David Armitage's definition of "civil war" would mean that the American Civil War was not a civil war, because the Confederacy did not seek to control the Union.
 

Good point Henry.

Also, in my summary of what historians generally say in the previous thread, I pointed to two other distinctions:

1. The term is anachronistic as applied to the Revolution. In general, we're better off avoiding anachronisms if we want to understand the past on its own terms.

2. The terms "secession" and "revolution" had very specific meanings to, respectively, the Southern fire-eaters and the signers of the DOI. To the Americans of 1776, "revolution" was a *natural* right. Lincoln recognized this in the passage I quoted from his First Inaugural. The fire-eaters, in contrast, very specifically avoided the term "revolution" and instead constructed elaborate (and unpersuasive) arguments that "secession" was a simple matter of law, a right of states inherent in the Constitution. In that same passage, Lincoln rejected these arguments by noting that the Constitution created a power of *amendment*, not separation. To see Lincoln's point more fully, I should have quoted more of his speech:

"All profess to be content in the Union if all constitutional rights can be maintained. Is it true, then, that any right plainly written in the Constitution has been denied? I think not. Happily, the human mind is so constituted that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this. ... continued


 

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. [Passage about the amendment process]

The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States. The people themselves can do this if also they choose, but the Executive as such has nothing to do with it. His duty is to administer the present Government as it came to his hands and to transmit it unimpaired by him to his successor."
 

Now, we don't have to accept these distinctions between "natural" and "legal" rights. We can, and should, not hesitate to describe both as treason from the perspective of the British and the Union, respectively. But if we fail to recognize the distinctions that people of the times thought important, we both miss the historical point they were making and leave open the possibility of confusion now. Specifically, if we use the term "secession" in its general sense of "separation", and apply it indiscriminately, we miss a key part of the Confederate argument and make their argument more sympathetic than it deserves to be. Anybody who follows right wing sympathizers will quickly see this exact rhetorical strategy. It's the Lost Cause all over again.
 

The problem with applying either of these concepts to the "Revolutionary" war, is that they both misconceive the situation at the time.

The colonies were, of course, as a matter of law, part of the British empire. BUT, they were largely self-governing. Long travel times and the need to be mostly self-sufficient had seen to that.

The "revolution" came about because King George was attempting to undo that practical, though not legal, independence, and subjugate the colonies.

It was not, properly, a "revolution", because we were not replacing existing governing institutions. We were just fending off an outside attempt to seize control of them, and making that practical independence legal independence. (This explains why the American "revolution" turned out better than most revolutions: In the middle of a war is the worst possible time to be creating governing institutions from scratch!)

"Secession" fits better, but, again, fails to acknowledge that practical independence the colonies had already enjoyed. It is, I think the proper legal category, but still not a good fit.

We really need a term specifically for "Drifted into independence, and then fended off an effort to take that independence away."
 

"Specifically, if we use the term "secession" in its general sense of "separation", and apply it indiscriminately, we miss a key part of the Confederate argument and make their argument more sympathetic than it deserves to be."

My position on the Confederacy's secession is that they had a good legal case, and an absolutely abysmal moral case.

I really don't like it when people treat the moral case as dictating illegality, or the legal case as cleansing the immorality. These are separate categories.

Things are less clear cut on the Union side. As the Confederates had a good legal case for being entitled to leave the Union, the Union's legal case for going to war to drag them back in was very weak.

And, as the war started over dragging them back in, and explicitly NOT about ending slavery, it was morally pretty weak at the start, too. All in all, bad on both fronts.

Later, when efforts to entice the Confederacy back in by guaranteeing the future of slavery, (These efforts underscore just how morally weak the case for the war had been.) failed, they made the war about ending slavery, and the moral case for the war improved. But it was a case of doing the right thing only after all else failed.

I think people tend to erase all the moral and legal complexities, because they like nice, clean moral/legal clarity, with both dimensions perfectly aligned, maybe even treated as one dimension. The real world is not like that. People can do things they're legally entitled to for bad reasons, and do criminal things and eventually have good come of them.

 

Revolution is changing the form of government. Secession is about dividing the polity. Sometimes these concepts overlap.

As noted in the Declaration of Independence and elsewhere, the purpose of our revolution was change our government. Secession was incidental because we did not remotely possess the capability or the desire to wage war outside of America. However, if this revolution included England, I doubt the colonies would have sought separation from the mother country.

The prior and current Democratic Party movements to secede from the United States are based on a minority of the polity not getting their way in our representative democracy. Although, you can make an argument today's Democrats want want to eliminate the remnants of our classically liberal government in favor of a new Democratic socialist government. Yes, the Democrats are a minority of the polity, most especially those championing Democratic socialism and secession to establish this government.
 

"I think people tend to erase all the moral and legal complexities, because they like nice, clean moral/legal clarity, with both dimensions perfectly aligned, maybe even treated as one dimension."

Good lord this bircher is so lacking in self awareness I don't think he'd recognize himself in a mirror!
 

"the Democrats are a minority of the polity"

Factually challenged, as usual. The only think Democrats are a minority in is land (which is what Birchers think is important in a polity).
 

