Posted on 07/27/2003 5:08:19 PM PDT by thatdewd
Edited on 05/07/2004 6:46:56 PM PDT by Jim Robinson. [history]
The writer is a circuit judge who lives in Kuttawa, Ky.
KUTTAWA, Ky. - The Courier Journal, at the behest of its columnist John David Dyche, has called for the removal of the Jefferson Davis statue in the rotunda of the Kentucky State Capitol. Such a supposedly politically correct viewpoint reflects a shallow, selective and even hypocritical understanding of history.
(Excerpt) Read more at courier-journal.com ...
Now it's time in Waltdom to argue that the suspension of the writ of habeas corpus was NOT REALLY a violation of the Constitution, and Walt will prove it with a 16 paragraph post about Lincoln f*rting blue smoke one Tuesday in April 1863, and the Japanese seeing the blue smoke from Pearl Harbor.
Did you notice that the dogs didn't bark about your boxcar comeback:
Only in Waltdom. In Waltdom they sealed all those empty box cars for the trip back into the interior. No sense in using them to distribute imported goods from the port of entry to the purchasers.
;-)
No, it was not.
The Supreme Court backed everything President Lincoln did during the war.
Walt
The Supreme Court also rendered the Dred Scott decision,before the war.
Could you post a link to the case where the Supremes ruled on the business of the writ after the war?
You don't like big government, right? Sounds like the author above doesn't much care for it either. Of course it's Abraham Lincoln, in his first inaugural. President Lincoln made the point, and it was reiterated by the attorney general, that each branch of the government interprets the Constitution for itself. This was the view in 1861.
Judgments are only binding on the parties to that suit. If Taney wanted to score points against President Lincoln, all he had to do was get the Merryman/Maryland issue before the whole court; he didn't do that. He knew that the whole court would not take his side.
It's always so funny when the neo-rebs (maybe not you specifically) want to say, "show where the Constitution explicitly forbids secession" but discount me when I say show me where the Constitution explicitly says the president may not suspend the Writ.
Walt
On 6 March 1862, President Lincoln sent a special message to Congress, which read in part:
Resolved, that the United States ought to co-operate with any state which may adopt gradual abolishment of slavery, giving to such state pecuniary aid, to be used by such state in its discretion to compensate for the inconveniences public and private produced by such change of system.
This was after only 1 year in office, less than 8 months after 1st Bull Run and a month before the Battle of Shilo and the beginning of major blood-letting of the Civil War. At about the same time, Lincoln also wrote private letters to the congressional delegations of the 4 Border States pleading for their help in leading emancipation efforts in their states. Your charge that Lincoln was late in proposing abolition is just plan false and just another example of the Lost Cause lies you have been told.
Walt
Nice try, Wlat, but the true costs of PROTECTIVE tariffs are not felt in the revenue they raise. Their true cost is a threefold product of (a) the consumer surplus they transfer to producers as accompanied by higher prices on consumers, (b) the deadweight loss on the nation they create, and (c) the decimation of a nation's international commerce they impose by essentially functioning as a trade barrier. That last one in particular is nothing short of devastating upon an trade-dependent economy like the south's, which accounted for 75% of the entire nation's exports in 1860. You know this yet you persist in obscuring the tariff issue with red herrings such as the above. From that one may only conclude that you are being intentionally dishonest.
That is simply not so, Walt. Per a railroad map of the nation in the early 1860's, connecting rail lines (absent of war disruption) could link a complete journey from practically any majoy southern city on the atlantic coast all the way to Monroe, Louisiana. A north/south journey could follow connecting rail lines from New Orleans to Memphis and beyond the Ohio River. In the deep west of the confederacy, connecting rail lines reached from the east coast almost all the way to Little Rock, Arkansas with only a few miles over land in a rural unconstructed segment between the eastern end of the Little Rock line and the western end of the line crossing the Mississippi river.
Of all the CSA states, only Texas was unreachable by rail from the east coast in 1860. Texas had its own rail system stretching from the Sabine River border with Louisiana to Columbus (half way b/w Houston and San Antonio) along a route that essentially parallels where I-10 runs today. Plans had been underway to connect the Sabine end to New Orleans and with it any point on the east coast since the 1850's but engineering was difficult because the connection had to cross the swamps of western Louisiana.
The statements of the founding fathers and at least five distinguished Supreme Court justices say that it was. Live with it.
