WI: What if Robert E. Lee Stays Entirely Neutral in the Civil War?

[Seraph]

Do people, regardless of other issues, fundamentally have the right to form their own countries if they so wish, and in so doing, split off from whatever government previously held sway over them? My answer is yes. My answer is furthermore that anyone who says no is morally defective.

I would like to note that I don't believe this is a common opinion.
The confederate constitution forbidden it and modern cases tend to be complicated from my limited understanding when it is allowed.

 

[StephenColbert27]

I suppose, before I go any further, that I should state that I do not mind negotiated secession. That is, states can secede with the consent of the other states and federal government. This was what Texas v. White ruled would be an acceptable procedure for how secession might take place. What I am suggesting is treason is the idea of unilateral secession, which is what the South employed as their method of attempting to leave the Union.

Trying to leave a construction you deem unfit to represent your interests is exactly what secession is. It's how the USA came to exist. But then, you already deemed William of Orange and the Founding Fathers traitors as well, so, yeah... regardless of whether you call treason 'not always evil', the fact that you see self-determination as 'treason' and consider "taking your ball and going home" a bad thing demonstrates your world-view. Let's just say it fundamentally clashes with everything I hold sacred.

My answer is yes. My answer is furthermore that anyone who says no is morally defective.

Noted.

[You are in error in a very crucial way. The Supremacy Clause places Federal authority above state authority, but then, so does the tenth Amendment. Subsidiarity. It does not somehow make it so that the federal government can do anything it wants, and the states have to just obey. In fact, that's what the Tenth Amendment makes clear. The scope of the Federal power is limited (and explicitly so!) to the powers granted by the Constitution. So Congress can regulate interstate commerce, per the Constitution. And the Supremacy Clause ensures that while the states can make their own laws, none of them may conflict with, for instance, Federal law regulating interstate commerce. The reading that this makes the states powerless and "no longer sovereign" is something you add to it. That's not in the Constitution. So that, too, becomes a matter understanding the concept of "sovereignty". Well. Let's make no mistake about it: opponents of the Constitution were quite fearful to lose their sovereignty back in the day! But they were assured, by such prominent Federalists as Hamilton, Adams and Madison (who was at that time still in their faction) that the Constitution was a compact, into which the sovereign states would enter voluntarily, for their mutual betterment. Now, you may well say that this wasn't legally binding, either-- but since the Constitution itself neither confirms nor denies the exact sovereignty of the states, our best guide to the truth is the understanding of those who adopted the Constitution. They clearly felt that they were forming a "more perfect Union"... of sovereign states.


Now, "sovereign" doesn't mean they could do whatever they wanted. The Constitution limits the states, because within a Union, you can't have all members acting in whatever way they like. That's crystal clear. But it's equally clear that the Union is voluntary. The idea that states lose all sovereignty is patently false (or there would be no Tenth Amendment), and the idea that they can't leave the Union is equally false. If that were the case, it would be one of the things prohibited to the states by the Constitution.

I would argue that the Elastic Clause makes it such that the Federal Government can do just about anything that it wants, so long as it is not expressly forbidden by the Construction. Furthermore, if you insist on restricting yourself to the Founders' (whatever that is) view of the Constitution, Mr. Madison would disagree with you on whether a state can unilaterally leave the Union. To quote him:
"A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it."
"It surely does not follow, from the fact of the States, or rather the people embodied in them, having as parties to the Constitutional compact no tribunal above them, that, in controverted meanings of the compact, a minority of the parties can rightfully decide against the majority; still less that a single party can decide against the rest; and as little that it can at will withdraw itself altogether from its compact with the rest."
"A careless view of the subject might find an analogy between State secession and individual expatriation. But the distinction is obvious and essential. Even in the latter case, whether regarded as a right impliedly reserved in the original social compact, or as a reasonable indulgence, it is not exempt from certain conditions. It must be used without injustice or injury to the community from which the expatriating party separates himself. Assuredly he could not withdraw his portion of territory from the common domain. In the case of a State seceding from the Union its domain would be dismembered, and other consequences brought on not less obvious than pernicious."
In other words, leaving the Union requires either mutual consent, or extreme abuse by one party. In neither case, I would say, would Madison have supported secession as practiced by the Southern States. Neither did they obtain consent to leave, nor was the South a victim of abuse via the Federal government prior to their attempted secession.

Another severe error, and derived from the first one. The Constitution only applies to states within the Union. By leaving the Union, you automatically ensure that the Constitution stops applying to your state. Since the CSA was formed by already seceded states, and no state was even allowed to join unless it had first exited the USA, Section 10 of Article I simply did not apply to them.

