A Thread For Posts About The Confederate Battle Flag...

[Sue U]

eta: I have said it before but, FWIW, I do think that the Civil War was a big waste of money, other resources and lives. It was a war of conquest that was fought not to free people from enslavement, but to force one group of people to remain affiliated with another group that they did not want to be affiliated with. It inflamed an animosity that was present at the time and exists to this day, and has forcible joined together groups that might be better off apart. If instead of marching intot he south to reunite the states the US entered into negotiations in earnest to divide up properties, maintain territorial integrity, and allow the countries to coexist as separate entities, we would have saved a lot. We could have enacted the 13th amendment in the Union in the early 1860s and freed the slaves we had jurisdiction over, and could even have refused to return fugitive slaves who came to the US (as Dred Scott was predicated on the slaves running from one US state to another).

Yes, we would have had a little problem with westward expansion, but it could have been handled and contained, and we could have annexed states who were amenable to the US/union way of doing things.

As for the CSA, I think they were headed for an economic collapse and an eventual end of slavery. having no manufacturing base, they would have had no choce but to trade with us. and after the collapse they might well have been knocking on the door and asking to come back. But even if they didn't, I don't think a US without those states (key components of the bible belt) would be all that bad even today.

But that wasn't even considered by Lincoln, who was willing to, and did, anything he felt necessary, constitutional or not, to keep the "union" intact.

Even if secession had been allowed, I think war with the CSA would have been inevitable within a few years precisely because of the South's attempt to extend slavery into the western territories. And those few years might have given the CSA the time to better develop its military capacities and solicit the assistance of foreign powers who would have liked to keep the USA weakened. There is no guarantee that the Southern economy would collapse, or even if it did that it would necessarily bring an end to the CSA. We have faced economic collapse several times since 1776, and we're still a going concern, pretty much.

[Big RR]

OK, so you have the statement of the USSC in 1869 (4 years after the war was over, 8 years after secession began) saying that secession was not illegal, and the statement of a president who had made it clear in 1861 onward that he was not going to be bound by something as trivial as the law, somehow giving his view on that same law as being binding on everyone else. Fine.

I concede in 1869 it was clearly secession would not be tolerated and would be put down forcefully; the USSC merely chimed in. But in 1861 it was not as clear, and many of those who were behind secession made impassioned speeches invoking similar doctrines of the right to throw off governments as espoused in our declaration of independence. But the point that decided the issue was a military, not a legal one.

Sue--re collapse maybe, maybe not; but let's not forget that we have (and have always had) a much more diverse economy that that of the CSA and could ride out recessions much better. As for war in the west; you could be right; but one thing that prompted the south's westward expansion was a fear that the north would load up congress with nonslave states that could deprive them of their property by constitutional processes. That would be gone if they had their own country, and their westward expansion may have been much less a priority.

[Lord Jim]

That court ruling might have had some relevance if it had been made in 1859 rather than 1869 as an ex post facto validation to provide legal cover for what had been achieved four years earlier militarily.

The reasoning behind that ruling (and Lincoln's comment in the same vein) is just plain silly. Following that "logic" if any of the original 13 states had declined to ratify the Constitution and join the United States in the first place, the rest of them could declare that state "in rebellion" and bring it in by force. (Since afterall, "the union" already existed.) Clearly no one at the time believed any such power existed.

Another implication of this "reasoning" is that it would only apply to states that seceded who were members of the original 13, since clearly states like Alabama, Mississippi, and Louisiana couldn't possibly be part of this cooked up hypothetical "Union" that pre-existed the establishment of the United States, as none of them had been parties to any of the earlier agreements or declarations that provide the rationalization for this disingenuous theory.

[Lord Jim]

OK, so you have the statement of the USSC in 1869 (4 years after the war was over, 8 years after secession began)

Well you know Big RR, even though nothing in the wording of the Constitution or any statute prohibited secession, and no court ruling or interpretation had prohibited it, the leaders of the southern states should have looked into their crystal ball and been able to tell that eight years in the future, the SC would issue such a ruling....