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months." - Charles Pickney, announcing the proposal to limit the suspension of habeas corpus, Constitutional Convention, 1787
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Richard Henry Lee, Anti-Federalist #16, "Federal Farmer"
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, delegate to the Constitutional Convetion, Anti-Federalist #9, "Brutus"
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also." - Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
"In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ." - St. George Tucker, Commentaries, 1803
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide." - Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted." - Justice Levi Woodburg, dissent in Luther v. Borden, United States Supreme Court, 1849
"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." - Justice Roger B. Taney, Ex Parte Merryman, US Circuit Court of Appeals, 1861
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief." - Justice Benjamin R. Curtis, "Executive Power," 1862
Lincoln was discussing the Emancipation Proclamation in the summer of 1862, only about 15 months after the south fired on Sumter. Since the total length of the war was in excess of 48 months I hardly think that qualifies as 'late in the war'.
Nonsense. The Senate was in session until March 28th and most of the House was still around in Washington at least for the inaugural on March 4th. Lincoln could have EASILY called the House into session and called the Senate to remain in session. But he did neither. Instead he sat around waiting for the senate to go home. Barely a week after they left he started his war making plans by organizing the so-called relief expedition to Fort Sumter.
The Militia Act of 1792 empowered the President to take much the same actions as lifting habeas corpus would have done.
...but not to suspend habeas corpus itself. Try again.
Neo-Confederates make a big deal about today, but patriots at the time did not.
The suspension helped push some of the border states and the indian tribes into the secession column. It drew two federal court rulings against it including one from the chief justice. It recieved heavy condemnation in newspapers around the country. It even provoked retired Supreme Court Justice Benjamin Curtis, a republican and author of the Dred Scott dissent, to condemn Lincoln's actions as unconstitutional. So yes, Partisan. I'd say a great deal was made of it both at the time it happened and today.
Well, almost.
Grand Old Partisan did say this about Wlat:
"What WhiskeyPapa and all the Confederates have in common is being Democrats."
And we all know what Grand Old Partisan thinks about those democrats...
Nonsense. Regardless of whether slavery ended down south 20 years after the war, 50 years after the war or 100 years after the war that does not change the fact that the reason you claim that they had for their rebellion, "to practice the Original Principles of Government established by the Founders", would have been to the benefit of only a minority of the southerners, and would have completely excluded a third of the population.
I'm glad that you said "maybe not you specifically", because I'm definitely not a neo-reb. I'm a Yankee boy, born and raised. My father took me to quite a few Civil War battlefields, and I have more than a passing interest in military history, as do you.
My specialties are WWII and the Civil War, in that order. I was weaned on Bruce Catton. Lately, I've become concerned with the paradox of the Virginia Confederates. How is it that the cradle of Liberty could side with slavers, I asked myself.
I don't believe that these concerns can be answered with the glib histories of the victors, for we all know that history IS written by the victors.
Don't these questions cross your mind? The paradox of Robert E. Lee and Pickett's Division loom large in my thinking.
This doesn't change the fact that the most of the "citizens" of the Northeast are now tax slaves.
I notice that you didn't address that portion of my broadside, perhaps because you couldn't. ;-)
I'm certainly no less an expert on it than you.
In those days, it sometimes took weeks just to elect a Speaker before business could be conducted.
Then spend a couple weeks electing a speaker - that still puts you up and running in time to pass the appropriate legislation. The war was on for three long months before Lincoln called congress.
And then there was the matter of whether rebel Representatives were going to keep their seats, to be obstructionist.
Those that had the intention of leaving had already left. Those that were staying stayed. What else is there to say about it?
One of the reasons that patriots did not have a problem with the President's action is that the Founding Fathers' Militia Aact empowered him to do what suspending the privilege would have done -- round up rebels and imprison them.
...yet nowhere in the militia act does it either say or imply he can suspend habeas corpus. Try again.
Again, most patriots did not have a problem with it
The honest ones like Curtis did.
and Curtis was a retired, with no more say-so than Jimmy Carter does today.
Carter may be an idiot and a fool but as a former president still retains media attention. The same goes for Gerry Ford, George Bush, or any other former president. Besides that, Curtis was one of the nation's leading legal minds after his retirement where he wrote extensive and influential volumes on American law. One of them was his book Executive Power, where he strongly denounced Lincoln's unconstitutional usurpation of the habeas corpus suspension power.
And in it he wrote:
"...the effort to colonize persons of African descent, with their consent, upon this continent, or elsewhere, with the previously obtained consent of the Governments existing there, will be continued."
Perhaps it should be called the "Colonization Proclamation".
It's hard to answer that part of your screed because that assumes that things would have been better in an independent south. You can't know that and, given the start that the confederacy had under the Davis regime, it's hard to believe that it would have been.
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