Civil War Points to Ponder

[dgs49]

Many years ago, my wife was studying for a Masters in Tax, and she had a take-home exam question that was basically this: Compare and contrast the basic message of the Declaration of Independence with that of the Gettysburg Address.

It was an amazing and thought-provoking question (my wife thought it was “dumb”).

Under the Declaration, we had an oppressed and harassed people asserting that, basically, (1) human rights come from God, not government, (2) governments are formed for the purpose of protecting those rights, and (3) since you are not doing that, King George, we are going to fight and die to obtain our independence. In the Gettysburg Address the paradigm is flipped 180 degrees. We are to fight (to the death) to subjugate a group of states who tried to leave because their rights were being trampled on. And aren’t we noble as hell for doing it?

It is perverse.

The Civil War (aka, the War Between the States) presents many other questions, historically, that most people simply don’t want to think about:

If slavery was so bad, why did the Emancipation Proclamation not free the slaves in the Border States?

Why couldn’t the confederate states voluntarily leave the Union? They voluntarily came in. And remember, at the time, the concept of federalism as we understand it now did not exist. The U.S. was a collection of independent governments, joined together for the specific purposes set forth in Section 8 of Article 1, and not much else.

What is a “proclamation”? Where did Abe get the authority to free the slaves? I can’t find it in my copy of the Constitution.

When did they repeal the Fifth Amendment? How could the Union government void the property rights of slave owners without due process or compensation? Many slaves had been purchased for cash and had market values of many thousands of dollars. You wanna talk about reparations to the slaves? OK, but how about compensation for the slave owners whose net worth was decimated by this unilateral, unconstitutional government action?

Imagine if the U.S. government decided to “nationalize” all minerals, petroleum, and natural gas that is located under the surface of the United States (including offshore areas under U.S. jurisdiction)? Do you think the property owners and mineral rights owners might have a gripe? Would they be entitled to compensation?

Could the President do this by a “Proclamation”? Why not?

[rubato]

"...
Under the Declaration, we had an oppressed and harassed people asserting that, basically, (1) human rights come from God, not government, (2) governments are formed for the purpose of protecting those rights, and (3) since you are not doing that, King George, we are going to fight and die to obtain our independence. In the Gettysburg Address the paradigm is flipped 180 degrees. We are to fight (to the death) to subjugate a group of states who tried to leave because their rights were being trampled on. And aren’t we noble as hell for doing it?
... "



Only a paradox if you don't know that blacks are people whose rights government exists to protect. The only 'right' the south attacked the north to protect was the right to enslave humans. And they said so at the time.



yrs,
rubato

[Scooter]

If slavery was so bad, why did the Emancipation Proclamation not free the slaves in the Border States?

Because it was a war measure, enacted under the President's powers as Commander-in-Chief of the armed forces to impose martial law in place of the operation of civil law in those areas in rebellion. As the Border States were not in rebellion, it was not imposed on them, nor on any areas that had returned to Union control by its effective date.

Why couldn’t the confederate states voluntarily leave the Union?

For the same reason those parts of British North America who wished to could not leave voluntarily and had to fight a war to achieve their independence. The differences were, that the rebels of 1776 were far more convincing at articulating the justness of their cause and at resisting efforts to re-establish control over them than the rebels of 1861. That meant that the rebels of 1776 were able to gain foreign recognition and eventually wear down the will to fight of the power from which they wished to separate, while the rebels of 1861 were not.

What is a “proclamation”?

A dictionary can be a helpful tool.

Where did Abe get the authority to free the slaves? I can’t find it in my copy of the Constitution.

See above.

When did they repeal the Fifth Amendment? How could the Union government void the property rights of slave owners without due process or compensation?

In the same way that the Confederate Army went around commandeering food and other supplies from civilians without ever compensating them. Because it was a war power.

You wanna talk about reparations to the slaves? OK, but how about compensation for the slave owners whose net worth was decimated by this unilateral, unconstitutional government action?

Recognizing that the EP was a war measure only, Lincoln asked that Congress pass and the states ratify the 13th Amendment, which they did, making all of your questions moot.

