With the 150th anniversary of the Civil War, I was asked in this cover story for the Civil War Magazine to explore the rivaling constitutional claims that were made at the start of that bloody conflict. As a military history buff, I have occasionally written for these history magazines but I found this assignment particularly intriguing.
Over the centuries, various excuses have been employed for starting wars. Wars have been fought over land or honor. Wars have been fought over soccer (in the case of the conflict between Honduras and El Salvador in 1969) or even the shooting of a pig (in the case of the fighting between the United States and Britain in the San Juan Islands in 1859).
But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.
The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.
Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
It is a touchstone of American constitutional law that this is a nation based on federalism—the union of states, which retain all rights not expressly given to the federal government. After the Declaration of Independence, when most people still identified themselves not as Americans but as Virginians, New Yorkers or Rhode Islanders, this union of “Free and Independent States” was defined as a “confederation.” Some framers of the Constitution, like Maryland’s Luther Martin, argued the new states were “separate sovereignties.” Others, like Pennsylvania’s James Wilson, took the opposite view that the states “were independent, not Individually but Unitedly.”
Supporting the individual sovereignty claims is the fierce independence that was asserted by states under the Articles of Confederation and Perpetual Union, which actually established the name “The United States of America.” The charter, however, was careful to maintain the inherent sovereignty of its composite state elements, mandating that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” It affirmed the sovereignty of the respective states by declaring, “The said states hereby severally enter into a firm league of friendship with each other for their common defence [sic].” There would seem little question that the states agreed to the Confederation on the express recognition of their sovereignty and relative independence. Supporting the later view of Lincoln, the perpetuality of the Union was referenced during the Confederation period. For example, the Northwest Ordinance of 1787 stated that “the said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America.”
The Confederation produced endless conflicts as various states issued their own money, resisted national obligations and favored their own citizens in disputes. James Madison criticized the Articles of Confederation as reinforcing the view of the Union as “a league of sovereign powers, not as a political Constitution by virtue of which they are become one sovereign power.” Madison warned that such a view could lead to the “dissolving of the United States altogether.” If the matter had ended there with the Articles of Confederation, Lincoln would have had a much weaker case for the court of law in taking up arms to preserve the Union. His legal case was saved by an 18th-century bait-and-switch.
A convention was called in 1787 to amend the Articles of Confederation, but several delegates eventually concluded that a new political structure—a federation—was needed. As they debated what would become the Constitution, the status of the states was a primary concern. George Washington, who presided over the convention, noted, “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” Of course, Washington was more concerned with a working federal government—and national army—than resolving the question of a state’s inherent right to withdraw from such a union. The new government forged in Philadelphia would have clear lines of authority for the federal system. The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government.
The final version of the Constitution never actually refers to the states as “sovereign,” which for many at the time was the ultimate legal game-changer. In the U.S. Supreme Court’s landmark 1819 decision in McCulloch v. Maryland, Chief Justice John Marshall espoused the view later embraced by Lincoln: “The government of the Union…is emphatically and truly, a government of the people.” Those with differing views resolved to leave the matter unresolved—and thereby planted the seed that would grow into a full civil war. But did Lincoln win by force of arms or force of argument?
On January 21, 1861, Jefferson Davis of Mississippi went to the well of the U.S. Senate one last time to announce that he had “satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States.” Before resigning his Senate seat, Davis laid out the basis for Mississippi’s legal claim, coming down squarely on the fact that in the Declaration of Independence “the communities were declaring their independence”—not “the people.” He added, “I have for many years advocated, as an essential attribute of state sovereignty, the right of a state to secede from the Union.”
Davis’ position reaffirmed that of John C. Calhoun, the powerful South Carolina senator who had long viewed the states as independent sovereign entities. In an 1833 speech upholding the right of his home state to nullify federal tariffs it believed were unfair, Calhoun insisted, “I go on the ground that [the] constitution was made by the States; that it is a federal union of the States, in which the several States still retain their sovereignty.” Calhoun allowed that a state could be barred from secession by a vote of two-thirds of the states under Article V, which lays out the procedure for amending the Constitution.
Lincoln’s inauguration on March 4, 1861, was one of the least auspicious beginnings for any president in history. His election was used as a rallying cry for secession, and he became the head of a country that was falling apart even as he raised his hand to take the oath of office. His first inaugural address left no doubt about his legal position: “No State, upon its own mere motion, can lawfully get out of the Union, that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.”
