The Confederate Flag Thread

[noxiousdog]

(1) The Constitution provided for its alteration (which would presumably include its termination or replacement) via amendment and/or new constitutional convention. That would be the replacement for the clause you mention in the Articles of Confederation - that's the process if you want to end the Union. And there being no termination / expiration date is the same thing as it being perpetual (until terminated / changed).

(2) My theory is not at all that the South should bend to the will of the North. There are (and have never been) no such legal entities as either "the South" or "the North". As such there never was "partnership" between North and South, it was a Union formed by the people of the states. The North and the South are (non-formal/legal) regions within the United States, subject to the Constitution of the United States.

I am saying that all states within the United States (including the Southern States) are obligated to adhere to the Constitution of the United States. It sucked for the southern states that population growth post adoption of the Constitution went against them and increasingly deprived them of their ability to (as a group) vote down anti-slavery laws. That is legally irrelevant to the obligations of the states under the Constitution, however.

All states are obliged to bend to the will of the voters of the United States, in accordance with the terms of the Constitution.

Then you're farther off than I thought. The only voters of the United States are the States. It isn't a democracy. It has never been.

[RunningMn9]

You spelled republic wrong.

Did you seriously just attempt to correct me on that? I wasn't referring to the specific form of government. I was referring to the underlying political spirit that our specific form of government reflects.

And it was clearly going against the spirit of what was agreed to in 1784. The population went from more in the south in 1780 to the North outnumbering the south 2:1 which easily allowed packing the House of Representatives and the Presidency.

Uhhh...no. What was agreed to in 1784 was that the apportionment of congressional representatives would be based on population, aside from the Senate. That population growth was not uniform doesn't mean that the North "packed the House of Representatives". It's just what happens when some states experience greater population growth. That's a "feature as designed".

As for the issue of whether the Constitution tells States that they can't secede. I think that one must understand that the founders of our country were already aware (at the time that the Constitution was drafted), that a loose collection of individual states would not work. How could anything be accomplished if States could just threaten to leave, and shatter the nation? The Constitution is not a compact between States. The Constitution is a compact between citizens. And individual citizens could certainly "secede" (you are free to renounce your citizenship and get the F out).

With the ratification of the Constitution, the citizens of South Carolina were no longer citizens of South Carolina. They became citizens of the United States. And that is a compact that the state govt in South Carolina had no authority to revoke. "We the People", not "We the States".

[noxiousdog]

You spelled republic wrong.

Did you seriously just attempt to correct me on that? I wasn't referring to the specific form of government. I was referring to the underlying political spirit that our specific form of government reflects.

And it was clearly going against the spirit of what was agreed to in 1784. The population went from more in the south in 1780 to the North outnumbering the south 2:1 which easily allowed packing the House of Representatives and the Presidency.

Uhhh...no. What was agreed to in 1784 was that the apportionment of congressional representatives would be based on population, aside from the Senate. That population growth was not uniform doesn't mean that the North "packed the House of Representatives". It's just what happens when some states experience greater population growth. That's a "feature as designed".

As for the issue of whether the Constitution tells States that they can't secede. I think that one must understand that the founders of our country were already aware (at the time that the Constitution was drafted), that a loose collection of individual states would not work. How could anything be accomplished if States could just threaten to leave, and shatter the nation? The Constitution is not a compact between States. The Constitution is a compact between citizens. And individual citizens could certainly "secede" (you are free to renounce your citizenship and get the F out).

With the ratification of the Constitution, the citizens of South Carolina were no longer citizens of South Carolina. They became citizens of the United States. And that is a compact that the state govt in South Carolina had no authority to revoke. "We the People", not "We the States".

What makes you right and the anti-federalists wrong other than a bigger army and self interest?

You and El Guapo both are treating this as if scholars haven't been debating for 200 years with no real answer. You, of all people, I would think would side with separating from an unwanted authority.

