1. While the Confederate soldier likely owned no slaves, he more than likely lived in a house that owned slaves and/or worked a job that directly benefited from slaves.

2. Slavery was permitted by the US Constitution, but I wouldn't say it was defended. It didn't mention it by name, and it allowed for the death of the slave trade, which it was hoped would one day lead to its demise.

However, I think that Tom is right on in using the lens of "Phase IV" to look at the issue of Reconstruction and memory. The Lost Cause immediately created a narrative post-Civil War that continues to permeate public debate about the Civil War (witness this very thread!). In a day and age where we state that winning the information battle is important, we need not look across our shores to find out how this battle over narrative can have lasting consequences, especially if you don't get it right.

I used to go round and round with the neo-rebs on alt.civilwar and alt.southern about the rectitude and legality of secession. They would also call Lincoln seven kinds of son of a bitch and aver that many many blacks fought for the so-called CSA.

One good way to set them off was to call it the "So-called CSA". They hate that.

They would say that secession was never ruled illegal. Lincoln refused to dignify the concept at all. When I would point out that the Supreme Court ruled in 1863 that putting down the rebellion was a power of the federal government (in the "Prize Cases") that would throw them for a while then they would go off on some other BS tangent.

Walt

Whiskeypapa, do you think a Federal Supreme Court in a year like 1863 that was symbolized by a torrent of bloodshed would have decided any other way?

You also probably noticed that most of the neo-Confederates shared a couple of things in common; they were mostly bigots (in private if not in public) and secondly, really knew very little about anti-bellum American history or the Civil War itself. Similar to the profound ignorance of today’s Tea Party types who possess a fundamental ignorance of economics and cheer on the barons of entrenched greed and the militarization of our society and foreign policy.

"Whiskeypapa, do you think a Federal Supreme Court in a year like 1863 that was symbolized by a torrent of bloodshed would have decided any other way?"

It was the same Chief Justice (to whom I am distantly related) who ruled in Dred Scott and the same one who tried to block Lincoln from using Habeas Corpus in Maryland.

I think that gives -more- power to the Prize Cases as established law.

Maybe old Taney was feeling guilty about doing so much to help bring on the war - to try and social engineer a good situation (by his lights) by denying black people rights, as he did in DS.

Walt

"Whiskeypapa, do you think a Federal Supreme Court in a year like 1863 that was symbolized by a torrent of bloodshed would have decided any other way?"

It was the same Chief Justice (to whom I am distantly related) who ruled in Dred Scott and the same one who tried to block Lincoln from using Habeas Corpus in Maryland.

I think that gives -more- power to the Prize Cases as established law.

Maybe old Taney was feeling guilty about doing so much to help bring on the war - to try and social engineer a good situation (by his lights) by denying black people rights, as he did in DS.

Walt

**Just a small important correction, I did not mean to question or impugn the Royal Navy’s victory at sea in fact I celebrate it as the necessary precursor of the modern era in that at least for a hundred years it made the sea lanes safe for the commerce of all nations and was the fundamental means by which western civilization was safeguarded in its global expansion. In fact the greatest beneficiary of British Naval supremacy as Alfred Mahan recognized was the United States. Rather than the new Republic having to fight for sea control its access to the sea lanes was guaranteed and protected by the Royal Navy’s predominance thus allowing it to invest is resources into its own development and global markets for its products.

I doubt anyone would fault you for studying and admiring Lee et al.'s prowess in the context of military history, strategy etc.

But do you not see some daylight between, say, admiring Mao's insights into guerrilla warfare on the one hand and enshrining the Month of the Long March in Taiwan? (this is a bad example).

I am struggling, through my own ignorance and while at work, to come up with a clearer example of what I am getting at... somebody help me out.

Does a reunified Germany celebrate Stasi week? Some of those folks were arguably pretty damn good at their jobs.

Obviously, secession is not Constitutional today the question is if it was unconstitutional in 1860? Different era, different Constitutional understanding and context. Citing the Prize Case is irrelevant since it was decided after the war was initiated. The Court was hardly going to rule against a government in it's capital city in the midst of war. The Court has always been a political entity before it was a judicial one as we see aptly demonstrated in our own era.

"Obviously, secession is not Constitutional today the question is if it was unconstitutional in 1860? Different era, different Constitutional understanding and context. Citing the Prize Case is irrelevant since it was decided after the war was initiated."

Well, a case can't be brought before events compel it.

Besides the Prize Cases, you can read Lincoln:

"I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it-break it, so to speak-but does it not require all to lawfully rescind it?

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself."

3/4/61

There is no such thing as legal secession. Further, the rebs were content to cloak themselves in the mantle of the Founding Fathers, revolutionaries all - G. Washington is on the great seal of the so-called Confederacy.

