efforts of those whose commands but an hour before they obeyed as absolute law. This is the patriotic instinct of plain people. They understand without an argument that the destroying the Government which was made by Washington means no good to them.

   Our popular Government has often been called an experiment. Two points in it our people have already settled—the successful establishing and the successful administering of it. One still remains—its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets, and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves at succeeding elections. Such will be a great lesson of peace, teaching men that what they can not take by an election neither can they take it by a war; teaching all the folly of being the beginners of a war.
   • Vic says:

     July 10, 2013 at 3:46 pm

     Well, Lincoln’s words are impressive, as they always are.

     But you are hardly going to find an unbiased view of secession from Lincoln! I would think that to be the LAST place to look. (And I would not ask for Mrs. Lincoln’s review of Our American Cousins either.)

     But aside from that, this is just lawyer-speak. Seriously. We’re both lawyers and we recognize it (you SHOULD anyway). This is an argument based not on a firm position of truth, but on whatever reasoning comes to mind that fits what is wanted. I’ve read countless brief that read like this. When I do, usually I know I’ve won.

     The entire first part of his argument (they weren’t separate before anyway) should have become clearly such to you when he then says that the vote in these States wasn’t a fair one as they were done in military camps (presumably) under military threat. That argument tells you right there that he’s saying, as lawyers usually do, “Your Honor, even if these WERE States prior to entering the Union, which the defence denies, the VOTE to secede was improper.” This is a lawyer throwing everything he’s got at the bench. Impressive, sure, but a winning argument…? Lincoln was a lawyer, as you know, and this reads like a desperate law brief more than any exposition on the law.

     I remain without any reasonably unbiased, reasonably scholarly, reason why secession is not available to a State – that also does not give the moral depravity of slavery as a reason.
     • Michael Froomkin says:

       July 11, 2013 at 9:54 pm

       How about Marshall’s opinion in McCulloch v Md? It sets out a national theory of sovereignty.
4. Michael Froomkin says:

   July 16, 2013 at 9:55 pm

   Not to beat a dead horse, but Prof. Ilya Somin has an excellent post on the evils of the Confederacy Libertarianism, the Confederacy, and the Civil War Revisited. Not much about the legal issues, but a reminder why it’s military leaders don’t deserve our honors.

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