While Lincoln expressly called for a peaceful resolution, this was the final straw for many in the South who saw the speech as a veiled threat. Clearly when Lincoln took the oath to “preserve, protect, and defend” the Constitution, he considered himself bound to preserve the Union as the physical creation of the Declaration of Independence and a central subject of the Constitution. This was made plain in his next major legal argument—an address where Lincoln rejected the notion of sovereignty for states as an “ingenious sophism” that would lead “to the complete destruction of the Union.” In a Fourth of July message to a special session of Congress in 1861, Lincoln declared, “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.”
It is a brilliant framing of the issue, which Lincoln proceeds to characterize as nothing less than an attack on the very notion of democracy:
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 cannot take by an election, neither can they take it by a war—teaching all, the folly of being the beginners of a war.
Lincoln implicitly rejected the view of his predecessor, James Buchanan. Buchanan agreed that secession was not allowed under the Constitution, but he also believed the national government could not use force to keep a state in the Union. Notably, however, it was Buchanan who sent troops to protect Fort Sumter six days after South Carolina seceded. The subsequent seizure of Fort Sumter by rebels would push Lincoln on April 14, 1861, to call for 75,000 volunteers to restore the Southern states to the Union—a decisive move to war.
Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862. His argument also rejects the suggestion of people like Calhoun that, if states can change the Constitution under Article V by democratic vote, they can agree to a state leaving the Union. Lincoln’s view is absolute and treats secession as nothing more than rebellion. Ironically, as Lincoln himself acknowledged, that places the states in the same position as the Constitution’s framers (and presumably himself as King George).
But he did note one telling difference: “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.'”
Lincoln’s argument was more convincing, but only up to a point. The South did in fact secede because it was unwilling to accept decisions by a majority in Congress. Moreover, the critical passage of the Constitution may be more important than the status of the states when independence was declared. Davis and Calhoun’s argument was more compelling under the Articles of Confederation, where there was no express waiver of withdrawal. The reference to the “perpetuity” of the Union in the Articles and such documents as the Northwest Ordinance does not necessarily mean each state is bound in perpetuity, but that the nation itself is so created.
After the Constitution was ratified, a new government was formed by the consent of the states that clearly established a single national government. While, as Lincoln noted, the states possessed powers not expressly given to the federal government, the federal government had sole power over the defense of its territory and maintenance of the Union. Citizens under the Constitution were guaranteed free travel and interstate commerce. Therefore it is in conflict to suggest that citizens could find themselves separated from the country as a whole by a seceding state.
Moreover, while neither the Declaration of Independence nor the Constitution says states can not secede, they also do not guarantee states such a right nor refer to the states as sovereign entities. While Calhoun’s argument that Article V allows for changing the Constitution is attractive on some levels, Article V is designed to amend the Constitution, not the Union. A clearly better argument could be made for a duly enacted amendment to the Constitution that would allow secession. In such a case, Lincoln would clearly have been warring against the democratic process he claimed to defend.
Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.
Of course, a rebellion is ultimately a contest of arms rather than arguments, and to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.
Ultimately, the War Between the States resolved the Constitution’s meaning for any states that entered the Union after 1865, with no delusions about the contractual understanding of the parties. Thus, 15 states from Alaska to Colorado to Washington entered in the full understanding that this was the view of the Union. Moreover, the enactment of the 14th Amendment strengthened the view that the Constitution is a compact between “the people” and the federal government. The amendment affirms the power of the states to make their own laws, but those laws cannot “abridge the privileges or immunities of citizens of the United States.”
There remains a separate guarantee that runs from the federal government directly to each American citizen. Indeed, it was after the Civil War that the notion of being “American” became widely accepted. People now identified themselves as Americans and Virginians. While the South had a plausible legal claim in the 19th century, there is no plausible argument in the 21st century. That argument was answered by Lincoln on July 4, 1861, and more decisively at Appomattox Court House on April 9, 1865.
Jonathan Turley is one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University.
Article originally published in the November 2010 issue of America’s Civil War.
Vince: Sorry, Bob, what was your argument, again?
You mean that the existence of the ‘union’ is predicated upon the Fed refraining from exercising power in a tyrannical fashion?
Lemme guess, you were sleeping during seventh grade American Studies?
Coward.
Mespo,
Thank you for the kind words sir.
Miller said “I was simply pointing out that by definition, treason is an act against a State or States, not the federal government.”