[MajGenl.Meade]

Poorly reasoned, old boy. It's already been 'splained clearly by the legal brains here that a Supremes decision in 1869 (or in 2015) states what is permissible or non-permissible under the Constitution as it has always been (either since the beginning or since various amendments went into effect). So please get off the 1869 problem that you have. Secession was illegal in 1796, 1801 and 1860 or any other year you care to mention.

None of the original states declined to ratify the Constitution, although two of them waited until after the sufficient number to ratify had been achieved. It is specious to speculate on non-existent history. All had ratified the articles of Confederation (the perpetual union) and all signed up for the improvement.

A silly argument is that states after #13 were not signing up for that same "more perfect than perpetual" union. They were agreeing to all that had gone before and entered the union on the basis of the Constitution.

To say that the Constitution doesn't forbid secession is also dumb - it doesn't forbid smoking in restaurants either... and yet court decisions have found that banning smoking in restaurants is not "unconstitutional". (Fill in your own example if smoking isn't a good one).

It's amazing to me how a liberal and a conservative can link arms to defend the breaking of the Constitution in order to preserve white male hegemony and the continued enslavement of black people.

[Guinevere]

BigRR - are you taking your contrarian pills today? Meade has pretty well said it all. I get LJ's willful deafness, yours is baffling to me.

[Lord Jim]

So please get off the 1869 problem that you have

It's not a problem, it's a legitimate point; and I'm not in the habit of abandoning legitimate points. The SC just ruled that same sex marriage is a Constitutional right. Does that mean that in 1956 it was a Constitutional right? If so then shouldn't officials who refused to grant marriage licenses to same sex couples years before the ruling now be prosecuted or subject to civil action? And what about when the SC reverses itself? (On the issue of "separate but equal" for example) Which was the eternal forever and ever position that should be applied? Should store owners that refused to serve blacks in 1937 have been subject to legal action in 1965?

And so on and so on...

None of the original states declined to ratify the Constitution, although two of them waited until after the sufficient number to ratify had been achieved. It is specious to speculate on non-existent history. All had ratified the articles of Confederation (the perpetual union) and all signed up for the improvement.

Okay, so you haven't got an argument to refute my point on that; got it...

They were agreeing to all that had gone before

Source?

entered the union on the basis of the Constitution.

Correct; the Constitution that did not prohibit secession.

To say that the Constitution doesn't forbid secession is also dumb - it doesn't forbid smoking in restaurants either..

.

Okay now there's another silly argument; equating smoking bans with an issue as fundamental as whether or not a state, having joined the Union, could then leave it...

A likely explanation for why the subject wasn't addressed is because if it had been spoken to either way, some state or state wouldn't have ratified the Constitution, so it was left silent. I believe the ambiguity on the issue was deliberate; that would seem to make the most sense.

And because of the wording of The 10th Amendment :

"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 would certainly have been perfectly logical for those who wanted to, to interpret this silence as meaning that secession would be legal.

Another point:

If it was the position of the US that the secession was never recognized, then why on earth did the members of the conquered CSA have to go through a process of formal "re-admittance" ?

http://civilwartalk.com/threads/dates-o ... hed.19808/

Why would you have to be re-admitted to something that you never left?

It's amazing to me how a liberal and a conservative can link arms to defend the breaking of the Constitution in order to preserve white male hegemony and the continued enslavement of black people.

I'm going to chalk that comment up as being a result of exasperation over your inability to refute the points being made effectively...

[Long Run]

BigRR - are you taking your contrarian pills today?

Today?

[Long Run]

The issue of whether a state could withdraw from the Union was not a settled question at the time the southern states withdrew. Grant spends some fair amount of time in his memoirs discussing this. The real reason for fighting to maintain the Union had little to do with the purported constitutional imperative that the Union remain a whole. Rather, it was an almost religious fervor to prove the American democratic experiment could and must survive (in a western world still dominated by royal directives). That and the North being pissed off that a lot of blood and money was spent to create most of the southern states and they were not willing to see it be taken away without a fight (and, of course, they did not think it would be such a fight or they might have come to a different policy).

[MajGenl.Meade]

If it was the position of the US that the secession was never recognized, then why on earth did the members of the conquered CSA have to go through a process of formal "re-admittance"

All else in your post has been answered and refuted thoroughly. You introduce a new red herring which I shall now pickle.

