The South secedes peacefully?

It all depends on timing. I assume you mean for Buchanan to die after the election? Would it be accepted when a vice president, elevated to the presidential office by chance, makes such sweeping decisions while holding the office on a lame-duck basis? I honestly don't know, but it seems a bit iffy.

Alternatively, Buchanan can die earlier, before the 1860 election, making Breckinridge far more established as president, and also making him more of a shoe-in for the Democratic ticket.

I don't see that. Douglas men were a clear majority at the convention, and that's why the convention rejected a pro-slavery platform, leading to the Southern bolt.

They would oppose nominating Breckinridge to the end.

If Breckinridge is in office well before the convention, that might replace some of the Douglas delegates with more Doughfaces. But the Breckinridge forces need a 2/3 majority, so a small shift in delegates won't do it. It might be done with steamroller tactics.

That would influence the elections, but I still don't see Breckinridge winning.

If the Democrats nominate Breckinridge on a states-rights and pro-slavery platform, the Republicans win big. They will carry every free state as OTL, but by much bigger majorities.

Suppose Lincoln still wins, and Breckinridge evacuates the forts in the south just as you said. If he does that when he has just taken over for Buchanan a month ago, with the election already past, it would be very controversial. But if he has been in office for a year or so by that point, I can see it happening without too much fuss.

Regardless of how long he had been in office, it would be viewed as treason by Northerners. If he starts the drawdowns before the election, he could accomplish a lot though.
 

katchen

Banned
Maybe the problem was the WAY the Southern States went about seceding from the Union. Suppose that instead of unilaterally seceding, Southern states filed suit in the US Supreme Court (which has original jurisdiction in disputes between states and the Federal Government asking the Court to allow the States to secede The Court had a Southern chief Justice (Taney) and a Southern majority that had just decided that state laws forbidding slavery were unconstitutional (Dred Scott Decision). There is an excellent chance that the US Supreme Court would rule that states have the right to secede. And in that case, not even an incoming President Lincoln could call secession illegal or unconstitutional.
 

katchen

Banned
a. Because there is nothing in the US Constitution that says that secession is not possible
and
b. Because the Federal Government and the Northern States are ignoring the Dred Scott ruling that laws against slavery are an unconstitutional deprivation of property rights and are failing to enforce the property rights of slaveowners bringing their slave property into Northern States. At least I suspect that would be the Southern States major argument before the US Supreme Court justifying secession as a remedy for the unconstitutional behavior of the Federal Government and Northern States.
This certainly would make for an interesting time line and one that I suspect has not been attempted before.
 
a. Because there is nothing in the US Constitution that says that secession is not possible
and
b. Because the Federal Government and the Northern States are ignoring the Dred Scott ruling that laws against slavery are an unconstitutional deprivation of property rights and are failing to enforce the property rights of slaveowners bringing their slave property into Northern States. At least I suspect that would be the Southern States major argument before the US Supreme Court justifying secession as a remedy for the unconstitutional behavior of the Federal Government and Northern States.
This certainly would make for an interesting time line and one that I suspect has not been attempted before.

A) So? There is nothing that says it is possible either. Not persuasive.

B) The South can argue whatever, I asked you why the Supreme Court would regard secession as an acceptable solution.
 
A) So? There is nothing that says it is possible either. Not persuasive.

B) The South can argue whatever, I asked you why the Supreme Court would regard secession as an acceptable solution.

Well, it all depends on one's reading of the tenth amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There is nothing in the Constitution allowing the Federal government to regulate secession in any way. That (arguably) makes it a power "not delegated to the United States by the Constitution". There is also, as you say, nothing in the Constitution that says it is allowed... but that just makes it (if one follows the same reasoning) a power "not prohibited by [the Constitution] to the States". Which means, logically, that this power is automatically "reserved to the States respectively, or to the people".

