Was it constitutional for Lincoln to invade the South?

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Just call the secession an insurrection (which it would necessarily be) and you have constitutional support for going to war against seceding states.

Bingo! Smarrrrt as paint ye arrrrrrre!

ruveyn

Yes "Public Law" is the term that is usually used. But any law (be it constitutional, statutory, customary, judge-made) regarding the public (government) to private (individuals, companies, etc) relation can be grouped under that heading.

Since you come from London (from your profile), I suppose sovereign is a central idea of your constitution. My understanding of what is considered the constitution in UK includes both written and unwritten laws. But that's the case bacause of your country's history. It's not a universal idea. Each country is free to dertermine the style of law it used. In the case of the United States of America, that is governed by the Constitution, a single written document.

I avoid the term treaty to describe the constitution because it's not. And since the Confederacy used that argument to justify their recession, people tend to relate back to all their arguments when that term is used. Contract may not be the correct word but like contract certain terms could be deemed unenforceable. Since the constitution does not address recession directly, we have to analyze whether restriction of recession violates other parts of the Constitution. Usually that lead us to the right of self-determination, a right that is NOT explicitly protected by the Constitution. So to what extend that applies in the States is unclear. And the Supreme Court simply doesn't want to deal with such issues. There's also some work at the international level but I doubt consensus could be reached in the foreseeable future. The U.N. is weak and inconsistent in this regrad anyway.

Whether a secession is an insurrection would be governed by the Constitution too. Which means that the Supreme Court has the final say and as is common in Common Law countries, the exact meaning of insurrection is not defined and is open to interpretation. So opinions of the Supreme Court could change with time too.

Oh, I forgot to add this. I consider Lincoln abused the Constitution because instead of moving the case to the Supreme Court, he resorted to force.

Und this difference: "Droit public" is in the continental terminology the specific area in which the states acts a ruler - as an "Imperium".



First I come from German, there I am even more used to Roman legal tradition. The idea of a sovereign is central to all state - it is the very essence of the existence of a state. This idea is new: You don't find it prior the 16th century (most notable in Henry VIII and François I), but it was not generally accepted, as to be seen with Charles V. Even Thomas Symth discussed in length the question regarding that England is sovereign (he concluded that it is, otherwise his boss, Elizabeth I, would give him a kick in the arse or some stay in the Tower of London). If you like to understand the basics, I may refer to Jean Bodin and Hugo Grotius. The concept of sovereignty was only generally accepted as late as 1648.

The idea of the sovereign as an legal entity as the legal personification of the absolute and supreme power is the cornerstone of theory of modern state. It does not matter to talk about a monarch, the people or an assembly (see Luzern constitution on 1813). The very nature of this legal entity is that is the formal source of all power in a state, but has not source of its power. It is a legal construction to explain the very origin of the state.

But you need to understand this construction to understand the nature of a state and why Obama and the two Capitani Reggenti of San Marino are on eye high and the swift why emperor Henry IV could act like King Henry VIII of England.

When 1776 the USA were founded and the Declaration of Independence referred to "and to do all other Acts and Things which Independent States may of right do" the author were certainly aware about this definitons and to understand the declaration you must understand that here a new sovereign appeared.



I leave here the UK out, because the UK is a lot of respects an exception, but I try to explain what a constitution is.

In respect of constitutions is in the very first place the "Pouvoir constituant originaire" - this is the power to issue a constitution in the first place. Normally this power is executed only ones. Executing this power sets the rules for everything what fallows. However executes this power or delegated this power has (theoretically) unlimited power over the state - or the other way around: That a constitution had been made indicates that this supreme sovereign exists.

And with this existence the sovereign, in this particular case "We the People of the United State" (Singular!), has the right to suppress everyone who denies his power.



As I said: In the action of state, in its nature as a state, a contract does not exist. A state does not ask you for agreeing - the state orders.



The so-called "right of self determination" is extremely new, you hardly find this term prior the World War I and it is seen as highly dubious. It certainly does not apply for the 1860s.



Oh - it is in England very fine defined - raising arms against the lawful authority; and the authors of the US-constitution would know to well the meaning.