They were content to say it was all revolution - by definition outside the law - that is, until it suited them to change their story.

Walt

Texas v. White (1869) provides the clear message that the secession of states that occured in 1860 and 1861 was unconstitutional. Since that doesn't meet your pre-Civil War condition, we can turn to the Father of the Constitution, James Madison:

http://query.nytimes.com/mem/archive-free/pdf?res=F20816FA3855177493C5AB178AD85F468584F9

"I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy."

http://www.constitution.org/jm/17880720_hamilton.htm

"The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. "

It's clear what he thinks. Secession is not permissible. Revolution is. However, to claim that secession was "revolution" presents a predicament - revolution for freedom to guarantee the denial of freedom is no revolution in the spirit of 1776.

Yet the U. S Constitution itself did accept the denial of freedom to a class of people whom it considered only worthy of being considered 2/3rd's of the value of a white man. SCOTUS's ruling on the Prize Cases has no bearing since they were rulings that were essentially ex-post facto. Indeed, rulings that were not available when they were required because the President refused to adjudicate the issue because he rightly feared losing the case with a SCOTUS as it was then constituted.

While I agree with the majority that secession was stupid, unjustified and contrary to the South’s interests I have yet to discover a compelling argument that it was un-Constitutional prior to the 1860’s understanding of the Constitution. Everyone is bringing up he views and opinions of various people but not settled law on the matter. Thus, my point is that the only factor that made secession a fatuous interpretation of the Constitution was the Civil War itself. Secession was proscribed not by judicial consideration but only by the bayonet.

"While I agree with the majority that secession was stupid, unjustified and contrary to the South’s interests I have yet to discover a compelling argument that it was un-Constitutional prior to the 1860’s understanding of the Constitution. Everyone is bringing up he views and opinions of various people but not settled law on the matter."

Your argument is like the Black Knight in "Monty Python and the Holy Grail". Arthur says, "There, I've cut off your arm!" (The Prize Cases), and you return - "It's just a flesh wound!"

Your argument is nonsense. The Congress has the power to suppress insurrections. The SCOTUS declared southern actions an insurrection.

Secession cannot be legal under those conditions.

Walt

I just like this:

"In 1886 [Henry W.]Grady, thirty-six years old, was invited to address the New England Society of New York, on the 266th anniversary to the landing of the Pilgrims at Plymouth. General Sherman, seated on the platform, was an honored guest, and the band played [I am not making this up] "Marching Through Georgia" before Grady was Introduced.

Pronouncing the death of the Old South, he lauded the New South of Union and freedom and progress. And he offered Lincoln as the vibrant symbol not alone of reconciliation but of American character.

"Lincoln," he said, "comprehended within himself all the strength, and gentleness, all the majesty and grace of the republic." He was indeed, the first American, "the sum of Puritan and Cavalier, in whose ardent nature were fused the virtues of both, and in whose great soul the faults of both were lost."

--From "Lincoln in American Memory" by Merrill D. Peterson P. 46-48

Walt

All very nice but has nothing to do with the argument of pre-war secession.

... is all that is fatuous un-Constitutional?

J says: "the only factor that made secession a fatuous interpretation of the Constitution was the Civil War itself. Secession was proscribed not by judicial consideration but only by the bayonet."

Here I think you go too far. You're on reasonable ground when you say the matter wasn't settled Constitutionally (with a big C). That doesn't mean there weren't small-c constitutional considerations indicating where this would go when it came time to settle the matter (either in the courts or on the battlefield).

We have to be careful because prior to a formal settlement of the question, the matter was by definition ambiguous. Different members of the Constitutional assembly--to say nothing of the various delegates at the state conventions, or of the voters who sent them there--had different ideas about the matter. As they did about a lot of things.

They got the document written and passed by a series of compromises and by leaving some things vague. Obviously, given the difficulties they faced with ratification as it was, it wouldn't have been prudent, while launching the republic, to get into a detailed discussion of how to resolve it.

So we can't establish the un-Constitutionality of secession, but that doesn't mean we can't decide if it was un-constitutional.

I think the answer (whether the founders all intended it not be such or not) lies in the nature of our federal system. When a state or territory joins the Union, several things occur, legally speaking. One is that the geographical territory and people of that state become part of the United States of America. Various mutual obligations and privileges now ensue, but for our purposes, the most important is that the territory and people are now part of the USA.

Secession, no less than an attack by a foreign power, involves depriving the USA of territory and citizens. This is, by definition, at variance with the "constitution" of a sovereign nation, and one of the things it would be understood to have legal obligations to prevent.

I really can't imagine any process whereby that very basic consideration wouldn't hold sway and over-ride any other (no matter how legitimate in themselves) considerations that might be brought forward.