I do think perhaps there's a distinction between an independence movement and a secessionist movement and a revolution. This may have to do with a difference between an empire and a nation. I think its weird to say Haiti 'seceded' from France, but if, say, the Basques were to set up their intended homeland tomorrow that term sounds right for that. If the Basques were to overthrow the French republic that, to me, would be a revolution.
 

A legal basis for the Union's actions is that they were attacked. Also, our constitution explicitly allows for the putting down of rebellions.
 

No, Mr. W., "Democrats" as in registered and declared members of the Democratic Party, are, in fact, a minority (31 percent). A significantly larger minority than the people who admit to being Republicans (25 percent), but still...

 

BD: Yes, the Democrats are a minority of the polity, most especially those championing Democratic socialism and secession to establish this government.

Mr. W: Factually challenged, as usual. The only think Democrats are a minority in is land (which is what Birchers think is important in a polity).

Read for content: minority of the polity.

Democrats only make up a bit over a third of registered voters.

The party core of Democratic socialists and secessionists even fewer.

Like the Republicans, Democrat candidates draw Independents because of a lack of viable third party alternatives.
 

It's silly to talk about party size by registration, what matters is when people vote, that's in essence 'the polity.' And Democrats routinely get more when that happens, it's just Republican gerrymandering and our land-based democracy skew the resulting government.
 

"To the Americans of 1776, "revolution" was a *natural* right"

No it wasn't. This is a classic example of their lies and propaganda.

If they really thought it was a natural right, they wouldn't have defined levying war on the US as treason in the Constitution, and they wouldn't have passed the Sedition Act.

They believed governments had the right to put down treason. They just thought the rules didn't apply to them.
 

The Sedition Act was passed over thirty years after 1776.

"They believed governments had the right to put down treason. "

Well thinking that at some time or point people have the right to rebel doesn't mean you must think that people have the right at any time (or even most of the time).
 

By the way, it's perfectly clear that the only thing really going on here is quite simple and doesn't require a bunch of boring, disingenuous disquisitions about the framers.

"Secessionist" is like "terrorist". Nobody wants to apply the term to anything they sympathize with.

Obviously Prof. Levinson is right that the American revolution was explicitly secessionist. Mark Field just can't stand the term, just like he can't stand it when people point out that these folks were a bunch of people who owned and raped slaves, didn't believe in any of the principles they claimed to espouse, and just went ahead and formed a government that was structured to ensure the rape, murder, whipping and sale of Black people over the next 80 years, because that was, in fact, the entire point of the American revolution- to ensure an easy life for landed slaveowners, while their slaves bore all the suffering, and to protect them from British abolitionist movements and taxes. That was the actual principle this country was founded on.

And the answer to Prof. Levinson's question is found there too. Why do people not want to call it secessionism? Because a lot of Americans are very immature about the founders. They WANT to believe the propaganda. They WANT to believe we were founded by a bunch of people who believed in equality. They WANT to believe in the myth that this country started as a bunch of poor scrappy freedom loving people who overcame long odds to defeat the British and to create a land of liberty. The reality that Thomas Jefferson went home to Sally Hemings and raped her after writing all that stuff is something a lot of Americans just can't cope with. The propaganda was so beautiful.

To believe the truth about Americas founding requires the same sort of leap as to understand the malevolent role of America in the world- something Americans have resisted for generations even despite all the evidence of CiA coups, covert wars, and our support of brutal dictators. People aren't mature enough to accept that just because you live somewhere and like it, that doesn't mean that we were the good guys- especially 244 years ago.
 

Mista Whiskas said...It's silly to talk about party size by registration, what matters is when people vote, that's in essence 'the polity.' And Democrats routinely get more when that happens, it's just Republican gerrymandering and our land-based democracy skew the resulting government.

The fact Indis may vote for Democrats because there are no viable alternatives in many blue cities or state, hardly means they are Democrats or they support Democratic socialism or secession like core Democrats.
 

One other point. We should hope the framers didn't believe in a right of revolution (as I said, they didn't: read the Treason Clause).

Because if they did, that lends support to NRA and extreme right wing claims of a right to bear arms against the government.

Framer worship is inherently conservative. It justifies conservative positions on guns, Black people, and originalism. People on the left should really avoid it.
 

Terminology could be important but it also can at some point result in tedious discussions. Using words, I can see how one can call what the American colonialists did was a "secession" [one definition: "Act of withdrawing from an organization, union, military alliance or especially a political entity"]. It is not really a moral thing.

Then, there are various debates over line drawing and philosophies. Colonies is a special case, at least in some cases, says some. "Secession" is better used, for some, if a somewhat united whole breaks up. A somewhat isolated colony like the American colonies or a West Indes island does not on some level seems like "secession." So, the Hartford Convention (1814) was a "secession" movement. Not the American Revolution.

Fine enough on some level.


 

Dilan: One other point. We should hope the framers didn't believe in a right of revolution (as I said, they didn't: read the Treason Clause). Because if they did, that lends support to NRA and extreme right wing claims of a right to bear arms against the government.

Reread the Declaration of Independence. The Treason Clause prohibits aid and comfort to an enemy of the United States and does not prohibit the People from changing governments which refuse to protect our rights.

Framer worship is inherently conservative. It justifies conservative positions on guns, Black people, and originalism. People on the left should really avoid it.

