Abraham Lincoln is one of the most revered Presidents we've ever had, partially because of his awesome hat, but also because of the fact that he ended the Civil War (although I'm sure other people helped out here and there...). What I find most interesting about his presidency, however, is that many believe that he actually broke Constitutional law when he declared war on the South. Let me explain what I'm talking about here.
The Constitution never actually says whether or not it is illegal to leave the Union once a state has entered. Lincoln, however, stated that once a state entered into the Union, it was forever bound by it, and that the South didn't have the right to secede. However, there was no actual law that ever said they couldn't do it, which made his decision to go to war with them (refusing to recognize them as a new nation) highly suspect. Many would in fact argue that he actually broke the law. However, this isn't true, either, because there frankly was not a law to break, at least not one that I can find.
As it happened, before the Civil War, there simply was no concrete answer to the question. People on both sides, including various Presidents, went on record as saying that they either believed in the right of succession or they didn't. After the war, however, the matter was resolved and Lincoln's actions were justified through historical validation. Today we generally believe what he did was OK, mostly because of the slavery issue, but that's not what's really at the heart of the war, is it?
Lincoln opposed the South's succession because he believed that the division would be extremely detrimental to the nation as a whole. He was probably right in this regard, but was it right legally? Did he really have a right to stop the South from leaving?
What do you think?
Posted by Samprimary (Member # 8561) on :
Just to note before this gets started, I have noticed that probably 100% of the people I have heard argue that states had the right of secession also argue that the federal income tax is absolutely illegal.
I expect the former to come from the same general field as the latter: drummed-up fringe ideological interpretation of law that, whether or not it is true (in the case of the federal income tax being illegal, it's not), you are never ever ever ever ever ever going to be able to convince them it is not.
Posted by Vadon (Member # 4561) on :
For my quick armchair historian interpretation on this issue, I'd look at the ninth and tenth amendments.
The ninth says:
quote:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The ninth amendment does not say that states have rights not listed in the constitution, people do.
The tenth amendment says:
quote: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.
Note that the tenth amendment refers to the powers of the states and people. It doesn't say anything about states having rights. What am I getting at?
States don't have rights. They have powers. So states never had a right to secession. That leaves the question of whether the states had the power to secede. Because secession wasn't covered in the constitution, one could point to the tenth amendment and say that it was within the states' power to do so. The problem with this argument is that for a state to secede, it means they are renouncing the US Constitution. If they renounce the constitution the protection of that power in the tenth amendment goes away. In short, the power of secession is self-defeating. So it would seem that states don't have that power in the first place, because to do so would make them not a part of the US.
So to answer the question whether the Civil War was illegal on these grounds, I'm going to defer to Linoln's judgment. States don't have the right or power to secede given to them by the Constitution. So Lincoln declaring war on the seceding states seems to be within legality to me.
Now if you were to ask whether Lincoln did things which were illegal during the war, that would be a different question. Posted by Sphinx (Member # 10219) on :
From another amateur:
The question of whether or not they could seems to be irrelevant to me, at least as far as Lincoln's later actions are concerned.
If they could secede, then they would have become independent sovereign nations. The POTUS has the power as Commander-in-Chief (Art. II, sec. 2) to take military actions against threats to the United States, including other nations, without a formal declaration of war from Congress (e.g. the Korean War, the Vietnam War, etc.). Since the South 'fired first' with the attack on Fort Sumter, Lincoln's actions--at least, using a modern interpretation of the President's powers--would have been completely constitutional.
If the states couldn't secede, then the act of raising armies against the rightfully-elected government of the United States constituted rebellion. As such, the President, again under his powers as Commander-in-Chief, has the power to order the U.S. military to take police actions against any and all rebels (see, e.g., the Whiskey Rebellion or Nat Turner's Rebellion). His actions against the rebels would in this situation also have been constitutional.
Posted by Jeff C. (Member # 12496) on :
quote:Originally posted by Vadon: For my quick armchair historian interpretation on this issue, I'd look at the ninth and tenth amendments.
The ninth says:
quote:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The ninth amendment does not say that states have rights not listed in the constitution, people do.
The tenth amendment says:
quote: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.
Note that the tenth amendment refers to the powers of the states and people. It doesn't say anything about states having rights. What am I getting at?
States don't have rights. They have powers. So states never had a right to secession. That leaves the question of whether the states had the power to secede. Because secession wasn't covered in the constitution, one could point to the tenth amendment and say that it was within the states' power to do so. The problem with this argument is that for a state to secede, it means they are renouncing the US Constitution. If they renounce the constitution the protection of that power in the tenth amendment goes away. In short, the power of secession is self-defeating. So it would seem that states don't have that power in the first place, because to do so would make them not a part of the US.
So to answer the question whether the Civil War was illegal on these grounds, I'm going to defer to Linoln's judgment. States don't have the right or power to secede given to them by the Constitution. So Lincoln declaring war on the seceding states seems to be within legality to me.
Now if you were to ask whether Lincoln did things which were illegal during the war, that would be a different question.
That begs another question entirely: do you think it's wrong for the President to do something illegal if the overall impact of that decision is positive for the country?
Posted by Jeff C. (Member # 12496) on :
quote:Originally posted by Sphinx: From another amateur:
The question of whether or not they could seems to be irrelevant to me, at least as far as Lincoln's later actions are concerned.
If they could secede, then they would have become independent sovereign nations. The POTUS has the power as Commander-in-Chief (Art. II, sec. 2) to take military actions against threats to the United States, including other nations, without a formal declaration of war from Congress (e.g. the Korean War, the Vietnam War, etc.). Since the South 'fired first' with the attack on Fort Sumter, Lincoln's actions--at least, using a modern interpretation of the President's powers--would have been completely constitutional.
