Civil War

Cynthia Nicoletti's Secession on Trial: The Treason Prosecution of Jefferson Davis

Constitutional theory meets criminal defense meets Civil War history.


A few weeks ago, I opened up Professor Cynthia Nicoletti's recent book, Secession on Trial: The Treason Trial of Jefferson Davis. I didn't expect that I'd spend the next few weeks fiercely poring through it, but I've found myself unable to put it down or stop thinking about it.

The book tells the story of the federal government's attempt to prosecute Jefferson Davis, the former president of the so-called Confederate States of America, after the end of the Civil War. (If, like me, you found yourself thinking, "huh, I didn't even know that there was a treason trial of Jefferson Davis," I will spoil the ending—the trial never comes, and Davis receives the benefit of the general amnesty from President Johnson.)

Nicoletti argues that at the time, the legality of secession was far less settled by the war than we like to think. If secession was lawful, Jefferson Davis might no longer have been a citizen of the United States subject to the U.S. law of treason, and the threat of that defense—and the possibility that it might succeed in front of a jury—kept the federal prosecutors quite nervous about pressing the issue. That, among other things, is how Davis's lawyers managed to run out the clock until the amnesty.

But the book is packed with so many other interesting tidbits and legal arguments that I suspect it will be a delight for many people interested in constitutional law or criminal procedure. The defense succeeded only because of the intersection of these uncertain questions of high theory with the ordinary stuff of criminal practice—securing continuances, negotiating bail, trying to get hints about the particular preferences of the trial judge, litigating procedural technicalities. Among other things, we get surprise appearances from: the appellate jurisdiction of the Supreme Court; the law of criminal venue; early lectures on what we now call "professional responsibility" by George Sharswood; Section Three of the Fourteenth Amendment; and much more.

Secession on Trial is also just a delight to read. I cannot think of the last time that I read a work of legal history that was so rich with interesting legal argument since David Currie died. In any event, here are three other themes that I kept noting in the book.

The rule of law and the civil war. As Nicoletti emphasizes, the administration in the Davis case was at pains to adhere to the letter of the law, and a somewhat conservative interpretation of the letter of the law at that. This led them to shy away from several tactics that might have let them avoid trying the case in front of a Virginia jury (such as arguing that Davis could be tried by a military commission, or by a jury in either Indiana or West Virginia). She argues, I think persuasively, that this is because it was seen as especially important to restore the ordinary legal norms that had been frayed during the Civil War.

This is relevant to a larger debate about constitutional history. I sometimes come across constitutional scholars today who will argue, in effect, that "the Civil War changed everything" in constitutional law. We know that the war led to three incredibly important amendments to the Constitution, and to a number of important legal precedents, but one sometimes sees scholars of federalism or even other aspects of constitutional law write as if the entire constitutional system was essentially melted down and reformed. It is striking that the participants in Nicoletti's book did not behave that way. They went to great trouble to hold themselves out as continuing the pre-existing legal regime, even at tactical cost.

Zealous advocacy. Charles O'Connor, Jefferson Davis's defense lawyer, really worked all the angles in support of his client. Because his client's interests were implicated by broader political thought about secession and by the law of military tribunals, he helped prop up arguments by other lawyers in other cases that could help his client's general position. When it looked as if things might turn very bad for Davis, he advised him to flee the country, and offered to reimburse the folks who would lose money on Davis's bail. These are the kind of things I usually only hear about in fanciful hypotheticals about the ethics of criminal defense, but they may well have been in Davis's best interests, and they raise interesting questions about what the defense of a much-hated and high-profile criminal defendant should look like.

Liquidation. In a forthcoming article, I recount James Madison's theory of constitutional interpretation through practice—"liquidation"—by which a repeated course of constitutional decisions can eventually settle an uncertain point of constitutional law. One historical example that I have always had a hard time explaining in this framework is the Civil War's settlement of the constitutionality of secession. In the Civil War, it looks as if the constitutional question was settled in one very big episode, rather than a series of decisions as liquidation would require.

But after reading Nicoletti's fascinating narrative, I think that the process was closer to liquidation than I realized. Nicoletti shows that the constitutionality of secession was not quite so settled after the war, which is why subsequent episodes like Davis's treason trial made Unionists so nervous, and why various decisions and debates after the war were still important for the secession issue. Unionists invoked the tradition of "trial by battle" to explain how war could settle a point of constitutional law, but perhaps the reason they had to do so, and that the analogy had so much drama, was because it in fact required a longer course of practice before the issue was settled.

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  1. I’ve never understood the hypocrisy over secession. The Articles of Confederation were quite clear about “perpetual union”, yet it was brushed aside with subterfuge and deceit by the constitutional convention. The preamble of the Constitution has no such clause, yet Northern politicians forced four years of war over it.

    I wonder if anyone ever tried to overturn the Constitution and restore the Articles of Confederation by lawsuit.

    1. The secessionist states seized federal facilities & properties by force throughout the south well before Sumter, fired on a resupply ship to that fort while Buchanan was still president, and then started the war by shelling Sumter after Lincoln’s inauguration.

      That looks like a rebellion, not a legal constitutional process. (Of course there had just been a legal constitutional process, the election of 1860. That’s why they rebelled)

      1. Yes, all that is clear enough, but it is unrelated to the arguments which centered on secession itself. I don’t recall ever reading about any politician, north or south, claiming the war started over seizing property. The south was sure angry that the north didn’t evacuate from the south, and the north was sure angry that the south took property by force. But all the claims I have read were over secession alone. Well, and slavery, which was the root cause.

        1. What has always been decisive to me is that the Constitution does not provide a procedure for getting out of the union. Rebellion can be justified by success; indeed, it is rarely justified by anything else. But to say that you can secede under the rules without the consent of the other participants (I assume that if Florida wanted to secede and the rest of the country was willing to let it go, some ad hoc procedure would be worked out.) means there has to be a recognized way to do it. And there isn’t.

          1. It didn’t have to provide a procedure for getting out. It had the 10th amendment; All powers not delegated to the federal government, or forbidden the states, were reserved to the states or the people.

            Since the Constitution was silent on the topic, the states had the power to secede.

            1. The Federal government acquired the Louisiana Purchase so those states can’t secede. Good luck making the south work without the Mississippi River and New Orleans in 1861.

            2. And how is it done?

            3. The constitution isn’t silent. It forbids secession in several different provisions. Also, the power to preserve the union is given to the federal government.

              1. Well, then don’t just leave us hanging, cite those provisions!

                1. The Supremacy Clause is Exhibits #1, 2, 3, 4 and ?. How can a state secede? By enacting a law (whether via referendum or legislature) saying that it is seceding? But that law is void ab initio under the Supremacy Clause. Aside from that,

                  – Art I (8): One of the purposes for which the militia may be used, is to “suppress Insurrections”.
                  – Art I (9): One of the cases when the writ of habeas corpus may be suspended is in cases of rebellion.
                  – Art I (10): “No State shall enter into any Treaty, Alliance, or Confederation”.
                  – Art III (3): The definition of Treason: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
                  Art IV: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”

          2. ” Rebellion can be justified by success; indeed, it is rarely justified by anything else”

            To me, this is exactly it. If the South wins the Civil War, I might intensely dislike that result, but I also can’t dispute it no matter what I think about the “legality of secession”. Nothing secedes like success.

            But the South lost the Civil War. And having lost the Civil War, what the Confederate leaders tried to do is treasonous. They levied war against the United States while owing allegiance to it, and that’s the definition of treason.

            1. They owed allegiance to their respective States. Once seceded, the States were independent of the Union. Or perhaps Brits owe their allegiance to the EU, not Britain? Mistake to secede, mistake for Lincoln to provoke border States, and mistake for both sides to not negotiate before nearly 1,000,000 good men died.

