The South Appeals to the Supreme Court

[Ramontxo]

Based in the other thread about the South trying a Coup (where it is stated that most people in the Confederation thought they were acting inside the law) What would happen if they officially appealed to the Supreme Court for a verdict on the legality of secession? Like instead of firing at fort Sumter they demand its evacuation to a federal jugde and the appeal ends in the Supreme...

 

[Skallagrim]

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

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

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

 

[Ramontxo]

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

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

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

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

 

[Skallagrim]

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

Sure. To slavery. But loyalty to that fundamental interest of the south(ern elite) does not have to mean support for secession. Lots of southerners only supported secession when it became clear that it was just happening, and they only had a choice between supporting their home state or opposing it. Many chose the former, but would have preferred to avoid having to choose.

I'm quite confident that in a situation where the south explicitly goes to the Supreme Court rather than "just" secede, the Supreme Court would have ruled against secession. Heck, I'm clearly a supporter of secession in a general way, but even I would have ruled against it then, if only to try and prevent the horrors of the impending war. (It was impossible to know at the time that outright abolition of slavery would be the eventual outcome of that war, which renders that ethical conundrum moot.)

 

[Ramontxo]

Thanks for answering. I suppose that this closes the question. No chance of the Supreme Court allowing secession, (more for political rather than legal reasons)

 

[Skallagrim]

Others may well have different insights! Never let it be said that my views close a question; I couldn't bear it. On AH.com, questions must not be answered. They must be debated. At length. With many digressions.

 

[Ramontxo]

So let it be... *https://www.google.es/url?sa=t&rct=...DDy438gofnnbjjIAw&sig2=TWoYqC1rB3TExflJQWiKNA

 

[DominusNovus]

I think the SCOTUS could devise a legally sound reason for ruling against secession. After all, the Constitution reference a 'more perfect union,' and that would seem to imply such a union cannot be broken at will by the constituent states.

 

[Skallagrim]

I think the SCOTUS could devise a legally sound reason for ruling against secession. After all, the Constitution reference a 'more perfect union,' and that would seem to imply such a union cannot be broken at will by the constituent states.

In the preamble, yes. Preambles are near-universally (if not entirely universally) regarded as having an exclusively introductionary purpose. Granted, this was not legally determined about the US Constitution in particular until later on (SCOTUS ruled on it in 1905, I think), but then it was determined that the preamble cannot grant real powers or assign real tasks to the government. Another judgment would be... highly irregular. Needless to say, the preamble can be used (and is used) to gain understanding of the intent behind the constitution and its articles, but to derive a power from such implied meaning, you must cite an actual article to which that meaning is then applied. Courts will not interpret the preamble to give the government powers that are not articulated elsewhere in the constitution.

Even supposing for a second that the Supreme Court does decide that a preamble grants concrete powers to government (which by itself would already make the whole ruling legally unsound)... what's "more perfect" anyway? Is a union that doesn't allow secession by definition more perfect than one which does? And would that not argue that the very origin of the USA (a secession, certainly, from the British crown) was something... less perfect? Thin ice, right there!

I brought up the Articles of Confederation because of that vagueness. Rather than an undefined "more perfect union", it literally called the union perpetual. If you consider that as a characteristic "inherited" by the constitution, you can argue that "more perfect" = (among other things) "perpetual". But that would force you to claim that the constitution implicitly inherited characteristics of the legal doccument it replaced, which is.... not the norm, to say the least. And then you'd have to argue that a re-interpreted part of the preamble can be apllied to an actual article, which then grants a power to the federal government. Which article, then? Interstate commerce can't help here. The other go-to article for "implied powers"-proponents is the "necessary and proper" clause, but that one only gives Congress the power to make all "necessary and proper" laws "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States". So you'd still have to point out the power itself. Even if you want an implied power, you'll have to bring up an actual article that, well... implies it.

None of this is to say that there wouldn't be some clever way to rule against secession anyway. I'm confident such a way would be found, and in fact I think they'd go with something like the above and just brush over the gaping holes in the legal reasoning. But I wouldn't call that "legally sound".

 

[DominusNovus]

I would say that the use of the word 'more' directly compares the state of the union established by the Constitution to that established by the Articles, including its perpetuity.

 

[Skallagrim]

I would say that the use of the word 'more' directly compares the state of the union established by the Constitution to that established by the Articles, including its perpetuity.

A perfectly valid interpretation. And then the other guy says: "They left out 'perpetual' the second time around, and called that 'more perfect'. Does that not imply that the absence of forced perpetuity is in itself a step towards greater perfection?" And that would be just as valid a reading. How could one derive a highly controversial implied power from words so vague, and written in a place that is generally understood to grant no powers at all? Or rather: how could one call doing that "legally sound"? For I have no doubt that such a ruling could and would be arrived at: I merely object to granting such a course of action (morally noble as it may be intended) the badge of legal rectitude.

It would simply be a political ruling. Perhaps the most glaring one in US history.

 

[TRH]

A perfectly valid interpretation. And then the other guy says: "They left out 'perpetual' the second time around, and called that 'more perfect'. Does that not imply that the absence of forced perpetuity is in itself a step towards greater perfection?" And that would be just as valid a reading. How could one derive a highly controversial implied power from words so vague, and written in a place that is generally understood to grant no powers at all? Or rather: how could one call doing that "legally sound"? For I have no doubt that such a ruling could and would be arrived at: I merely object to granting such a course of action (morally noble as it may be intended) the badge of legal rectitude.