[El Guapo]

(1) The Constitution provided for its alteration (which would presumably include its termination or replacement) via amendment and/or new constitutional convention. That would be the replacement for the clause you mention in the Articles of Confederation - that's the process if you want to end the Union. And there being no termination / expiration date is the same thing as it being perpetual (until terminated / changed).

(2) My theory is not at all that the South should bend to the will of the North. There are (and have never been) no such legal entities as either "the South" or "the North". As such there never was "partnership" between North and South, it was a Union formed by the people of the states. The North and the South are (non-formal/legal) regions within the United States, subject to the Constitution of the United States.

I am saying that all states within the United States (including the Southern States) are obligated to adhere to the Constitution of the United States. It sucked for the southern states that population growth post adoption of the Constitution went against them and increasingly deprived them of their ability to (as a group) vote down anti-slavery laws. That is legally irrelevant to the obligations of the states under the Constitution, however.

All states are obliged to bend to the will of the voters of the United States, in accordance with the terms of the Constitution.

Then you're farther off than I thought. The only voters of the United States are the States. It isn't a democracy. It has never been.

Except for the part where Senators and Representatives are expressly elected by the voters of the United States, and not by the states as entities. In addition, since the Electoral College became a mechanism of the voters as opposed to a system where the electors exercised independent judgment, it is not really true to say that the President is elected by the states either.

Regardless, that's not really dispositive of whether the United States is one indissolvable nation (which it is) or a compact among sovereign states (which it isn't).

[Isgrimnur]

Senators ... are expressly elected by the voters of the United States

Only since 1913.

[El Guapo]

You spelled republic wrong.

Did you seriously just attempt to correct me on that? I wasn't referring to the specific form of government. I was referring to the underlying political spirit that our specific form of government reflects.

And it was clearly going against the spirit of what was agreed to in 1784. The population went from more in the south in 1780 to the North outnumbering the south 2:1 which easily allowed packing the House of Representatives and the Presidency.

Uhhh...no. What was agreed to in 1784 was that the apportionment of congressional representatives would be based on population, aside from the Senate. That population growth was not uniform doesn't mean that the North "packed the House of Representatives". It's just what happens when some states experience greater population growth. That's a "feature as designed".

As for the issue of whether the Constitution tells States that they can't secede. I think that one must understand that the founders of our country were already aware (at the time that the Constitution was drafted), that a loose collection of individual states would not work. How could anything be accomplished if States could just threaten to leave, and shatter the nation? The Constitution is not a compact between States. The Constitution is a compact between citizens. And individual citizens could certainly "secede" (you are free to renounce your citizenship and get the F out).

With the ratification of the Constitution, the citizens of South Carolina were no longer citizens of South Carolina. They became citizens of the United States. And that is a compact that the state govt in South Carolina had no authority to revoke. "We the People", not "We the States".

What makes you right and the anti-federalists wrong other than a bigger army and self interest?

You and El Guapo both are treating this as if scholars haven't been debating for 200 years with no real answer. You, of all people, I would think would side with separating from an unwanted authority.

Oh, I am not treating this as something that scholars haven't been arguing. I am simply agreeing with the correct side of the argument.

In addition, there is also a pretty mainstream view that the Reconstruction Amendments fundamentally altered the nature of the Union (to move things in the direction of one nation), regardless of how one views the nature of the union pre-Civil War.

[noxiousdog]

Except for the part where Senators and Representatives are expressly elected by the voters of the United States, and not by the states as entities. In addition, since the Electoral College became a mechanism of the voters as opposed to a system where the electors exercised independent judgment, it is not really true to say that the President is elected by the states either.

Regardless, that's not really dispositive of whether the United States is one indissolvable nation (which it is) or a compact among sovereign states (which it isn't).

Oh. Well that solves it. Makes me wonder how all those other states nations have broken up or we separated from Britain though.


edit: talking about dissolving nations.