              Whatever you might think about secession, there’s nothing “treasonous” about fighting for your State when called.

              1. This is sophistry. Every officer in the Confederate army had sworn an oath to the United States. If they had won it would not be treason. They didn’t; it was treason. You can call it (~treason) all you want.

                1. Not every officer in the Confederate army had sworn an oath to the United States. Nathan Forrest and John Singleton Mosby hadn’t.

          3. If you can only leave by consent of the others, you are not a member, you are a prisoner.

            1. Well that is the way it is operationally these days. Do you feel like America is a prison?

              By this definition, are parents prisoners of their children?

            2. If the South had peacefully left there might not have been a war. That’s not what happened, though.

            3. If you can only leave by consent of the others, you are not a member, you are a prisoner.

              No, you’re someone bound to an agreement. You can’t unilaterally leave any contractual arrangement (unless the contract provides for that eventuality) or marriage for that matter.

              1. Actually, you can unilaterally leave almost any contractual arrangement, if you pay damages that make the other party whole. (Marriage is a unique contract: You can breach it unilaterally and often make the other party materially worse off, what with child and spousal support obligation.)

                1. Contracts of national union require specific performance, I guess.

          4. The opening sentence of The Declaration expresses the right to rebel, but it was not carried over to The Constitution.

            As far as I know, no government ever explicitly grants the right of violent revolution to its citizens. Rebellion remains a human right, not a legal right. “Succeed or hang” makes it a decision not to be taken lightly.

            I realize that secession and rebellion are not the same thing, but they are closely related.

    2. Yea, he should have just been executed normally as an enemy combatant.

  2. “Here, it looks as if the constitutional question was settled in one very big episode, rather than a series of decisions as liquidation would require.”

    Looks to me like it wasn’t settled at all. You can, of course, create the illusion that a dispute is settled by killing enough people on one side of the dispute, but it becomes unsettled again the moment people doubt that they’d be killed for dissenting. Because nobody thinks killing people actually addresses the merits of an argument.

    1. The narrative of the Lost Cause disproves your statement. After the Civil War the south was uninterested in re-litigating their actions, preferring layers of fiction and myth over anything like history, reason or argument. This wasn’t from fear of oppression either. By the presidency of Hayes in 1877, they had total freedom. They found Jim Crow and another hundred years of oppression satisfaction enough. Secession was dead to them as an idea by then. It was only a bedtime story to tell their children – tawdry and ahistorical, but treasured all the more so…..

      Of course some of that romantic haze persists to this day among my fellow Southerns. Rosy tales and warped history, sure. Belief in the idea of secession, not so much.

      1. That they got what they wanted without secession doesn’t mean the question of whether secession was constitutional had been settled in the negative. It had merely been shelved.

    2. I agree that killing people — literally or by subjugation — fails to address the merits of an argument.

      Secession is a rose by another name. Isn’t it sufficient for one to simply declare the causes which impel him to secession before dissolving the political bands which have connected him with another?

      1. No. That was the natural right of rebellion, not the legal right of secession.

    3. “Looks to me like it wasn’t settled at all. You can, of course, create the illusion that a dispute is settled by killing enough people on one side of the dispute, but it becomes unsettled again the moment people doubt that they’d be killed for dissenting. Because nobody thinks killing people actually addresses the merits of an argument.”

      That’s not true at all. I am not a fan of violence, but it is no doubt that the results of warfare give rise to de jure principles. The American revolution is one example of this.

      1. And, is “giving rise to de jure principles” the same thing as settling arguments? I don’t think so. It’s just, “We won, and if you don’t go along with it, we’ll throw you in prison.”

        Just the sort of thing I was talking about when I said that killing people only settles arguments so long as people continue to believe you’ll kill them if they dissent.

        1. In terms of legal rules, all arguments are settled by force, ultimately. The applicable government has the monopoly on the use of force and compels the outcome. In international relations, the more powerful government wins or deters the war, or maybe the less powerful government or group coerces an agreement through irregular warfare and sabotage.

          Life isn’t a debating society, Brett.

          1. Nah, life is a debating society. We don’t live in court rooms.

    4. Exactly right Brett. “[H]ow is it proposed to preserve the Union? By force? Does any man in his senses believe that this beautiful structure – this harmonious aggregate of States, produced by the joint consent of all – can be preserved by force? Its very introduction will be certain destruction to this Federal Union. No, no. You cannot keep the States united in their constitutional and federal bonds by force. Force may, indeed, hold the parts together, but such union would be the bond between master and slave – a union of exaction on one side and of unqualified obedience on the other.” -Senator’s Speech Against the Force Bill, Feb. 5, 1833.

      1. “…but such union would be the bond between master and slave…”

        He has a point, the southern states were certainly subject matter experts on that relationship. I wonder how they kept it together for so long? Oh, right, by force.

  3. Secession was legal for the original 13 colonies, but it wasn’t legal for Louisiana and New Orleans and the area around the Mississippi to secede which were initially federal property. New Orleans and the Mississippi River were the most important part of the south and it cut Texas off (Texas also had the right to secede) which undermines the economic case for seceding. Also secession would have exacerbated the fugitive slave issue because the Constitution would no longer apply to the south. Basically secession was Davis being a douchebag because the Kansas Nebraska Act had been a Pyrrhic victory in 1854 and the slave states were going to lose power in the Senate.

    1. Remember that slavery was the basis of the South’s economy. A loss of power in the Senate was not just a political setback. Essentially the North was telling the South, “Your prosperity is evil so we’re going to end it.” Morally correct sure, but still an existential threat.

      1. slavery was the basis of the South’s economy.

        I wonder about this. Cotton and tobacco may have been the basis, but why couldn’t the plantations have used wage labor instead of slaves? I guess slaves were cheaper, so what happened was that slavery redirected the proceeds to the planters, away from the workers.

        Now, it may be that working on a plantation was so unpleasant that it would have been impossible to pay market wages and still survive economically. If that was the case then the whole planation economy was built on sand – it was a poor use of available resources. After all, if you have slaves you can make lots of fundamentally bad businesses profitable – particularly if they rely on unskilled labor.

        1. People get tobacco all wrong?the “golden age” of tobacco was the invention of the cigarette which happened decades after the Civil War. Also the youngest great American university is Duke founded with cigarette money…it is even younger than Rice and Stanford.

          1. Folks at Brandeis might disagree with you there.

            1. Let me clarify, I am referring to the gift that made the university’s endowment billions in today’s dollars. So Brandeis’ endowment isn’t a billion so I don’t consider it one of the greats because I am really referring to endowment. So even Washington University with Busch and Emory with Coca-Cola are younger than Duke’s cigarette wealth endowment.

              1. That should say older than Duke’s cigarette endowment.

          2. Whatever, Sebastian.

            There is no doubt that tobacco was a major crop in the ante-bellum south. Not as big as cotton, maybe, but still a big money-maker.

            1. With the invention of the cotton gin in 1793 any land used for tobacco that was suitable for cotton would have eventually been switched to cotton. Then with the invention of the cigarette after the Civil War the land would have been switched back to tobacco. So colonial South Carolina, for instance, was a tobacco producer but from 1788 to 1861 tobacco would have been a fraction of cotton production.

        2. Actually, in many cases,and probably overall, slaves are more expensive than wage labor. In fact, in SC, “in the day” plantation owners would use Irish labor to perform dangerous work rather than use slaves because slaves had value and wage labor was instantly replaceable.

          1. …Are you apologizing for slavery? Because it sounds like you’re arguing capitalism incentivized slaves be well-kept, which is manifestly anti-historical.