Imagine if the U.S. government decided to “nationalize” all minerals, petroleum, and natural gas that is located under the surface of the United States (including offshore areas under U.S. jurisdiction)? Do you think the property owners and mineral rights owners might have a gripe? Would they be entitled to compensation?

Your question makes no sense absent the waging of any sort of war on the soil of the United States which would authorize the use of a martial power, which the EP was.

Could the President do this by a “Proclamation”? Why not?

If areas in the United States were in rebellion, and the President used his martial powers to issue a proclamation seizing such properties in those areas, then yes, he could.

[dgs49]

There's lots of easy answers when you know nothing about the law.

There was no legal declaration of marial law, and even if there had been, it would have had nothing to do with freeing the slaves (unless they were to be conscripted into the Union army - good luck with that). Lincoln did NOT free the slaves, and had no power to do so. The later constitutional amendment has nothing to do with the question.

My other question was whether the seceding states had the legal right to secede, not whether they could induced to remain by force. Clearly, they were prevented from seceding. It was a matter of great debate at the time, and the Union lost the debate, but chose to enforce its will by military action.

[Grim Reaper]

My other question was whether the seceding states had the legal right to secede, not whether they could induced to remain by force. Clearly, they were prevented from seceding. It was a matter of great debate at the time, and the Union lost the debate, but chose to enforce its will by military action.

They seceded just fine, then they screwed it up by preemptively attacking the Union.

[Scooter]

There's lots of easy answers when you know nothing about the law.

Pot calling kettle, come in kettle...

There was no legal declaration of marial law

He did it , "by virtue of the power in [him] vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion..." He did it by virtue of his military power i.e. through martial law.

and even if there had been, it would have had nothing to do with freeing the slaves

It was a measure to assist in weakening the enemy's ability to conduct war. Just as shelling cities, bombing factories into rubble, and destroying crops. There was no other property that was safe from Union attack. Why should slaves have been the one exception to that rule? Why was it that the value of a factory as property could be extinguished by bombing it, but the value of a slave as property could not be extiguished by freeing him/her?

My other question was whether the seceding states had the legal right to secede, not whether they could induced to remain by force.

There has never been such a thing as a "legal right to secede." Peoples who wish to secede from each other do so either by mutual agreement, when they believe it in their interests to do so, or they go to war. The notion that any nation has ever planted the legal seeds of its own destruction is patently ridiculous. There have been several examples of countries that have split apart peacefully because that was the common will all around, and certainly not because anyone was presented with a legal opinion in favour of it.

Clearly, they were prevented from seceding. It was a matter of great debate at the time, and the Union lost the debate, but chose to enforce its will by military action.

It was the Confederacy that was the first to resort to force. Because, unlike you, they recognized that there was no other way to get what they wanted.

[liberty]

Dr. Cornish said,” the Dred Scott decision was the correct decision based on the laws of the times“. He also said the law is about rules and precedent if you are looking for justice you need to go to seminary.

[Scooter]

I am sure Dr. Cornish, whoever he is, keeps a collection of lynching photos.

There is absolutely nothing in the laws of the times to support the central claim of the Dred Scott decision - that the U.S. Constitution denied citizenship to all people of African descent. You claim to be such a stickler for adhering to the letter of the Constitution, kindly point out the words in the Constitution that say a citizen must not be black.

[Long Run]

With respect to the right of a state to leave the union, the best explanation I have heard was from U.S. Grant in his autobiography. He said that if a state had wanted to leave the union 40 or 50 years before, they probably would have been allowed to. However, in the intervening years, there were wars fought, much money invested, and other resources used to expand and build the country. If the southern states had come forward with a proposal to pay their way out of the union, compensating the United States for all that was invested, they may have been allowed to do so. However, they essentially and intentionally stole as much property of the U.S. as they could one their way to declaring their independence.

The other major factor was almost a religious one -- the United States wanted to prove democracy worked. The powers that be in D.C. hated the commentary from Europe that a democracy could not survive because the masses could not be controlled. Keeping the country together was considered a high calling to prove our form of government was the world's best. Given that, it would not take much in the way of legality to convince the North of the righteousness of their cause.