Modern conservatives are more likely to enforce the Constitution as written because doing so limits government power as they prefer. Conversely, progressives / Democratic socialists condemn such enforcement as "Founder worship" because the Constitution facially prohibits their preferred state of unlimited power.
 

My position on the Confederacy's secession is that they had a good legal case, and an absolutely abysmal moral case.

Eh on the second from your past comments. It's like (if pressed) "yeah, slavery is bad ... duh" ... but the first part is strongly pushed along with the wrongs of the other side. But, the "abysmal moral case" -- which factors in significantly -- is left out.

They didn't have a good legal case. Even Robert E. Lee in January 1861 to his son noted it was a revolutionary act. At best, they had a somewhat defensible, greatly disputed legal case based on implied contractual theories. Weak reed to unilaterally break off and seize federal property.

I really don't like it when people treat the moral case as dictating illegality, or the legal case as cleansing the immorality. These are separate categories.

Few think the legal case "cleanse" immorality & the people are not so pure as the the other half. Thus, the writer repeated is not just Spock, but repeatedly speaks in moral tones when talking about legal matters.

Things are less clear cut on the Union side. As the Confederates had a good legal case for being entitled to leave the Union, the Union's legal case for going to war to drag them back in was very weak.

The Union had a strong legal case. The Constitution expressly bars insurrection and they used forced to respond, including to defend forts and such. Which again the Constitution expressly gives the federal government if anything more power over than other stuff. The Union didn't "go to war." They responded to an existing insurrection.

And, as the war started over dragging them back in, and explicitly NOT about ending slavery, it was morally pretty weak at the start, too. All in all, bad on both fronts.

The Constitution that is the basic framework of the government of the Union was for a "more perfect union" that set up a republican form of government. If the "wrong" person winning a presidential election can mean a chunk of the nation can separate, putting the whole at risk, it comes off as less perfect.

The basic reason for the war was also secession that arose because an anti-slavery expansionist party won the election. One that also from Lincoln on down labeled slavery as morally wrong. The war itself, at first [though some knew by nature it would be], was on the record not to defeat slavery. But, the other side wanted to protect it & (rightly) feared Republicans would long term help its road to abolition.

Either way, the Union had a stronger legal case.

Later, when efforts to entice the Confederacy back in by guaranteeing the future of slavery, (These efforts underscore just how morally weak the case for the war had been.) failed, they made the war about ending slavery, and the moral case for the war improved. But it was a case of doing the right thing only after all else failed.

Not letting people separate because they didn't like the winner of a presidential election, and doing so to protect slavery, was a morally weak position. An attempt was made -- not one ultimately with large support on either side -- to avoid the horrors of separation and war -- to underline the national government could not interfere with slavery in states where it existed. BOTH reasons for the war [protecting unity & the people's right to choose a leader w/o the losers breaking apart ... and ending slavery] were right reasons. And, realistically, they were connected anyway.

I think people tend to erase all the moral and legal complexities

Yeah. You aren't the one to talk such nuance. Comes off almost as amusing. The message is fine. Needs a better prophet though.
 

It's odd to single out Mark for Framer worship, Dilan. He's rather quick to acknowledge their failings regarding slavery, it's our Birchers that love themselves some apologies for slavers. Mark cites the Framers but virtually all jurists do that when talking about the original Constitution.
 

"Modern conservatives are more likely to enforce the Constitution as written"

That was always false, but laughingly so now after the whole 'Persons' debacle.
 

" The Constitution expressly bars insurrection "

Indeed. Does any part of the Constitution 'as written' mention an exit process for states?
 

"They WANT to believe in the myth that this country started as a bunch of poor scrappy freedom loving people who overcame long odds to defeat the British and to create a land of liberty."

You know, a ton of US suffragettes were racist as all get out, and many of them made explicit racial appeals in pushing for women's suffrage (likewise those pushing for the 15th were quite sexist). That doesn't mean that the women's suffrage movement was about white supremacy or that it wasn't a positive step in human history.

There has to be some middle ground between Bircher child-like apologies for our Founders and your utter moral condemnation of them.
 

Reread the Declaration of Independence. The Treason Clause prohibits aid and comfort to an enemy of the United States and does not prohibit the People from changing governments which refuse to protect our rights.


You just failed Con Law 101, Bart.

The treason clause is not about "aid and comfort". Indeed, "aid and comfort" just a subsidiary element of one of the two forms of treason.

It's the first part of the treason clause that is relevant here- levying war against the United States. ANY "revolution", as you guys like to call it, levies war against the United States. And any American citizen (and perhaps others who owe allegiance to the country) who levies war against the United States commits treason. Doesn't even reach the issue of aid and comfort.

The "aid and comfort" thing is an element of the other form of treason, adhering to an enemy of the United States.
 

They didn't have a good legal case.

Secessionists only have a good legal case if they win.

As I said in the other thread, had the American side lost the Revolutionary War, a lot of them would have been tried for treason and hanged.

And of course, the secessionists of 1861 should have been tried for treason too. (Again, I oppose the death penalty. But we absolutely should have given long prison sentences to Davis, Lee, Stephens, and all the rest of the confederate leaders.)
 