Therefore, it can be compellingly argued that secession is completely legal. There is exactly one case where the Supreme court ruled against this reading, namely Texas v. White - a case that was determined a few short years after the Civil War, when secession was basically a dirty word throughout the USA. One must not assume that the Supreme Court would have viewed the matter the same way before the war messed up everything.

Now, I am not going to debate the merits of one interpretation over another. Ever since the Civil War, the restrictive interpretation (that the tenth amendment does not apply to secession) has been the majority view. But Katchen is talking about a time before the Civil War, when such an issue was less politically charged. My understanding is that the pro-secession interpretation was considered just as valid at that time.

Consider, for instance, that Thomas Jefferson and James Madison (certainly not the least of men) subscribed to the broad interpretation of the tenth amendment: in their Virgina and Kentucky Resolutions, these men argued in support of nullification and secession. That gives a certain weight and credibility to the secessionists' argument. ("See? The primary author of the Declaration of Independence and the chief architect of the Constitution both agreed with us!")

Consider also that even following the Civil War, Jefferson Davis wanted his day in court, but it was eventually decided not to prosecute him. This was before Texas v. White, and it is often believed that the decision not to prosecute davis was based on the fear that he would be acquitted because secession was constitutional after all.

My point is this: opinions on the legality of secession vary, and although the anti-secession view is mainstream today, that is largely because of the Civil War. I do not see why a ruling in favor of secession before the Civil War would be impossible. At that time, the pro-secession reading of the tenth amemendment was considered just as valid.
 
Consider also that even following the Civil War, Jefferson Davis wanted his day in court, but it was eventually decided not to prosecute him. This was before Texas v. White, and it is often believed that the decision not to prosecute davis was based on the fear that he would be acquitted because secession was constitutional after all.
Often believed on what basis?

My point is this: opinions on the legality of secession vary, and although the anti-secession view is mainstream today, that is largely because of the Civil War. I do not see why a ruling in favor of secession before the Civil War would be impossible. At that time, the pro-secession reading of the tenth amemendment was considered just as valid.
Arguing that there is an "excellent chance" of something needs more than noting that it isn't impossible for it to happen.

The pro-secession reading of the Tenth Amendment (and the idea that the Tenth Amendment covers that at all) does not seem to have been so popular as to interfere in the least with feelings towards dealing with "southern traitors".

Obviously popular opinion is not identical to a legal ruling, but if we're talking about how valid people considered the pro-secession reading, it is certainly interesting how the words "rebel" and "traitor" were used vigorously and passionately during the ACW to describe the Confederates - they were seen in that light, and not as a foreign country making war on the US, by the loyalist (given East Tennesseans, "northern" is a bad choice of words even to the extent "northern" for the free states is appropriate) public.


And of course, even if secession was permitted, unilateral secession without so much as a by your leave is not necessarily so.

This has been discussed elsewhere by better educated minds than mine, so my criticism is to the idea that because it could potentially have been ruled legal that it was likely to be ruled so - I don't think its impossible to write an alt-timeline where things work out with secession permitted, but it would need quite a bit of research and justification.
 
Often believed on what basis?

On the basis that countless people wanted to see Davis swing (certain he would lose), and Davis himself was ridiculously eager to go to court (certain he would win)... and then the prosecution dropped the case, letting the bastard walk. There's some speculation on the matter, namely that they wanted to deny him a chance to broadcast his ideas. But is that a logical reason not to try him? I seriously doubt that. I see no logical reason to let Davis get away other than the fear that he might actually win the case. Again, regardless of public opinion, there was no Supreme Court jurisprudence regarding secession. The whole issue was very uncertain, legally speaking (public opion, needless to say, was firmly against secession by that point).


Agreed in full. I'm not saying a pro-secession ruling was exacly likely, just that (prior to the War), while politically iffy, it was legally possible. And we all know that the Supreme Court can come up with some politically troublesome rulings from time to time...
 
Just spitballin', but here's my thought.