It would simply be a political ruling. Perhaps the most glaring one in US history.

Bush v. Gore says hi. Hell, Dred Scott gives it a run for its money, what with making fish wrap out of decades of careful compromises designed to ensure the country doesn't disintegrate.

 

[DominusNovus]

Bush v. Gore says hi.

A very feeble comparison.

 

[TRH]

A very feeble comparison.

For being nakedly partisan? I don't think any other parallel is needed.

 

[David T]

To quote an old soc.history.what-if post of mine:

***

Maybe I'm missing something, but how can South Carolina get original jurisdiction in the Supreme Court if it has already seceded? The provision of Article III, Section 2, paragraph 2 giving the Court original jurisdiction in all cases "in which a state shall be a party" pretty clearly was meant to refer to states of the Union, not to foreign nations. (When the drafters of the Constitution intended to refer to "foreign states" they did so explicitly, as in Article III, Section 2, paragraph 1.) For South Carolina to invoke original jurisdiction, therefore, she would have to acknowledge that she was still in the Union, which of course would destroy the whole point of the litigation.

True, prior to seceding South Carolina might ask for a determination that secession was legal. Of course, she wouldn't do so, first because time was of the essence--the excitement caused by Lincoln's election wouldn't last forever, and secessionists had to strike while the iron was hot [1]; and second, because going to the Court might be seen as implying a duty to obey the Court's decision even if it went against her. But even forgetting these practical difficulties, there was a major legal one as well: For many years it was doubted whether an action for a declaratory judgment was a "case or controversy" within the jurisdiction of the federal courts. In fact, as late as 1928 in *Willing v. Chicago Auditorium Association*, the US Supreme Court stated in a dictum that "what the plaintiff seeks is simply a declaratory judgment. To grant that relief is beyond the power conferred upon the federal judiciary." 277 US 274, 289.

[1] South Carolina had not forgotten her experience of 1850, when delay on her part was fatal to the secessionist movement.

***

A few other points I didn't mention in that post:

(1) What right would the Supreme Court have to order the evacuation of Fort Sumter, even if it concluded South Carolina was independent? Believe it or not, there is nothing in the Constitution that forbids the US from maintaining forts in foreign counties--no, not even against the will of said countries. I don't think Cuba would have much luck getting SCOTUS to require the abandonment of Guantanamo...

(2) Assuming that the Court does somehow have occasion to rule on the legality of secession, it would seem that at least two southerners on the Court would consider it illegal. Justices Wayne of Georgia and Catron of Tennessee stayed on the Court throughout the Civil War years, which seems to indicate that they did not accept their states' ordinances of secession as binding. (Only Justice Campbell of Alabama resigned.) Unless you think they had the right to sit on a foreign nation's Supreme Court...

(3) The Dred Scott case is actually a good illustration of one reason why it would have been impractical for secessionists to rely on a Supreme Court decisions. Dred Scott first sued for his freedom in 1846, and the Court did not finally decide the case until 1857! Secessionists were in a hurry, and waiting that long was obviously utterly unacceptable--indeed, even waiting a few months might have been fatal for their cause, as Southerners would come to realize that Lincoln was not another John Brown.

 

[Skallagrim]

Bush v. Gore says hi. Hell, Dred Scott gives it a run for its money, what with making fish wrap out of decades of careful compromises designed to ensure the country doesn't disintegrate.

Pardon my lack of clarity; sometimes I do miss a little nuance when writing in English. By 'glaring' I meant 'glaringly obvious'. As in; it would be the big one, which had the vast, huge consequences no other political ruling could match-- namely deciding basically the fate of the union's splitting in two or not. That Dredd Scott was nakedly partisan and decidedly odious is of course beyond question. As for Bush v. Gore... I'm afraid that the closer we get to the present, the less substantial my knowledge of such things becomes (one never sees me in the post-1900 subforum, and with good reason). Suffice to say: in this ATL, that ruling (or any other post-1860 OTL ruling) simply would not exist, so would not contend for the title "biggest totally political ruling ever" anyway.

 

[DominusNovus]

For being nakedly partisan? I don't think any other parallel is needed.

Then we disagree on multiple points in this matter.

 

[StephenColbert27]

This might be enough to sway some undecideds in the border states. Virginia and Tennessee both had large unionist minorities OTL, while North Carolina was the last and most reluctant to secede, and had the highest rate of desertion among its troops. But overall a war was still going to happen. The Deep South was going, with or without the approval of the Supreme Court. It's just a matter of they manage to drag with them. In this case, they might drag less.

 

[wcv215]

Based in the other thread about the South trying a Coup (where it is stated that most people in the Confederation thought they were acting inside the law) What would happen if they officially appealed to the Supreme Court for a verdict on the legality of secession? Like instead of firing at fort Sumter they demand its evacuation to a federal jugde and the appeal ends in the Supreme...

They lose. Either secession isn't legal, in which case they're up shit creek without a paddle, or it is and they have no legal standing to bring the case. In which case it gets thrown out.

Whether they can bring a case before attempting secession is also rather dubious. While not established at this time the lack of imminent harm would seem to leave it without a leg to stand on.

 

[Bee]

For what it's worth, the Court did reach the merits of the issue shortly after the Civil War in Texas v. White, 74 U.S. 700 (1869).

Hope this link works:

https://en.wikipedia.org/wiki/Texas_v._White