The South Appeals to the Supreme Court

Anaxagoras

Banned
Thanks for your answer. Yet this is AIUI the same SC of the infamous Dred Scott decision and so, apparently at last, sympathetic to the South

That's confusing two very different issues. Just because a justice ruled against Dred Scott being free even though he had lived in free territory doesn't mean he will also favor the right of a state to secede.

One of the most common fallacies on AH.com is, and long has been, the idea that America in 1860 was neatly divided into abolitionists and Fire-Eaters. It wasn't anything like that at all.
 

Ramontxo

Donor
That's confusing two very different issues. Just because a justice ruled against Dred Scott being free even though he had lived in free territory doesn't mean he will also favor the right of a state to secede.

One of the most common fallacies on AH.com is, and long has been, the idea that America in 1860 was neatly divided into abolitionists and Fire-Eaters. It wasn't anything like that at all.

I stand corrected ;)
 
They lose. The issue is too political to be treated abstractly and objectively. Their argument will be that the tenth amendment is clear. All powers not contitutionally delegated to the fedral government are reserved by the states. The constitution doesn't mention secession, and certainly doesn't delegate the issue to the federal government. Nor does the constitution, unlike the earlier Articles of Confederation, declare the union to be perpetual. Therefore, secession is reserved to the states. End of story. And you know what? Legally speaking, I'm 100% convinced they would be correct.

Doesn't matter. No Supreme Court Justice will want to be known as the man (or one of the men) who "broke the Union". Some legal fiction will be brought up to deny that secession may take place. Perhaps they'll argue that since the constitution replaces the Articles (which were explicitly defined as perpetual), that perpetuity is implicitly carried on into the constitution. Something like that. Legally speaking, it would be a travesty. But then, so is OTL. In every country, in every era. (And morally speaking, of course, anyone can see that a legal travesty that results in an end to chattel slavery may be excused.)

Bottom line: the South loses. Ironically, if that defeat breaks the support for secession (which it may well do), that very much delays the abolition of slavery. So we still get a legal travesty... but no undisputed Moral Good that can justify it. (On the other hand: no Civil War. Which reduces us to asking: is preventing the many deaths of that conflict worth prolonging chattel slavery by - in all likelihood - decades? Interesting subject matter for those of us in the ethics department, but not a debate to be held here, I think.)

The USSC could even rule that the very act of separating from the United States and forming its own state is clear casus beli against the successor government. In that it could be argued if a war broke out over it and the successor government lost then the seceding states clearly separated from the United States until reconquered by it. In that case the seceding states would have ceased to be states and the newly reconquered area would be mere conquered provinces in the aftermath with no state's rights at all as they are no longer states. Congress would then have the right to divide the area into territories as it saw fit. The new territories would then have to petition Congress to be admitted as new states and Congress could set any terms it wanted for conditions to be admitted as new states.
 
That's confusing two very different issues. Just because a justice ruled against Dred Scott being free even though he had lived in free territory doesn't mean he will also favor the right of a state to secede.

One of the most common fallacies on AH.com is, and long has been, the idea that America in 1860 was neatly divided into abolitionists and Fire-Eaters. It wasn't anything like that at all.

Agreed, there were a number of slave owners, even large ones, who thought secession was illegal and even joined the Union Army. There were a number of Radical Abolitionists before that thought the Free States should secede to separate themselves from the Slave States and not be tainted by the sins of slavery. This is from someone is pretty hard core Unionist.
 

Skallagrim

Banned
The USSC could even rule that the very act of separating from the United States and forming its own state is clear casus beli against the successor government. In that it could be argued if a war broke out over it and the successor government lost then the seceding states clearly separated from the United States until reconquered by it. In that case the seceding states would have ceased to be states and the newly reconquered area would be mere conquered provinces in the aftermath with no state's rights at all as they are no longer states. Congress would then have the right to divide the area into territories as it saw fit. The new territories would then have to petition Congress to be admitted as new states and Congress could set any terms it wanted for conditions to be admitted as new states.

Certainly an interesting notion! As far as the eventual outcome is concerned, this could lead to reconstruction-on-steroids, as it were. Of course, the timeline issues pointed out by others are tricky. Basically, SC has to get a case before the Supreme Court before actually seceding-- which is why I'm fairly sure a defeat in court would be a major blow to secession's popularity. Maybe fatally so. So maybe such a ruling could just end up forestalling secession altogether.

On the other hand... a casus belli means there's war. For there to be war, it must be recognised that the secession has actually taken place, and that the CSA legally exists. That would be very dangerous, since it would implicitly recognise the CSA and allow the USA to start a war of conquest against what it has just implicitly recognised to be another country. If you want to really make British and/or French support for the CSA realistic (which it never was in OTL), this could be a way to do it. After all, the notion that secession is illegal has been maintained by various powers throughout history. But the notion that secession is legal but still a reason to conquer the seceding region(s) is... rather strange. Going down this path could easily paint the USA as the wicked aggressor, whether that's truly justified or not.
 
Certainly an interesting notion! As far as the eventual outcome is concerned, this could lead to reconstruction-on-steroids, as it were. Of course, the timeline issues pointed out by others are tricky. Basically, SC has to get a case before the Supreme Court before actually seceding-- which is why I'm fairly sure a defeat in court would be a major blow to secession's popularity. Maybe fatally so. So maybe such a ruling could just end up forestalling secession altogether.

On the other hand... a casus belli means there's war. For there to be war, it must be recognised that the secession has actually taken place, and that the CSA legally exists. That would be very dangerous, since it would implicitly recognise the CSA and allow the USA to start a war of conquest against what it has just implicitly recognised to be another country. If you want to really make British and/or French support for the CSA realistic (which it never was in OTL), this could be a way to do it. After all, the notion that secession is illegal has been maintained by various powers throughout history. But the notion that secession is legal but still a reason to conquer the seceding region(s) is... rather strange. Going down this path could easily paint the USA as the wicked aggressor, whether that's truly justified or not.

The reason GB and France didn't support the CSA wasn't because they were concerned about legalities but because it wasn't in their interest and whatever legalities were involved wouldn't change that much. By 1862 the US was already a Great Power and a major trading partner of GB. GB neither wanted a war with it or even a trade embargo levied against GB by it. The first would risk Canada and its US investments and hurt GB economy the second would hurt British trade badly. Whatever the legalities it wouldn't change British interests.
 
They lose. The issue is too political to be treated abstractly and objectively. Their argument will be that the tenth amendment is clear. All powers not contitutionally delegated to the fedral government are reserved by the states. The constitution doesn't mention secession, and certainly doesn't delegate the issue to the federal government. Nor does the constitution, unlike the earlier Articles of Confederation, declare the union to be perpetual. Therefore, secession is reserved to the states. End of story. And you know what? Legally speaking, I'm 100% convinced they would be correct.

Doesn't matter. No Supreme Court Justice will want to be known as the man (or one of the men) who "broke the Union". Some legal fiction will be brought up to deny that secession may take place. Perhaps they'll argue that since the constitution replaces the Articles (which were explicitly defined as perpetual), that perpetuity is implicitly carried on into the constitution. Something like that. Legally speaking, it would be a travesty. But then, so is OTL. In every country, in every era. (And morally speaking, of course, anyone can see that a legal travesty that results in an end to chattel slavery may be excused.)

Bottom line: the South loses. Ironically, if that defeat breaks the support for secession (which it may well do), that very much delays the abolition of slavery. So we still get a legal travesty... but no undisputed Moral Good that can justify it. (On the other hand: no Civil War. Which reduces us to asking: is preventing the many deaths of that conflict worth prolonging chattel slavery by - in all likelihood - decades? Interesting subject matter for those of us in the ethics department, but not a debate to be held here, I think.)

Well ... then the obvious question would be, If this vehicle is used to get the Articles declared 'retired' and no longer legally valid, what would this change further down the road?
 
Well ... then the obvious question would be, If this vehicle is used to get the Articles declared 'retired' and no longer legally valid, what would this change further down the road?

OTL, Texas vs. White did use the "More perfect Union" clause and reference to the Article of Confederation as part of its reasoning.
 
It should, however, be noted that the composition of the Court for Texas vs. White (1869) was very different from that in 1860/61. In 1869, the Supreme Court had no less than 5 members (including Chief Justice Chase) that had been appointed by Abraham Lincoln. Using that as a base of comparison is risky.
 
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