To argue that Section 10 of Article I did apply, you must first prove that secession was illegal and thus invalid. This particular argument does not prove that, and in fact hinges on it already being proven-- which you have not done.

The U.S. Constitution does not mention secession, or anything like it. There is no procedure established for how one or more states might leave the Union. There is, however, a procedure for how one might enter the Union. By permission of Congress. I would suggest that any act of secession would function similarly. Regardless there is no evidence to indicate that the Founders considered secession to be one of the delegated powers included in the 10th Amendment. The only thing we do have in the Constitution is the Supremacy Clause and Section 10 of Article I.

Yeah, Texas v. White. Which was a 5-3 decision, just four years after the war, and three of the majority were justices appointed by Lincoln. A simple case of "the winner writes the history books" (or in this case, the legal decisions). There was literally no way that any court, at that point, was going to say "oh, yeah, secession was actually legal and our government basically committed a bunch of war crimes by forcibly suppressing it". Understandable, but still a blatantly political verdict. More on that below.

That is not what I was referring to. I was referring to Chisholm v. Georgia, which in its decision stated that the Constitution was a creation of the people directly, not the states therein.

Except that unless you can actually prove that secession was prohibited by the Constitution (which you have not done), secession was a legal process. Also, after the war, Jefferson Davis did want his day in court, to argue his position. He wanted to refuse any possible pardon, even. They ultimately dropped the whole case against him, just to prevent the possibility that he might get absolved on precisely the basis that secession wasn't illegal. Nowadays, there are people who like to argue that the procesution was dropped "so he wouldn't get a platform to spout his ideas"-- but that's evidently nonsense, since no other such platforms were ever denied to former Confederate leaders. The fact is, they knew damn well he had a point (this was before Texas v. White), and were scared he'd be vindicated. He certainly believed it, as he was furious that he didn't get a chance to argue his case. (Indeed, a high-profile trial of Jefferson Davis would have made it much, much harder to just brush off secession as 'null', since he'd be very vocally arguing his exact position-- which was strong.)

The problem with this argument is that for secession to be a legal process, the Nebulous Founders would have written out a legal process by which it would have been done. The fact that they did not write out is telling.

Now you conflate the legality of an act with the intention behind it. That's just poppycock. Nobody says their motives were good (at least, nobody here, to my knowledge). That doesn't make the instrument illegal. Basically, you denouncing secession in general as illegal because it was done in this specific case to preserve slavery is like me calling all e-mail evil because some idiot sends me a virus one time. It makes no sense. The slavery aspect is specific to this one case, so it cannot be used as an argument against secession in general. It can't even be used as an argument against this secession, since it's the slavery aspect and not the secession aspect that is faulty. (In other words: if the North had seceded from the South, their motives would have been untainted-- but by your logic, they'd still be traitors. In reality, they'd just be implementing their right to self-determination, albeit with far more noble motives than the South in OTL.)

Noted.

No. It's really not. You haven't proven that it is, you have only claimed it. My view is that regardless of the case-specific particulars of any specific instance, secession itself is simply an expression of self-determination and completely in line with the long Western tradition regarding both both ethics and law, going - as I pointed out - all the way back to Saint Augustine. My backing for that claim is that entire tradition. Your claim is that secession is treason. Your backing for that has thus far been... the fact that you say so.

My backing for their committing treason is the U.S. Constitution's definition of treason.

Do observe that there are at least two main arguments going on here, which you seemingly conflate.

-- First, there is the matter of whether secession itself is an act of treason (I contend it isn't, and I can back that up by a wide array of precedents going back centuries). This is a general point, and thus does not refer to laws. It is an ethical question. This is actually the most interesting one, at least for me, and the most fundamental one. It's also the one where you have not even attempted to back up your claims with any kind of support.

-- Second, there is the question whether the secession of the Southern states was legally treason. Your arguments in favour of that claim have thus far been lacking.

Note that even if you did prove the second one (which I don't think you can), I'll still just refer to the first one. That is: if any law outlaws secession, I hold that it's an unethical law. The very existence of such a law is a sound ethical reason to secede at once from the regime that has implemented it. In itself, a law forbidding secession justifies secession.

You do that. It will not change the fact that Lee and his fellow waged war on the United States, committed treason by doing so, and did so without any sort of legal process other than an appeal to the force of arms.

 

[Tank Cdr]

In an effort to get this thread back on track, let's look at the possible effects on the Civil War. Robert E. Lee was one of the five original officers with the CSA rank of full General. The question is who will be promoted if Lee is not there? My guess would be Braxton Bragg. The second question is who takes over the AoNVA after Joseph Johnston is wounded? The answer to those questions would determine the performance of the AoNVA without Lee.