I think the central point of our disagreement is that you think sovereign is an important concept, without it there will be no basics for individual countries. I don't subscribe to such logic as separate countries had existed long before the idea of sovereign is established. Aggrements between countries also existed long before that. In essense the unit of country exists and functions well long before the term came up. It may be of interest in the historical sense, or have some bearings in the perspective of French style Civil Law system. I just can't see the relevancy here. Scholar opinions is of very little importance in a Common Law system, it's the actual laws (written or unwritten) and the case laws that count.

It doesn't matter whether it's the "Declaration of Independence", the "Articles of Confederation", or the "Constitution of the United States of America" established the US as a single sovereign. It doesn't matter under what grounds is the US established. By the time of the civil war, all states have agreed to the Constitution as the ONLY supreme law.

Surely the authors of the Constitution knew and had heavily studied the systems of other countries before settling on the final wordings, but it's those words that counts. And as the Constitution doesn't explicitly define insurrection, the Surpreme Court has the final decision. They are expected to honor the intention of the original writers, but they are also expected to follow the spirit of the law as it evolves through time.

The way I see it, the southern states believed that they have the right to withdraw and the Union disagreed. By the Constitution, it is the role of the Supreme Court to hear the case. So invasion is unconstitutional.

In present day, the way the British define insurrection is somewhat hard to be used here as each state has its own national guard. Also if secession ever happen again in the States, I doubt it'll be by force.

Chief Justice Tanney was pro-slavery.

Besides, Lincoln and his buddies won, did they not?

ruveyn

This not correct: Prior the 16th century, when the idea of a sovereign you do not have an international law in modern sense or a state law. The theory prior was of a feudal pyramid with Pope and Emperor on the top, bounded together from the top to the single peasant with a complex system of duties and entitlement.

You can mark this swift very well with the legal programme of King Henry VIII of England: The Act of Supremacy and Crown of Ireland Act. In both acts Henry VIII claimed for himself via parliament to be supreme ruler. Prior there was still the papal supremacy over Ireland (were Henry was the tenant of the pope). Remember the self-humiliation King Henry II of England had to agree.

Prior the 16th century you also do not a concept of international treaties, but conflicts were settle within feudal relations ships or via mutual privileges. It was for e.g. in City States in Italy not the question that the Holy Roman Emperor was there Overlord, but it was the question how fare reaching their privileges of self rule were. The Kings of England were in 13th and 14th century via the heritage of Eleanor of Aquitaine in France Tenants of the King of France, but in England not, but in Ireland tenants of the Pope. And-so-on-and-so-on ...

As I said this system died slowly: The final gravestone is the Peace of Westphalia 1648, when finally the Holy Roman Empire accepted that all other kings in Europe are no longer his formal tenants but of equal stay.



This is less "French Style", you mean a system based on the Roman Law. As I showed above - It has more to do with replacing the feudal law with an law based on sovereignty. The only entity in Europe which remained its feudal constitution, the Holy Roman Empire till 1803/06, was governed by the Roman Law. The Corpus Iuris Civils (or Codex Iustinianus) was the basis for the legal system, but the Holy Roman Empire developed never a doctrine of sovereignty.

The idea of sovereignty is independent from the Roman Law (thus the Roman Law did not have here a doctrine for its own - it served for an universal Empire).



It does - it does so very much, because if you waive away a right ones than it's lost ...



The states were in this respect of no interest any more.



There are legal questions which are solved in court and others on the battle field. You may look up the "Sonderbund War 1847" in Switzerland, were you the have the legal debate some years earlier.

CanyonWind wrote;

Agreed, I believe that the federal government wanted to keep the South under it's boot heel to keep that tax base intact and to reap the agricultural bounty from it.
It was driven by power and greed.

It was within the power of the American colonists to attempt to gain independence by force. It so happens they succeeded with the help of France. Likewise it was within the power of the Southrons to attempt for form an independent nations. But they did not succeed.

So you see what really matters in not what is de jure, but what is de facto.

Legality is hot air. Facts are real.

ruveyn

It kind of proves that even existing ***rights*** may have to be fought for in order to be exercised and there is no guarantee that you'll win or even survive the fight.
Right or wrong that's how it is, unfortunately.

