Category Archives: Legal

Why We Still Debate the Civil War

Here we are, in 2017, we’re still debating the causes of the Civil War, which began in 1861 with roots that stem from centuries before. This blog post isn’t about statues, racism, social justice or the like, it merely is written to clarify the actual primary cause of the Civil War. No doubt there are many reasons, that were evident at the time, but those were subordinate in the grand scheme of events leading to the war.civil_war_stamp

The Civil War, also known as “The War Between the States,” was fought between the United States of America and the Confederate States of America. The CSA was a collection of eleven southern states who left the Union in 1860 and 1861 and formed their own country in order to protect their continued usage of the institution of slavery.

Slavery was introduced to North America by the British as far back as the early 17th century. The south believed in the dissolution of the Union after they couldn’t come to an agreement with the dominant north over the rights of states to control commerce. Slavery was a component of commerce, not in its entirety, but an essential component. It was legal at the time the country was formed, and the southern states saw no justifiable reason to change when they knew most of the northern leadership agreed with them. Negroes, as they were called, were not equivalent to Caucasians. They weren’t allowed to vote, own property, inter-racially marry, or if they lived in the south, couldn’t participate freely with the fruits of their labors.

The northern leadership believed, once the union of states were created, no one or more states had the right to leave that union. They were willing to negotiate, but when the matter came to a head, they willingly took up arms to preserve that union and stop the south from seceding.

events leading to the American civil war
The slavery extension question was thought to have been settled by the Missouri Compromise nearly 40 years earlier. The Mexican War, however, had added new territories, and the issue flared up again in the 1840s. The Compromise of 1850 provided a temporary respite from sectional strife, but the Kansas-Nebraska Act of 1854, a measure Stephen A. Douglas sponsored, brought the slavery extension issue forward again. The Douglas bill in effect repealed the Missouri Compromise by lifting the ban against slavery in territories north of the 36°30′ latitude.

The Supreme Court decided a case brought forward by an escaped slave. He in effect was suing for himself and his family’s freedom. The Dredd Scott decision rendered in 1857, declared he wasn’t entitled to his freedom; that Africans were not and could never be citizens of the United States; and that the Missouri Compromise of 1820, which had declared free all territories west of Missouri and north of latitude 36°30′, was unconstitutional.

This further set in motion the events leading up to the Civil War. In effect, it supported the institution of slavery, and the southern states now believed it was their personal right of sovereignty. In effect, the Constitution was a voluntary agreement, as easily broken as it was initially agreed upon.

The Douglas doctrine of popular sovereignty, was to permit new territories and states the right to self-determine their status as a free or slave state. This slavery extension proposal, provided the background for the Douglas – Lincoln debates of 1858. Their debate, addressed the problem that had divided the nation into two hostile camps which threatened the continued existence of the Union.

Slave_kidnap_post_1851_bostonIn 1859 John Brown, an abolitionist, working in concert with others, formed a rebellion in Harpers Ferry Virginia (now West Virginia). Brown had previously met abolitionists, Frederick Douglass and Sojourner Truth while living in Springfield Massachusetts. Brown was convinced slavery wasn’t going to end through peaceful negotiations. Brown’s personal attitudes evolved in Springfield, as he observed the success of the city’s Underground Railroad and made his first venture into militant, anti-slavery community organizing. In speeches, he pointed to the martyrs Elijah Lovejoy and Charles Turner Torrey as whites “ready to help blacks challenge slave-catchers.”

The choice of allowing slavery for some admittedly was a compromise, so the fledgling nation had enough backing to form a binding union, and thereafter break away from British rule. As we see today in politics, challenging problems are pushed forward in hopes that someone will solve the problem in the future. Doing so, means a crisis builds until the inevitable fateful day, and it can no longer be ignored.

Flawed From the Beginning

Many of the Founders wished to abolish slavery in the Constitution. The irony and hypocrisy were not lost on them, and they weren’t shy about saying it. The compromises in the Constitution regarding slavery placed the short-term need to form a Union ahead of a contentious debate with no resolution. The alternative was two countries, one without slavery and one with. Several founders later emancipated their slaves.

In 1807, Congress passed a law and Jefferson signed banning the importation of slaves to begin on January 1, 1808, the very first day permitted under the Constitution. Some have argued that this only made existing slaves more valuable and the South already had sufficient slaves to breed to meet their needs. I give our Founders the benefit of the doubt. If for no other reason, a slaver would vote against this to maintain his right to hold slaves on principle.

After the law passed, US Naval forces commenced to patrolling the African coast and seizing slave ships. Great Britain was already doing the same.

Slavery, was officially ended by the British, and the US was trying to figure out how to completely eliminate it within its own borders, and not criminalize its own citizens. Those same citizens were part of the framers of the Constitution, and supporters of Independence. Virginia was the home of Thomas Jefferson and the cradle of independence. It was a natural place to be the capital state for the Confederacy.

tenth_amendment_states_rightsThe dilemma for America was from its very beginning. As an ideal, the framers and leaders knew that all men were created equal but their society, their practices, had accepted distinctive differences in race as a basis to allow slave holdings.

Slaves were the means by which the south could compete against the more industrial north. This economic disparity, along with punitive tariff’s against the south, created additional friction. After the insurrection by Brown, the southern states believed violent uprisings were going to part of their future, they also thought they had a legal right to secede, and no peaceful option in which to exercise that right.