It's odd to single out Mark for Framer worship, Dilan. He's rather quick to acknowledge their failings regarding slavery, it's our Birchers that love themselves some apologies for slavers. Mark cites the Framers but virtually all jurists do that when talking about the original Constitution.

Mark certainly does worship the framers. I agree he doesn't worship them the same way as conservatives do, but he does the typical White liberal Sean Wilentz version of it, which is where you pretend that the writings of the framers about liberty somehow exist separately from what they actually did (and obviously believed).

And that kind of framer worship is really bad too. It's obviously not historically justified- this country was founded by a bunch of treasonous scoundrels who cared about their own liberty to pay lower taxes and rape their slaves.

It leads to conservative policy outcomes, as I noted above.

And it's just damned insulting to Black people. The only way you really can endorse stuff the framers said as some sort of moral arbiter or to praise the American revolution is by erasing Black people (and Indians, by the way). Part of the process of our society learning to respect Black people is we need to let go of this attachment to the framers.

As for citing them? I am not an originalist. But if you absolutely have to cite them when interpreting a constitutional or statutory provision they drafted, sure, cite them. We certainly should endeavor to ignore what they thought and said in any situation where the matter is not specifically germane to the issue. I mean, Germans don't venerate the intentions and writings of the Nazis, because they killed 6 million Jews. The Framers caused the enslavement of at least 4 million Americans. It's not that different.
 

"Does any part of the Constitution 'as written' mention an exit process for states?"

That would be the 10th amendment. The Constitution has a couple of explicit rules of interpretation, in the 9th and 10th amendments. And the 10th states, in essence, that all issues of allocation of power left unspecified by the Constitution are to be resolved against the federal government.

The very fact that the Constitution lacks any reference to the power to secede, either delegating that decision to the federal government, or barring it to the states, makes secession into a reserved power, and the only remaining question is whether that power belongs to the state governments, or the people of the states.

And that latter question is a matter of state constitutional law, not federal.

That's why I say the Confederacy had a good legal case, though they had an absolutely rotten moral case.
 

It's possible for a constitution to allow secession when certain things occur but ours surely doesn't in any clear fashion.

It also might be possible to have a somewhat weaker legal case that rests on legal principles generally recognized by the country in question. If either is done unilaterally, it is a matter of winning on the battlefield.

The Confederates at best had a disputed view of our constitutional system on their side and used it to promote immoral ends. A bad twofer.
 

You know, a ton of US suffragettes were racist as all get out, and many of them made explicit racial appeals in pushing for women's suffrage (likewise those pushing for the 15th were quite sexist). That doesn't mean that the women's suffrage movement was about white supremacy or that it wasn't a positive step in human history.

Here are the differences. They were advocating what was basically a single issue. We can look at their position on that issue and agree with it, while acknowledging where they were wrong.

But starting a country is different. These people committed treason against the British Crown. We have to ask why, and we have to evaluate whether that was a benevolent project. And if the 1619 Project people were right (and they were) that slavery was central to the project, that taints them in a way that the suffragist movement is not tainted even if its leaders were racists.

Further, there's something else too. Which is with the framers, it isn't just a matter of what they believed, but what they did. Slavery is something they not only believed fervently in as a non-negotiable precondition of the creation of this country, but something they implemented with fervor and gusto because it gave them the ability to laze around on their estates while others did the work, to engage in their sadistic fantasies and whip and beat their fellow human beings, and to engage in their sexual fantasies with women who were their property and could not say no to them.

It's very different. It's like the difference between someone who argues, as a philosophical matter, that there should be a minimalistic state and their should be no state apparatus to punish murders (along with espousing some good stuff as well), and a person who is a mass murderer who also espoused some good stuff.

The suffragists are in category 1; the framers, category 2.
 

It's possible for a constitution to allow secession when certain things occur but ours surely doesn't in any clear fashion.

It really makes a big mistake to make legal arguments about secession. Of all people, I think it was actually Mark Field who said "nothing secedes like success".

Secession is illegal when it fails. Big-time illegal. It can lead to a lot of capital punishment.

If it succeeds, it is legal despite lawyers screaming in the corner "technically it is illegal".

It's just a military concept completely outside of the notion of legality.
 

In Texas v. White (1869), the Supreme Court held secession unconstitutional.
 

"Terminology could be important but it also can at some point result in tedious discussions."

I completely agree with this. The point I'm making is not at all about terminology, though I can see how it might appear that way. No, my point is one about how historians see the past. Basically -- notallhistorians, yada yada -- their goal is to understand the past *on its own terms*. What did the people back then *say* they were doing? Better yet if we can reconstruct it, what did they *think* they were doing? The idea is to be able to put yourself in their situation and understand how they saw the world and their role in it (recognizing that this is never likely to be completely successful).

To continue with the topics raised by the OP, what we say about the Revolution is that the signers of the DOI said and thought that they were exercising a *natural* right. The slaveholding traitors said and thought that they were exercising a *legal, constitutional* right.

In neither case do we have to take their words or thoughts at face value. We are completely free to criticize them, *once we've understood their view*. And when we do that, we see that 2 situations are in fact quite different. The signers of the DOI recognized and admitted that they were not exercising any "legal" right under the British "constitution". Instead, they used the common 18th C terminology of "natural rights" (which I don't personally accept, but they did). They absolutely knew that this would be no defense to a charge of treason -- that's the whole point of Franklin's famous line that "We must all hang together or we will most assuredly all hang separately". They weren't offering a legal defense, they were offering a moral/political defense.

