Today in Supreme Court History

Today in Supreme Court History: July 17, 1862

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7/17/1862:  Congress enacts the Confiscation Act, which empowers the government to seize the property of the rebels. The Supreme Court considered the constitutionality of that law in The Confiscation Cases (1873).

The Chase Court (1873)

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  1. In a sense the freeing of the slaves was the first act of confiscation. They were property, and that property was taken away from their owners by an act of congress. If that was legal enough to fight a war over then I don’t see why turning over real estate would be any different.

    I know a really cool guy who owns a farm in southern Tennessee. The land had been given to his ancestors in return for them fighting on the side of the Confederacy. The family has maintained it ever since in spite of being black in a pretty Jim Crow-ish state. He pays no attention to race politics (he’s more interested in tech) but I have to wonder if more black families were compensated like that we would have had a better reconstruction.

    1. I did not know that slaves fought for the Confederacy. My understanding is that the idea was debated in the (dying) Confederate Congress but never enacted. As one of the senators put it, “If slaves would make good soldiers then our entire theory of slavery is wrong.”

      1. Some did.

        Remember that back then, your loyalty was to your STATE and not the Federal Government.

        Hence it was like South Carolina was being attacked by the Soviets — and in terms of travel and logistics, it really wasn’t that different from what a Soviet attack would have been like 100 years later.

        1. https://www.theatlantic.com/entertainment/archive/2009/07/the-myth-of-black-confederate-soldiers/21370/
          The claim that blacks “served on both sides,” which is made at the outset, is true in the most broadest sense of the word “serve,” or in much the same way that both Usain Bolt and I both “run.” Some 180,000 black people fought for the Union. Krick claims twelve for the Confederacy, and I’d be very interested in those specific cases.

          See also your take on black slaveholders.

          1. ” Though the majority of claimants were white, there were African Americans who received compensation for family members whose titles they had purchased in order to keep them from being sold.”
            https://web.archive.org/web/20120320082941/http://os.dc.gov/os/frames.asp?doc=%2Fos%2Flib%2Fos%2Finfo%2Femancipation_day%2Fdc_emancipation_booklet.pdf

            There’s solid evidence of Black slaveowners — now the jury is out on the extent to which it involved buying family members or not.

        2. back then, your loyalty was to your STATE and not the Federal Government.

          Another bullshit excuse for the Confederates.

          Tell me, when all those Confederate officers graduated from West Point, to whom did they swear an oath of loyalty?

          1. Example would be Robert E. Lee, who turned down command of the Union Army.

            For the record, two of my Great-Great-Grandfathers fought in that war — FOR THE UNION — and one came back without his foot and the other is buried somewhere in DC, no one knows quite where.

            1. Correct, which is important with respect to the Second Amendment because the state militias would remain loyal to the states even though the federal government could call forth the state militias. So the Second Amendment was a federalism provision drafted to prevent the federal government from doing what the British attempted at Lexington and Concord.

            2. An example of what? A traitor?

              According to this there were 151 Confederate generals who were West Point graduates.

          2. Land was much more important back then so just think of how much land RE Lee owned…and it was within Virginia.

        3. Some did.

          Nope. Wrong as always.

          Remember that back then, your loyalty was to your STATE and not the Federal Government.

          Just as Trump saying “sir” is a tell that his story is a lie, Dr. Ed saying “Remember that” or “People forget that” is a tell that he’s about to say something false.

      2. I did not know that slaves fought for the Confederacy.

        That’s because there is no evidence whatsoever of this happening. Neoconfederates today are desperate to find examples of black confederate soldiers so that they can “prove” that their cause wasn’t/isn’t racist. They haven’t found any. Typically what they do is find some slave whose “owner” brought him along when he went to fight, and try to claim the slave was actually a soldier, when he was actually just there to serve his owner, e.g., as a cook or to handle the horses. (It was illegal for blacks to enlist in the CSA army.) (There may have been a few black-by-the-one-drop-rule people who were passing as white who served, but that’s not really relevant.)

        My understanding is that the idea was debated in the (dying) Confederate Congress but never enacted.

        You are not quite right; it was debated for some time in the later years of the war, and actually did pass, but only a few weeks before Appomattox, so it never happened. Lee had suggested offering freedom to blacks who fought for the confederacy, but the law that was actually passed didn’t do that.

        1. “Typically what they do is find some slave whose “owner” brought him along when he went to fight, and try to claim the slave was actually a soldier, when he was actually just there to serve his owner, e.g., as a cook or to handle the horses. “

          Under the rules of war which exist today, such persons would be considered “enemy combatants.”

          Wouldn’t Jessica Lynch be considered someone who “handled the horses” — i.e. who “fixed the trucks”?

          1. Lynch was not a slave. She was there voluntarily.

            1. She was a combatant….

              If you want to get technical, soldiers who were drafted weren’t there voluntarily in other wars, either….

          2. What a terrible analogy. Lynch ‘served’ the United States military, like everyone else there, Confederate soldier’s *servants* served the soldier.

