If the 1860 US presidential election was legally and constitutionally sound, then how could the southern states justify secession?

Read Richard Hurley's answer to If the 1860 US presidential election was legally and constitutionally sound, then how could the southern states justify secession? on Quora

Robert E. Lee is the most shameful American of all time

Note: This post was written in response to a discussion on the Quora website, where participants elected Andrew Jackson the most shameful American of all-time. I disagree.]

Robert E. Lee was the most shameful American. The Civil War was started in South Carolina. The slave owners who desired the war mostly resided in the deep south, where cotton was grown. At the time of the war (1860), Virginia no longer had a serious slave economy.

Virginia is filled with remembrances of the Lee family, who undoubtedly helped found the United States and win the war of Independence. Robert E. Lee was born into this family of great fame and wealth. He attended West Point, where he was trained to be an officer in the United States Army. He took a solemn oath to preserve, protect, and defend the United States.

Lee broke that oath. He joined the Confederacy and led the Army of Northern Virginia for 5 years. His army slaughtered hundreds of thousands of American soldiers who came to fight against him. In return, his soldiers died by the hundreds of thousands in a brutal bloodbath for which Lee alone was responsible.

When the southern states began to secede, President Lincoln asked Lee to lead the Union Army. Lee was the best general officer in the army and was duty bound to accept the offer of his Commander In Chief, President Lincoln.

If Lee had accepted the leadership of the Union Army, the Confederacy would have had no general who could take his place. Every other Confederate Army was defeated by 1863. The Battle of Vicksburg, which ended the war in the West, was won on the same day that Lee lost the Battle of Gettysburg. Lee could have surrendered at that time and saved the country, his country, and Virginia from 2 more years of pointless slaughter. But Lee fought on.

Although Lee has enjoyed a great reputation as a general, in one aspect at least he was greatly deficient. He fought his battles using Napoleonic tactics, for he had learned in school that massed infantry charges should be employed against massed artillery. 

The Napoleonic wars ended in 1815. The United States Civil War began 45 years later. During those 45 years, technical improvements in rifles and cannon had rendered the earlier tactics obsolete, even inhuman. In particular, rifles carried by infantrymen during the Civil War were far more accurate than they had been 50 years earlier. 

A musket fired during the battle of Waterloo was only accurate at a distance of 35 to 50 yards. In addition, the smoke created by firing muskets so obscured the battlefield that little could be seen beyond a few feet. This made the bayonet, which was attached to the end of the rifle, as important as the bullets fired from the rifle.

By the time of the Civil War, muskets had been replaced by rifled muskets, which had grooves inside the barrels that gave them superior accuracy. Accuracy was improved for both hand-held rifles and cannon. A rifled musket was accurate up to 200-300 yards. In the hands of an expert, it was accurate at 500 yards. 

A rifled cannon was accurate up to a mile. A Confederate soldier at the battle of Atlanta reported that a 3-inch cannon, made from wrought iron, could hit the top of a flour barrel at any distance up to a mile. The deadliest projectiles fired by cannon were canisters filled with shot and accurate up to 400 yards.

As a General who had experienced many such battles, Lee knew the deadly accuracy of the modern arsenal. Yet he persisted in ordering his soldiers to attack entrenched enemies in massed groups, as prescribed in the old manuals he had studied at West Point. 

Lee's reluctance to change tactics led most famously to Pickett's charge at the battle of Gettysburg (1863), where Lee ordered 15,000 infantrymen to charge at the center of the Union lines. The soldiers had to cross 3/4 of a mile of open fields and broken ground.

Pickett's charge was caught in a crossfire of musketry and cannon. On that one afternoon, 5,000 Confederate soldiers died without gaining a single inch of enemy ground. 

Brigadier General Longstreet had warned Lee several times that morning and in the previous days that the charge would fail. Lee persisted.

Longstreet, it turned out, had been right. The extent of the slaughter caught everyone by surprise, though. The Confederate soldiers, when they fought through to the stone wall which sheltered the Union soldiers, turned around, expecting to see battalions of men behind them. But no one was there. The isolated vanguard either surrendered or were killed where they stood.

The deaths of the men who followed his orders should have weighed heavily on Lee, but in his reports of the battle he mostly blamed others.

Obviously others had responsibility for the secession of the Southern states. But without Lee the war might have been over in a few weeks, because there was no general officer even close to him in skill, experience, and military talent. So Lee must bear major responsibility for all the people who died in the war, which amounted to between 850,000 and 1,100,000 people.

All of this death and destruction should be enough to make Robert E. Lee the most shameful American, but one fact alone carries more shame than all the others: Lee had taken an oath of allegiance to the American flag. When he arrayed his troops against it, he became a traitor to his country.

Our Decrepit Constitution: Electoral College and The Civil War

Electoral College

Americans credit the men who wrote the Constitution—the framers--with great wisdom and foresight. Supreme Court Justices have started a cult that worships the Constitution as a perfect document. They pore over its text and the opinions of its creators as though they were religious texts and revelations of the true word. Some also claim that the framers were inspired by God, usually by a Christian fundamentalist God.

None of these beliefs is true. The framers were neither godlike nor exceptionally wise. The document is not based on religious ideas. The Constitution is deeply flawed and becomes more so with each passing year. The framers made it hard to change. Amendments require passage by both houses of congress with a two thirds majority, then ratification by three fourths of the state legislatures. Most amendments also specify that they must be ratified within seven years.

The framers have recently been considered by some the infallible source for American law. This assumption implies that they were always right, at least about law and government. This assumption was very far from the truth.

The framers invented the electoral college, ostensibly to prevent the voters from making a mistake when electing a president. Instead, it was the electoral college that made the mistake, in 1800, when it gave the same number of electoral votes to both Thomas Jefferson and Aaron Burr. The House of Representatives elected the president that year. The Constitution created a crisis where none existed.