        3. The problem with wage labor was that planters continually lost their labor force to the frontier. In the southern colonies, once a man saved up to buy a few tools, he could walk to the west for a few days and establish his own farm. He would not have title to the land, but few were ever evicted. Most of these squatters became subsistence farmers (if the Indians didn’t kill them), barely making a living and having to periodically sell their patch of land to a planter for the funds to move west and start over, but to the type of man that could buy his own ticket across the Atlantic, this was preferable to laboring in another man’s fields.

          Planters attempted to use bondservants instead: white people that contracted to a fixed period of work in exchange for their passage money. In New England, this was somewhat successful for the craftsmen and other businesses in their towns, because subsistence farming in New England was quite grim. From New York south, only the most honest bondservants finished their term. It was too easy for a white man to just walk out on his owner – and not uncommon for the absconding field worker to take one of the domestic servants with him. Without photographs or fingerprints, it was too difficult to catch an absconder and prove his or her identity.

          So they settled on racial slavery – runaway African slaves would stand out, and authorities could assume that a black was a runaway unless it was proven otherwise.

          1. The writers of the Constitution had to compromise on the issue of slavery, but they thought it would only be a temporary issue. As the frontier moved west, retaining wage workers should have become easier, and they expected that economics would eventually favor wage work. Wage workers are better motivated, and one doesn’t have to feed them in the winter or in retirement. Unexpected factors changed that calculation. The widespread cotton plantations enabled by the cotton gin greatly increased the labor requirements, possibly making it impractical to fill the need for workers without kidnapping them from overseas, but I think the bigger factors were social. When black slaves were the most visible part of the field and domestic workers, poor whites felt the need to prove they were better than them by NOT accepting such work. Even when they were so hungry they ate clay. At the other end of the economic spectrum, owning slaves was the visible sign of success. Even if hiring their poor white neighbors would have provided a better workforce, they needed the slaves to prove their own status.

            1. And so, in 1787, the planters could accept a Constitution that didn’t explicitly authorize slavery, but didn’t ban it. In 1808, they could accept a law banning the importation of more slaves, but set to breeding them. In 1830, Virginia could consider eliminating slavery – but didn’t. After that, attitudes hardened. By the 1850’s, just discussing the end of slavery became unacceptable, and even illegal in several states – and antislavery talk could get one murdered in the street in Kansas (there was a civil war there about six years before secession) or beaten severely even in Congress. Finally, in 1860 the slave states split the Democratic party rather than accepting a plank that allowed territories and new states to vote on whether to be slave or free. And that’s how Lincoln won.

              Secession was not about preserving slavery in the slave states – Lincoln did not threaten that – it was about retaining the ability to spread their evil west, even in territories where cotton wasn’t a viable crop. And this meant that even if all issues about federal establishments in the territory of the seceding states had been settled amicably, the CSA and USA were still going to go to war sooner or later over the western territories.

      2. The writing was ideed on the wall with respect to loss of slave state economic/political power but the goal of the Civil War wasn’t actually to secede and create another country it was to defeat Lincoln in 1864 and rejoin the Union with more power. The fugitive slave issue simply could not be solved by secession and secession was a Quixotic last ditch effort to perpetuate slave state power within the framework of the United States.

        1. Citation? I don’t think I’ve ever seen quote nor writing by any southern leader suggesting they envisioned rejoining the Union.

          1. Think about it?if secession was successful slaves would only have to run to Pennsylvania instead of Canada to gain their freedom. Also, everyone knew the Union would never allow New Orleans to secede which defeats the whole purpose…and New Orleans fell in April of 1862 but the war continued because secession wasn’t the goal. Secession made no sense unless the goal was not to secede but to win concessions that would perpetuate slavery in the face of more free states being admitted.

            1. You can think anything you like, but nobody actually made any claim remotely like yours.

              Additionally, one of the issues for the South was that England and France would pay much higher prices for cotton, but the North pushed for, and got, high export taxes on cotton to assure it as a low cost raw material for northern textile manufacturing. This was a more significant issue in the South’s secession than generally acknowledged.

              You might remember, even in writing “Gone With The Wind” Rhett Butler was a smuggler before the war. He smuggled cotton to Europe.

              1. It is remarkable how effective the Lost Cause was. In a discussion about historical causes of the war, we are chided for not remembering the imaginary job of an invented character from a fictional, motivated retelling of the Civil War written 70 years after the fact.

              2. but the North pushed for, and got, high export taxes on cotton to assure it as a low cost raw material for northern textile manufacturing.

                That’s weird, then; you’d think the south would have just gone to court and gotten those export taxes struck down, since the Constitution expressly forbids taxes on exports.

                This was a more significant issue in the South’s secession than generally acknowledged.

                Yes; many completely false statements are not generally acknowledged. You know who didn’t acknowledge this made-up fact of yours? The Southern states explaining why they were seceding.

        2. Funny stuff. If every State remained in the Union during Lincoln’s tenure, slavery would have continued within those States, undisturbed.

          Slave v. Non-Slave States only mattered as a power tool in western expansion. Northern (monied) interests and Southern (landed) interests sought power. Both sides. Slavery was a hot button issue for each territory and new state. Of course, the issue would only prohibit southerners from residing in the territories/new states.

          Secession had far more to do with reintroduction of the Morrill Tariff Act (60% tariff), loss of power in the House, Senate, Electoral College, and Executive, and belief that Lincoln would not pursue States that seceded on Buchanan’s watch.

          1. It is doubtful that slavery would have continued undisturbed. Slave labor was often more costly than wage labor and the moral aspect was becoming an issue for many in the South. Remember for example that Robert E. Lee had already freed his slaves before the war.

            1. “Robert E. Lee had already freed his slaves before the war.”

              Not really. He freed his father-in-law’s slaves after his death because Lee was the executor of the will and that was a provision in the will. The slaves didn’t seem to think he was a particularly kind master when they were under his dominion.

              And many slave owners were property rich (when including their slaves) but cash poor. After abolition they were just plain poor. Many rich folk don’t like the prospect of being poor.

            2. “It is doubtful that slavery would have continued undisturbed”

              Slavery grew stronger in the deep south in the decades before the Civil War. In 1860, slaves made up 57% of the population in South Carolina, with Mississippi second at 55%, Louisiana following at 47%, then Alabama at 45% and Florida / Georgia – both at 44%. These were the decades when southern “filibusters” traveled down to Central America, looking to seize new lands for slavery’s expansion. This was the time of the ugly bloody war in Kansas, fought to push slavery into new territory. The peculiar institution looked pretty robust at the time.

              “the moral aspect was becoming an issue for many in the South”

              And yet that “moral aspect” posed no problem to the hundred years of lynchings, brutal oppression and Jim Crow laws following slavery’s demise. Some “moral aspect”, huh?

            3. It is doubtful that slavery would have continued undisturbed. Slave labor was often more costly than wage labor and the moral aspect was becoming an issue for many in the South. Remember for example that Robert E. Lee had already freed his slaves before the war.

              False and false. Lee did not free his slaves before the war, and if slave labor was more costly than wage labor, then why did most southern states actually forbid manumission? Why did they oppose even compensated emancipation? Even a slave state like Delaware, which had only a tiny number of slaves, rejected that proposal.

              There is zero evidence that slavery was dying out or losing support in the south.

          2. Here’s a question for Mister Onslow :

            The deep south quickly seceded after Lincoln’s election. Those states wanted to convince their slave-holding brethren to follow, so they appointed commissioners to travel to the remaining slave states and make their case to the undecided. Virginia was the most critical prize, and three commissioners arrived in Richmond for the convention to debate disunion : Fulton Anderson of Mississippi, Henry Benning of Georgia, and John Smith Preston of South Carolina. They all gave rousing speeches to hearty applause, explained the decision of their home states, implored Virginia to join them, gave good cause for them to do so.

