- Joined
- May 12, 2019
- Messages
- 7,115
- Reaction score
- 4,148
The impulses of the secessionists made it hard to form a government. On one hand collective effort was needed to have an effective government. On the other hand the ideology of States Rights made giving that government any power difficult. Perhaps it seemed so easy to form a government is motivation and failure of secessionists.
[style size=18px;]Recovering the Legal History of the Confederacy[/style]
If a nation makes a Supreme court capable of overriding a State court, it means that State is no longer a fully sovereign entity. There is a "tension between the role of the Confederacy as a national government and the conception of it as an agent of secessionist"
Thus the debate over a Confederate Supreme Court helps capture an endemic feature of the Confederacy itself. It was constantly struggling to establish its identity as a government that was separate from, as well as the agent of, the states that formed it. Although the Confederate Constitution explicitly identified its "federal" powers—such as declaring war, raisingand supporting an army and a navy, laying and collecting taxes, engaging in foreign relations, and regulating commerce between the states—state concerns constantly shadowed those powers.403 It was as if, having conceded that some federal powers were necessary for any sovereign nation, those who formed the Confederacy continued to seek reassurance that those powers were being exercised with the states’ interests in mind.
When Yancey argued that the Supreme Court of the Confederacy’s reversal of a decision of a state court on a constitutional issue was tantamount to "the sovereignty—the reserved rights of the States" being made "to yield to the decision of five office holders of the Confederate Government," [style color=#0000b3]he revealed that he could not countenance the idea of the states and the Confederacy as fully separate sovereigns.404[/style] Yet for the Confederacy to act effectively as a representative of the collective interests of the states who seceded from the Union, it needed to exercise sovereign powers that were not merely extensions of state power. As we will see, that tension between the role of the Confederacy as a national government and the conception of it as an agent of secessionist
[style size=18px;]Recovering the Legal History of the Confederacy[/style]
However much as those who championed secession sought to identify that cause with the liberties of people residing in individual states, they were well aware that states seceding from one union needed to join together for some purposes: They needed the protection of a federal government, with a federal constitution and federal institutions such as courts. It seemed an easy step, in fact, for those who drafted the provisional and permanent Confederate constitutions to create a supreme court. But when it came to allowing that court power to review the decisions of the highest state courts in the Confederacy, the Confederate Congress balked because of the logic of their own states’ rights arguments.Given the choice of alternatives Garland and Yancey posed, the Confederate Congress elected not to organize a supreme court.402 Its members would surely have done so eventually had the Confederate States of America remained in existence, but whether that court would have had the power to review decisions of the highest courts of states, and whether, if it did not, it would have been a tribunal of any significance in the legal and political history of the Confederacy, are questions whose answers cannot easily be extrapolated from Congress’s consideration of the court between early 1862 and the winter of 1864. All that one can say, after examining the debates about the court in Congress, is that the very secessionist arguments that had inspired states to leave the Union were proving troublesome to the formation of institutions in the Confederacy that sought to represent the interests of those states as a collective body.
If a nation makes a Supreme court capable of overriding a State court, it means that State is no longer a fully sovereign entity. There is a "tension between the role of the Confederacy as a national government and the conception of it as an agent of secessionist"
Thus the debate over a Confederate Supreme Court helps capture an endemic feature of the Confederacy itself. It was constantly struggling to establish its identity as a government that was separate from, as well as the agent of, the states that formed it. Although the Confederate Constitution explicitly identified its "federal" powers—such as declaring war, raisingand supporting an army and a navy, laying and collecting taxes, engaging in foreign relations, and regulating commerce between the states—state concerns constantly shadowed those powers.403 It was as if, having conceded that some federal powers were necessary for any sovereign nation, those who formed the Confederacy continued to seek reassurance that those powers were being exercised with the states’ interests in mind.
When Yancey argued that the Supreme Court of the Confederacy’s reversal of a decision of a state court on a constitutional issue was tantamount to "the sovereignty—the reserved rights of the States" being made "to yield to the decision of five office holders of the Confederate Government," [style color=#0000b3]he revealed that he could not countenance the idea of the states and the Confederacy as fully separate sovereigns.404[/style] Yet for the Confederacy to act effectively as a representative of the collective interests of the states who seceded from the Union, it needed to exercise sovereign powers that were not merely extensions of state power. As we will see, that tension between the role of the Confederacy as a national government and the conception of it as an agent of secessionist