[noxiousdog]

Oh, I am not treating this as something that scholars haven't been arguing. I am simply agreeing with the correct side of the argument.

In addition, there is also a pretty mainstream view that the Reconstruction Amendments fundamentally altered the nature of the Union (to move things in the direction of one nation), regardless of how one views the nature of the union pre-Civil War.

That's certainly fair, but irrelevant since we are discussing it in 1850's context.

[El Guapo]

Senators ... are expressly elected by the voters of the United States

Only since 1913.

Of course. I was responding to ND's statement that "the only voters of the United States are [present tense] the States." Senators were elected by the states at the time of the Civil War, obviously, if that's germane to one's analysis of a state's supposed right to secede at the time (though I would say that it's not really relevant).

[El Guapo]

Except for the part where Senators and Representatives are expressly elected by the voters of the United States, and not by the states as entities. In addition, since the Electoral College became a mechanism of the voters as opposed to a system where the electors exercised independent judgment, it is not really true to say that the President is elected by the states either.

Regardless, that's not really dispositive of whether the United States is one indissolvable nation (which it is) or a compact among sovereign states (which it isn't).

Oh. Well that solves it. Makes me wonder how all those other states have broken up or we separated from Britain though.

I mean, we were undeniably violating British law when we revolted against Britain, and the founding fathers were all guilty of treason.

[El Guapo]

Oh, I am not treating this as something that scholars haven't been arguing. I am simply agreeing with the correct side of the argument.

In addition, there is also a pretty mainstream view that the Reconstruction Amendments fundamentally altered the nature of the Union (to move things in the direction of one nation), regardless of how one views the nature of the union pre-Civil War.

That's certainly fair, but irrelevant since we are discussing it in 1850's context.

Yeah, the reconstruction amendments are an aside to the legality of the southern states seceding (though relevant to whether the United States is a direct democracy today).

[noxiousdog]

I mean, we were undeniably violating British law when we revolted against Britain, and the founding fathers were all guilty of treason.

So you're completely discounting that a group of individuals who just seceded from their mother country wouldn't assume they could do it again if they didn't like the central government?

[gbasden]

I mean, we were undeniably violating British law when we revolted against Britain, and the founding fathers were all guilty of treason.

So you're completely discounting that a group of individuals who just seceded from their mother country wouldn't assume they could do it again if they didn't like the central government?

They obviously *can*, and did. But there was no mechanism to do it peacefully or legally through the constitution without amendment. Thus, the whole shooting/dying thing.

[noxiousdog]

They obviously *can*, and did. But there was no mechanism to do it peacefully or legally through the constitution without amendment. Thus, the whole shooting/dying thing.

The penalty for a state doing something the federal government doesn't like is to take them to a Federal Court. Not start shooting and killing.

[El Guapo]

I mean, we were undeniably violating British law when we revolted against Britain, and the founding fathers were all guilty of treason.

So you're completely discounting that a group of individuals who just seceded from their mother country wouldn't assume they could do it again if they didn't like the central government?

If one is so inclined, it's not difficult to distinguish the legality of the American Revolution from that of the southern insurrection. As the Declaration of Independence says:

whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The people of the United States (collectively) had the right to alter or abolish their form of government as of 1861, via Amendment V:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

So, one could argue that Britain denied the citizens of its colonies their due portion of the right to alter the form of their government, principally by denying their right to have representatives in Parliament, and that it is this denial of rights which gave the colonists no choice but to revolt. By contrast, the people of the southern states did (in 1861) have their due share of the right to alter or abolish the form of government, and that that was their legal recourse if they felt aggrieved.

Of course, the founding fathers disagreed with each other about the nature of the Union and the legality of revolution and whatnot, so one could find arguments for either side, which would not provide a clear resolution.

Ultimately, as a practical matter the inherent nature of revolutions is that they are illegal unless and until they succeed.

[noxiousdog]

Ultimately, as a practical matter the inherent nature of revolutions is that they are illegal unless and until they succeed.