            So you think they mentioned the Morrill Tariff Act? Get real. They talked about slavery. The threat to slavery. The effrontery of abolitionism. The inferiority of Blacks. God’s principle of white supremacy. “Black Republicans”, and their evil plan to stir slaves into rebellion. And in one speech, the unspeakable danger posed to Southern womanhood.

            Ya think they were referring to the Morrill Tariff Act there?

            1. Virginia left after Lincoln unilaterally increased hostilities with seceded States. Whatever led States to secede is not really the question–because abolition was not Lincoln’s reason for invading the South. Whether States had the right to secede is the question. From the KY & VA Resolutions of 1798, to the Hartford Convention, to SC’s exposition & protest, to WI’s refusal to follow SCOTUS orders, I think secession was undeniably a State’s right in the last resort.

              Re: slavery–Lincoln himself was a white supremacist and used slave labor to build the Capitol during the War. The War was not some moral crusade. Sherman’s men raped thousands of women, most of which were slaves. A substantial portion of the federal army were immigrants by 1863. But I’m sure men watched their neighbors and families suffer and die to protect slavery. And I’m confident the immigrants sailed across the Atlantic to liberate slaves.

              1. Now you say “Whatever led States to secede is not really the question….”

                Gone is the central importance of the Morrill Tariff Act suggested above. We’re making progress. Lets move on to some more points :

                (1) “Virginia left after Lincoln unilaterally increased hostilities with seceded States” Really?!? Before Lincoln’s inauguration, the rebel states had already seized federal properties by force throughout the south and fired on an unarmed resupply ship approaching Fort Sumter. And though there is an entire cottage industry of people who “prove” Lincoln “forced” Davis to shell Sumter into rubble, the Confederate leader still started the war. Yet somehow the first military action Lincoln took – merely raising forces – was “unilateral”. Presumably Virginia wouldn’t have seceded if Lincoln never did a single thing. But that wasn’t possible, was it?

                (2) And I think secession will always be rebellion without either a constitutional process already in place, or negotiations beforehand to assure all parties concur. Neither of those were present here. I also think Lost Cause dead-enders (beginning with Jeff Davis himself) talk obsessively about the “right to secede” as if it was an end to itself – as if the south’s action was some theoretical exercise without an aim. The reason for that obsession hasn’t changed (starting with Jeff Davis himself) : Shame about the reason the south rebelled: Slavery

            2. As for Lincoln’s faults, I’ve always found Frederick Douglass’ judgement to be fair :

              “Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined?Taking him for all in all, measuring the tremendous magnitude of the work before him, considering the necessary means to ends, and surveying the end from the beginning, infinite wisdom has seldom sent any man into the world better fitted for his mission than Abraham Lincoln.”

            3. And when the Southern commissioners argued that Virginia’s convention should secede for the sake of slavery, the convention voted against them, even though remaining in the Union would mean that Virginia and the other slaveholding states would be a permanently outnumbered minority in the truncated United States. What drove Virginia to secede was not the prospect of being dominated by hostile non-slaveholders but that of being forced to join in a war to compel other states to return to (or rather to remain in, if you accept Lincoln’s legal argument) the Union.

              1. You actually find Virginia’s posturing persuasive? Your theory (such as it is) finds the state prepared to remain in the Union as long as the country did nothing – absolutely totally nothing – even while the original six slave states split away. And if Lincoln acted with complete passivity? Took no action when Texas joined the Confederacy as well? Took no action as the Confederacy overran federal facilities and shelled federal forts into rubble?

                Then (you think) Virginia would have happily remained in the United States. Waved farewell to it’s slave-holding brethren. Accepted new status as a much-reduced minority in an abolitionist minded union. Never thought once to make the leap, even seeing no consequences resulted….

                Virginia had the most slaveholders in the U.S and the most slaves by sum population. A full one-quarter of families in the Old Dominion owned slaves. By 1840 state law prohibited slaveholders from freeing any slave; a formal act of legislature was required to free a single individual. Although slavery was less important to the economy than ever, state laws actually tightened on slaves immediately prewar.

                Virginia seceded when they finally couldn’t evade the choice. Except for the soon-to-be new state of West Virginia, they chose slavery. Posturing can only take you so far….

                1. In his inauguration speech on March 4, 1861, Lincoln stated, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

                  Lincoln invaded the South for purposes other than liberating slaves. Indeed, he slapped down any and all attempt(s) by Union officers to “free” slaves in occupied towns and cities of the Confederacy.

                  The South fought because it was invaded by a hostile army. Had Lincoln not invaded the South, there would have been no war. Secession was a measure of peace, not war.

      3. Well, the North wasn’t telling the South that. But the South was hearing that.

      4. Essentially the North was telling the South, “Your prosperity is evil so we’re going to end it.”

        Not really. Prewar Lincoln was famously cautious about any kind of radical abolitionism. There was no credible threat to southern slavery from Lincoln as president. But his election meant all the old coalitions were broken. Those coalitions had secured the south’s hold on national power, ensuring the expansion of slavery into new territories. Without expansion, the south believed slavery doomed. It was a threat, but only long-term – coupled with the raw shock of seeing Lincoln elected.

        Also, just the deep south depended on slavery. Upper southern states like Virginia had seen its importance decline, decade by decade. The percentage of slaves in their population had steadily dropped, often thru sale down into the lower south. What’s surprising is the commitment to slavery in states where its economic importance was decreasing. In countries like Brazil, similar states became open to abolitionist compromises. In the U.S, they didn’t.

        1. It’s funny. Pro-Confederates today argue that the war wasn’t all about slavery, but actual Confederates were arguing the opposite in 1860-61. Today, pro-Yankees argue that the war *was* all about slavery, even though Lincoln and those on his side were arguing the opposite in 1860-61 (and Lincoln even was willing to see the constitution amended to guarantee that slavery in the Southern states couldn’t be disturbed by the federal government).

      5. “…but still an existential threat.”

        Well obviously not.

    2. You’re not familiar with “equal footing” doctrine, are you? In fact, each of those states were explicitly admitted on the basis that they would be admitted “on an equal footing with the original States in all respects whatever”. Right there in the Congressional acts admitting them.

  4. The fundamental problem here is that “legal” and “rights” have very little meaning, and even less enforceability, in the context of international relations.

    Assume that the “right” to secede was undisputed. Other than internal political pressures, what was to stop the US from asserting its Manifest Destiny to control the land covered by the new Confederacy? It worked fine vs the Mexicans.

    Part of it is that we like to look at history and see bad guys vs good guys, so whoever thas the “lawe” on their side musta been the good guys. Unfortunately, with very rare exceptions, the sides rarely break down that way. So in the Civil War, you have the North (Imperialists, i.e. the 2nd worst thing you can be in 21st C taxonomy) v South (white slave-owners, i.e the 1st worst thing you can be in 21st C taxonomy).

    1. “The fundamental problem here is that “legal” and “rights” have very little meaning, and even less enforceability, in the context of international relations.”

      Absolutely, and I wish more people would admit this.

      I would make clear that little meaning is not no meaning. There are situations where an international law claim can make a difference and even be enforceable (e.g., when a court applies an international law principle as a rule of decision in a case). But your statement is correct. The great big international relations questions, e.g., the status of the West Bank and Gaza, the status of Crimea, etc., are determined by who prevails militarily and it really can’t be otherwise. And secession crises tend to fall within this category.

