Instead of going to war, the south legally sues the united states for their right to secede

This is something that always puzzled me as to why it didn't happen in OTL.
instead of firing upon fort sumter when the union refused to evacuate its military positions in the seceding states, the south could have built a strong legal case that the union was an affair that required the consent of the states, and that the states could voluntarily back out of said union. With the right lawyers they might have won the supreme court battle (to the detriment of african americans, the united states, and the world as a whole)
 
To quote an old soc.history.what-if post of mine:

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Maybe I'm missing something, but how can South Carolina get original jurisdiction in the Supreme Court if it has already seceded? The provision of Article III, Section 2, paragraph 2 giving the Court original jurisdiction in all cases "in which a state shall be a party" pretty clearly was meant to refer to states of the Union, not to foreign nations. (When the drafters of the Constitution intended to refer to "foreign states" they did so explicitly, as in Article III, Section 2, paragraph 1.) For South Carolina to invoke original jurisdiction, therefore, she would have to acknowledge that she was still in the Union, which of course would destroy the whole point of the litigation.

True, prior to seceding South Carolina might ask for a determination that secession was legal. Of course, she wouldn't do so, first because time was of the essence--the excitement caused by Lincoln's election wouldn't last forever, and secessionists had to strike while the iron was hot [1]; and second, because going to the Court might be seen as implying a duty to obey the Court's decision even if it went against her. But even forgetting these practical difficulties, there was a major legal one as well: For many years it was doubted whether an action for a declaratory judgment was a "case or controversy" within the jurisdiction of the federal courts. In fact, as late as 1928 in *Willing v. Chicago Auditorium Association*, the US Supreme Court stated in a dictum that "what the plaintiff seeks is simply a declaratory judgment. To grant that relief is beyond the power conferred upon the federal judiciary." 277 US 274, 289.

[1] South Carolina had not forgotten her experience of 1850, when delay on her part was fatal to the secessionist movement.

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A few other points I didn't mention in that post:

(1) What right would the Supreme Court have to order the evacuation of Fort Sumter, even if it concluded South Carolina was independent? Believe it or not, there is nothing in the Constitution that forbids the US from maintaining forts in foreign counties--no, not even against the will of said countries. I don't think Cuba would have much luck getting SCOTUS to require the abandonment of Guantanamo...

(2) Assuming that the Court does somehow have occasion to rule on the legality of secession, it would seem that at least two southerners on the Court would consider it illegal. Justices Wayne of Georgia and Catron of Tennessee stayed on the Court throughout the Civil War years, which seems to indicate that they did not accept their states' ordinances of secession as binding. (Only Justice Campbell of Alabama resigned.) Unless you think they had the right to sit on a foreign nation's Supreme Court...

(3) The Dred Scott case is actually a good illustration of one reason why it would have been impractical for secessionists to rely on a Supreme Court decision. Dred Scott first sued for his freedom in 1846, and the Court did not finally decide the case until 1857! Secessionists were in a hurry, and waiting that long was obviously utterly unacceptable--indeed, even waiting a few months might have been fatal for their cause, as Southerners would come to realize that Lincoln was not another John Brown.
 
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Because I can’t see the SCOTUS- even led by as pro-Southern a justice as Roger Taney- nor any court in
any nation @ any time, sign on to a legal theory that could well lead to their country’s destruction(though I
have to admit it would have been most interesting to have heard, say, John C Calhoun & Daniel Webster
argue such an issue before the SCOTUS....)
 
Because I can’t see the SCOTUS- even led by as pro-Southern a justice as Roger Taney- nor any court in
any nation @ any time, sign on to a legal theory that could well lead to their country’s destruction(though I
have to admit it would have been most interesting to have heard, say, John C Calhoun & Daniel Webster
argue such an issue before the SCOTUS....)
Oh I'm not saying the south wins, I'm saying they try to win
 
Well because the USA would still be claiming jurisdiction over the south regardless of their declaration of separation

Either the US was claiming SC still part of the US rightly or wrongly. If rightly, then SC loses on the merits, because its ordinance of secession was invalid. If wrongly, then SC as an independent nation had no right to invoke the original jurisdiction of the Court under the provision of Article III, Section 2, paragraph 2 giving the Court original jurisdiction in all cases "in which a state shall be a part y."
 