Yes, when you're using the might makes right argument, it puts you on awfully shaky ground.

[El Guapo]

Ultimately, as a practical matter the inherent nature of revolutions is that they are illegal unless and until they succeed.

Yes, when you're using the might makes right argument, it puts you on awfully shaky ground.

My point there is just that debating the legality of a revolution is inherently a purely academic debate. As you know 95% of my post (and recent posts) is about the legality, I'm just saying that ultimately we are essentially debating how many angels can dance on the head of a pin.

[Isgrimnur]

The penalty for a state doing something the federal government doesn't like is to take them to a Federal Court. Not start shooting and killing.

The penalty for the federal government doing something the states don't like is to take them to a Federal Court. Not start shooting and killing.

[hepcat]

Well played, Mr. Isgrimnur. Well played.

[RunningMn9]

What makes me right and the anti-federalists wrong? The fact that the federalists won the debate at the time, and I am simply acknowledging that fact?

Read the text. While there were some things that were left to the States, it is *obvious* that the Federal government supersedes the authority of the states. Because it says so, right in the document. Explicitly.

And while I understand the concepts of revolution, I don't apply them to the bullshit position that the South took when they committed treason. The union can't exist if entire states can bail because the duly elected federal government passed laws you don't like. Should the North have seceded because the Southern powers got the Fugitive Slave Act passed? Why weren't States Rights important to the South when they got that passed?

Either way - no - entire States can't just walk away because they feel like it because they gave up their sovereignty when they ratified the U.S. Constitution.

[noxiousdog]

The penalty for a state doing something the federal government doesn't like is to take them to a Federal Court. Not start shooting and killing.

The penalty for the federal government doing something the states don't like is to take them to a Federal Court. Not start shooting and killing.

At that point that Federal government had no jurisdiction.

[Isgrimnur]

No jurisdiction?

Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the federal government shall establish forts or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction

New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836)

Seems there was ample precedent about who owned land at both the state and federal level before the Palmetto people tried to evict those who rightfully held it.

[noxiousdog]

What makes me right and the anti-federalists wrong? The fact that the federalists won the debate at the time, and I am simply acknowledging that fact?

Read the text. While there were some things that were left to the States, it is *obvious* that the Federal government supersedes the authority of the states. Because it says so, right in the document. Explicitly.

And while I understand the concepts of revolution, I don't apply them to the bullshit position that the South took when they committed treason. The union can't exist if entire states can bail because the duly elected federal government passed laws you don't like. Should the North have seceded because the Southern powers got the Fugitive Slave Act passed? Why weren't States Rights important to the South when they got that passed?

Either way - no - entire States can't just walk away because they feel like it because they gave up their sovereignty when they ratified the U.S. Constitution.

The European Union will exist just fine without Greece. The Britian existed just fine without Canada, Austrailia, and the United States. The Russian Federation seems ok without however many places seceeded from there.

The federalists didn't win until, as El Guapo said, reconstruction made it moot. We have an army. The Feds win.

It was *obvious* only for those things explicitly laid out in the Constitution. Resigning your membership is not one of those things, but feel free to point it out if you can find it. Since it's not there, I think the 10th Amendment covers it and the States should be able to do what they want.

[noxiousdog]

No jurisdiction?

Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the federal government shall establish forts or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction

New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836)

Seems there was ample precedent about who owned land at both the state and federal level before the Palmetto people tried to evict those who rightfully held it.

I don't know what you mean. The union was clearly in the right to defend Fort Sumter by any means necessary. That's not in dispute as far as I know.

[Isgrimnur]

The Supreme Court of both states and the US had multiple cases that were resolved about issues between the states and country. My point is that there were legal means that could have been employed, as they had been in the past, in an attempt to resolve the legal issues before they tried to take their slaves and go.

[RunningMn9]

In a conflict of law between the state of South Carolina and the United States of America, in 1861, who won, and why?