Dussel, just because Roman Republic -> Roman Empire -> Western + Eastern Roman Empire
-> Western European + Byzantine Empire ... and the modern concept of law evolved with it, doesn't mean that it still apply today (or at the time of the American Civil War). When the US is established, the Constitution became the SOLE overseeing law in this land. Unless we are discussing the validity of the Constitution or the US, why are those things relevant?

In fact even at the peak of its power, the Roman Empire wasn't the whole world. By your logic, does the law of the Persian Empire or the Ottoman Empire had to follow the Roman way? They might have to accomodate when doing business, that's the beginning of International Law. That's also why International Law are mainly about trade dispute and evolved from there. When it comes to internal affairs though, no other country can say you have to pass my standard.

In our Constitution, there're certain rights that can't be given away or waived. We could argue on what is guaranteed and what's not but that would still be based on our Constitution.

In today's term, that's called the right of self-determination. That term didn't exist at the time of the Civil War, but that doesn't mean the concept didn't exist. Homo Sapiens had been breathing air long before the word air came up, air doesn't exist because we named it. So even the Constitution doesn't mention that right directly, I can't imagine the founding fathers strip that right from the people right after exercising that right to become independence.

That's why I hated Lincoln for sidestepping the Supreme Court, even though the South's policies were disgusting.

Because our idea of law is based on the Roman Law. Legal thinking takes a lot of things for granted, because there are very long around, to be precise till the Roman Empire.

This is here less about the Roman Law, but more about the nature of constitution - this discussion raised in the 16th century. It is not an accident that the oldest constitution still in force, the Constitution of San Marino, is dated 1600. National laws have a basis, a basis mostly unexpressed in those law: The basic idea regarding the nature of laws, how to interpret those, when they to follow.

There exist a thing like "ius cogens", a law not expressively made or outspoken, but binding anyone, even the law maker or the creator of a constitution; overwriting all other legal actions. Part of the interpretation of this "ius cogens" are basic ideas regarding the nature of sovereigns, states, treaties, etc.

When it comes to basic question, like the right of a sovereign to defend its territorial integrity we had to go back to this basics. Therefore I suggest to look up the legal debate regarding the Swizz Sonderbund War.



As I explained above: The Roman Law did not developed a theory regarding international relations. But we use the terms of Roman Law to have a common ground to know what we taking about in the first place.



That is simply wrong: Classical International Law deals exclusively with the interaction of sovereign entities - matter of war and peace, borders, territorial claims, etc. Disputes between private entities, even cross border, are not an issue of classical International Law. Each state can handle those in the first place as he like it.



This is beyond a certain point not the practice of international law: In the moment internal affairs may influence other states, and the ablity to maintain territorial integrity by enforcing the supreme rule is a classical example, they are matter of all sovereigns. This has been established with the Peace of Westphalia 1648, and maintained ever since (Peace of Rijkswijk and of Utrecht, Congress of Vienna, the London conferences regarding Luxembourg and Belgium, and finally institutionalized in Europe with the Helsinki Accords 1975 - to name just the most prominent examples).



That's not true: The US-constitution has no safeguard against an amendment to establish e.g. a dictatorship.





If don't understand what is behind the idea of a constitution in the very first place, you do not understand on what a constitution is based.



It did not really exist as a accepted term in international law prior 1918 and is still seen with a lot of suspicion. IMHO it did more harm than good.

Do you recall which side fired the first shot?

ruveyn

Who fired first? why we did!... Sorry I have to take the stand on behalf of all the rednecks in this state (we became Tarheels during the Civil War, not the Final Four... I'm a west Texan, but I suppose another viewpoint is called for...

I don't know if it's changed over the centuries, but the oath of entrance into the US Army states that you shall defend it against all enemies, foreign and domestic... That was modified after the war by the Posse Commitatus (sp?) act.

I was gonna bring up West Virginia...but I was too late...

Lincoln had plenty of 'extra-judicial' acts, including suspending habeus corpus during the woah...

"Why is it when Presidents want to start a war they always quote Lincoln?" - 2010...