No, the crime is “Treason against the United States.” See the statutory definition.
§ 2381. Treason “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
It applies to treason against the nation named the United States of America. The use of the pronoun “them” does not alter this conclusion. A citizen who waged war against an army of the United States while in a foreign country would be guilty of treason, although he had not warred against any particular named State or group of States.
The so-called rebels, owing allegiance to the United States, waged war against the United States of America.
Miller asked “Since as you say Lincoln did not violate the Constitution, please refer me to where in the Constitution the Executive Branch to permitted to invade a State.”
Sure. Since he asked, here are the provisions of the Constitution:
Article I, section 8: “The Congress shall have Power…
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
And, Article II, section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
Congress authorized actions against insurrections in the Insurrection Act of 1807:
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
Lincoln was upholding the Constitution and acting in accordance with law by suppressing an unlawful insurrection.
That’s the law.
@Vince Treacy
Quickly:
I was not quoting the text on treason, only explaining its meaning. The term United States as used here refers to the States as I point out by the reference of “them” and “their.” I was simply pointing out that by definition, treason is an act against a State or States, not the federal government. Invading a State is an act of treason.
Next it does not matter that I think Virginia had seceded and was then a foreign country, Lincoln took the position that they never seceded and it was Lincoln, not me, that invaded this State, therefore treason. Since as you say Lincoln did not violate the Constitution, please refer me to where in the Constitution the Executive Branch to permitted to invade a State.
My point that “Pearl Harbor was not in Japan’s Harbor” was nothing more than a rebuttal to your equating Japan’s attack on Pearl Harbor with Fort Sumter in Charleston’s harbor.
And finally, I grant that The fort was bombarded by artillery, and it was not planned to be a peaceful, civil eviction. However, that’s not how it turned out. They injured no one, and safely removed them to their own ships. My point being that what ACTUALLY HAPPENED was certainly not an event that would in any way justify total war, unless of course Lincoln was just looking for an excuse to do so.
“Bob,Esq., does not know much law.”
*******************
My friend, vince Treachy, and I rarely disagree, but we diverge sharply here. Bob, Esq knows quite a bit of law as anyone following his very rational posts knows. I believe Bob sometimes confuses his normative approach to law (which requires a coincidence of both rational basis and moral imperative) with the actual law which sometimes does not live up to his loft expectations. All in all, his position is not a bad place to be. It stands well above the position of many of those who do, in fact, make the law.
Sorry, Bob, what was your argument, again?
Miller relies on DiLorenzo, a well known revisionist anti-Lincoln scholar. I can see where Miller’s views come from. It follows a long line of distorted pro-southern pseudo-history.
For a different view, see James Loewen, The Confederate and Neo-Confederate Reader: The “Great Truth” about the “Lost Cause.”
Also, The Myth of the Lost Cause and Civil War History, edited by Gary W. Gallagher.
Miller wrote: ” I believe you have a misunderstanding of the meaning of treason as found in the Constitution. As defined in Article III, Section 3, treason is waging war against the States NOT the federal government (note the use of the words “them” and “their” when referring to the united States).”
I have no misunderstanding. Let’s take a look at the words. “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
So Miller misquoted the text. The provision covers “treason against the United States,” not “waging war against the States NOT the federal government.” The southerners waged war against the United States of American, not merely the federal government.
Miller says “when Lincoln invaded Virginia he was the one, along with his forces, committing treason.” Miller has got to be kidding. He is not even consistent with his own scheme. He believes that Virginia was a foreign country at that time, since it withdrew from the United States, yet he argues that Lincoln was somehow committing treason against a foreign country.
The so-called confederate government did wage in fact war against the United States, not merely the federal government. It waged war against all of the United States. It wage war against the United States as a nation and against the individual states. It gave aid and comfort to their enemies by seeking alliances with foreign governments.
Miller said that “Withdrawing from a Compact is not treason. As per the Constitution’s definition, invading another State is. Enough said.”
That is not enough. The purported withdrawal was not the act of treason. The waging of war was the act of treason.
Miller says: “(Pearl Harbor was not in Japan’s Harbor).” So what? It was still United States property and it was attacked. It was an act of war, just like the attacks by North Korea and Iraq.
Finally, the crowning euphemism: “Evicting the unwelcome occupation by federal troops of property inside the Charleston harbor without causing serious injury to any of the foreign occupiers and then transporting them safely to their ships offshore is not worthy of anyone claiming an act of war.”
