Monday, September 15, 2008

Secession and Coercion: How Would the Supremes Have Ruled in 1861?


I’ve written before on President Buchanan’s expressed opinion, in his final state of the union message to Congress, that, although secession was unconstitutional, the federal government lacked the power to prevent it. The five posts on the topic are entitled "President Buchanan and the Militia"; the first may be found here.

In his wonderful article on Abraham Lincoln’s views (and actions) relating to judicial supremacy, Lincoln and Judicial Authority, Professor Michael Paulsen speculates that, if the secession/coercion issue had reached the Supreme Court, Chief Justice Roger B. Taney might have persuaded a majority of his colleagues to issue a ruling along the same lines:
There is clear historical evidence that Chief Justice Taney held much the same position [as that expressed by Buchanan] and had written it up at fair length in private correspondence. There seems little doubt that, had the issue been presented to him in judicial form at the Supreme Court, and had the supporting votes (which was likely, at least before Southern Justices resigned), Taney would have had little hesitation in ruling against the power of the Union to prevent secession by force. Imagine, then, a case brought by Virginia against the United States, seeking to prohibit the “invasion” of federal armies into its territory in transit to make war on another state. Who is to say that the Taney Court might not have held such invasion illegal? Even if the legal reasoning required to support such as conclusion might be thought dubious, is it impossible to believe that the Court that decided Dred Scott as it did might not reach such a disabling conclusion?

At the same time, Professor Paulsen notes that, “as Andrew Jackson’s attorney general, Taney had taken the opposite stance with respect to federal coercive power, during the South Carolina nullification crisis.”

83 Notre Dame Law Rev. 1227, 1284 & fn. 239 (2008) (footnotes omitted).

2 comments:

  1. Sean Nalty10:30 PM

    Hi Elektratig,

    A friend of mine who does legal history is submitting an article for publication that promises to challenge the historical consensus about how the Civil War "settled" the question of secession. I cannot say more at this time, but I have looked at a near-final draft. I believe that it will be as provocative as the Paulsen articles that you have cited.

    Sean

    ReplyDelete
  2. Sean,

    I won't ask for inside information, but let me know when it's published!

    ReplyDelete

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