[rubato]

".... and the Union lost the debate, but chose to enforce its will by military action.

Military action was initiated by the South, not the North.

So far you've been 180 degrees wrong on all points of fact.

yrs,
rubato

[liberty]

I am sure Dr. Cornish, whoever he is, keeps a collection of lynching photos.

He was professor at ULM in the 1990. The course I attended was Constitutional law and history I thought he was an excellent teacher the fact he was a homosexual and a liberal not with standing.

I remember he was tough on his law majors. He said if I ever I get in trouble with law I don’t want to get one of you guys.

He was one of the few liberals I have known that was hard on the communist.

He may have had a collection of lynching picture as far as I know. I know he was not very concerned about what people thought him. If he wanted a collect such pictures he would not give a damn what a scooter thought.

[Scooter]

He was still an idiot, if he thought the Dred Scott decision made any kind of sense.

[liberty]

There is absolutely nothing in the laws of the times to support the central claim of the Dred Scott decision - that the U.S. Constitution denied citizenship to all people of African descent. You claim to be such a stickler for adhering to the letter of the Constitution, kindly point out the words in the Constitution that say a citizen must not be black.

It is probably a mistake to try explain his position and logic ; it has been years and I was not even a pre-law student. The best I can remember his logic was this: The constitution did not prohibit slavery and slavery was established by precedent. There were no laws prohibiting slavery. A slave was property and had no rights other than those granted by his master. And Dread Scotts’ master held a valid bill of sale.

[Long Run]

The Dred Scott decision was, everyone would agree, morally abhorrent, highly political, and resulted in bad public policy. Based on either of today's leading methods of interpreting the Constitution, the decision is badly flawed and you could not find a judge in America today who would come to the same conclusion. That said, if you can stomach reading the lead decision or some of the six other written opinions that supported the result, there is a thread of logic to support the conclusion. Namely, using a strict constructionist type of approach, Taney looks at what the intent of the drafters' of the Constitution had in mind when they created the rights of a U.S. citizen. He weaves a thread through the few Constitutional references to slaves, the history of the time, and the manner in which states at the time dealt with people of African descent, to build his case that African descendants cannot be citizens of the U.S. After the War, the 14th Amendment put an end to that question.

If the decision had been based in property rights, it may have made more sense in that time. That is, it would be easier to understand an argument that until a person of African descent was freed, he had no rights of citizenship, regardless of where he resided at any point in time. (Dred Scott argued that he was freed when his owner took him to a free state where slavery was outlawed). However, that was not the basis of the decision.

[Scooter]

It is probably a mistake to try explain his position and logic

Because that would require having a few brain cells more than a turnip, which leaves you out.

The constitution did not prohibit slavery and slavery was established by precedent. There were no laws prohibiting slavery. A slave was property and had no rights other than those granted by his master. And Dread Scotts’ master held a valid bill of sale.

Except that is not where Taney left it. He claimed that a person of African descent could never be a citizen, regardless of whether or not he/she had ever been a slave. If you were going to bring up the case, you could at least have done the rest of us the courtesy of having read it, before proving once again that the only time you have anything to say is when you haven't the slightest idea what you are talking about.

[Rick]

Actually (even though it didn't help Dred's plight) the Dred Scott case probably actually helped former slaves more than it hurt them...

[liberty]

It is probably a mistake to try explain his position and logic

Because that would require having a few brain cells more than a turnip, which leaves you out.

The constitution did not prohibit slavery and slavery was established by precedent. There were no laws prohibiting slavery. A slave was property and had no rights other than those granted by his master. And Dread Scotts’ master held a valid bill of sale.

Except that is not where Taney left it. He claimed that a person of African descent could never be a citizen, regardless of whether or not he/she had ever been a slave. If you were going to bring up the case, you could at least have done the rest of us the courtesy of having read it, before proving once again that the only time you have anything to say is when you haven't the slightest idea what you are talking about.

What would be the fun in that; take a chance? And I don’t mean stupid chances. Hopefully you are smart enough to know the difference.

And I think I came pretty close considering it has over ten years since I heard that discussion.

[Scooter]

You came close, if by close you mean you completely missed the point.