In 1860 and its run-up, the secessionist elements in the South are a little less organized and/or make some bad decisions. Lincoln still gets elected, there are a few secession attempts, but ultimately the thing fizzles. But an atmosphere of extreme tension remains. Lincoln tries to be circumspect (e.g., about appointing abolitionists to federal office in the South, which he avoids doing), but he can't help but give offense. He refuses to let slavery expand and he can't appoint rabid pro-slavers to Southern office. The government is ultimately in a four-year crisis where nothing can be done. No Homestead Act, no movement on railroads, nothing. Abolitionists start making 'wayward sisters go in peace' noises. Even moderate Republicans, the ones like Lincoln who are committed to the Union and who believe in the eventual natural extirpation of slavery if confined to the South, start acknowledging the possibility that the process of natural extirpation of slavery might be easier on everyone concerned if the South weren't formally part of the Union. The fugitive slave laws won't apply, e.g. Of course being pro-Union Republicans they believe that any secession must happen democratically and with the consent of the North, and they also believe that once the natural process of extirpation has proceeded, the now-cleansed slave states would naturally rejoin the Union. This is just talk, not a live political platform, but it shows the changing temper of the time.

Meanwhile Douglas or some Democratic equivalent correctly believes that he can ride the frustration with the blocked system of government to the Presidency, if he can avoid foundering himself on the slave question. So he finesses the national slave question the same way he tried to finesse the territorial slave question--he refuses to address substance and promotes a process that will solve the problem. Douglas calls for a national convention that will resolve the outstanding issues of discord between the states. He promotes this assiduously as a solution to Republican abolitionism and disloyal brinksmanship. He promotes traditional Whig themes of concord and harmony and is able to peel away some older Republican voters on that grounds. He is also able to garner some significant Southern support especially in the border states. While a number of secesh vehemently denounce him (which plays well in the North), some of the more farsighted see that a President committed to calling a national convention is in their best interests and quietly lend support to efforts to heal over the breach in the Democratic party between North and South. Douglas also allays some Northern fears by making it clear that he will not use the Democratic party machinery and the spoils process to force Democratic convention reps to follow a party line at the convention (this was a major complaint against the Democrats in the decade prior to 1860). This helps in the North but also surprisingly gives him a boost in the South. In the north even Republican candidates start implicitly supporting the idea of a convention by promoting themselves as the candidate who you can count on to truly support the free-soil interest at it, whereas the Democrats will talk a good game but will be beholden to Southern interests, etc.
Douglas wins, and whatever the outcome of the elections in the house and Senate, you have a majority who are either committed to a national convention or who are willing to go along with for lack of anything better to do. Nationally, there are high hopes for the convention. It's going to solve all these intractable disputes!

The states send their delegates and can accomplish nothing, because the problems really are intractable. Many if not most of the Deep South delegates are secesh. They play their hand well, and eventually an amicable separation emerges as a possible solution. There are plenty of provisions that allay the various fears folks have, maybe a customs union, a mutual self-defense pact, free navigation of the Mississippi with guarantees, maybe formally the seceding states actually remain part of the Union but act as a self-governed part. Anyhow, the convention agrees to the removal of the Deep South states. An exhausted and relieved nation votes in favor of the convention's proposal.

Voila.
 
A pod in 1858 where congress and the president become dead locked on spending and government goes in to shut down.

In the end the CSA leaving to the only way to break the dead lock and the CSA are allowed to leave as the only way to end the government shut down.
 
I see no logical reason to let Davis get away other than the fear that he might actually win the case. Again, regardless of public opinion, there was no Supreme Court jurisprudence regarding secession. The whole issue was very uncertain, legally speaking (public opion, needless to say, was firmly against secession by that point).

I can think of a pretty good reason: What good does it do? Despite the traditional tale of how Reconstruction was a worse-than-Carthagian peace forced on the South, which would be abused and oppressed for half a generation or more, the policy towards the erring sisters was extremely merciful and lenient.

Hanging Davis would not help with the popular desire to just move on, and convicting someone of treason -whether secession was illegal or not - is ridiculously hard given how the US constitutional definition renders it almost unprovable.