Oh. In this view, the southern authorities merely sent deputies to evict unwelcome tenants and put their furniture on the sidewalk. That is nonsense.
The fort was bombarded by artillery. That is not a peaceful, civil eviction. It is an act of war by any definition.
I note that there was no defense of the stupidity of Davis in giving in to the so-called “provocation.” There was, in fact, no provocation. There was a peaceful re-supply.
Davis ordered the guns fired and started the war.
Dumb, dumber and dumbest.
For an excellent independent analysis may I suggest “The Confederate Secession” by William Schomberg Robert Kerr
“But what government did [King George III] recognise? Did he recognize the American Union as a single body? He recognised nothing of the kind. He recognised the thirteen colonies as separate, independent, and sovereign states. The Union was a creation of a later date. The States formed themselves into a federation for their common advantage, bound themselves to do
or not to do certain specified acts, entrusted certain definite powers, or attributes of sovereignty, to the central government, and kept the rest to themselves. On the Divine Right theory, the rebels are not the seceding States, but President Lincoln and those who have aided him. in trying to break oft’ portions of
those States, in order to form. new ones.
But the question of Secession is something beyond this. It is not a justifiable breach of law, for it is not a breach of law at all.”
“I believe that if, before seceding, South Carolina had referred her right to do so to any competent and impartial tribunal in the world, her claim must have been admitted on strictly legal grounds, without any reference to any motives she may have had for wishing it.”
“The Southerners did not secede from caprice, but from reasons which would have justified not only a secession but a rebellion. They did not provoke the war; for all the provocation, if that name can be applied to most unsparing threats and most virulent
abuse for a long term of years, came from the Northern
Abolitionists. They did not commence it; for the first act of war was Lincoln’s perfidious attempt to throw supplies into Fort Sumter. And, finally, they could not know that the Northerners would resist it by force; for not only is there no provision for
such resistance by the Constitution, but the fact that it would be illegal, and also both wicked and ridiculous, to attempt to coerce States into any course that they did not approve, has been attested by a chorus of voices from the days of Jefferson and Madison to those of Mr. Secretary Seward and Horace Greeley.”
Bob, Esq: “Article VII was ultra vires because Article XIII of the Articles of Confederation required nothing less than unanimous rescission.”
Vince: What is he saying? That the Constitution is invalid?
I said Article VII was ultra vires (by definition). It was the second time I mentioned it.
Miller, on the other hand, did a fine job elaborating on the issue:
Miller: “Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.”
While the issue may be abstract and moot, it does ADDRESS YOUR ARGUMENT.
Vince: “Bob has put out some of these bizarre arguments before.”
Poisoning the well is one thing; but poisoning the well with your ignorance of real property and constitutional law is another.
If you want to dismiss me, then do so properly by dismissing my arguments directly. Why not start with dismissing this argument:
http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161517
Gee Vince,
I’m truly humbled by your genius. Apparently you settled a two century old debate with just this:
—-
“This commenter should actually try to read the Constitution.
“The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Art. III.
Where does the Judicial Power reside? “The judicial Power of the United States, shall be vested in one supreme Court….” Art. III.
“This Constitution … shall be the supreme law of the land….” Art. VI.
And finally, the judicial Officers shall be “bound by Oath or Affirmation, to support this Constitution.” Art. VI.
So where is the problem for the commenter?
The courts have jurisdiction over all cases under the Constitution and laws of the United States.
If there is a controversy between a law and the Constitution, the Constitution is supreme.
The judicial power is vested in the Supreme Court.
And the Court is bound by oath to uphold the Constitution.
If the Court is confronted with a law that violates the Constitution, it is bound by oath to support the Constitution.
This is just another urban legal legend that studiously ignores the language of the Constitution.”
————
Amazing!
So Nowak & Rotunda should have consulted you before writing in their hornbook on Constitutional Law:
“The criticisms of John Marshall’s opinion in Marbury fall into two general areas.[FN2] First there is disapproval of the way in which Marshall strove to reach the conclusion concerning the constitutional authority of the Court over the other branches of government. Second, there is the criticism of Marshall’s arguments supporting judicial authority as merely bare assertions of authority rather than REASONS justifying that authority.” [MY FOOTNOTE 3]
[FN2] The historical criticisms of Marbury are analyzed and supplemented in Van Alstyne A Critical Guide to Marbury v. Madison 1969 Duke L.J. 1. We commend this excellent article, which contains a further bibliography, to those more interested in more detailed and documented analytical treatment of the opinion.