 

[StephenColbert27]

In an effort to get this thread back on track, let's look at the possible effects on the Civil War. Robert E. Lee was one of the five original officers with the CSA rank of full General. The question is who will be promoted if Lee is not there? My guess would be Braxton Bragg. The second question is who takes over the AoNVA after Joseph Johnston is wounded? The answer to those questions would determine the performance of the AoNVA without Lee.

Sorry, my fault, seeing as I started it. The replacement of Johnston was something I pondered a bit before.
@Skallagrim
Agree to disagree for now?

 

[Tank Cdr]

If Bragg is the 5th full General, I would guess he would get it, the other Generals were otherwise engaged.

 

[StephenColbert27]

If Bragg is the 5th full General, I would guess he would get it, the other Generals were otherwise engaged.

I'd agree, but he was one of the Corps commanders under (at this point) Beauregard as they pull back from Shiloh and evacuate Corinth. He might get it eventually, but someone has to take over until he can arrive. Assuming, anyway, that Davis doesn't just pick someone close by so he doesn't have to deal with that lag time.

 

[Tank Cdr]

I'd agree, but he was one of the Corps commanders under (at this point) Beauregard as they pull back from Shiloh and evacuate Corinth. He might get it eventually, but someone has to take over until he can arrive. Assuming, anyway, that Davis doesn't just pick someone close by so he doesn't have to deal with that lag time.

Yes, OTL, but if he was one of the original 5 full Generals he would not be a Corps Commander, I assume he would be in Richmond as Lee was OTL.

 

[StephenColbert27]

Yes, OTL, but if he was one of the original 5 full Generals he would not be a Corps Commander, I assume he would be in Richmond as Lee was OTL.

If I have my dates right, Johnston was wounded on May 31st, while Bragg was under Beauregard having just withdrawn from Corinth the previous day. Shortly thereafter Bragg took over when Beauregard took leave. So no, it doesn't seem like Bragg would have been in the vicinity of Richmond.

 

[Skallagrim]

Sorry, my fault, seeing as I started it. The replacement of Johnston was something I pondered a bit before.
@Skallagrim
Agree to disagree for now?

Fine by me, as derailing the thread further would make me feel guilty. Should a more appropriate thread to discuss this crop up, I'd love to continue this, as you've raised some points to which I'd like to respond. (As an informative note, rather than cause for further debate, do allow me to note that Chisholm v. Georgia is no longer standing precedent: it was specifically superceded by the Eleventh Amendment, which was adopted for just that reason.)

I would like to note that I don't believe this is a common opinion.
The confederate constitution forbidden it and modern cases tend to be complicated from my limited understanding when it is allowed.

Also as a mere point of information, rather than an attempt to start a debate: self-determination is in fact a cornerstone of modern international law. Modern cases are complicated because international law is mostly a "fangless beast" (the UN has little real power), and existing national governments often just ignore their obligations.

I do admit that this allows for a Machiavellian refutation of my position (i.e. "nice ideals, but that's not the real world"), but that's where my background in ethics becomes overly evident, I'm afraid.


...Coming back to the actual topic of the thread, and specifically to who would replace Johnston absent Lee, we should keep in mind that Lee's appointment didn't come out of nowhere. Davis had a tense relation with Johnston, and had brought Lee aboard as a personal advisor at an earlier point-- specifically to undercut Johnston's authority. My guess is that whoever he brings in to serve in such an key advisory role instead of Lee will also be the one he appoints to lead the army when Johnston is wounded. Simply because Davis, to some extent, saw Lee (his advisor) as an extension of his own authority. This fits with Davis' tendency to micro-manage and assume control over all aspercts of leadership. He will want someone that he considers to be "his man" in that role, clear and simple.

 

[Tank Cdr]

...Coming back to the actual topic of the thread, and specifically to who would replace Johnston absent Lee, we should keep in mind that Lee's appointment didn't come out of nowhere. Davis had a tense relation with Johnston, and had brought Lee aboard as a personal advisor at an earlier point-- specifically to undercut Johnston's authority. My guess is that whoever he brings in to serve in such an key advisory role instead of Lee will also be the one he appoints to lead the army when Johnston is wounded. Simply because Davis, to some extent, saw Lee (his advisor) as an extension of his own authority. This fits with Davis' tendency to micro-manage and assume control over all aspercts of leadership. He will want someone that he considers to be "his man" in that role, clear and simple.[/QUOTE]

If we operate under the assumption that Bragg would be the 5th full General with the absence of Lee, is he the Commander that Davis is looking for, or does one of the AoNVA Corps Commanders get promoted and take over command of the army?