The issue of "re-admittance" was not a question of statehood per se; it was entirely an issue of the election of a government acceptable to Congress and compliance with Federal law - such as that state's government endorsing the end of slavery, oaths of allegiance to the United States and so on. No state representatives or senators would be re-admitted to Congress unless they had given up (or never had) treasonous objectives. The geographic states never left the Union - it was people who did that - and it was people who were re-admitted to the rights of US citizens in representation, executive and legal institutions

QED

Get with the Constitution LJ - the Supremes can't rule until a case occurs. Somebody had to try to secede before the legal interpretation of the meaning of the Constitution could be rendered by the USSC. It is stupid to insist that it should have ruled in 1859 when no such case existed.

[Lord Jim]

If at some point in the future, (God forbid) the SC decides to hold that the Death Penalty is Unconstitutional, will that mean that every death penalty carried out since 1789 magically becomes unconstitutional?

The issue of whether a state could withdraw from the Union was not a settled question at the time the southern states withdrew.

That is the fundamental and obvious fact that those arguing the other side of this just seem constitutionally (pun intended) incapable of accepting.

The issue of the right to secede was settled not legally but militarily, and then the legal basis was cooked up after the fact. Nothing could be more clear than this, but some people are just too willfully blind to accept it.

I think the reason for this is probably so they can continue to cling to the "treason" fiction. In order for the treason argument to work, the citizens of the CSA have to in fact have been US citizens at the time of the conflict. For that to be true, secession has to have been established as unConstitutional at the time it happened, and the states have to have never "really" left the union.

The basic obvious facts don't work for them to be able to do this, so they've constructed this imaginative tortured set of arguments to try and justify the "treason" claim.

[Lord Jim]

All else in your post has been answered and refuted thoroughly.

LOL

You can keep repeat that from now till Judgement Day General, but it still won't make the claim true...

You haven not effectively refuted a single argument I've made in these latest rounds of exchanges on this topic, in fact in many cases you haven't even addressed the points I've made, let alone refuted them.

But aside from that, your claim is 100% accurate....

[MajGenl.Meade]

(Which again brings up the question of why then, they would have to be "re-admitted"... )

Asked and answered in full.

Yes, the death penalty has always been unconstitutional - the decision of the Supremes points that out. You seem to confuse "unconstitutional" with some form of retroactive actionable illegality. No, the person who discriminated against a black person in 1932 cannot be taken to court for that "crime" based upon any decision taken in 1963 or whenever. That person did not break the law (at that time). The argument is not whether the south "broke a law" but whether secession is unconstitutional or not.

Am I correct in thinking that if in 2015 the Supremes find that a particular state law under which Person X was incarcerated for life in 2010 is unconstitutional and a retrial is required, then all persons convicted under that same law are entitled to retrial - no matter when they were convicted under that law, even before 2010?

As to the rest, all your points have been answered and refuted thoroughly.

Sorry sorry sorry

[wesw]

my goodness meade , enough. your arguments are torturous, tortured and that last one is downright confounded and confounding.


what????????

I m glad RR clued you in to the fact that Baltimore is not Maryland s capitol tho....
....at least you learned something today.....

[Gob]

[Big RR]

Contrarian Guin? Perhaps, but I do believe that there was never a Constitutional ban on secession, and that the issue was ultimately settled militarily, not legally. Indeed, if the other states had turned to the courts in 1860-1861 to block the secession, I am pretty sure that the court (which comprised most of the same justices who decided Dred Scott in 1867) would not have reached the decision the court in 1869 did. The south is part of the union for one reason only, because the US had the military might to force them to do so.

Now did the southern leaders do a lot of stupid things? Certainly, both then so did northern leaders to make their point. And Lincoln publicly declared that he would do what is necessary to preserve the union, and showed he wasn't going to be subservient to any constitution in doing so (when the court told him he had no right to suspend habeas corpus in Maryland, e.g., he simply ignored them (although I will concede congress, which did have that power, ultimately backed him).

In 1869 the US had won a very costly military victory only 4 years before, and the court, containing many new republican appointees in place of the old line southern appointees in the 1850s) weren't about to cast aspersions on it, so they made the decision in the Texas case, making their best rhetorical argument for why the secession was not legal to try and put a brighter (legally and morally justifiable) face on the military conquest the union pursued and won. But the decision was far more based on politics than law IMHO.