      1. This would lead to unfortunate conclusions.

        Specifically, if a country’s leader gets overthrown and finds themselves in custody of a country which wants them prosecuted for international aggression, the positivist conception of law would mean you can either hang the person or let them go, or anything in between, based purely on what feels expedient at the time.

        1. To be clear, I don’t consider “international aggression” to be an actual crime. To me, that’s always been either Kellogg-Briand territory or victor’s justice.

          If a country’s leader gets overthrown, and there are actual serious human rights violations that can be tied to the person, such as torture and the like, you can try the person as hostis humanae generis.

          But if there aren’t, just the let the person go and figure out an exile arrangement.

          1. As for the basic idea that there are crimes against peace as well as crimes against humanity, I accept this, and I don’t think Messrs. Kellogg and Briand invented the idea…of course, if the winning side decides who’s guilty of a crime against peace, they’ll decide it was the other guys, of course. So maybe that’s an argument for not prosecuting crimes against peace, however philosophically justified such a prosecution might be when set down on paper.

            1. The International Criminal Court is another good idea on paper, in that it supposedly avoids victors’ justice and gives the defendant a chance to turn the tables and challenge whether he’s actually an aggressor after all. However, there are so many troubling details about this court, and such reason to doubt the efficacy of international institutions getting into these matters, that I don’t really know what The Answer is.

              1. From the standpoint of a flying-saucer guy from the planet Gronk, it makes no sense for this planet to be divided up into different jurisdictions, instead of them being just able to say “Take Me To Your Leader.” But from practical earthbound considerations, I’m hesitant about world government being able to do anything more than change international wars into planetary civil wars.

  5. Cutting through the legal niceties (is this allowed on a legal blog?), Confederate secession was wrong because Davis and the other secessionist leaders wanted to create a slave republic dedicated to black subordination and enslavement.

    There’s other kinds of secession which are much better, like the USA seceding from Great Britain, or Norway from whoever used to run Norway, the former USSR breaking up into new states, etc.

    1. The difference between a civil war and a revolutionary war is just who wins.

      Treason doth never prosper, what’s the reason? For if it prosper, none dare call it Treason.

      1. But that does not mean that victory implies there was a moral justification, or that defeat implies there was not.

        1. True, but a treason trial is not about moral justification.

          1. I wasn’t talking about a treason trial.

            Eddy seems to think that secession was wrong, even had it succeeded, because the “secessionist leaders wanted to create a slave republic dedicated to black subordination and enslavement.”

            It’s not clear to me if Bill R agrees or not, but I certainly do.

            1. Is slavery wrong? Yes.
              Is secession legal? Doesn’t look like it.
              Are these the same issue? No.

              I often see the phrase “The civil war was all about slavery” thrown around, as though it was the plot of a Marvel Avengers movie, with attractive, brightly costumed Good Guys on one side, and ugly, dirty, Bad Guys on the other. I don’t think that the primary motivation for secession was to Go Be Evil.

              Slavery and the slave trade were present in Britain since the 1600’s, and slavery was legal in all 13 colonies in 1776. There were abolitionist movements in both North & South, but as the North grew more industrialized and the South more agricultural, slavery became much more important to the Southern economy. It’s wrong, but it wasn’t a concept that suddenly sprang up overnight.

              By the 1860s, abolition would be a catastrophic blow to the South. Imagine how California would react if the federal government abolished all integrated circuits or copyright. Would the movers & shakers of Silicon Valley or Hollywood just say “meh, whatever” and look for new jobs?

              That, I think, is the real reason behind secession. The United States of America was originally much like the EU today – independent, sovereign States placing themselves under a common government in order to support each other in a common cause. But there’s no Brexit clause in the Constitution. When the Northern States decided to put the Southern States out of business, those with a vested interest in not going broke rebelled.

              1. When the Northern States decided to put the Southern States out of business

                Way to buy the Lost Cause narrative. There is little evidence the north decided to do that. And lots of evidence the south wanted to keep slavery for reasons way more cultural than economic.

                And by cultural, I mean white supremacist.

              2. ” Imagine how California would react if the federal government abolished all integrated circuits or copyright.”

                Probably a better analogy would be, “Imagine how California would react if the federal government attempted to deport illegal aliens.”; Cheap labor that can’t legally complain if abused, illegals are the closest analogy to slaves to be found in America today, some end up slaves in truth.

                1. Brett, on this you and I are in complete alignment – illegals are indeed America’s new peasant underclass, with all that means about our supposed culture of equality and opportunity. And it really should end.

                  Our substantive agreement is where it ends, though – I differ pretty widely with you on methods.
                  I would spend less time and resources targeting these poor victims with performatively cruel policies and dumb walls and more on the rapacious businesses that use them, ending this moral outrage that way.

                  1. The north was as white supremacist as the South. For instance, Illinois prohibited the settlement of free blacks in the state, and a group of Randolph of Roanoke’s slaves freed by manumission where run out of Ohio by the locals when they arrived. The North’s opposition to slavery was motivated, in a great deal, by their own economic self interest and a distinct desire to stay apart from the black race.

                    1. Not to make the north lilly white, as they were indeed racist as anything.

                      But they do still get the high ground compared to a society built around both an economy and a culture of institutionalizing the continued bondage of a people, with all the tactical dehumanization and violence that entails.

                    2. It just undermines your point, though, that you think that the South wanted to keep slavery due to white supremacy not economics, when the North was as white supremacist as the South.

                      The South didn’t want freed slaves for a myriad of reasons, but lost $ is a big one. Just because I’ve been looking at this lately for other reason, take Texas for example. Given that there were about 180,000 slaves in Texas before the war (Campbell R. , 2003) even if we assume a price of $800 for each to account for older or less healthy slaves, discarding the higher price that no doubt went for beautiful women even though concubinage was not openly practiced, than that would be $144,000,000 in 1860 dollars. That comes out to about $4 billion dollars in 2017 dollars.

                      That’s a lot of $.

                    3. I see two points – first, that the South was motivated by a hateful culture as much as by economic incentives. And second, that the north was as bad as the South. Both are wrong. You have not addressed the second at all since your 1:45PM post, so I won’t revisit my counterargument.

                      As to your point that slavery was worth a lot of money to the South, don’t essentialize economics. Economic dependence over time generations shapes culture, which takes on a character and drive of it’s own. Add to that the growing threat of slave revolt – as slaves were concentrated in larger numbers under smaller groups of whites, whites began to look at the Caribbean islands and their huge slave revolts and did the numbers.

                      What you get is a style of slavery that went well beyond economic to a racial philosophy the South drew into it’s identity. And you also get terroristic behaviors that, while not universal, were certainly widely condoned and were straight up uneconomic abuse – the culture had gone from being shaped to the drivers’ seat.

                    4. Your second point was a normative argument that the North has the moral high ground and thus didn’t need to be addressed. It’s subjective as the day is long based on modern feelings about slavery that were not universally shared in 1860, nor are they even universally shared today, if you look at the Middle East.

                      Further, you go one with emotional arguments with saying the South was a “hateful” culture. There is little evidence for that, just you engaging in necromantic telepathy, they just argued blacks were incompetent. And don’t give me a tautology, that you must hate those whom you enslave, else why enslave them. White supremacy, furthermore, isn’t hateful per se, just supremacist. You don’t have to hate those you rule over. The North didn’t like blacks either, and most would have sent them all back to Africa if they could have.

                      The South was in danger of losing its most valuable asset, it’s slaves. The North wanted to prevent its spread to new territories because the small farmers and middle class didn’t want to compete with plantation agriculture.

                      So, was culture part of why the South wasn’t willing to give up their slaves? Most definitely. But was it the primary reason? Nope.

                    5. Your post about the north’s relative level of white supremacy has zero bearing on anything BUT the normative moral argument.