 

[Dave Howery]

one minor fallout of 'Lee stays out of it'... Arlington wouldn't be the place it is today, I imagine. I have to wonder though... if Lee did indeed sit it out at Arlington, what would happen when the North overran his home?

 

[sloreck]

If Lee is sitting it out, not much happens IMHO. The area now considered the close in DC suburbs was pretty quickly occupied by Union forces. You might very well see some Union troops encamped upon the grounds of Lee's property, or even some fortifications on that land - not sure if any were erected there OTL - but not much else. Certainly the house and immediate grounds would be left alone, simply no reason to throw Lee out and use the structure. As has been stated before, without Meig's son being killed AND Lee on the CS side, he won't use the grounds for a cemetery there will be one in the DC area, but it wasn't like the Lee place was the only possibility.

 

[Kome]

As for gaining great fame elsewhere: that may just not happen. Lee was seen as a man with his career behind him when the conflict started. Initially, his nickname was "Granny Lee". Going off on some wild foreign adventure hardly seems like his style.

A lot could change in a man over 10 years, though about a decade before the Civil War he and Davis did mull over the idea to do some mercenary work together in Cuba, so he's floated it before. I think there's interesting possibilities with Lee going abroad.

 

[Skallagrim]

If we operate under the assumption that Bragg would be the 5th full General with the absence of Lee, is he the Commander that Davis is looking for, or does one of the AoNVA Corps Commanders get promoted and take over command of the army?

I'm not at all sure that he is the Commander that Davis is looking for, but he might very well be the Commander that Davis thinks is the Commander he's looking for. In this scenario, I'd think it's more realistic that it would be Bragg than that a Corps Commanders gets to take over command of the army.

one minor fallout of 'Lee stays out of it'... Arlington wouldn't be the place it is today, I imagine. I have to wonder though... if Lee did indeed sit it out at Arlington, what would happen when the North overran his home?

As pointed out, they'd hardly overrun his home. Lee was a respected gentleman before the war, and the fact that he opts not to take part in the war will hardly make him a target for persecution. Whether he's around or abroad, his home will be left unmolested, unless there's some ATL Southern attack on the area which causes a battle right there. I consider the chances of that very slim.

A lot could change in a man over 10 years, though about a decade before the Civil War he and Davis did mull over the idea to do some mercenary work together in Cuba, so he's floated it before. I think there's interesting possibilities with Lee going abroad.

Agreed that it's not impossible. of course, a decade before the war, we're looking at the exact time when Southern filibuster endeavours were at their most popular. That's largely died down by '61. Although it's an interesting idea to think of Lee in China or something wild like that, I do have my reservations about the premise. If Lee were to go abroad to avoid the whole war, chances are he'd find relatively uneventful work as a military instructor/reformer in the service of a Latin American power. (Or at least, that's my best guess.)

 

[Incanian]

Just a little update, my comment about Robert E Lee staying Neutral, and fighting in the Paraguayan war, I turned it into a thread.

here you go.

https://www.alternatehistory.com/forum/threads/robert-e-lee-hero-of-paraguay.440426/#post-16780769

 

[frustrated progressive]

Could the Cult of "Marse Robert" have conceivably developed around another confederate general?

 

[TRH]

Could the Cult of "Marse Robert" have conceivably developed around another confederate general?

They'd need to deliver at least some significant victories, plus an aggressive disposition. That means Johnston's out, I think. Perhaps a surviving Albert Sidney Johnston?

 

[Kirook]

Well, when it looked like Virginia was going to secede, Lee asked his mentor, Winfield Scott, if he could retain his role in the US Army without going to the front. Lee basically wanted garrison duty in Maine, so he wouldn't have to get involved. Scott, in response, more or less said, 'you're either with us, or against us' so Lee promptly joined the Confederacy. If Scott agreed to shuffle him off to an out-of-the-way posting, then Lee would likely have a much calmer life, but he would have been forgotten by history.

You know what would be very, very interesting? If Lee got his Maine Garrison where he though he wouldn’t have to do any fighting...and then a Trent War happened.

 

[frustrated progressive]

They'd need to deliver at least some significant victories, plus an aggressive disposition. That means Johnston's out, I think. Perhaps a surviving Albert Sidney Johnston?

Cleburne perhaps?

 

[StephenColbert27]

Cleburne perhaps?

Not if he pushes for black soldiers. That killed any chance of advancement beyond his division, imo.