[MFN3] Arguing is reason giving. Reasons are justifications or support for claims. Rationality is the ability to engage in reason giving. The alternative to reason giving is to accept or reject claims on whim or command.
And based solely on your say so, we are to ignore the aforementioned problems in Marbury. Because anyone who disagrees with you has failed to read the constitution?
Get over yourself.
Note: (please, all posters ignore the notes I may occasionally type unless said note is wrong in which case we would very much appreciate a correction/clarification)
Dicta is a term often used in this argument and if you missed the definition VT gave in his 10:24a 9/25 post here is a definition you need to grasp to understand an important point both sides are making:
Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum.
@Vince Treacy
Oh my, I had planned my previous post to be my last; I do have football to watch today. However, I must make one hopefully final comment on your statements regarding Lincoln abuse of the Constitution and treason.
First Lincoln: Fortunately there are a number of worthy books documenting the facts concerning Lincoln’s unconstitutional trashing of the limitations imposed on the federal government by the Compact. I prefer the scholarship of Thomas DiLorenzo’s “Real Lincoln” or “Lincoln Unmasked.”
As for treason: I believe you have a misunderstanding of the meaning of treason as found in the Constitution. As defined in Article III, Section 3, treason is waging war against the States NOT the federal government (note the use of the the words “them” and “their” when referring to the united States). Therefore when Lincoln invaded Virginia he was the one, along with his forces, committing treason.
Withdrawing from a Compact is not treason. As per the Constitution’s definition, invading another State is. Enough said.
And finally you say:
The Japanese, in their effort to be left alone, bombed Pearl Harbor. (Pearl Harbor was not in Japan’s Harbor)
The North Koreans, wanting to be left alone, invaded South Korea. (South Korea was not in North Korea’s harbor)
Saddam, desiring solitude, invaded Kuwait. (Kuwait was not in Iraq’s harbor).
Evicting the unwelcome occupation by federal troops of property inside the Charleston harbor without causing serious injury to any of the foreign occupiers and then transporting them safely to their ships offshore is not worthy of anyone claiming an act of war—any student of history knows that it was a planned provocation for the purpose of providing an excuse for invading.
“It the southerners had wanted to be left alone, they should have left the federal installations alone, awaiting future negotiations.”
What future negotiations? Secession is not accompanied by future negotiations. Secession is an announcement that the ties are hereby broken. After that announcement, Lincoln, rather than withdrawing his troops from the soverign state of South Carolina, provided supplies to Fort Sumter. In doing so, Lincoln clearly established that he did not recognize the sovereignty of South Carolina. Lincoln pushed until he got a reaction.
Bob, Esq: “Article VII was ultra vires because Article XIII of the Articles of Confederation required nothing less than unanimous rescission.”
What is he saying? That the Constitution is invalid?
Someone tell him that this abstract question is now moot because ALL THIRTEEN STATE ratified the Constitution.
Bob has put out some of these bizarre arguments before.
http://jonathanturley.org/2009/03/04/dcs-speed-bump-the-constitution/
His views are just as wrong now as they were then, for the reasons there stated.
Bob,Esq., does not know much law.
Bob said: That’s the same sophistry employed by Marshall in Marbury wherein he pulled that non-Article III rabbit known as ‘judicial review’ out of thin air so as to lay the groundwork for his hitherto non-existent power to render a decision in the case.”
This is wrong.
This commenter should actually try to read the Constitution.
“The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” Art. III.
Where does the Judicial Power reside? “The judicial Power of the United States, shall be vested in one supreme Court….” Art. III.
“This Constitution … shall be the supreme law of the land….” Art. VI.
And finally, the judicial Officers shall be “bound by Oath or Affirmation, to support this Constitution.” Art. VI.
So where is the problem for the commenter?
The courts have jurisdiction over all cases under the Constitution and laws of the United States.
If there is a controversy between a law and the Constitution, the Constitution is supreme.
The judicial power is vested in the Supreme Court.
And the Court is bound by oath to uphold the Constitution.
If the Court is confronted with a law that violates the Constitution, it is bound by oath to support the Constitution.
This is just another urban legal legend that studiously ignores the language of the Constitution.