“Historians agree that the Harper’s Ferry raid in 1859 escalated tensions that a year later led to secession and the American civil war.” Put down by Colonel Robert E. Lee of the United States Army, assisted by First Lieutenant J.E.B. Stuart the temporary insurrection was quickly suppressed.

There are many who insist the Confederate States of America were formed through a common cause theme just as the United States did against Great Britain decades before. They believe the south chose independence because of the continued encroachment against states rights by a central federal government. They see Lincoln as a dictator not an emancipator. Lincoln, despite his Illinois state speeches against slavery in the 1840’s, and his famous debate’s against Douglas in 1858, stated if he could keep the Union, he would have accepted slavery as a compromise. History shows that he didn’t.

That’s the historical irony, the individual states agreed to be part of the union at the Constitutional convention of 1783, as long as they could keep slaves. By 1860, after decade of debates, court battles, and slave rebellions, the south’s insistence that slaves were property, not equal as humans, and they had every right to decide what they could do with their property. This property kept the wealthy land owners in business. It also increased their wealth, a wealth which was the driving force for southern economy, seemingly threatened by the more industrialized north. As in all things, contemporary, or historical, there are many reasons, and aspects to conflicts.

compromise_of_1850As much as some people want to “window dress” the motivations of the Civil War, the overwhelming unresolved problem was slavery. To say it was over states rights, economic factors, or encroachment of federal law into individual states commerce, is by varying degrees, true. The long-standing tensions and disagreements about the use of humans as a means to an end, in providing an economic base were the ultimate catalyst. None of those would have been significant factors if not for the conflicting arguments over slavery.

Between election day and Lincoln’s inauguration in March, seven states had seceded from the Union: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. They were to be followed by four more: North Carolina, Virginia, Arkansas, and Tennessee. Missouri, and Tennessee were divided within specific geographic boundaries, depending on who were the predominant community leaders. Kentucky started out neutral, but voted to become part of the union. West Virginia broke free of Virginia in 1863 to become part of the Union.

Republicans captured over 60 percent of the Northern vote in 1860, and won three-fourths of its Congressional delegations. The Southern press said that such Republicans represented the anti-slavery portion of the North, “a party founded on the single sentiment…of hatred of African slavery“, and now the controlling power in national affairs.

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The cause of rebellion – Civil War 1861-65.

Opening volley – Why Fort Sumter?

The Top Nine Events Leading to Civil War

An Educators Guide to the Civil War

Here is an excerpt of the Declaration of Secession by the State of Georgia.

“The prohibition of slavery in the Territories is the cardinal principle of this organization.”

“For forty years this question has been considered and debated in the halls of Congress, before the people, by the press, and before the tribunals of justice. The majority of the people of the North in 1860 decided it in their own favor. We refuse to submit to that judgment, and in vindication of our refusal we offer the Constitution of our country and point to the total absence of any express power to exclude us.”

Continue to read this secession document.

” … It will be a glorious day for our country when all the children within its borders shall learn that the four years of fratricidal war between the North and South was waged by neither with criminal or unworthy intent, but by both to protect what they conceived to be threatened rights and imperiled liberty: that the issues which divided the sections were born when the Republic was born, and were forever buried in an ocean of fraternal blood.”

Lieutenant General John B. Gordon, CSA

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The Bias Construct

Recent public conversations about the political nature of Supreme Court appointments, has surfaced again. No matter who is proposed, if they’ve lived, worked, met, and offered numerous legal opinions, any nominee is going to have opinions on key issues of their day.

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United States Supreme Court Building

Such confusion and double-talk exists in our public-politic, it’s amazing that anyone can be appointed. In a recent public speaking engagement at University of California, Berkeley, U.S. Supreme Court Justice Sonia Sotomayor had this to say.

“I’m saddened to see that many people have lost confidence in judges and believe they are political.”

Sotomayor made the comments while taking questions from law students. The school’s interim law school dean, Melissa Murray, served as Sotomayor’s clerk when the justice was a federal appellate court judge.

Sotomayor said judges try to be fair and impartial and don’t have rigid beliefs they apply to every case. She encouraged people to view judges as “human beings who care deeply about what we’re doing.”

This is an interesting response, considering her words elsewhere.

Sotomayor, spoke at the University of Minnesota on October 19, 2016, commenting that the Supreme Court was designed to have nine justices so it can break ties on difficult cases.

“We try to come to decision-making as best as we can,” she said. “Where we can find a very, very narrow way of deciding a case, we use it.”

Sotomayor compared Scalia’s death to the loss of a family member despite their differences.

“There are things he’s said on the bench where if I had a baseball bat, I might have used it,” she said.

Enter the new nominee Neil Gorsuch. There’s a leading headline in Rueters describing, “ideological balance at stake in confirmation fight” . Of course the usual politicos, Democratic leader Chuck Schumer, and Democrat Dianne Feinstein, are leading the opposition to his appointment along ideological lines. The Rueters article describes some of the opposition rational as to why he shouldn’t be appointed.

It’s a good thing Supreme Court judges are fair and impartial and don’t have rigid beliefs.

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Neil Gorsuch – Supreme Court nominee