My answer is that the U.S. won, because article VI of the U.S. Constitution tells me (explicitly) that this is so.

We also know that every citizen in South Carolina is a United States citizen (in 1861). By what right does the state legislature in South Carolina have to strip any person living in South Carolina of their US citizenship?

[LawBeefaroni]

The European Union will exist just fine without Greece. The Britian existed just fine without Canada, Austrailia, and the United States. The Russian Federation seems ok without however many places seceeded from there.

None of these really work.

The EU is an economic union, not a nation.

Australia and the US were British colonies, not home territory. Canada is some kind of constitutional parliamentary monarchy under the Queen of England. And the sun does now set daily on the British Empire.

The Russian Federation is a fragment of the former Soviet Union and is trying desperately to regain lost Soviet republics. But technically none of them seceded from the Russian Federation. They seceded from the Soviet Union and led to its dissolution. So...not OK.

[noxiousdog]

The European Union will exist just fine without Greece. The Britian existed just fine without Canada, Austrailia, and the United States. The Russian Federation seems ok without however many places seceeded from there.

None of these really work.

The EU is an economic union, not a nation.

Australia and the US were British colonies, not home territory. Canada is some kind of constitutional parliamentary monarchy under the Queen of England. And the sun does now set daily on the British Empire.

The Russian Federation is a fragment of the former Soviet Union and is trying desperately to regain lost Soviet republics. But technically none of them seceded from the Russian Federation. They seceded from the Soviet Union and led to its dissolution. So...not OK.

Split hairs all you want. There are plenty of examples of provinces, regions, ducheys, or states removing themselves from a central authority. The US was perfectly happy to accept the rogue nation Texas after all.

[dbt1949]

And we'd still be happy to let them go.

[LawBeefaroni]

The European Union will exist just fine without Greece. The Britian existed just fine without Canada, Austrailia, and the United States. The Russian Federation seems ok without however many places seceeded from there.

None of these really work.

The EU is an economic union, not a nation.

Australia and the US were British colonies, not home territory. Canada is some kind of constitutional parliamentary monarchy under the Queen of England. And the sun does now set daily on the British Empire.

The Russian Federation is a fragment of the former Soviet Union and is trying desperately to regain lost Soviet republics. But technically none of them seceded from the Russian Federation. They seceded from the Soviet Union and led to its dissolution. So...not OK.

Split hairs all you want. There are plenty of examples of provinces, regions, ducheys, or states removing themselves from a central authority. The US was perfectly happy to accept the rogue nation Texas after all.

None of those work at all. How is that splitting hairs?

[noxiousdog]

The European Union will exist just fine without Greece. The Britian existed just fine without Canada, Austrailia, and the United States. The Russian Federation seems ok without however many places seceeded from there.

None of these really work.

The EU is an economic union, not a nation.

Australia and the US were British colonies, not home territory. Canada is some kind of constitutional parliamentary monarchy under the Queen of England. And the sun does now set daily on the British Empire.

The Russian Federation is a fragment of the former Soviet Union and is trying desperately to regain lost Soviet republics. But technically none of them seceded from the Russian Federation. They seceded from the Soviet Union and led to its dissolution. So...not OK.

Split hairs all you want. There are plenty of examples of provinces, regions, ducheys, or states removing themselves from a central authority. The US was perfectly happy to accept the rogue nation Texas after all.

None of those work at all. How is that splitting hairs?

Pick one of these then. It's not like secession is unique and unheard of.

[El Guapo]

The European Union will exist just fine without Greece. The Britian existed just fine without Canada, Austrailia, and the United States. The Russian Federation seems ok without however many places seceeded from there.

None of these really work.

The EU is an economic union, not a nation.

Australia and the US were British colonies, not home territory. Canada is some kind of constitutional parliamentary monarchy under the Queen of England. And the sun does now set daily on the British Empire.