                      If you think I’m making an emotional appeal in my analysis of the southern’s culture’s dependence on white supremacy as their identity, you may want to reread my argument.

                      The south ended up hating those they enslaved not out of some inevitable sociological pull but out of fear and cultural identity. As I already said.

                      Your argument that white supremacy is different than hate is not on it’s face wrong, but your supporting points are not good; slavery isn’t just about ruling over a people, and the north being white supremacists and pretty hateful doesn’t mean the south isn’t.

                      Bottom line, the value of slaves wasn’t just economic to the south, it was cultural. And you have provided zero evidence that the cultural aspect wasn’t primary. Whereas I pointed to a bunch of behavior southern slaveholders are on record of doing in that was an antieconomic, but certainly cultural.

                    6. Sometimes I wonder whether you’re incapable of making a syllogism. If BOTH the North and the South had the same relative level of white supremacy, then white supremacy cannot be the only reason why the South didn’t want to give up their slaves, and cannot be the only the North didn’t want the introduction of slavery. The only difference between the North and South, with regards to blacks, is that they South wanted them for their economic impact and the North either wanted to send them back to Africa or to keep them out of their communities and states.

                      The South feared a slave revolt like Haiti, but that’s fear, not hate. Their writings at the time said that slavery was natural because they said that blacks were childlike.

                      And you have provided zero evidence that the South’s reluctance to give up their slaves was NOT primary related to the economic impact, whereas I at a minimum have showed 1) the large economic impact of JUST the slaves (not even their output) was enormous and 2) that the North was also white supremacist. Once again, it comes back to “qui bono.”

                    7. You are assuming the north and south implemented their white supremacist beliefs the same way. That’s silliness caused by treating beliefs like metrics with a magnitude. Doesn’t work like that.

                      If you can’t tell how fear and hate are intertwined…but you can, I know you can. The south had it’s apologists, but also it’s firebreathers.

                      Did you not read my last sentence above? I provided counterexamples to your theses; your doubling down on the money involved doesn’t really matter in the face of the repeated noneconomic behavior occurring in the antebellum south.

                    8. Double down on money? No, I acknowledged culture matters, but I’m providing evidence that it was the main cause of the South’s reluctance to give up slavery, not that it was the only cause. You, to argue the reverse, have zero evidence to say that it was culture over economics. At bottom, your argument is basically emotions, including your dime store psychology analysis about fear and hate being intertwined. Hate and love are closely intertwined as well, in fact the opposite of love isn’t hate, it’s apathy. Does that tangle your thesis up?

                      And you actually supported my main point by saying that the North and South implemented their supremacist beliefs differently. Think about it. It should be obvious.

                2. “Cheap labor that can’t legally complain…”

                  I assure you that in California, illegal immigrants can legally complain.

    2. “…Norway from whoever used to run Norway…”

      Which time? Denmark, Sweden, or Germany?

      1. Well, since we’re talking about secession, that happened (in 1905) when Norway was subject to Sweden.

  6. When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    1. The thing is, had the revolutionary war failed, the founders would have been hanged for treason against the crown.

    2. ….. Prudence, indeed, will dictate that Governments long
      established should not be changed for light and transient Causes; and
      accordingly all Experience hath shewn, that Mankind are more disposed to
      suffer, while Evils are sufferable, than to right themselves by
      abolishing the Forms to which they are accustomed. ….

      The secessionists however wanted to perpetuate an insufferable evil.
      Which makes the Civil War very different from the Revolutionary War.

      1. Actually, that isn’t a relevant difference at all. The founders of the USA in the 18th Century wanted to perpetuate slavery just as much as the Confederates did in the 19th Century. Indeed, there were only two inviolable principles regarding the founding of this country– one was we had to be independent from Britain, and the other was slavery was to be preserved. And notably, Great Britain abolished slavery decades before we did. Perhaps had they won the Revolutionary War they would have abolished it here too. 🙂

        I have said this in other contexts, but one of the great errors that Americans make is taking the Declaration of Independence seriously. It was not a statement of human rights, and was not a governmental charter. It was a propaganda document. It’s authors did not believe that all men are created equal, did not believe in a creator active in human affairs who endowed humans with any rights, and did not believe that any of the causes of revolution set forth therein were assertable against any government they created, only against the British. The Declaration was no different than a sleazy ad in a political campaign- they were just saying things that they thought would sell and would rally the public behind the revolution.

        1. I disagree, the Framers didn’t want to perpetuate slavery they just were willing to accept slavery as necessary to form the USA. In 1788 slavery did not look like it was going to last long but a “black swan” event happened a few years later with the invention of the cotton gin which led to King Cotton. Also in 1788 slavery wasn’t nearly as bad as slavery under King Cotton and being “sold south”. In fact in 1788 white people could be in situations similar to slavery with indentured servitude and impressment.

          1. That’s a rationalization and a lie we tell ourselves.

            First of all, there’s evidence in the Constitution that the framers assumed that slavery was going to last a long time– they barred any law restricting the international slave trade for 20 years. That’s not something you do if slavery is going away in 5.

            Plus, there’s the clause that prohibits states from being denied their equal suffrage in the Senate without their consent– an effort to ensure that the slave power is preserved in perpetuity by preventing growing cities in the north from ever being able to outvote them.

            And there’s the fact that slavery, as I said, was a dealbreaker in the drafting of the Constitution. It was literally the only dealbreaker other than indepedence from Britain.

            These guys weren’t reluctant. Thomas Jefferson orgasmed every chance he got to rape Sally Hemings. They loved slavery! Owning people was fun. Even the ones who freed their slaves only did it when they died and they could no longer rape them.

            We just can’t admit to ourselves that our country was founded by some really questionable people. So WE claim they were reluctant. They weren’t.

            1. You’re reciting the rationalization; One the left has recently created in an effort to justify getting rid of the Constitution.

              1. I don’t want to get rid of the Constitution, Brett.

            2. Plus, there’s the clause that prohibits states from being denied their equal suffrage in the Senate without their consent– an effort to ensure that the slave power is preserved in perpetuity by preventing growing cities in the north from ever being able to outvote them.

              Sure. That would explain why, at the Constitutional Convention, the Virginia Plan provided for apportionment of seats in both houses of Congress according to population, while the New Jersey provided for equal representation for all states.

              1. Seamus, you think there weren’t slaves in New Jersey?

                There’s extensive scholarship that establishes that despite the big state-small state issue that everyone talks about, ensuring the slave power persisted was a key reason for bicameralism, the electoral college, and the Equal Suffrage of the Senate clause.

                1. There’s recent scholarship intended to attribute every aspect of the Constitution the left finds annoying to slavery, in order to build a moral case for tossing large parts of the Constitution aside. The Senate, the Electoral college, the 2nd amendment, the right to trial by jury.

                  It’s almost cartoonish the way they’re claiming everything about the Constitution was designed to safeguard slavery, but some people fall for it.

                2. There’s extensive scholarship that suggests everything from aardvarks to zombies is really secretly the product of racism, but that doesn’t mean we should take it seriously.

                3. Of course there were slaves in New Jersey. There were slaves in every state except Massachusetts at the time of the Constitutional Convention. But the economy of New Jersey wasn’t based on slave labor, and New Jersey certainly wasn’t calling for equal representation of the states in order to prop up slavery. (But if you think the fact that New Jersey had slaves was significant, then the fact that all the states but Massachusetts had them, and that Connecticut, New Hampshire, and Rhode Island (all small states, by the way) were the only other states that had even begun the process of gradual emancipation, sort of undercut any argument that equal representation in the Senate was intended to give disproportionate power to the slave states.)