Agreed in full. I'm not saying a pro-secession ruling was exacly likely, just that (prior to the War), while politically iffy, it was legally possible. And we all know that the Supreme Court can come up with some politically troublesome rulings from time to time...
Definitely. The law is at best unclear - all we can say objectively as of the 1860 understanding of affairs is that it isn't specifically prohibited or specifically permitted.

It might be contrary to the intentions of the Founders - not just in terms of the Constitution as a specific document but what they were trying to create - but without anything being spelled out, it has to go to the Supreme Court.

And no one is going to accuse Taney of being an ideal Chief Justice.
 
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katchen

Banned
On the basis that countless people wanted to see Davis swing (certain he would lose), and Davis himself was ridiculously eager to go to court (certain he would win)... and then the prosecution dropped the case, letting the bastard walk. There's some speculation on the matter, namely that they wanted to deny him a chance to broadcast his ideas. But is that a logical reason not to try him? I seriously doubt that. I see no logical reason to let Davis get away other than the fear that he might actually win the case. Again, regardless of public opinion, there was no Supreme Court jurisprudence regarding secession. The whole issue was very uncertain, legally speaking (public opion, needless to say, was firmly against secession by that point).



Agreed in full. I'm not saying a pro-secession ruling was exacly likely, just that (prior to the War), while politically iffy, it was legally possible. And we all know that the Supreme Court can come up with some politically troublesome rulings from time to time...
That's why the Southern States need an issue besides the simple desire to secede to convince the Supreme Court that a crisis exists requiring the extraordinary remedy of secession. And quite frankly, the South muffed it's biggest chance of prevailing as plaintiffs when the Southern States did not make an issue and a test case of Northern States continuing to enforce their anti-slavery legislation in defiance of that legislation's unconstitutionality.
If the Supreme Court ruled that it was the Northern States who were in the wrong and acting contrary to the Constituion and therefore in rebellion, that would be very helpful when it comes for the North to be dealing with Termites.
 
Maybe the problem was the WAY the Southern States went about seceding from the Union. Suppose that instead of unilaterally seceding, Southern states filed suit in the US Supreme Court (which has original jurisdiction in disputes between states and the Federal Government asking the Court to allow the States to secede

That concedes the fundamental principle of the secessionists - that each state is a fully sovereign entity. If the "right of secession" is subject to the Supreme Court's approval, then the states are not fully sovereign.

The Court had a Southern chief Justice (Taney) and a Southern majority that had just decided that state laws forbidding slavery were unconstitutional (Dred Scott Decision). There is an excellent chance that the US Supreme Court would rule that states have the right to secede.

That Southern majority ceased to exist when Justice Peter Daniel of Virginia died 31 May 1860. That left 4 northern Justices (Grier, McLean, Nelson, and Clifford) and 4 southern Justices (Taney, Campbell, Catron, and Wayne). It's extremely unlikely that any of the northern Justices would rule that states had a right of secession. It's also highly unlikely that Catron or Wayne would join such a ruling, because both of them did not recognize their home states' declarations of secession. They remained on the Court till after the War.

And in that case, not even an incoming President Lincoln could call secession illegal or unconstitutional.

Why not? The doctrine of the absolute supremacy of the Court in all constitutional questions was much less widely held then. Lincoln himself denied it, in rejecting the Dred Scott decision.

In his Cooper Union speeck, Lincoln demonstrated very convincingly that Taney's claim that Congress could not restrict slavery in the Territories was rejected by a majority of the actual Framers of the Constitution. If the Congress, the President, and the people were obliged to submit to any such grotesque interpretation of the Constitution as the Court produced, then all the powers of self-government had been abdicated to the Court.
 
a. Because there is nothing in the US Constitution that says that secession is not possible

Article VI, second paragraph:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(emphasis added)

If a state cannot obstruct or deny or nullify any single act of Congresss, it cannot obstruct or deny or nullify all of them, either.

 
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