"Obviously, given the difficulties they faced with ratification as it was, it wouldn't have been prudent, while launching the republic, to get into a detailed discussion of how to resolve it," should be "how to dissolve it"!

"(whether the founders all intended it not be such or not)" should be "whether the founders all intended it to be such or not."

JPWREL, is this 'phase four' string limited to the prewar topic of secession? Secession, seems driven more by emotion and regional loyalties than legal logic. Even for cool Robert Lee, who lost his fight for Richmond hegemony over W. Virginian unionists in 1861. Slave-states had threatened disunion, going back to Pres. Jackson's near-kerfuffle with S. Carolina oligarchs. Under Jackson or Lincoln, it wasn't to be adjudicated under untested constitutional principles, but by blood, canon and minnie ball. Once a unionist decision was reached, war-lord Jeff Davis' theory became a moot point.

I enjoyed a 1949 history, The Robert E. Lee Reader, which made up for what I took to be a somewhat HS level of discourse with lot of excerpts from letters and other contemporary sources. :
'The question which had been in dispute he told them, having been referred to the decision of war, and "having been decided against us, it is the part of candor to recognize the fact and the part of wisom to acquiesce in the result."

Perhaps it's apocryphal, but I think that book was the source of a story about a free black man going for communion in a Virginia church, where Lee was in attendance. No high church Virginian would think of taking the cup behind a negro. The crisis was averted when Lee stood and was the next in line to receive the sacraments.

And if that's not a true story, it should be.

"And if that's not a true story, it should be."

WW, I strongly agree and for anyone that has studied the 'Marble Man's' life would say it is in character with him, he was gentleman of the first order.

The idea that Lee was almost an abolitionist comes (as Andy Hall points out in the Atlantic) from one sentence plucked (by DS Freeman) from an 1856 letter.

That sentence comes first, below, and then you can see what else Lee says:

"In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country. It is useless to expatiate on its disadvantages. I think it however a greater evil to the white man than to the black race, & while my feelings are strongly enlisted in behalf of the latter, my sympathies are more strong for the former. The blacks are immeasurably better off here than in Africa, morally, socially & physically. The painful discipline they are undergoing, is necessary for their instruction as a race, & I hope will prepare & lead them to better things. How long their subjugation may be necessary is known & ordered by a wise Merciful Providence. Their emancipation will sooner result from the mild & melting influence of Christianity, than the storms & tempests of fiery Controversy. This influence though slow, is sure. The doctrines & miracles of our Saviour have required nearly two thousand years, to Convert but a small part of the human race, & even among Christian nations, what gross errors still exist! While we see the Course of the final abolition of human Slavery is onward, & we give it the aid of our prayers & all justifiable means in our power, we must leave the progress as well as the result in his hands who sees the end; who Chooses to work by slow influences; & with whom two thousand years are but as a Single day. Although the Abolitionist must know this, & must See that he has neither the right or power of operating except by moral means & suasion, & if he means well to the slave, he must not Create angry feelings in the Master; that although he may not approve the mode which it pleases Providence to accomplish its purposes, the result will nevertheless be the same; that the reasons he gives for interference in what he has no Concern, holds good for every kind of interference with our neighbors when we disapprove their Conduct; Still I fear he will persevere in his evil Course. Is it not strange that the descendants of those pilgrim fathers who Crossed the Atlantic to preserve their own freedom of opinion, have always proved themselves intolerant of the Spiritual liberty of others?"

Worse for whites than for blacks! Besides, better to be a slave here than free in Africa, right?! And, of course, we don't want to infringe on the prerogatives of Providence! If God wanted them free, they'd be free. Our job is to wait patiently. Just like the patriots of 1776 did. And like the seceding states would four years hence. Humble submitters to providence, all. And, finally, the abolitionists are infringing on our freedom to hold slaves!

CF, the communion story is not about abolition in the prewar sense, although for the assertive black character it certainly is about emancipation and equality. Lee's action in the story is about the role of the vanquished in phase IV. Lee's character exerts a different kind of leadership, provides an active, clear example to move on, accepting the new order, however bitter by the old rules.

The R E Lee Reader is the 19th century sort of moral history, which doesn't require the subject to reveal human faults, except where they are overcome to provide a lesson. To me, Lee's story is sort of a Greek tragedy, where hubris leads to an inevitable, unhappy and predetermined end.

Lincoln's sins are expiated by martyrdom. Lee is condemned to surrender, survive and witness his lands turned into a graveyard. His flaws vis slavery are no worse than Tom Jefferson and other Virginia founders, and his 'noble' acceptance of the wasteful CSA cause in war and peace are flip sides of the same story.

The point I keep coming back to is that any legal basis for secession became moot when the slave state rebellion was pursued by military means. Virginia, who's legislature had once deadlocked over abolition, joined the military challenge, became the center of it, and subjected itself to the logic and law of war.