Now don't get me wrong; my position on the right to secede is not out of any respect for the southern cause, which is dominated by (but not entirely) the preservation of their slave system; indeed, while I respect their right to secede I don't think ever could have fought on their behalf. But neither could I have supported the position of the unionists to forcibly bring the seceding states back into the union and, as I said to Sue, I think the civil was a tremendous waste of money, other resources, and lives. I do think it is enjoyable to speculate what might have happened if the secession was permitted (and treaties negotiated to settle property disputes, etc.), but concede that it's pure speculation and that any of our understanding of that time in or history is incomplete at best. But I do think the forcible reunification has perpetuated a political divide that remains in our country to this day, and has made southerners much more unswerving in their political views and far less likely to compromise.

LR--

Guinevere wrote:
BigRR - are you taking your contrarian pills today?

Today?

Touche!

I won't bore everyone with the reasons I think secession is and should be legal under our constitution, that is for another thread. But I will say that given the way our own country was formed, and given the principles recited in the Declaration of Independence, I do not accept that our founders saw the union as inviolable and permanent as Meade and the court in the Texas decision did.

And Meade, that belief in a right to secede is the one thing that the CSA battle flag represents that the US flag does not. It is not particularly a southern cause, but it was the southern states seceding that brought that issue to the forefront.

[Lord Jim]

Indeed, if the other states had turned to the courts in 1860-1861 to block the secession, I am pretty sure that the court (which comprised most of the same justices who decided Dred Scott in 1867)[ I believe that's a typo; it should be 1857] would not have reached the decision the court in 1869 did. The south is part of the union for one reason only, because the US had the military might to force them to do so.

In 1869 the US had won a very costly military victory only 4 years before, and the court, containing many new republican appointees in place of the old line southern appointees in the 1850s) weren't about to cast aspersions on it, so they made the decision in the Texas case, making their best rhetorical argument for why the secession was not legal to try and put a brighter (legally and morally justifiable) face on the military conquest the union pursued and won.

[Big RR]

You are correct sir; Dred Scott was in 1857.

[Long Run]

The portion of the Texas decision which provides the rationale for why secession is not allowed under the Constitution, is a quick little read and completely devoid of any typical legal authority that is usually seen in a court decision. While courts in the late 1800s were more succinct in their writing than opinions of a century later, they still would provide a substantial base of authority (citing other cases, and the history of the discussion of adoption of the relevant provisions), before arriving at the extrapolated logical conclusion. The Texas decision has none of that. And while such decision may be the same if 9 constitutional scholars were to apply the typical legal arts, you cannot conclude that this is a well-reasoned decision since there is so little reasoning.

[Econoline]

this

That's a good challenge - to name positive things that CBF represents that are NOT represented by the US flag.

There are some that can be ruled out right away. Positive things like freedom, rebellion against tyranny, love of country, respect for founding fathers etc. are all (already) represented by the US flag. The US flag represents Southern leadership - Washington, Jefferson, Madison, etc etc. It represents Southern military accomplishments - Lee, Jackson, Jefferson Davis, etc. in the war against Mexico and a certain battle near New Orleans from an earlier time. Culture? Well it's the same culture in the South that was there in 1860 and 1855 and 1835 and... all represented by the US flag.

So what does the CBF represent that is not already encompassed by the flag that waved over states both north and south when a truly new and great nation was created and sustained?

Playing devil's advocate, here's what I finally came up with myself:

For some, the Confederate battle flag represents all those positive things which you already mentioned (freedom, rebellion against tyranny, love of country, etc.), which are indeed already encompassed in the Stars & Stripes, but--again, for some--the CBF goes further than that and shows a willingness to keep on fighting forever, even long after you've already lost, just out of sheer cussedness.

This may or may not be a positive thing--it depends on the circumstances, obviously--but it *IS* a thing.

I've already said that I haven't clicked on very many of Wes's song links (mostly because the only way to know what's in those links is to click and give a listen, and I'm not sure if I feel like listening to that much of someone else's favorite music) so I don't know if this is one of the songs he included. But if it isn't, it should be; it states clearly the answer I came up with above to Jim Wright's challenge: