Nikki Haley steps up and does the right thing.

[MajGenl.Meade]

Thanks for the clarification, Guin. But I was thinking of an enacted law with a future effective date - can't that be litigated before it becomes effective?

[Guinevere]

Nope. There has to be injury. Projected possible future injury isn't enough to confer standing.

[Econoline]

When cases are brought to it, the Supreme Court determines the constitutionality of an occurrence that has already taken place BEFORE the Court takes the case. (IIRC it is possible for governmental decisions to be ruled upon before they go into effect?)

The court, hearing the case brought to it in 1868/9, determined that the Constitution as it was written forbade secession. Secession was not a legal option for South Carolina as of December 20, 1860 or any other date between June 21, 1788 and today.

Exactly. To use another example, Loving v. Virginia did not mean that a ban on interracial marriage became unconstitutional on June 12, 1967; it meant that such a law had been unconstitutional since July 9, 1868 (the date the 14th Amendment became part of the constitution). (Likewise, if the SC finds state bans on same-sex marriage to be unconstitutional on 14th Amendment grounds, those laws won't just start being unconstitutional this summer; they will have been unconstitutional since July 9, 1868.)

[MajGenl.Meade]

OK - thanks again. So an injunction against such a law becoming effective cannot be argued through an appeals process to the Supremes? I suppose it can be presented to one Supreme for the return to lower court.

[liberty]

I only checked out this thread because I saw that @W had posted...

I find her points well made and well taken...

I'm not going to get into a lengthy discussion about the absurdity of accusing people of "treason" for fighting for States that left the Union when there was no Constitutional prohibition against them doing so...

I could do so at length, but frankly I'd rather have another colonoscopy than go through that again...

The facts are these:

It is impossible to commit "treason" when one is not a part of the nation that one is accused of committing "treason" against...

When Fort Sumter was fired upon, it was fired upon because it was seen as part of an occupying army on foreign soil...

The citizens of South Carolina were no longer citizens of "The United States"...

The same is true of all the States that joined The Confederacy...

You cannot "betray" a country you are no longer a part of...

The description of them as "traitors" is a revisionist lie...

They were wrong headed, and misguided perhaps, but not "traitors"...

(As I have said before I am very glad that The South did not prevail in "The late Unpleasantness"...)

One must look at the events from the perspective of the times...

And it should also be noted that Northerners were not much less racist than Southerners were at the time...

Even amongst Northern Abolitionists of the time, who believed ( primarily for religious reasons) that slavery was "morally" wrong, very few of them believed that the "African Negro" was the moral or intellectual equal of "the white man"....

Um sorry no, not a revisionist lie but actually the constitutional truth. See Texas v. White, 1869, where the Supreme Court specifically ruled that there is no constitutional right to secession. There is no process for undoing what the ratification of the Constitution did - which is to create a sovereign and unified federal state where the individual states passed over some of their sovereignty to the federal entity. Quite different than the original confederation of states that was originally set up. The states that attempted to leave the union in fact never did so - those acts were void and without any effect as a matter of law.

Where in the constitution does it say that, it doesn’t. I do not accept that supreme court justices have the right to rule however they wish. They are bound by the law just like every one else. The supreme court is supposed be subservient to the constitution; it is the constitution that rules not the judges. If they can rule how every they wish then they are not judges but kings and no right we have is truly safe.

What you are saying is that we modify the constitution by killing people, silly me I thought it was amendments. In that case you must really be proud of the people that killed abortion doctors.

For the record, I now support the removal of the battle flag. Why, because the way it is framed now if you do not support the removal of the flag you are a racist that support the murder of good people in churches. But I am still not a yankee imperialist running dog like you all and you can‘t make me one.

[Econoline]

(deleted post)

[Guinevere]

OK - thanks again. So an injunction against such a law becoming effective cannot be argued through an appeals process to the Supremes? I suppose it can be presented to one Supreme for the return to lower court.

I'm not exactly sure what this means but the standing and justiciability requirements are for all federal cases, at any level. They also generally apply to state courts as well, but state constitutions may vary them somewhat. For example - the Supreme Judicial Court of Massachusetts will render advisory opinions on certain issues.

[MajGenl.Meade]

OK thanks. No more questions, m'lud. I guess I was thinking of state Supreme Courts

[Lord Jim]

The court, hearing the case brought to it in 1868/9, determined that the Constitution as it was written forbade secession. Secession was not a legal option for South Carolina as of December 20, 1860 or any other date between June 21, 1788 and today.

No doubt...what a lovely a posteriori way to look at the historical record....

The victors always write history...it is their prerogative, by virtue of being the victors...

But as Mr. Lincoln himself once observed, "if you call a sheep's tail a leg, it still has four legs because calling a tail a leg doesn't make it one"...

And calling the independent States, (and those who rallied to defend them) "traitors" ... who had no reason to believe that they shouldn't be able to leave The Union if they so desired; is calling a sheep's tail a leg....

Or to be more precise, it's "victor's justice"...

[Guinevere]

I've not used the word "traitor" anywhere. But I'm clear, secession is unconstitutional. It was in 1869, and in 1860, and in 1800, and it is today. That's not any post-hoc rationalization, but an analysis of the document that created the federal system of government that each and every seceding state voted to join by the body that has the ultimate authority to opine on what is and is not permitted under that document.

"No reason to believe they couldn't leave" is laughable not to mention entirely disengenuous.

[Guinevere]

OK thanks. No more questions, m'lud. I guess I was thinking of state Supreme Courts

I just want to be clear I've given you gross generalizations only. It's far more complicated but I don't have the time for more, and you'd all die of boredom (if you haven't already).

[Sue U]

The court, hearing the case brought to it in 1868/9, determined that the Constitution as it was written forbade secession. Secession was not a legal option for South Carolina as of December 20, 1860 or any other date between June 21, 1788 and today.

No doubt...what a lovely a posteriori way to look at the historical record....

The victors always write history...it is their prerogative, by virtue of being the victors...

But as Mr. Lincoln himself once observed, "if you call a sheep's tail a leg, it still has four legs because calling a tail a leg doesn't make it one"...

And calling the independent States, (and those who rallied to defend them) "traitors" ... who had no reason to believe that they shouldn't be able to leave The Union if they so desired; is calling a sheep's tail a leg....

Or to be more precise, it's "victor's justice"...

No, Jim, that's just wrong in a democratic nation that adheres to the rule of law. The secessionists could have pressed their case through legislative action or constitutional amendment, and if successful would have had the authority to withdraw from the Union. However, to do so unilaterally, and to take up arms against the lawful national government, is unconstitutional on its face and an act of treason as defined by the Constitution itself.

ETA:

Gun is exactly right concerning the Constitution, standing and adjudications by the Court.

[MajGenl.Meade]

The Supreme Court is the ONLY arbiter of Constitutionality - not some state government. All Supreme Court decisions are after the fact brought forward for decision. Secession was, and always has been and always will be, illegal.

A minority portion of the United States waged war upon the United States - that's called treason. If you insist that secession was legal, then you must equally recognize the firing on Fort Sumter etc. as an act of war against the United States - I expect you have no problem with that. However, the issue of secession was decided indeed in the Supreme Court and on the battlefield.

Had the South won, the question of Constitutional legality would have been moot. To the USA it would remain unconstitutional - an academic hiccup at best. To the South, they would have proved it in battle - a fait accompli.

[Sue U]

The Supreme Court is the ONLY arbiter of Constitutionality

Well, the ultimate arbiter, anyway. State courts and lower federal courts can address constitutionality as well.

[MajGenl.Meade]

Noted. Schoolboy error!

[Lord Jim]

I'm very reluctant to get into this discussion, (because I don't want to give sustenance or validation to any wingnut who might think that "secession" is something that could realistically happen today...and there are some nutjobs out there who really believe they could pursue it... in Alaska and Texas, just to give two examples...)

Earth to nutjobs:

The United States Of America is a strong, powerful, and Great Nation, and you yahoos are not going to pull it apart...

But that having been said, in 1860 the world was a very different place ...

The united States Of America had been in existence for considerably less then 100 years...it was a work in progress...

It was quite common in those days, for folks to "self-identify" first as "Virginians" or "Vermonters" or "Pennsylvanians" before thinking of themselves as "Americans"...

The whole concept of the independence of the individual states, and their individual identity, and their importance as "states" seems rather archaic today...(Most states still try to "play" to their "state pride" but it's really just a nostalgic echo, or something designed to enhance tourism; it's not substantive)

But back in those days, it meant a lot more than just driving past a sign on the interstate that says "Welcome To XYZ State"... (which is pretty much all it means now....)

Today in some states the taxes are a little higher, in others a little lower, some states are run by Democrats, others by Republicans, with the federal court system standing over all of them...all and all we've become a fairly homogenized society...

But that wasn't the case in 1860...

In 1860, "self identifying" with one's state had real meaning...

So to call those who stood by their state in 1860, "traitors" (in the same way one might justly today call Edward Snowden a traitor) shows a lack of understanding of the historical reality of the period.

[Lord Jim]

Gun is exactly right concerning the Constitution, standing and adjudications by the Court.

Would that be Peter Gun(n) ?

[MajGenl.Meade]

Thanks for the history lesson. When you write "stood by their state", I think you have in mind (though you may now deny it) the stolid yeoman farmer from Georgia or Alabama or Virginia who rallied to protect his womenfolks and childers from Yankee invasion etc. I understand that guy too.

But you're not at all describing Yancey, McQueen, Gist, Calhoun and so on - the leaders of the rebellion who had only one interest; the maintaining of power and economics on the back of chattel slavery. Those men saw that if they remained in the Union, eventually slavery would die away or, as they feared, be legislated away (probably with compensation). So they pulled the trigger that killed (now estimated) 750,000 citizens of this country.

This (regardless of Johnny Reb's bravery etc) is nothing to be proud of in the least
This is the heritage of the South represented by that flag.

[Guinevere]

I'm very reluctant to get into this discussion, (because I don't want to give sustenance or validation to any wingnut who might think that "secession" is something that could realistically happen today...and there are some nutjobs out there who really believe they could pursue it... in Alaska and Texas, just to give two examples...)

Earth to nutjobs:

The United States Of America is a strong, powerful, and Great Nation, and you yahoos are not going to pull it apart...

But that having been said, in 1860 the world was a very different place ...

The united States Of America had been in existence for considerably less then 100 years...it was a work in progress...

It was quite common in those days, for folks to "self-identify" first as "Virginians" or "Vermonters" or "Pennsylvanians" before thinking of themselves as "Americans"...

The whole concept of the independence of the individual states, and their individual identity, and their importance as "states" seems rather archaic today...(Most states still try to "play" to their "state pride" but it's really just a nostalgic echo, or something designed to enhance tourism; it's not substantive)

But back in those days, it meant a lot more than just driving past a sign on the interstate that says "Welcome To XYZ State"... (which is pretty much all it means now....)

Today in some states the taxes are a little higher, in others a little lower, some states are run by Democrats, others by Republicans, with the federal court system standing over all of them...all and all we've become a fairly homogenized society...

But that wasn't the case in 1860...

In 1860, "self identifying" with one's state had real meaning...

So to call those who stood by their state in 1860, "traitors" (in the same way one might justly today call Edward Snowden a traitor) shows a lack of understanding of the historical reality of the period.

Without conceding the point (because I don't agree its as drastic as you make it seem - but won't argue it here) but assuming you are correct, the Supreme Court of 1869 certainly understood the time and the context. Likely far better than you or I.

[Econoline]

You don't tug on Superman's cape, you don't spit into the wind, you don't pull the mask off that old Lone Ranger, and you definitely do not argue about the Civil War with friggin' Major General Meade....Jim.