The South rejected the idea of the Supreme Court as final arbiter of constitutional questions, based, I think, not so much on a concern about who enforces constitutional law, but on who interprets it.
The Southern states (see e.g. their nullifcation doctrine) claimed power in states to finally arbitrate constitutional questions, particularly in regards to federalism and state powers, and so they would have considered a Supreme Court decision contrary to their interpretive views as illegitimate and non-binding. What is interesting is that following Dred Scott (which they won) you had a series of Supreme Court decisions like Ableman v. Booth strongly establishing Federal judicial supremacy on constitutional interpretation, and rejecting state power to nullify federal law. Of course, the South could have rejected these decisions, as well, except for the inconvenient fact that they defended slave property against abolitionist assaults. And without nullification, slavery was clearly in danger, Lincoln or no, because sooner or later, the tide would eventually turn re the larger society's acceptance of slavery. Thus secession was likely their only route to retain power over th! e issue. (As a note they weren't even palliated by the proposed 1861 Thirteenth Amendment, which would have prohibited any constitutional amendment banning slavery) One question re approving secession in Iraq is whether, there are issues, like slavery, which are 1) so regionally divisive that any federal decision either way (pro or con) risks so alienating a particular region that they would feel the need to secede, and 2) incapable of being left entirely to local control thus obviating the need for seccession (for example, slavery could only be maintained, as a practical matter, if other states recognized slave property - whether in fugitive slaves, or as collateral for debt, etc). Perhaps theocratic vs secular government might be one of those issues- but isn't that a first order decision which is a precondition for establishment of any national government? I don't see how any government could be both. Perhaps you could create geographic regions of theocratic control within a secular national government. However, that solution seems to be a recipe for the kind of regional conflict that doomed the antebellum U. S. Perhaps it would be better to leave theocratic control to private groups based upon voluntary (real not assumed) membership, rather than having religious tenets as state law which would control people who disagree with those tenets. Then state actors wouldn't have to argue about them. yb yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: Francisco Martin[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Friday, October 03, 2003 9:23 AM > To: [EMAIL PROTECTED] > Subject: Re: The Iraqi constitutional convention > > Prof. Somin writes: > > I'm not sure that Prof. Martin is right to suggest that the Supreme Court > > is the proper forum for the resolution of all or most serious > > state-federal disputes that might lead to secession. After all, the Court > > can only hear such disputes as can be the subject of legal cases. In the > > case of Confederate secession, their most important concern was the fear > > that Lincoln or a sucessor would, IN THE FUTURE, use federal power to > > abolish slavery or severely restrict it. I don't see how the Supreme Court > > could have resolved this particular dispute. After all, the Court (in most > > situations) can't hear claims about possible future violations of the> > > Constitution that haven't happened yet. > > COMMENT: I may not understand your point here. I agree that the Supreme > Court generally cannot adjudicate potential constitutional violations. > However, if Lincoln had issued an executive order abolishing slavery before > the southern states seceded, the southern states could have challenged his > order in federal court as unconstitutional. > > Prof. Somin continues: > >Even if the Court did hear the > > South's "case" and ruled in their favor, I doubt that the Confederates > > would have been satisfied. After all, the Court had already gone far out > > of its way to protect slaveowners' interests in Dred Scott, yet this did > > not prevent Confederate secession. > > COMMENT: You may be right. > > Francisco Forrest Martin >
