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Legal question about the Souths Secession

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  • Legal question about the Souths Secession

    O.K the background is I involved in a debate o n another forum with US citizen who is (or claim's to be a lawyer). He is arguing that that Norths actions in preventing the South from seceding was completely illegal based due to the precedent set by the Declaration if Independence.

    My argument is as follows;

    Yes the Deceleration of Independence contains at least an implied Right of Secession. (I even conceded that an argument can be made that the Right exists absolutely at law). However, my counter argument not withstanding the wording of the Declaration of independence was was as follows;

    1) The 10th Amendment to the Constitution (pertaining to the powers of the States) and signed by all founding members of the Republic is not definitive in its wording and a legal argument can at least be made in support of the Federalist Cause. Furthermore all States having consented to the Constitution upon becoming members of the Republic. This means they were, at least initially bound to adhere to the mechanisms provided in the Constitution when seeking relief against the Federal Government i.e via the Supreme Court.

    2) Prior to the Civil war no significant judgements had ever been issued by the Court re; the rights of the States as defined in the 10th Amendment. As certainly as far as the question of the right to secession goes the Supreme Court had never issued and guidance on this question which is one that clearly falls within its remit. So it was an open question how the Court would have approached the issue. Certainly the South never sought any such judgement. But even if it had and the Court had found that secession was a legally valid option the Court was within its rights to impose conditions and limitations on the process. In fact it almost certainly would do so.

    3) Allowing for a peaceful/negotiated secession
    - the South was legally obliged to follow any guidance from the Court;
    - failing that it was at least legally and morally obliged to put protections in place for the rights of any citizen of the Republic who would adversely impacted by secession through no fault of their own. (I was thinking primarily to property rights etc if you were a Northerner who owned property in the South or who had lent money there and whose rights were potentially threatened unless protections were put in place)
    - This is primarily because those rights existed prior to secession and could not be arbitrarily dismissed. Again the South did not did do this. As enacted the Secession deprived Northerners of certain rights. Likewise other pressing financial and administrative matters that would have indirectly impinged upon the rights of Northerners and Southerners alike were not dealt with.

    Therefore the legality of the secession as undertaken by the South was flawed or at least open to challenge.

    His response is to note that I'm not legally trained and any legal challenge to his position is without merit.

    Do we have anyone with knowledge of a history or legal text that could clarify if I am completely wrong or not?
    If you are emotionally invested in 'believing' something is true you have lost the ability to tell if it is true.

  • #2
    1. The Declaration of Independence predates the Constitution as well as the Articles of COnfederation. As such it has a historical impact but not a legal impact.

    2. Texas v. White 1869 ruled that unilateral secession was illegal."... Texas had become part of "an indestructible Union, composed of indestructible states". In practical terms, this meant that Texas has never seceded from the United States.

    3. Williams v. Bruffy 1877. Stated basically that if a rebellion is unsuccessful then ipso facto it did not possess the right to secede.

    4. The Concept of an inviolable Union predates the Constitution in that is was established in the Articles of the Confederation and carried forward into the Constitution.


    Also, in the decades leading up to the Civil War just about every legal case and federal law reinforced the rights of slavery and strengthened the South's causes. If the Southern states had taken their case to the Supreme Court (the venue when states sue the Federal Government over primacy) they likely would have won. However they took up arms and went down the Williams v. Bruffy route.

    Also, no foreign government ever recognized the CSA so it never existed that way as well.

    Sounds like said attorney needs a refund on his law school tuition.
    “Loyalty to country ALWAYS. Loyalty to government, when it deserves it.”
    Mark Twain

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    • #3
      The Declaration of Independence was an act of treason against the sovereign, as was the South’s secession.
      Success matters, but failures never forget.
      Trust me?
      I'm an economist!

      Comment


      • #4
        I have next to no knowledge of US Constitutional affairs but the general rule is that if a part of a sovereign state wishes to secede it has to do within the legal boundary of the sovereign. For Crimea to have lawfully seceded from Ukraine would have required a law passed by the Ukrainian Rada giving legality to a referendum. In the Scottish independence vote this was done by the UK Parliament - in the Crimean case no such law was passed so the 'vote' was entirely illegal.

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        • #5
          Originally posted by snapper View Post
          I have next to no knowledge of US Constitutional affairs but the general rule is that if a part of a sovereign state wishes to secede it has to do within the legal boundary of the sovereign. For Crimea to have lawfully seceded from Ukraine would have required a law passed by the Ukrainian Rada giving legality to a referendum. In the Scottish independence vote this was done by the UK Parliament - in the Crimean case no such law was passed so the 'vote' was entirely illegal.
          There wa nothing and is nothing in either the Articles of COnfederation or the US Constitution which allows it.
          “Loyalty to country ALWAYS. Loyalty to government, when it deserves it.”
          Mark Twain

          Comment


          • #6
            Here's what Lincoln, who practiced law before he became president, said about it. Basically, he noted that the Article of Confederation actually predated the Constitution and stipulated a "perpetual" Union. The Constitution itself states that its goal was to create "a more perfect Union." He said we should then be able to assume that the Union was intended to last forever and be undissolvable. Furthermore, no law existed to authorize a state to leave the Union, which to Lincoln meant such actions must be unlawful.
            All those who are merciful with the cruel will come to be cruel to the merciful.
            -Talmud Kohelet Rabbah, 7:16.

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            • #7
              The quote from Lincoln is insightful. I don't think however it will convince the 'Councilor' concerned. I think I'm going to have to dig for a legal opinion on the matter.
              If you are emotionally invested in 'believing' something is true you have lost the ability to tell if it is true.

              Comment


              • #8
                Originally posted by Monash View Post
                The quote from Lincoln is insightful. I don't think however it will convince the 'Councilor' concerned. I think I'm going to have to dig for a legal opinion on the matter.
                I gave you two to consider
                “Loyalty to country ALWAYS. Loyalty to government, when it deserves it.”
                Mark Twain

                Comment


                • #9
                  Originally posted by Albany Rifles View Post
                  1. The Declaration of Independence predates the Constitution as well as the Articles of COnfederation. As such it has a historical impact but not a legal impact.

                  2. Texas v. White 1869 ruled that unilateral secession was illegal."... Texas had become part of "an indestructible Union, composed of indestructible states". In practical terms, this meant that Texas has never seceded from the United States.

                  3. Williams v. Bruffy 1877. Stated basically that if a rebellion is unsuccessful then ipso facto it did not possess the right to secede.

                  4. The Concept of an inviolable Union predates the Constitution in that is was established in the Articles of the Confederation and carried forward into the Constitution.


                  Also, in the decades leading up to the Civil War just about every legal case and federal law reinforced the rights of slavery and strengthened the South's causes. If the Southern states had taken their case to the Supreme Court (the venue when states sue the Federal Government over primacy) they likely would have won. However they took up arms and went down the Williams v. Bruffy route.

                  Also, no foreign government ever recognized the CSA so it never existed that way as well.

                  Sounds like said attorney needs a refund on his law school tuition.

                  Agreed, but unfortunately the issue is that (to the best of my knowledge) there are no legal decisions re: secession that predate the War. If I quote anything post that event he will say its irrelevant.
                  If you are emotionally invested in 'believing' something is true you have lost the ability to tell if it is true.

                  Comment

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