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What if succession had been determined by the Supreme CourtInstead of firing on Ft. Sumter, what if the states who wanted to succeed had taken their case to the US Supreme Court?I haven?t researched well the composition of the court immediately before the Civil War, but believe the majority of the justices were from the South. The Dread Scott decision certainly shows the South did well in court. There were strong arguments--such as the Declaration of Independence statement about just powers being derived from the consent of the governed?that could be argued before the court. So:1. Do you think the US Supreme Court would have ruled in favor of succession?2. If the US Supreme Court had ruled in favor of succession how would (a) Lincoln and (b) the Northern States have reacted?
It's an interesting question. I am unaware of attempts by the South to address the issue through the judicial system. If they had, and if the courts ruled in their favor, I don't think Lincoln would have had much authority at all to wage war. I imagine that the courts would have allowed it, if only because the supersized role of the federal government seems to be more of a modern (i.e. 20th century) creation. Now, it may be the case that secession was entirely legal as it was. The question then becomes - did the North wage an illegal war against the South? Although I haven't read any such arguments before, I'm sure they're out there.
I have always thought the current form of the federal government was a direct result of the Civil War. The outcome of the war certainly seems to say that the Federal government has the power to compel states regardless of what the constitution says. I also think that if the South had taken the issue to the Supreme court they would have won. The founding documents seem to me to support the view that ultimately it is the states that are sovereign and a powerful federal government is not what the framers had in mind. That could just be my personal bias at work in interpreting the Charters of Freedom though. I am a big fan of the 10th Amendment as being there to explicitly limit the power of the federal government. The Feds have weaseled their way around it using the Commerce and Supremacy clauses. Lincoln would have fought anyway, to preserve the union.
I have always thought the current form of the federal government was a direct result of the Civil War. The outcome of the war certainly seems to say that the Federal government has the power to compel states regardless of what the constitution says. I also think that if the South had taken the issue to the Supreme court they would have won. The founding documents seem to me to support the view that ultimately it is the states that are sovereign and a powerful federal government is not what the framers had in mind. That could just be my personal bias at work in interpreting the Charters of Freedom though. I am a big fan of the 10th Amendment as being there to explicitly limit the power of the federal government. The Feds have weaseled their way around it using the Commerce and Supremacy clauses. Lincoln would have fought anyway, to preserve the union.
I agree with most of what you say:1--The federal gov't we know today is an outgrowth of the Civil War.2--Sovereignty originally was wrested in the states.3--Our founding documents made secession possible. (Otherwise a gov't would not derive it's just powers from the consent of the governed.)4--The South would have won had they presented their case to the Supreme Court.What I disagree with is:I don't think Lincoln would have fought anyway had the Supreme Court decided in favor of the South. I don't think either the people of the North or Congress would have supported a war and without their support it would have been necessary for Lincoln to abide by the court's decision. I may be wrong. But I don't see losing a case before the Supreme Court inflaming the situation the same way that firing on Ft. Sumter did. IMHO firing on Ft. Sumter was the worst decision the South made. Clearly the situation was tense, but Ft. Sumter changed everything. The North had not raised an army to put down secession prior to Ft. Sumter and I'm not sure there would have support for military action without an incident like Ft. Sumter.
I put this together to simply show the question of succession, if it were to have reached the Supreme Court in lets say the year 1860, would have been almost assuredly stricken down. The Supreme Court in 1860:No To Succession:John McLean: He was strongly associated with the Republican Party making his vote pretty clear on the matter.John Catron: He owned slaves throughout his life but had directly stated being opposed to succession.Samuel Nelson: He is a tough call! But because he was from New York, it seems likely we know where his interests would lie. Robert Grier: While he voted often for Southern rights and against slave rights, he was highly supportive of Lincoln during the war effort and most likely would have never supported Southern succession. John Campbell: He was from the South, but strongly opposed succession. Nathan Clifford: He's another case of someone who didn't have an extremely clear opinion, but was from the North, so again I am assuming here. For Succession:James Wayne: He is a tough call, and could just as easily end up in the against column, but he did have deep seeded roots in the South. His vote for would be best case scenario for the South. Roger Taney: We all remember the Chief Justice of the Dred Scott decision. Again, perhaps we would have opposed succession, but his record indicates some real Southern tendencies. Peter Daniel: Died year of (1860), but usually sided with Southern interests. Again hard to call.All three "fors" could easily be in the other column, but I was trying to separate them a little.Final vote: 6-3 against succession. I just do not think it could have passed THIS Supreme Court.
Mr. Debs…that's excellent post. You're probably right, but I not sure. If the justices voted based upon their political views you're probably correct in saying they would have ruled against secession. However, there is much in the founding documents that supports the right to secede; had the justices voted based upon the contents of these documents they might well have voted in favor of secession.As you noted, predicting how some justices would have voted is a close call, as is often the case on any issue when there are swing justices. If you're wrong about Nelson and Clifford--who you identify as fence sitters--the vote would have favored secession. (Based on your comments I'm not as confident as you are that Grier would have voted against secession.)Again, thank you for you post. It provides good insight into what the vote might have been.
In 1862 Samuel Freeman Miller filled the vacancy created by the death of Peter Vivian Daniel. Miller was an abolitionist from Kentucky whose votes on the court supported Lincoln's policies.Had there been some delay in the case being heard by the Supreme Court this change might have impacted the outcome by changing a probable pro-secession vote to a probable anti-secession vote. In addition to being an abolitionist Miller was also a more "dominant" justice than Daniel had been.I think that had the South attempted a judicial approach it would have negated their stance. By taking it to the judicial they are saying that the Union has to grant them permission to seceed. That was the main tenant of the South's stance, that they were not required to ask for permission.I agree with Mr. Debs, it would have never passed the Supreme Court. And regardless of many of their southern leanings I do not see ho granting secession to the southern states would have benefitted the Supreme Court. Granting secession is paramount to them really having little power, and that is one thing the SCotUS was all about: their power. John Marshall set the standard with judicial Review basically saying "The law is what the judges say it is." Granting secession limits their power and they WERE power and were not about to give it up.
I think that had the South attempted a judicial approach it would have negated their stance. By taking it to the judicial they are saying that the Union has to grant them permission to seceed. That was the main tenant of the South's stance, that they were not required to ask for permission.I agree with Mr. Debs, it would have never passed the Supreme Court. And regardless of many of their southern leanings I do not see ho granting secession to the southern states would have benefitted the Supreme Court. Granting secession is paramount to them really having little power, and that is one thing the SCotUS was all about: their power. John Marshall set the standard with judicial Review basically saying "The law is what the judges say it is." Granting secession limits their power and they WERE power and were not about to give it up.
Agreed 100%.