The framers decided that each state should have only two senators. This compromise gave more power to the less populous states at the expense of the states with larger populations. In 1787 the most populous state, Virginia, had 20 times the population of the smallest, Delaware. In 2010, the most populous state, California, had 65 times the population of the smallest, Wyoming.

History tells us that states vote in regional blocs, with relative size having little to do with their decisions. Neighboring states New York (a large state) and Rhode Island (a small state), for example, voted for the same presidential candidate in the last seven elections. Neighboring states Louisiana(small) and Texas(large) voted for the same presidential candidate in the last seven elections as well. Louisiana and Rhode Island, both small states, voted for different candidates in all seven elections.

Since small states no longer vote in a bloc, if they ever did, the election of two senators from each state, regardless of population, does not serve the purpose intended by the framers. Instead of balancing the interests of different sized states, California's two senators represent a disenfranchisement of 36 million voters in relationship with Wyoming. The framers may have been right in 1787, but their judgment on this matter, at least reflected by presidential choices, is wrong today.

The framers made no provision for political parties in their Constitution. This oversight has become a serious problem in recent years. The British Parliamentary System recognizes that there will always be more than one party. The leader of the majorityThis arrangement gives the leader of parliament, the prime minister, the ability to govern if he can unite his own party behind his platform, a relatively easy proposition, given that all members of his party stood for election on the same platform.

The American system divides government between political parties. This division makes legislation more difficult to pass and slows down the process of government. James Madison argued that representative democracy rather than direct democracy because he claimed that direct democracy gave rise to factions. Madison defined a faction as a group of citizens united in some passion or common interest against the interest of others. He singled out the factions that arise from inequality of wealth and argued that a representative democracy would protect the minority from the majority.

Madison believed the best way to guard against factions was to create a representative democracy. Direct democracies, he claimed, always failed within a short time. The difficulty that arises here, which is a major difficulty with all opinions expressed by the framers, is that these conclusions are drawn on examples with almost no data. The number of direct democracies documented by history in Madison's day was precisely one, the direct democracy of Athens during the fifth century BCE. Any argument based on such limited data must be questioned.

It is pointless to argue whether Madison's theories on factions or democracy were correct. Like the philosophers he admired, Madison argued using only pure examples to illustrate his ideas. Madison argued that representative democracy had advantages over direct democracy but failed to recognize that no pure direct democracy has ever existed nor ever could exist. The representative democracy created by the Constitution has over the years become more democratic, through the direct election of Senators in the federal government and the addition of democratic ideas such as initiative and referendum in the individual states.

The Civil War

Madison considered that factions of the majority were dangerous to a nation, not those of the minority. He had in mind the faction of the poor, which is always greater than the faction of the rich. Madison's Constitution intended to guard against majority factions and guard minorities. This presumption, that only majority factions are dangerous, has been disproved by history. Several crises in American history have arisen because of minority factions, primarily because the wealthy have been successful in seizing and holding the reins of power in precisely the manner which the framers sought to prevent. The rise of a tyrant, which Justice Scalia claims that the Constitution has prevented, has never been a problem in America. What has been a great problem, and remains a problem today, is the accumulation of vast riches by a small class of people, who use their wealth to seize and retain power.

Scholars often speak of a Constitutional crisis as being a political problem that cannot be resolved easily by the Constitution. Examples of such crises were the election of 1800, when Jefferson was elected president by the House of Representatives; the election of 1876, when Benjamin Harrison became president with fewer popular votes; and the Watergate scandal that ended the presidency of Richard Nixon.

The most serious crises in American history did not arise from a failure of the framers to foresee an event. Instead, they were caused by the framers' express intent. Despite Madison's concerns, there have been no factions of the majority. Instead, three crises in American history have been caused by factions of the minority, who were not poor but wealthy. The Civil War, the Great Depression, and the Great Recession were caused by flaws in the Constitution.

The framers needed to gain the support of slave holders. They inserted several pro-slavery features into the Constitution. Article I, Section 2 of the U.S. Constitution defined a slave as worth three fifths of a person. This article strips African Americans of their rights as humans. African Americans not only submit to the lash, they must also give their votes to their masters, who were free to vote, again and again, to keep them in perpetual servitude. This article continued in force for seventy-six years. It contributed to the widespread belief that African Americans were racially inferior and reinforced the conviction in the Southern states that their actions were legal and just.

Article II, Section 1 establishes the electoral college for the election of the president. The slave-holders were concerned that their slaves, once freed, would take control of state government from them. They saw the electoral college as a means to permit a small group of voters to thwart the will of the majority. This worked in actuality. Only 1.3% of the population cast their votes in the first presidential election. Virginia had the most electors, thanks to its large number of slaves. The first president was George Washington, a prominent Virginian and a slave-holder. The second president was John Adams, from Massachusetts. Jefferson, Madison, and Monroe were all Virginians and slave holders. Andrew Jackson, from Tennessee, was also a slave-holder from a slave state.

These early slave-holders held the presidency until 1836. At that time, slave-holders from southern states had held the presidency for 40 of the previous 48 years. They used their tenure to promote slavery at home and abroad. They appointed southerners to the Supreme Court with lifetime tenure. These supreme court justices tried to perpetuate slavery and spread it to the northern states.

The US Supreme Court ruled, in Dred Scott decision(1857), that a slave who lived in a free state was still a slave. All six southern justices voted with the majority. Northern opponents of slavery feared that this decision meant southern slave-holding states could export slaves to the north. The decision heightened tensions that led to the Civil War breaking out in 1861. Although the Supreme Court did not cause the Civil War, Dred Scott showed how much influence the southern states had gained through the electoral college and the pro-slavery compromise within it.