In contrast, the slaveholders said and apparently thought that they had *legal* right to secede. That is, had they been charged with treason they would have tried (unsuccessfully) to put on an affirmative defense that their treason was "legally permitted treason". They didn't try to offer a moral defense because, well, slavery.* You can see this whole argument in Brett's comment at 9:29.

So the reason we don't want to use the same word in both situations, at least not without some careful explanation first, is that doing so confuses 2 entirely separate and distinct strategies, one moral and one pseudo-legal. We certainly don't want to adopt the Lost Cause rhetoric which deliberately mixes the two situations for the express purpose of making the slaveholders look justified.

Again, this leaves us perfectly free to criticize the Revolution as hypocritical or illegal or morally unjustified. As I said above, the Signers knew what they did was "illegal". They basically knew it was hypocritical (as pointed out by many at the time, most famously by Samuel Johnson). They thought they had real grievances, though we can question many of them from the British perspective. But what we should NOT do is confuse their arguments with those of the Secesh.

*They did argue that slavery was morally just, but they understood that folks outside the South generally didn't accept that.
 

"Secession is illegal when it fails."

Famously summed up: "Treason doth never prosper, what's the reason? For if it prosper, none dare call it Treason."

Whatever the theoretical legalities, that's the bottom line: Either get away with it, or hang. Except when, as in the case of the Confederates, hanging would have caused too much trouble.
 

"The very fact that the Constitution lacks any reference to the power to secede, either delegating that decision to the federal government, or barring it to the states, makes secession into a reserved power, and the only remaining question is whether that power belongs to the state governments, or the people of the states."

This is just more of the usual atextual straining. The actual answer is the Constitution says nothing about state exit from the compact.
 

Jefferson Davis's defense, had he been tried for treason, apparently would have been that the Confederacy was a separate nation with no duty of loyalty to the United States, and therefore could not commit treason. The government's fear that that argument would prevail was a factor in its deciding not to try him. See "Secession on Trial: The Treason Prosecution of Jefferson Davis," by Cynthia Nicoletti.
 

"Here are the differences. They were advocating what was basically a single issue. "

Then just broaden the case to be 'feminists.' In the US feminists were often racist on many issues (like Sanger). But that doesn't mean that the feminist project was an overall bad thing.

And, again, I don't think Mark is a Founding worshiper at all nor am I convinced that that necessarily leads to conservative outcomes. The Founders were a rather diverse bunch in many ways, and its inevitable that their views will inform Founding era structures.
 

"Mark cites the Framers but virtually all jurists do that when talking about the original Constitution."

My basic view is that of Saul Alinsky and Frederick Douglass: make them live up their own standards.
 

"ermans don't venerate the intentions and writings of the Nazis, because they killed 6 million Jews. The Framers caused the enslavement of at least 4 million Americans. It's not that different."

One difference strikes me that the rest of the world wasn't killing millions of Jews, but the rest of Europe was involved in slavery at the time of the Founding.

Again, I think we venerate the Founders too much (and venerate the wrong ones, and some we venerate not enough comparitvely). The ones who strived to engage in slavery can and should be called out for their blatant hypocrisy and immoral endorsement of human slavery. But like feminism I think it was a step in the right direction. The Confederacy and Nazi Germany were not steps in any right direction.
 

It was Lincoln's view too. Can't forget him.
 

"The actual answer is the Constitution says nothing about state exit from the compact."

Yes, and the 10th amendment says how you resolve questions (About the allocation of power) the Constitution says nothing about.
 

"Again, I think we venerate the Founders too much (and venerate the wrong ones, and some we venerate not enough comparitvely). The ones who strived to engage in slavery can and should be called out for their blatant hypocrisy and immoral endorsement of human slavery. But like feminism I think it was a step in the right direction. The Confederacy and Nazi Germany were not steps in any right direction."

This is a reasonable way to put it.
 

"the 10th amendment says how you resolve questions (About the allocation of power) the Constitution says nothing about."

It says how to resolve questions about governmental powers, and I don't think a power of government is secession. And the Constitution explicitly forbids Rebellion and Insurrection.
 

The 10th Amendment remember talks about powers that could, theoretically, be assumed by the federal or the state governments (or the people, remember), and says 'any of these powers not explicitly granted to the federal government belong to the states or the people.' But secession couldn't be one of these powers because it would make no sense for the federal government to, say absent the 10th, have such a power.
 

The Constitution contains many clauses inconsistent with secession, including at least:

1. The Preamble (We the People).
2. All the powers in Art. I, Sec, 8, which are granted to Congress and not to the states, including specifically the power to declare war and the militia clauses.
3. The habeas corpus clause ("cases of rebellion").
4. All of Art. I, Sec. 10 (powers forbidden to the states), including the ban on interstate compacts.
5. The commander in chief clause.
6. Art. III, Sec. 2, granting the courts the power to hear disputes to which the US is a party and disputes between states.
7. The treason clause.
8. All of Art. IV.
9. Art. VI, Secs. 2 (supremacy clause) and 3 (oaths).

 

Yes, and the 10th amendment says how you resolve questions (About the allocation of power) the Constitution says nothing about.

10A: "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."

It isn't clear that the Constitution "says nothing about" secession. "Powers delegated" are not always expressly stated. The Articles of Confederation is more strict there.

As to another comment, secession* is the separation of one portion of the country. If an amendment to the Constitution authorized Alaska to separate, it would be authorized by law. Constitutions can set up a format to allow units to separate in a legal away. The Confederate's compact theory of states could be explicitly authorized in a constitution. It could be set forth by treaty or international law that a set of criteria would by law warrant a process to be provided to set up a means to secede & if it is not allowed, it would happen by default. I'm merely speaking theory here.

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* To repeat myself, one definition: "Act of withdrawing from an organization, union, military alliance or especially a political entity." This is, by law, authorized in various cases.




 

I'm not sure if the lines are as crystal clear as Mark is making them -- Robert E. Lee told his son it was a revolution. Some colonialists weren't really totally clear about the separation of natural law and other types of law. Such language was used at least somewhat loosely. I am not really sure how far that takes us in line drawing regarding use of terms here. The background is of some value.
 

The whole idea of nullification/secession originated in the Kentucky Resolution (thank you, Thomas Jefferson):

"Resolved, that the several States composing the United States of America, ... by compact under the style and title of a Constitution for the United States ... they constituted a General Government for special purposes, ...; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Resolved, ...That, if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the State Governments, and the creation upon their ruins, of a General Consolidated Government, will be the inevitable consequence: That the principle and construction contended for by sundry of the State legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism - since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers: That the several States who formed that instrument being sovereign and independent, have the unquestionable right to judge of the infraction; and That a Nullification by those sovereignties, of all unauthorized acts done under color of that instrument is the rightful remedy

Now to quote by way of example from William Freehling's The Road to Disunion vol. 1, p. 258, describing where Jefferson's logic led:

"Most states' righters called legal secession the remedy, should courts fail to declare general welfare [clause] edicts unlawful. State conventions, as limitless constitution-makers, had preceded and created the merely law-making, law-enforcing, and law-judging national agency, alias the federal government. Constitution-makers could legally, peacefully, and morally withdraw from a limted agency which no longer remained within constitutional limits. The people, in unlimited constitution-making state convention assembled, had the right to transfer their state's consent to be governed by another limited agency."
 

"I'm not sure what's wrong with "The War for Southern Independence," which is descriptively accurate and requires no one to accept the legitimacy of the striving for independence"

"The War Against Slaveholder Treason" would be equally accurate and descriptive.
 

"The War for Southern Independence" does not mention that the South started the war to preserve slavery. The South did not want independence for its own sake, and would not have seceded if it had not feared that Lincoln's refusal to allow slavery in the territories would, in the long run, lead to slavery's demise. "The War to Preserve Slavery" would be more to the point, but it would neglect to mention secession; both slavery and secession should be in the name. Therefore, awkward as it might be, "The War to Preserve Slavery by Seceding from the Union" seems best. Or just call it the Civil War.
 

Again, I think we venerate the Founders too much (and venerate the wrong ones, and some we venerate not enough comparitvely). The ones who strived to engage in slavery can and should be called out for their blatant hypocrisy and immoral endorsement of human slavery. But like feminism I think it was a step in the right direction. The Confederacy and Nazi Germany were not steps in any right direction."

This is a reasonable way to put it.
# posted by Blogger Brett : 2:20 PM

And yet, for some unknown reason, you continue to defend monuments to Confederate traitors.

Just kidding. The reason is obvious.
 

"Powers delegated" are not always expressly stated."

That's a doctrine that was invented for no other purpose than to render the 10th amendment a dead letter.
 

"And yet, for some unknown reason, you continue to defend monuments to Confederate traitors."

I think Buddha was a lazy layabout subsisting on handouts, but still objected to the Taliban smashing his statues. I don't have to like the guy portrayed in a statue to object to mobs destroying public monuments.
 

mobs destroying public monuments.

Yet a number of the removals of Confederate monuments were done by elected government officials. How do you feel about those?

Bear in mind that in the past you have defended the monuments not against "mobs," but on esthetic grounds. In other words, you're going to grasp at any straw you can find to defend celebrating the Confederates.

Big difference between a "lazy layabout" living on voluntary handouts and a slaveholder living on the forced labor of captive human beings. Do you agree?
 

"Yet a number of the removals of Confederate monuments were done by elected government officials."

Generally sucking up to mobs, and not caring what people who weren't threatening to riot thought about it.
 

I guess Bircher Brett also objects to the destruction of many Nazi monuments after WWII and the removal of monuments to the murderous Lenin and the USSR in Ukraine. Once a monument to anything, even a horrible, terrible movement, goes up then any removal is just the Taliban you know?
 

"Generally sucking up to mobs, and not caring what people who weren't threatening to riot thought about it."

A pathetic dodge. It's always interesting the lengths Birchers will go to defend monuments to white supremacy and mass slavery.

The first big calls for removal of Confederate monuments I can recall was New Orleans and Charlottesville, neither involved 'mobs.'
 

Also, in the New Orleans case the contractor who was hired to remove the monuments to white supremacy and mass slavery received death threats towards him and his family and had his property vandalized. In Charlottesville a mob did appear, a Neo-Nazi mob. There's mobs, oh yes.

Also, both in Louisiana and Virginia the state GOP controlled legislatures (in VA due to blatant gerrymandering, the GOP hasn't won a statewide election there in over a decade) rushed to pass laws to prohibit localities from removing statues celebrating white supremacy and mass slavery. Remember when Birchers like Brett used to pretend to believe in subsidiarity? Good times.
 

Elected government officials "Generally sucking up to mobs, and not caring what people who weren't threatening to riot thought about it."

Since you can read the minds of these elected government officials, can you tell us whether any of them ever removed a Confederate monument because he or she opposed the message of white supremacy that it was erected to convey, and because he or she appreciated that it understandably offended descendants of slaves (as well as decent white people)? If this was the motivation in some cases, then would you approve of the statue's removal?
 

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"That's a doctrine that was invented for no other purpose than to render the 10th amendment a dead letter."

This is absurd. The doctrine of "implied powers" was discussed and explained in The Federalist, years before the 10th A was ratified.
 

The whole idea of nullification/secession originated in the Kentucky Resolution

Secession is being used by Sandy Levinson as I understand it as a general concept and I don't think it was invented in 1798.

It is unclear to me how even the more narrow constitutional claim is. Arguments for independence cited the British constitution. Cited colonial charters* that the colonialists argued gave them specific rights to local self-government.

How this was being violated. How this was part of the justification for their declaration of independence. The literature repeatedly cites how various arguments were used, not just natural law. William Wiecek, e.g., in the Oxford Companion to the Supreme Court cites the "compact theory" argument used in the DOI.

A compact theory view of secession at any rate is not the only way "secession" can occur. This parsing of terms to me doesn't get us that far.

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* Carl Becker in his book on the Declaration of Independence notes these charters are ones colonialists "might indeed prefer to call compacts." Jefferson using a compact theory there is far from surprising. The concept was familiar.

 

"Secession is being used by Sandy Levinson as I understand it as a general concept and I don't think it was invented in 1798."

The general meaning of "secession" obviously predates the Constitution itself. And the KY Resolutions don't use the phrase -- they use "nullification", which eventually morphed into secession as Freehling explained.

I agree that it's being used in the OP in a general sense, and that's the problem. The slaveholders were using it in a very particular and much narrower way, as the quote from Freehling demonstrates. Using the term in its general sense risks conflating other, more admired "separations" with the Confederacy, often to the benefit of the slaveholders. That's a rhetorical strategy employed by the slaveholders and their defenders in the Lost Cause. We should avoid it.


 

Think of it this way: it's similar to the term "concentration camps". The Brits essentially invented the term and the idea in the Boer War. They didn't gas people there, of course, though they hardly treated anyone very well. Similarly, people can and do refer to the Japanese interment as "concentration camps". In the Boer War sense, that's not misleading. The problem is that Nazi Germany had "concentration camps" too, and that meaning now dominates the term. If we want to avoid confusion, we're better off using one term for the Boer War and Japanese internment, and another for the death camps.
 

I think Buddha was a lazy layabout subsisting on handouts
# posted by Blogger Brett : 9:13 PM

Yeah, that's just like being a traitorous scumbag fighting a war to preserve slavery. And yet, here you are defending the monuments build to honor them.
 

Yeah, I do understand your position: If you, and I mean YOU, specifically, really dislike some historical figure, destroying any monuments of them is OK. If you, and I mean YOU, specifically, think they're alright, then destroying their monuments is an outrage.

It's all about your feelings, no objective principle here.
 

A laughable and almost certainly dishonest attempt at moral relativism by Bircher Brett. We shouldn't celebrate morally odious movements and their leaders is about as objective of principle as you're going to find in politics or ethics. Again, does Bircher Brett think the destruction of Nazi monuments or the taking down of Soviet monuments by the Ukrainians who had been murdered in the millions by the USSR was wrong? He admits the Confederacy was morally abysmal yet thinks we should continue to celebrate it with monuments and memorials. It's just more partisan incoherent stuff from a Bircher.
 

Mark, great analogy with concentration camps.
 

All this discussion of monuments -- yet pragmatic considerations for keeping or removing them is missing.

Those statues of Buddha? They were, at one time, a tourist draw. And of course they were archaeologically significant. They preserved a memory of a time before history records. And of course, they represented a being, or person, who was venerated as good, not merely in some ways, but an ideal -- the ideal of a life well spent.

Those statues of Confederate generals and KKK founders? I guess they could be considered a representation of an idea (and records show that that was indeed the purpose!) -- white supremacy.

Case closed.
 

As to pragmatics, I've read that over 40 million dollars a year is spent by government maintaining celebrations of the Confederacy and the white supremacy and slavery for which it stood. Surely a necessary function of government all 'libertarians' should get behind!
 

But some cases are closer than Confederate generals and KKK founders. What about Washington and Jefferson? On the one hand, unlike the Confederate generals, they are honored despite the evil they did rather than because of the evil they did. On the other hand, one might argue that the evil they did (owning, whipping, and raping slaves) outweighs the good they did. People might also differ as to the value of the good they did. Were the deaths caused by the Revolutionary War worth the benefits achieved? Reasonable people might differ as to these matters.
 

I'll restate something I said since I was partially venting.

The 10A says "delegated," and as Mark noted, the concept of implied powers was well recognized when it was written. Likewise, the wording is significant since the Articles of Confederation was more strict -- it specifically said Congress did not have powers unless "expressly delegated." The first word was removed in the 10A.

This doesn't make the 10A meaningless. When the amendments were sent to the states, a statement was included that one purpose were to set forth declaratory principles to better assure they were followed. The people of the time were particularly interested in having things in writing. The 10A thus strengthens a basic principle & up to today there is more concern about applying the Constitution to protect the powers of the state and the people. This is done with a concept of implied powers too.

Finally, this whole thing is a bit of a distraction (or maybe not just a bit). The Constitution repeatedly has provisions that explicitly guards against what the Confederates did. More than one provision deals with insurrection. There is a provision against unauthorized state compacts. And so forth. A workaround here is at best a struggle. So, yes, the Confederates had a weak legal case.

==

There are different philosophies behind "secession," but Sandy Levinson is using it broadly, as seen by his various examples. And, even to the degree it is specifically about a "compact theory," some form of it was there before.

I will continue to disagree courteously.
 

Henry, quite clearly these issues must be resolved on a case-by-case basis. Stone Mountain, which some would say is a defacement of natural beauty, draws a lot of tourists. (We could say the same of Mount Rushmore.)

 

"
To continue with the topics raised by the OP, what we say about the Revolution is that the signers of the DOI said and thought that they were exercising a *natural* right."

They 100 percent did not actually believe this. When they sat down to write the laws of the new country, they made revolution a capital crime.

"Natural rights" was all about conning the rubes.
 

"I agree that it's being used in the OP in a general sense, and that's the problem. The slaveholders were using it in a very particular and much narrower way,"

I agree, that's exactly what the slaveholders who founded this country in 1776 were doing.
 

"If we want to avoid confusion, we're better off using one term for the Boer War and Japanese internment, and another for the death camps.

Maybe. But since the slaveholders in 1776 and 1861 were both committing illegal treason to create a slave republic while making fraudulent claims that they believed in human rights, we should use the same claims for them.

To do otherwise is racist and disrespects the millions of Blacks that the framers sought to and did successfully enslave, buy, sell, rape, and torture.
 

One other point. You can't hang your hat on "well Lincoln and Frederick Douglass interpeted the framers this way" while ignoring that the Confederates claimed they were being more true to the actual cision of the framers AND that based on the Framers' actual behavior regarding slavery, the Confederates had a much better claim.

There's a religious aspect to this. The history of the Christian Church is violent and imperialistic. Yet obviously believers ignore all the history in favor of faith.

That's what is really going on when people selectively quote the framers and sat they endorse liberty. It's a religion, not history.
 

Until the Wilson Administration, the official name of the conflict was "The War of the Rebellion."
 

no objective principle here.

Truly pathetic. Look, Brett. You're not kidding anybody.

All your BS about the Confederate statues is just a way to avoid admitting the truth: you want them up because you admire the Confederates, you buy into the Lost Cause myth, at least partially, and they symbolize for you your dislike of the federal government.
 

I think it's logically possible to take the position that the signers of the DOI were the moral equivalents of the slaveholding traitors of 1861. Someone taking this position could then apply the term "secession" (anachronistically) to the Revolution in service of highlighting this moral equivalence.

The flaw in this, as I see it, is that the vast majority of people don't share the view that the two groups were morally equivalent. Using the term "secession" to describe 1776 therefore doesn't make the signers of the DOI look *worse*, it makes the slaveholding traitors of 1860 look *better*.

It's for precisely this reason that the Lost Causers and Neo-Confederates use this exact strategy. I'm against giving aid and comfort to these racists by adopting their rhetoric.
 

BD: Reread the Declaration of Independence. The Treason Clause prohibits aid and comfort to an enemy of the United States and does not prohibit the People from changing governments which refuse to protect our rights.

Dilan: You just failed Con Law 101, Bart. The treason clause is not about "aid and comfort". Indeed, "aid and comfort" just a subsidiary element of one of the two forms of treason.It's the first part of the treason clause that is relevant here- levying war against the United States. ANY "revolution", as you guys like to call it, levies war against the United States. And any American citizen (and perhaps others who owe allegiance to the country) who levies war against the United States commits treason. Doesn't even reach the issue of aid and comfort.

As always, let's start with the text:

Art. III, sec. 3: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

The United States is the People, not their government. Furthermore, a government in violation of the Constitution is not a legitimate government. Thus, the people of the United States removing an unconstitutional government is not levying war against the United States.

Even if you assume the United States is the government, the people must, in fact, "levy war" to remove that government before committing treason. Everything short of actual waging war does not constitute treason. Ex Parte Bollman and Ex Parte Swartwout, 8 U.S. 75 (1807).

Of course, if an unconstitutional government wins such a war, it will read the Treason Clause as it pleases. as it has the rest of the Constitution it violates.
 

It's all about your feelings, no objective principle here.
# posted by Blogger Brett : 7:48 AM

No, it’s all about your feelings. You’re just really fucking racist.