The Russian Federation is a fragment of the former Soviet Union and is trying desperately to regain lost Soviet republics. But technically none of them seceded from the Russian Federation. They seceded from the Soviet Union and led to its dissolution. So...not OK.

Split hairs all you want. There are plenty of examples of provinces, regions, ducheys, or states removing themselves from a central authority. The US was perfectly happy to accept the rogue nation Texas after all.

None of those work at all. How is that splitting hairs?

Pick one of these then. It's not like secession is unique and unheard of.

Examples from other countries aren't super helpful in divining whether a state has a legal right to secede unilaterally under the United States constitution. Yes, secession is a thing that happens, so you could say that the Founding Fathers were very aware of that, but that can cut either way - you can just as easily argue that since they were aware of the concept of secession, the fact that they did not provide states with a clear right to secede meant that they did not intend for each state to have that right.

It in addition, the secession process is almost universally violent and extralegal in nature, so it's not entirely clear how relevant that is to a state's ability to claim a right to secede against the wishes of the country that they want to secede from.

[LawBeefaroni]

Pick one of these then. It's not like secession is unique and unheard of.

I pick...the Eritrean War of Independence. Now what are we playing again? "Explain how that conflict is relevant to secession of the Confederate states and US constitutional law?"

[noxiousdog]

Pick one of these then. It's not like secession is unique and unheard of.

I pick...the Eritrean War of Independence. Now what are we playing again? "Explain how that conflict is relevant to secession of the Confederate states and US constitutional law?"

We are playing "there's a metric shit ton of gray area." That it seems unable to be acknowledged baffles me.

[El Guapo]

Pick one of these then. It's not like secession is unique and unheard of.

I pick...the Eritrean War of Independence. Now what are we playing again? "Explain how that conflict is relevant to secession of the Confederate states and US constitutional law?"

From those examples, I believe he's establishing the right of a nation to violently suppress a secessionist movement.

[PLW]

We also know that every citizen in South Carolina is a United States citizen (in 1861). By what right does the state legislature in South Carolina have to strip any person living in South Carolina of their US citizenship?

I like this point a lot. Nice job.

[noxiousdog]

Pick one of these then. It's not like secession is unique and unheard of.

I pick...the Eritrean War of Independence. Now what are we playing again? "Explain how that conflict is relevant to secession of the Confederate states and US constitutional law?"

From those examples, I believe he's establishing the right of a nation to violently suppress a secessionist movement.

Strawman. Of course that's what governments do. That doesn't make it right.

[Pyperkub]

In more recent news:

Steve Spurrier has long supported the removal of the Confederate battle flag from the state capitol in Columbia, and on Tuesday he addressed the issue for the first time since it was taken down July 9.

"It was a tragedy, obviously, nine innocent people to be killed like that," Spurrier said, referencing the Charleston church shooting last month, during his time at the podium for SEC Media Days.

"I applaud our governor for setting the initiative to remove the flag and obviously it was received very well by just about everyone in our state and around the country. Obviously all of us in college sports, we know the importance of equality, race relations, everyone getting along. I know the coaches all over South Carolina were happy and glad to see the flag come down."

[El Guapo]

Pick one of these then. It's not like secession is unique and unheard of.

I pick...the Eritrean War of Independence. Now what are we playing again? "Explain how that conflict is relevant to secession of the Confederate states and US constitutional law?"

From those examples, I believe he's establishing the right of a nation to violently suppress a secessionist movement.

Strawman. Of course that's what governments do. That doesn't make it right.

Doesn't that apply equally to the secessionists? My underlying point is that examples of wars of independence are generally irrelevant to the legality of an attempt for a region to secede from a nation in any particular case.

[noxiousdog]

Doesn't that apply equally to the secessionists?

Of course.

My underlying point is that examples of wars of independence are generally irrelevant to the legality of an attempt for a region to secede from a nation in any particular case.

I'm pretty sure legality goes out the window once armies are involved.