... I also believe, even before the war, it was understood that a nation has a right and a duty (to its citizens and their posterity) to maintain its physical integrity (which includes soil and population).

For me to agree with you, I'd have to accept that the USA had no right to defend itself against any assaults by a foreign power. Rather, they just re-acted, and justified it legally ex post facto.

Hugo Grotius, already by 1625, had made explicit three just causes for war (self-defense, reparations, and punishment). What he made explicit had been implicitly asserted by nations for centuries.

To say nothing of the last two, the idea of "self-defense" would certainly cover maintaining United States sovereignty over the eleven seceded states.

It seems to me you do have to reckon with the question of rightful sovereignty, and the federal government's responsibility to assert it.

The "more perfect union" the Constitution established was to replace "The Articles of Confederation," which, after all, were also articles of "Perpetual Union."

"Indeterminacy" does not seem to the right word. Disagreement, yes.

Perhaps the Neo-Confederates have given my position a back-handed endorsement. These guys declare West Virginia's secession from Virginia "unconstitutional":

http://www.uniondissolved.com/statessecession.asp

(We're going back to P.4 of the Revolution here.)

CF, my understanding is that the Philadelphia Convention of 1887 was not convened under any authority of the Articles. of Confederation. Although it was represented to be a revision of them, 9/13 ratification rules were significantly different than the Articles requirement for unanimous amendment. (Including perpetual union? Really.)

Ratification by 1887-8 conventions in all 13 confederated states is pretty strong evidence of continuity under the Articles, for the thirteen. I see that ratification was contested strongly in NY, Mass. and Virginia, later antagonists in the 1861 rebellion. Carrying the 'perpetual' language into the new articles, without the impetus of 1776 spirit might have queered the politics. But Virginia framer Madison wrote that the ratification was "reciprocal", "in toto, for ever."

The authority of G. Washington hisself, as an 1887 delegate and presiding officer, helped gain critical mass, state participation, and popular credibility for the effort to design something that could expand, would withstand foreign despots and internal rebellion (Shay, Whiskey, Aaron Burr, Joe Smith, Jeff Davis, whatever).

Undertaking (without a brief) to supercede the existing Congress under the Articles, the Grand Convention had to take great care to avoid treason. Having the only guy capable of attempting (or suppressing) military coup-de-tat holding the gavel, that helped. But Col. Hamilton's friends enlisting Washington in the project is a reminder that, behind the robes, wigs and parchment, sole exercise of credible military power is at the heart of any national government- the one being reached for in 1786, the one invaded and invading in 1812 and 1846, the one led by Lincoln in 1861.

However you interpret the Constitution, militia moving against federals, at Harpers Ferry, Ft. Sumter or the Murrah Building, that crosses a line that has to be restored. There are gray areas. The unauthorized march of Sherman's often-barefoot Army of the West to the victory march in Washington in 1865 is an interesting post-script to the final defeat of Lee and Johnson's barefoot armies.

Sherman's army got shoes and demobilization pay. Lee and Johnston's (et al) did not. Secession was thus discredited, as a legal theory.

I see that I've put the Philadelphia Constitutional Convention in 1887, which would have made the Father of our Country, and even Founding Youngsters like Madison and Monroe quite old.

... "my understanding is that the Philadelphia Convention of 1887 [sic] was not convened under any authority of the Articles. of Confederation. Although it was represented to be a revision of them, 9/13 ratification rules were significantly different than the Articles requirement for unanimous amendment. (Including perpetual union? Really.)"

You are correct, mainly.

They said they intended to "revise" the AC&PU, but ended up doing something far more radical. The new govt was, once revealed, understood by all to be a substitution for the AC&PU--hence the anti-federalists' opposition to it.

The most fundamental change was a shift from national cooperation based on a league or compact of the several states (AC&PU), to the creation of a truly national government which included the state governments within its purview, but was now grounded (under the Constitution) on the sovereignty of "we the people."

That people was now, as of 1789, the whole people. they were no longer to be thought of as merely the citizens of separate states.

Some of what that meant was ambiguous.

Some of it just took time and events to be fully appreciated. (Robert E. Lee spoke of Virginia as "my country." He was mistaken.)

But the difference between JPREWEL and myself is--I think--that he thinks it was a wide-open canvas to paint anything they wanted on after 1789, and I think it was already clear what was intended (if not explicitly stated). At least as far as national sovereignty is concerned.

Many details were left to be worked out by the courts, congress, etc. Obviously. But not the actual integrity of the nation.

But I still don't think it was constitutional.

I'm free most Saturday's, so yeah, let's get together. Let's meet at Ricks' place.

I'll bring the Corona's and limes.

... something to drink.

Tom, if you can just provide the chips and guacamole, that'd be great.

If you're away that day, just slip the key under the mat ...