Here is a statement from one of the leading treatises on the history of the interpretation of the Constitution in the courts, Kelly and Harbison, The American Constitution, pp. 229-30:
“Marshall’s argument in favor of the Court’s power to declare an act of Congress void was not of major significance at the time he made it, and the importance of Marbury v. Madison in the history of judicial review has in fact been somewhat exaggerated. The idea that the Court could invalidate acts of Congress was not then new. More than a score on analogous state cases, in which state courts had declared void the acts of their legislatures, had already occurred. In The Federalist, Hamilton had argued for the right of judicial review in the forthcoming judiciary, and the reader will recall that in Hylton v. United States (1796) the Court had assumed the right, although it had decided that the statute in question was constitutional. Prior to 1803, a decided majority of the bench and bar had apparently considered judicial review a necessary part of the constitutional system, and the principle had not been seriously disputed until the recent debate on the highly controversial Repeal Act of 1802. Marshall’s reaffirmation of the Court’s power therefore received by little attention from either the friends or the foes of the federal judiciary.”
Once again, judicial review is absolutely and inherently necessary for the Constitution to function. The need was recognized from the beginning.
Read the Constitution again.
The Constitution is the supreme law of the land. The Court is sworn to uphold the Constitution. If Congress passes a law that violates the Constitution, the Court is bound by oath to overturn it.
If the Court is wrong, it is up to the people to reverse it by constitutional amendment.
And Miller says “the South was not attempting to wage war against the United States—they simply wanted to be left alone.”
So.
In their effort to be left alone, they bombarded Fort Sumter, after Lincoln expressly limited re-supply to food and water, but no munitions.
The Japanese, in their effort to be left alone, bombed Pearl Harbor.
The North Koreans, wanting to be left alone, invaded South Korea.
Saddam, desiring solitude, invaded Kuwait.
In historical perspective, Davis made a monumental blunder when he attacked Sumter. It galvanized the U.S. There was no excuse for such a mistake. Without that attack, Lincoln’s efforts to save the Union could have foundered. After the attack, as after Pearl Harbor, the people of the United States were furious.
So let’s bury this “left alone” myth. It the southerners had wanted to be left alone, they should have left the federal installations alone, awaiting future negotiations.
Instead, they began it with an act of naked aggression against federal property.
On the their effort to be “left alone,” James McPherson reports in Battle Cry of Freedom that Lee’s troops in the Gettysburg campaign sought to round up free black citizens in Pennsylvania and send them south to be sold into slavery.
Vince: “So the ruling on secession was not dicta, but holding, since it was necessary for the decision of the case.”
That’s the same sophistry employed by Marshall in Marbury wherein he pulled that non-Article III rabbit known as ‘judicial review’ out of thin air so as to lay the groundwork for his hitherto non-existent power to render a decision in the case.
Miller: “Chase claimed, “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.” However, he failed to mention or explain the secession of nine of these original States from their first union (the Articles of Confederation); the only union the States ever proclaimed to be perpetual. There can be no doubt that our first Union under the Articles of Confederation, although claiming to be perpetual, or our current Union under the Constitution, without any such claim of being perpetual, were neither perpetual nor indissoluble.”
Yep.
Article VII was ultra vires because Article XIII of the Articles of Confederation required nothing less than unanimous rescission.
Also, the so-called “horrific and unconstitutional actions of the Lincoln administration” is another myth of the Civil War spread far and wide by the losers and their followers..
I recommend the book Lincoln’s Constitution, by law professor Daniel Farber, for a balanced treatment of the constitutional issues.
I have already stated my disagreement with JT’s assertion that Lincoln “clearly” violated the habeas corpus clause. It was not clear by any means, there are strong arguments in Lincoln’s favor, and the question has not been resolved by the Supreme Court.
The secession question, however, has been settled.
By the way, the Constitution defines treason as waging war against the United States, and requires two witnesses.
Davis, Lee and all the secessionists did in fact wage war against the United States and there were more than two witnesses. The all engaged in treason.
In an effort to bind up the wounds of war, a pardon was granted to all rebels during the administration of Andrew Johnson. Lee finally got his pardon from Gerry Ford; it is displayed at the Lee Museum and Washington and Lee.
The latter day supporters of the rebellion repaid this with a century of segregation, denial of voting rights, Jim Crow laws and lynchings.
So there are some subtle legal arguments about Lincoln’s actions, taken in good faith, and intended to save the Union and free the slaves.
They pale to insignificance in the wake of four years of treason aimed at destroying the United States and preserving and expanding human slavery.