                  1. Oops. My bad. Pennsylvania had also begun the process of gradual emancipation by the time of the Convention.

            3. “First of all, there’s evidence in the Constitution that the framers assumed that slavery was going to last a long time– they barred any law restricting the international slave trade for 20 years.”

              The framers looked back to the Roman Republic for examples of institutions. They did not think of 20 years as a long time – nor does any one that is mentally an adult.

        2. Britain abolished the slave trade in 1807 but slavery was not abolished in the British Empire until 1833, with exceptions eliminated in 1843.

          We did not break away from Britain in 1776 to preserve slavery.

          The seven states that seceded from the Union in Feb 1861 did so to preserve the slave economy which proved contrary to the dictates of Prudence.

          1. On taking the Declaration of Independence seriously,

            Article I. Declaration of Rights.

            Section 1. That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

            Section 2. That government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

          2. “We did not break away from Britain in 1776 to preserve slavery.”

            But that’s saying that because, while Jefferson was ejaculating into the vagina of his slave whom he was raping, he wasn’t thinking I WANT INDEPENDENCE SO I CAN DO MORE OF THIS is in any way a moral position than what he was actually thinking which was I WANT TO MAKE SURE THE NEW GOVERNMENT IS STRUCTURED SO MY OPPORTUNITIES TO DO THIS ARE PRESERVED.

            The two are both morally equivalent.

            1. Sally Hemmings was about three years old when Jefferson drafted the Declaration of Independence. And she was a free girl, a servant not a slave, when Jefferson started having sex with her in France. She did become a slave again after voluntarily returning to Virginia.

      2. “Insufferable”, according to whom?
        Not the South; not Lincoln; not several European nations between 1450-1800; not most “civilized” nations in recorded history; not even some African cultures today.

        1. To a lot of folks. In my home area, Rev. Fredrick Ross inherited a plantation from his father in the late 18th century (mostly in Hawkens County, Tennessee). About 1820 he decided to give freedom papers to hundreds of his owned black slaves and to his indentured white slaves. In gratitude many of the freed blacks took the surname Ross and settled in nearby Hawkins County. Rev Ross gave sermons denouncing slavery. The first abolitionist newspaper was started in nearby Jonesborough.

          Ross lost the estate due to failed business adventures. Joshua Phipps, Ross’ overseer, either bought the Ross estate in 1847 or inherited it from William Phipps. He delighted in excuses to beat and debase his slaves. He did not approve of his daughter’s fiance and arranged his death. Legend goes Phipps had a black mistress as sadistic as he was and when Phipps died the horse refused to draw his hearse onto the hallowed grounds of the cemetery.

          Ross is remembered as a hero. Phipps as a villian. Slavery was insufferable to a lot of folks.

          1. Sorry. Hawkins not Hawkens.

      3. Again, I will point out that the split between the north and south was over more than even slavery. This does not justify slavery, an abomination, but only demonstrates that it was the destruction of the south that was at stake.

        The north had gotten large, very large, tariffs placed on the export of cotton. This limited the profit in cotton since in pushed the price well below the going rate.

        Add to this that the loss of slavery would also result in the lose of representation in the House and Senate. Meaning that the north was going to be able to take advantage of the south economically even more freely.

        The bare fact is that the north was treating the south in much the same way that the British treated the colonies.

        Slavery is in that mix, and in a big way, but the big picture is not nearly so favorable to the north.

        1. Read the articles of secession. They sure do mention slavery a lot.

          Read the Confederate Constitution. A lot like the US Constitution, except for this one clause saying you can’t outlaw slavery.

          Slavery was becoming out-competed economically, but that didn’t make the South likely to abandon something they’d based their culture on; humans are not economic machines. Instead, they were doubling down and becoming ever more brutal and fearful.

          The bare fact is that the north was treating the south in much the same way that the British treated the colonies.
          Was it economics, or bad policies? Make up you mind?

          This does not justify slavery, an abomination, but only demonstrates that it was the destruction of the south that was at stake.
          Your entire following quote ignores the morality aspect except to condemn the north for making slavery harder to continue to do. Whitewashed Lost Causim is still Lost Causism.

          1. It’s not complicated: Secession was about slavery, but the Civil war was about secession, not slavery.

            1. I cannot disagree with that distinction. But for all intents and purposes, that is a distinction without a difference.

              The moral stain of slavery is not absolved by a degree of policy separation, nor by years passing.

              And that distinction does not make MJBinAL any less flat wrong on multiple factual and moral levels, as you somewhat acknowledge below.

            2. It is more complicated than that. In FREEDOM NATIONAL, James Oakes writes: “Republicans did not believe that the Constitution allowed them to wage a war for any ‘purpose’ other than the restoration of the Union, but from the very beginning they insisted that slavery was the cause of the rebellion and emancipation an appropriate and ultimately indispensable means of suppressing it.” If the abolition of slavery was not the purpose of the war, it was recognized from the start as its inescapable consequence. As soon as the South started the war by firing on Fort Sumter on April 12, 1861, Republicans, many Democrats, and much of the press recognized it as “the death-knell of slavery.” A Democratic editor in Wisconsin explained, “With the first gun from the rebels in arms perished every sympathy at the North with slavery. The war cannot now end but with the total extinction of slavery, which was the cause of the war.”

        2. “Add to this that the loss of slavery would also result in the lose of representation in the House and Senate.”

          This literally gets the 3/5ths clause backwards. With the end of slavery, the South would have gained seats in the House. The problem for the former slave owners is that the new Representatives would have been representing the former slaves…

  7. Whatever the issue that impels one subset of humans to wish to divorce itself from some larger and more inclusive set or grouping, the mental process seems to require some sort of excusatory disavowal of an implied social contract before the parting of ways proceeds.

    Brexit may be the best current example. A herd of people must balance all, weigh all, bring all to mind. Are we all “us”, are only we here on our island “us” and you on the continent are quite clearly someone else?

    I selected the word “herd” with some care. Herd instinct on suitable terrain is advantageous and powerful, but circumstances can arise where it isn’t. Wildfires, predator attacks, famine, floods, disease, storms, the most extreme of situations and by some mysterious process a new nexus of group-think will emerge around an ascendant new leader and a herd will split and maybe split again.

    Does the new leader choose themselves? It often happens quickly. Were they surprised? Or were they always somehow dreaming of that moment, readying themselves?

    Divorce is probably the right choice of word, too. It conjures what is always the big landmine–the property settlement!

  8. I reviewed this book in the May 2018 issue of The Federal Lawyer, but I don’t understand the statement that Davis’s lawyer “helped prop up arguments by other lawyers in other cases that could help his client’s general position.” I don’t know what Mr. Baude is referring to, or even what “prop up arguments” means.


    1. Filing amicus briefs?

  9. “the so-called Confederate States of America …”

    Do we really nead the ‘this is a lie’ quotation marks here? Surely, a multi-year war proved that they were what they said they were. Constitutional arguments have nothing to do with it – the facts on the ground decide the case.

    1. I have always hated the routine of refusing to call the CSA the CSA.

      They called themselves that. That’s sufficient reason to call them that.

      1. The issue is not what we call them. The issue is whether they were a treasonous part of the United States or a separate nation. The name that we call them does not answer that question.

        1. They were a separate nation. A nation with a unified government, a military, a tax regime, international relations, and borders. That nation existed for only a few years because it was militarily defeated.

          I have always hated the name “Civil War” because it was not a civil war. A civil war, is an internal war in a nation between factions struggling for control of that nation. The war between the north and south was a war of succession. The south was not trying to take control of the USA, they had already left it, and were defending the new country they had formed, FROM the USA. It truly was, as the south used to call it, “The War of Northern Aggression”.