If the states couldn't secede, then the act of raising armies against the rightfully-elected government of the United States constituted rebellion. As such, the President, again under his powers as Commander-in-Chief, has the power to order the U.S. military to take police actions against any and all rebels (see, e.g., the Whiskey Rebellion or Nat Turner's Rebellion). His actions against the rebels would in this situation also have been constitutional.
Those are actually some pretty solid points as well! Very interesting, indeed. I hadn't thought about the first shots interpretation. The fact that the South fired first certainly paints the picture that the President was well-within his rights to retaliate. However, as far as leading up to the attack, what was their reason for attacking the fort in the first place? Was it a preemptive strike?
Posted by Samprimary (Member # 8561) on :
quote:If they could secede, then they would have become independent sovereign nations. The POTUS has the power as Commander-in-Chief (Art. II, sec. 2) to take military actions against threats to the United States, including other nations, without a formal declaration of war from Congress (e.g. the Korean War, the Vietnam War, etc.). Since the South 'fired first' with the attack on Fort Sumter, Lincoln's actions--at least, using a modern interpretation of the President's powers--would have been completely constitutional.
Ha! Yeah, I guess the states would have to have explicitly have been granted "no tag-backs!" by the constitution to have avoided getting reprised against.
Posted by Sphinx (Member # 10219) on :
quote: However, as far as leading up to the attack, what was their reason for attacking the fort in the first place? Was it a preemptive strike?
I know of one reason, and I can at least guess at another. First, Fort Sumter controlled the entrance to Charleston harbor; it's located on an island in the middle of harbor, actually. If the Union had managed to maintain control of the fort, they could have mounted an effective early blockade on Charleston itself.
Second, and I'm guessing on this one, was that the fort could also have been an arsenal. It's my understanding that the South had a lot of able soldiers, but a relative lack of equipment. Taking the fort would have given them access to the stockpile, including any long guns the fort had.
Posted by Blayne Bradley (Member # 8565) on :
There was a interstate treaty I think, Northwest something or other that said all states are equal and this has been interpreted to mean that the states cannot leave the Union.
Posted by Vadon (Member # 4561) on :
quote:Originally posted by Jeff C.:
quote:Originally posted by Vadon: For my quick armchair historian interpretation on this issue, I'd look at the ninth and tenth amendments.
The ninth says:
quote:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The ninth amendment does not say that states have rights not listed in the constitution, people do.
The tenth amendment says:
quote: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.
Note that the tenth amendment refers to the powers of the states and people. It doesn't say anything about states having rights. What am I getting at?
States don't have rights. They have powers. So states never had a right to secession. That leaves the question of whether the states had the power to secede. Because secession wasn't covered in the constitution, one could point to the tenth amendment and say that it was within the states' power to do so. The problem with this argument is that for a state to secede, it means they are renouncing the US Constitution. If they renounce the constitution the protection of that power in the tenth amendment goes away. In short, the power of secession is self-defeating. So it would seem that states don't have that power in the first place, because to do so would make them not a part of the US.
So to answer the question whether the Civil War was illegal on these grounds, I'm going to defer to Linoln's judgment. States don't have the right or power to secede given to them by the Constitution. So Lincoln declaring war on the seceding states seems to be within legality to me.
Now if you were to ask whether Lincoln did things which were illegal during the war, that would be a different question.
That begs another question entirely: do you think it's wrong for the President to do something illegal if the overall impact of that decision is positive for the country?
Short answer: Yes.
Long answer: It depends. To say the President did something illegal means just that, it was illegal. Whether the action was right or wrong depends on whether the law itself was moral. Civil rights protesters often did things which were illegal, but I don't think they were wrong for breaking those laws so long as the way in which they broke those laws were done so morally. If the law is immoral, then breaking that law--while illegal--is not immoral unless done so immorally. For example, a law saying we must eat adolescent boys for breakfast would be immoral. It would be illegal not to eat an adolescent boy for breakfast. I would say you were not wrong for not eating an adolescent boy unless the way you stop from eating the boy is also immoral (like eating an adolescent girl instead).
For the President to do something illegal and not be wrong for doing that thing the President would need to be in violation of an immoral law in a moral way. The writ of Habeas Corpus is not an immoral law, in my mind. So to suspend it illegally, even in pursuit of some positive effect to society is wrong. The question we need to ask is to whom is it a positive outcome? Surely those who were detained didn't care for it. Or for another example, When Andrew Jackson violated the Supreme Court decision in favor of the Cherokee Nation, the violation may have resulted in greater prosperity for the United States, but it wasn't a positive experience for the Cherokee. I don't think the President can justify illegal acts as being the right thing to do on the sole basis that it was positive for the country as a whole. I don't deny that there were positive outcomes from these illegal acts, I just deny that the President was right for doing them. If we allow the President discretion to do whatever he or she believes is going to be the best for the country overall without regard to the constraints of law, the law itself becomes meaningless. If we're going to be violating a law, we need to be violating it because the law itself is wrong, not because it's an obstacle to some greater goal.
[ February 11, 2012, 09:25 PM: Message edited by: Vadon ]
Posted by King of Men (Member # 6684) on :
Questions of sovereignty are ultimately decided by guns, not lawyers; this is why so few laws make any mention of it. A sovereign entity, by construction, enforces laws; therefore laws cannot apply to its sovereignty, because if such a law was broken, how would it be enforced? Right, by the same sovereign. So if there's a law saying "You can't break away from this sovereign", and you break that law, it automatically comes down to guns. The actual wording of the law is quite irrelevant.