Either the US was claiming SC still part of the US rightly or wrongly. If rightly, then SC loses on the merits, because its ordinance of secession was invalid. If wrongly, then SC as an independent nation had no right to invoke the original jurisdiction of the Court under the provision of Article III, Section 2, paragraph 2 giving the Court original jurisdiction in all cases "in which a state shall be a part y."
Than what channels could the south use to settle the dispute through legal methods?
 
Oh I'm not saying the south wins, I'm saying they try to win

Understood Crazy. I just don’t think they would have had a prayer of winning through any legal means.
Their only chance was to stay out of war with the north & when Fort Sumter ended that possibility, then
they had no other course of action than the one they did take up IOTL- by force of arms. (Let me add I’m
dammed glad that didn’t work out for them!)
 
Than what channels could the south use to settle the dispute through legal methods?
Trying to get a constitutional amendment that guarantees "the right of secession" passed or some other means of "with the agreement of all the members who agreed to the terms of this" before seceding is probably the closest to "legal means".

But seceding and then trying to argue that it's totally legal is probably going to be a problem.
 
Understood Crazy. I just don’t think they would have had a prayer of winning through any legal means.
Their only chance was to stay out of war with the north & when Fort Sumter ended that possibility, then
they had no other course of action than the one they did take up IOTL- by force of arms. (Let me add I’m
dammed glad that didn’t work out for them!)
I just think it's a funny image; a southern lawyer trying to legally justify their slavery preservation attempt in the SCOTUS
 
Than what channels could the south use to settle the dispute through legal methods?

You're assuming that judicial channels to resolve the dispute existed. My argument is that either they didn't (because secession was a political rather than a legal question) or that if they did, they were simply not practical because they would require prolonged litigation and the implied obligation to obey an eventual Supreme Court decision that might go against them--something intolerable to the secessionists of 1860-1 who felt the need to act quickly.
 
You're assuming that judicial channels to resolve the dispute existed. My argument is that either they didn't (because secession was a political rather than a legal question) or that if they did, they were simply not practical because they would require prolonged litigation and the implied obligation to obey an eventual Supreme Court decision that might go against them--something intolerable to the secessionists of 1860-1 who felt the need to act quickly.
This is assuming That the south somehow is okay with a multi year court battle. if they get a bad ruling they probably claim partisan interference and the civil war just starts a little later
 
My legal opinion isn't as well argued as David T's, but is based on Federal Supremacy. The Federal Union was created in a Convention, that drafted a Constitution, that was ratified by the States. All the States agreed to live under the terms of the Constitution, and not exceed, or ignore them. The Constitution is the supreme law of the land, if a State Legislature could nullify it, then it would be supreme. The Constitution provided two methods of creating new Amendments, but no method for nullification, or disunion. By my reasoning the only way to dissolve the Union would be calling another Constitutional Convention that would vote on disunion, or an Amendment granting States the right to succeed, and then have the States ratify it.

As David T pointed out the Secessionists needed to act swiftly, before passions cooled, so no lengthy legal maneuvers could be tried. Persuasion usually takes time, and as it was only 7 States agreed to secede. Firing on Fort Sumter was designed to force the hand of the Federal Government, and the Border States to chose sides. All in all it was a poorly thought out process, carried out by a group of hot heads who managed to drag millions of people down a path they didn't want to go.
 
There's a fairly obvious reason why the South, once it claimed to have seceded, had no legal case against the US, explained in Kenneth Stampp, And the War Came:

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What if the South didn't secede? How long would slavery last?

This is a very difficult question. How could it be abolished? Would there ever be a sufficiently large majority of free states that would vote this way? Certainly, even the loyal slave states voted to keep slavery during the civil war. I could perhaps see enough of a shift in attitudes in the upper south that slavery might be abolished by the mid-20th century, but prior to this it's very hard to see the US abandoning the practice.
 
'Let the erring sisters go' said Horace Greeley, then then Secesh fired on Fort Sumpter because every Southron wanted to kill a Yankee and that's what secesh was about even more than slavery.
 
'Let the erring sisters go' said Horace Greeley, then then Secesh fired on Fort Sumpter because every Southron wanted to kill a Yankee and that's what secesh was about even more than slavery.
And WHY did they want to kill the yankees? They thought they going to abolish SLAVERY.
 
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