          1. If you peremptorily define “civil war” to include only struggles for control of the nation, then, yes, by your definition the Civil War was not a civil war. But you ignore the fact that the war started when the South fired on Fort Sumter, which was not threatening it.

            But does this matter for any purpose other than whether Jefferson Davis, on the one hand, committed treason or, on the other hand, led a foreign country in a war against the United States? The South enslaved four million people, and the North would have been justified to invade it to free the slaves even if it were a foreign country. If you have any doubts that freeing the slaves was not intimately tied to preserving the Union right from the start of the war, then I recommend FREEDOM NATIONAL, by James Oakes.

            1. “If you peremptorily define “civil war” to include only struggles for control of the nation, then, yes, by your definition the Civil War was not a civil war.”

              No, the point is that the South wasn’t fighting to achieve independence. They had their independence already, the fight was over whether they’d get to keep it.

              “But does this matter for any purpose other than whether Jefferson Davis, on the one hand, committed treason or, on the other hand, led a foreign country in a war against the United States? The South enslaved four million people, and the North would have been justified to invade it to free the slaves even if it were a foreign country. ”

              Indeed, that’s true. The chief difference it makes is that, in order to further the fiction that the Confederate states were still part of the US, rather than a foreign country that was being conquered, the Constitution had to be warped in a rather drastic way, because as part of the US, the Confederate states were entitled to representation in Congress. Then there was the matter of unconstitutionally splitting Virginia without its consent, Lincoln usurping the power to suspend the writ of habeus corpus…

              They wanted to pursue a war of conquest, one that might even have been justified, but did not want to admit what they were doing. Acting on the basis of a lie always has bad consequences.

              1. Because the seceding states did not consider themselves part of the United States, their representatives in Congress resigned, and their states had no interest in being represented, whether they were entitled to be or not.

                As for habeas corpus, Article I, section 9 of the Constitution says that the writ “shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” There is no question that, during the Civil War, the writ could be suspended. The Constitution does not say whether the executive or the legislative branch may suspend it, and the question has never been settled. In any event, in April 1861, when Lincoln suspended it, Congress was not in session. When Congress returned, it ratified the suspension.

            2. “The South enslaved four million people, and the North would have been justified to invade it to free the slaves even if it were a foreign country.”

              The North had slaves all the way through the Civil War. Wouldn’t they need to free their own slaves first before being justified to go to war with another country over slavery?

              1. Even were one to take your generalization as correct, hypocrisy doesn’t obviate the general moral justification.

                1. “Even were one to take your generalization as correct,”

                  I didn’t make a generalization. I stated a generally acknowledged and well known historical fact. So if one doesn’t take my statement as correct, one should probably present some reason to think otherwise. Otherwise people might think that one is an uneducated or arguing in bad faith.

                  1. In order for ‘the north had slaves’ to be relevant, you must generalize a policy with respect to the border states as the general policy for the Union, which is not self-evident – tolerance isn’t the same as acceptance.

                    1. No, you really don’t. One might claim that one does, but one might say a lot of stupid things. But if one wants to have productive conversations, one should discuss things based on how things were rather than how one wishes they were.

                      If one can tolerate something in one’s own country, but not accept it in someone else’s country, one doesn’t really object to that thing.

                    2. Took you a paragraph of empty condescension to get to your counterargument. Glad you got that out of your system.

                      Most glaringly, you are taking hypocrisy as proof of bad faith. Which is also not true – indeed, that is the whole concept of hypocrisy, that your true beliefs are not reflected by your internal behavior.
                      So failing to abolish slavery in the border states, even if you take it as indicative of the north’s broad internal policy, is not alone proof of the north’s actual beliefs. It is proof of the North’s lack of moral courage, but that’s neither here nor there.

                      But your counterargument is flawed not only in it’s direction, but also it’s substance. You seem to be arguing that differences of degree do not matter for moral purposes. Which does not play.
                      If you have a jot of racially motivated murder in your country, you still have the moral high ground to prevent a racial genocide, for instance.

                    3. “Took you a paragraph of empty condescension to get to your counterargument. Glad you got that out of your system.”

                      That paragraph was not empty condescension. The well of my condescension for you is very full, and will not be exhausted any time soon.

                      “Most glaringly, you are taking hypocrisy as proof of bad faith.”

                      No I’m not, you fucking moron.

                      “You seem to be arguing that differences of degree do not matter for moral purposes. . . If you have a jot of racially motivated murder in your country, you still have the moral high ground to prevent a racial genocide, for instance.”

                      I really question whether you are literate.

                    4. Yeah, you are taking hypocrisy as evidence of bad faith. The North were hypocrites and didn’t ban what slavery remained in their border states. That’s as likely hypocrisy as it is actually being pro-slavery. But you disagree, saying If one can tolerate something in one’s own country, but not accept it in someone else’s country, one doesn’t really object to that thing. You are wrong, because hypocrisy is exactly the first clause, and does not imply the second.

                      You are also wrong because what slavery that remained in the Union was nowhere near the terrorist regime of the plantation economy of the South. To equate the North’s slavery with the South’s you must ignore the distinction between the two of degree. Do truly you believe that any slavery at all is as bad as a culture so based on it that it will kill it’s countrymen to continue with it, or are you just arguing on the Internet?

                    5. “Yeah, you are taking hypocrisy as evidence of bad faith.”

                      No, I’m really not you fucking moron.

                    6. Yeah, I think my argument is pretty hard to refute as well.

  10. West Virginia successfully seceded from Virginia.

    1. That’s a separate issue. It is provided for in the Constitution, Article IV, section 3.

      1. Which states that no state may be created from another state without the consent of that state’s legislature. They just pretended their way past that obstacle.

        1. I am not familiar with the arguments for and against the constitutionality of West Virginia’s secession from Virginia. It is true that the Constitution required Virginia’s consent. But Virginia claimed not to be part of the United States, and there was no reason that the Union couldn’t use that claim against it. The Union stopped enforcing the fugitive slave law to aid slaveholders in the states that had seceded. Instead, they deemed fugitive slaves “contraband” of war.

          1. To clarify, the reason that I mentioned that the Union stopped enforcing the fugitive slave law in states that had seceded is that the Union said that it was inapplicable outside the United States, which the seceded states claimed to be.

        2. Lincoln argued that Virginia consented:…..inion.html

  11. I guess the constitution was like the Hotel California, “you can check in anytime you like but you can never leave”?

    gee, how did the USA even get formed, let me think.

  12. And as evil as it was slavery was agreed to be legal when the southern states signed the constitution. It was not amended until after the civil war.

    1. Why would any of us care if slavery was legal? That’s not a moral argument in favor of slavery, is it?

    2. The legal basis for the Emancipation Proclamation was that it only applied to slaves within the CSA, which were enemy property. The armed forces could seize that and do with it as the Commander in Chief saw fit. Before Lincoln acted individual army commanders had to formulate their own policies of how to deal with the slaves that came to their armies; many of them decided that the runaway slaves were “contraband” – that is, enemy property of a type subject to seizure if it happened to come within their grasp – but not wanting to become slavemasters themselves, mostly they treated them as free and hired those that were willing and able to work in the army’s supply trains or build forts and camps. They would have done the same thing with a southern mule that wandered north, except they wouldn’t have offered pay or asked the mule if it wanted to work.

      Lincoln just regularized the policy of “seizing” and freeing the slaves owned by Confederate residents that happened to come within the reach of Union forces. That was within the executive power, and he could do it unilaterally. Freeing the slaves in the border states remaining within the Union was not within the powers allowed to _any_ branch of the federal government, short of a Constitutional Amendment – which became possible due to the South’s secession, but Lincoln made the abolitionists in Congress wait until the war was over.

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