            Notice Ed somehow chose this female soldier when it was quite common and long-standing for many males to serve in the same capacity.

            1. “Notice Ed somehow chose this female soldier when it was quite common and long-standing for many males to serve in the same capacity.”

              Name one.

              Name one whose name was made household knowledge by the US Media. Just name ONE….

              And QA is neglecting to mention that there often is a very fine difference between soldiers being soldiers and soldiers serving officers.

          3. Under the rules of war which exist today, such persons would be considered “enemy combatants.”

            I love how Ed just makes stuff up. Which “rules of war”? He doesn’t say. “Would be considered enemy combatants” by whom? He doesn’t say. How would a civilian non-combatant “be considered” a combatant? He doesn’t say.

      3. P.S. Also by the time the issue was debated, southern Tennessee as a whole had long fallen to the Union. The only part still under Confederate control was the Appalachian border with North Carolina. I suppose some of that land near the Georgia border was arable.

    2. “They were property, and that property was taken away from their owners by an act of congress.”

      No.

      When the slaves in DC were freed, their owners were compensated — first the White owners, and then later the Black owners.

      The Emancipation Proclamation was, essentially, an aspect of martial law and (IMHO) would not have withstood a 5th Amendment challenge post-war. Hence there was the 13th Amendment which was ratified on December 6, 1865 — and then the 4th section of the 14th Amendment which specified that there would be no compensation for this particular taking of property.

      Other than as an aspect of the Article 5 amendment procedure, I’m not aware of any relevant Act of Congress…

  2. While I understand the tactical reason, I never understood the legality of seizing the Lee property (which became Arlington National Cemetery). As I understood it, the Federal Government did it upon Virginia voting to secede — they didn’t even wait for the votes to be counted.

    Stand on Robert E. Lee’s front porch on a sunny summer afternoon and imagine what a battery of even Civil War era cannons on his front lawn would do to the city down below — it’s the same thing that the British realized 80 years earlier when Henry Knox put cannons upon Dorchester Heights and why they evacuated Boston.

    So, tactically, I understand why they did it — and I can even understand the wartime mentality that led to burying union dead in his rose garden.

    But what I don’t understand is how the Federal government got to keep it.

    1. The federal government should have seized even more property from the Confederates, especially the planters, and turned it over to the freed slaves.

      There was probably little chance of that actually happening, but it would have been equitable.

      1. 2022 is the perfect time to pay reparations to descendants of American slaves. Thanks to persistent and pervasive racism that group of Americans just happens to be the perfect group of people to do a Milton Friedman “helicopter drop” in order to increase aggregate demand. So the helicopter drops we have done so far have exacerbated asset price inflation because many Americans with college degrees were not negatively impacted by the lockdowns thanks to work from home.

        1. And then there are people like me who have a right to subrogate those reparations — there was a White male from the North who DIED for every 10 slaves freed — entire towns disappeared off the map because all of the young men of the town had died in the war.

          1. So? It’s a helicopter drop in order to increase aggregate demand. Furthermore, Trump already undertook a pilot program with white coal miners in West Virginia and it was a success just as Trump predicted—throwing dollars at the retired coal miners increased their standard of living and injected dollars into their depressed communities helping productive Americans.

    2. But what I don’t understand is how the Federal government got to keep it.

      Because they paid for it.

      Custis Lee sued, and the courts ruled that the confiscation was illegal.

        1. United States v. Lee, 106 U.S. 196 (1882)

  3. Would decent and patriotic Americans operating in the immediate wake of the Civil War have enabled the Confederate states to resume statehood had they foreseen the degree to which those states would constitute a stain and drain — politically, morally, culturally, educationally, economically — on our country or more than a century and one-half.

    The better course of treatment for the losers, traitors, and bigots would have involved a string of unincorporated territories along the United States’ southern border.

    Imagine an America with no senator from Mississippi or Arkansas, no House member from South Carolina or Tennessee, no Electoral College delegate from Alabama or Louisiana. At least, not until the residents and government of those communities demonstrated that they deserved statehood.

    I do not fault the American who provided undeserved leniency to the Confederates too greatly, however. They beat the bigots when it counted.

    1. It would have been worth it for the longer-term, larger picture as what would become the new superpower, better than two half-sized states.

      I’m glad the world stage is as it is, so lesser concerns like yours can rise to the top as screamingly purple-faced important, in lieu of them.

      May we never be faced with such a major war or cold war again. Oops, China is stirring, and half your screaming colleagues look the other way.

      1. The vanquished states would have remained under American control. (Think: Puerto Rico) Perhaps they might have improved at a more rapid pace and some of them could have earned statehood by now. It is difficult to perceive how the United State could have been diminished by making the Confederate states territories rather than states. Within those territories, progress likely would have been hastened, justice promoted, and life improved for many residents.

  4. Interesting picture.

    10 men, one in regular clothes standing. Clerk? Or were there 10 justices still? Wikipedia that says law fixing number was back to 10 in 1869.

    None of these men had missed many meals.

    1. back to 9 of course.

      1. I heard about a guy smiling when his photograph was being taken…his head exploded.

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