Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
I gave you the thread and the post numbers. Since the thread is deleted, I'm not going to re-post from it. It's too bad the entire thread went, there was a lot of good stuff on it. A lot of garbage too, and that's why it's gone.
If you weren't so lazy, you'd actually do some of the research yourself.
Then you must struggle living with yourself on a daily basis.
No. That's the sound of egg dripping off your face.
Who died and made you forum moderater?
Only in your world, capitan. I associate your writing caliber based upon what I know about you and your research style. That style is fraught with errors, slothful inductions, partial quotations, unsupported claims, and willfully misrepresented data, none of which reaches the standards of an academic publication.
It is whimpering. I knew it.
I'm happy you allegedly saved a copy of that thread, but last I went looking for it the thing was deleted because your neo-nazi Lincolnite friend turned it into his dumping ground for aryan nation propaganda.
Is that what you call it in California? Cause it sounds like a "splat" to me.
You're too funny. Continue doing what you're good at. Post some more Hitler for us, why don't you? Throw in a little Marx, while your at it. Some Bledsoe would be a nice touch.
Use your brains, man. Please. It's right there for you.
I'm not going to keep you awake any longer. You are obviously getting groggy. Besides, I'm having too much fun skewering sKerry and his demonic minions. Good night.
So I take it you have no objection to the fact that your hero had two huge fans in those two men?
Two problems. First, I've made several hundred if not even a thousand posts since that little exchange, so I would have to dig back deep which takes a while on dialup. Second, my profile's user settings seem to be malfunctioning at the moment and I've temporarily lost the ability to get it to list the full posts. Since you've obviously found them on your own, a simple ctrl C, ctrl P shouldn't be much difficulty. But then again, that wouldn't allow you to edit the posts and take out the stuff that makes you look bad either.
Nothing groggy here. Though I do see somebody who has been proudly displaying the egg on his face for the better part of a month on your end.
[cr #535] You and the drooler can keep belly-aching about the inconsequential and whimpering about quotation marks or ellipses. I'm going to continue posting appropriate documentation, in content and context.
[cr #131] Assuming that Lincoln's exercise of emergency warpowers and suspension of (the privilege of the writ of) habeas corpus were constitutional, then, as Farber points out in Lincoln's Constitution (pg 190-191), the court would have utterly lacked jurisdiction to hear a habeas petition. After Congress retrospectively approved Lincoln's actions, Taney's pique in Ex parte Merryman became a moot point.
[nc #146] What Farber actually said, page 191, is "Arguably, a valid suspension of the writ does eliminate the courts very power to proceed. This was apparently Congress's veiw in the Habeas Corups Act, which confirmed the suspension." ... "Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or releae the prisoner." Page 192 "Still, allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous." ... "If this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necesiry defense that he did in fact offer."
[FARBER] "Arguably... a plausible argument can be made... if this jurisdictional analysis is rejected, however, we should concent that Lincoln's action was unlawful."
[CAPN R] "as Farber points out in Lincoln's Constitution (pg 190-191), the court would have utterly lacked jurisdiction to hear a habeas petition."
[cr #218] Taney's motivation was well-known. Merryman reperesents his second greatest failure as a justice. It was a flawed ruling, based on a flawed premise, on flawed jurisdiction, which was widely dismissed outside of insurrectionist circles. As you are undoubtedly aware, Taney had the habit of drafting his opinions on issues in hopes of finding a case in which to apply them. He didn't need to hear arguments! "Taney's obvious tilt toward the Confederacy showed that he had travelled far from the days when he advised Andrew Jackson on how to suppress nullificationists. Indeed, he had become one himself in all but name."
[nc - quote with no source provided.]
[cr #157] What Paludan indicates here, and as I stated in the now-deleted 4000+ post thread, was that it took Congress some time to reach the final legislation. Your interpretation of the terms of the Habeas Corpus Act are wrong.
[nc - Paludan -- what book title and page?]
[cr #159] Lincoln's authority to do so were part of his constitutional duties. As Jaffa observed, ""Lincoln has already shown that in construing any one provision of the Constitution in its relationship with other provisions with which it may appear to be in conflict, the dominating purpose of the constitution, as distinct from its instrumental purposes, must provide the guide to its interpretation. There can hardly be any question but that the provision for suspending the writ of habeas corpus is placed in the Constitution to enable the government to provide for the public safety in the case of rebellion. Where in the constitution it is placed is wholly subordinate to why it is there at all. Lincoln's suspension of the writ is therefore lawful. Q.E.D."
[nc - Source is Jaffa, A New Birth of Freedom, page 364.]
[cr #184] "A New Birth of Freedom is a master work by a true and learned master of history and philosophy. It is a must for every serious student of the founding of our nation, of Abraham Lincoln, and of the Civil War." - The Civil War News
[nc note] LINK This review, printed by The Civil War News, was written by Allen C. Guelzo.
[cr #184] "With A New Birth of Freedom Harry V. Jaffa reestablishes himself as the greatest living scholar of Lincoln's political thought and Lincoln's greatest defender, period. For every citizen interested in the preservation of the American union and the principles on which it rests, Jaffa's book is a must-read." - Steven B. Smith, Yale University
[nc note] This Steven B. Smith quote appears on the back of the dust jacket of "A New Birth of Freedom."
[nc note] LINK Steven B. Smith, who has been appointed as the Alfred Cowles Professor of Government, is a specialist in political philosophy and the history of political thought.
Smith, who is also master of Branford College, has written widely on political philosophers Hegel, Aristotle, Rousseau and Spinoza. His books include "Reading Althusser: An Essay on Structural Marxism"; "Hegel's Critique of Liberalism: Rights in Context," which examines the Hegelian critique of individual rights; and "Spinoza: Liberalism and the Question of Jewish Identity," which explores Spinoza's efforts to defend freedom of opinion and toleration of religious diversity. He is currently working on a book titled "Spinoza's Book of Life."
Smith has also written about classical political theory, liberalism, Marxism, American political thought and the philosophy of the social sciences. His articles have ap-peared in such publications as Review of Politics, American Political Science Review, Political Theory, Social Science Quarterly, Ethics and Poetics Today, among others. He has also written a number of book chapters and book reviews.
A graduate of the University of Chattanooga in Tennessee, Smith earned an M.Phil. in political science from the University of Durham in England and a Ph.D. from the University of Chicago.
[cr #184] "No mere review can do justice to this new book; suffice to say that it as a stunning work of scholarship and erudition that vindicates Lincoln against both his contemporary adversaries and those who in our own time would diminish him and the principles of the American Founding he sought to perpetuate." - The Washington Times
[nc note] LINK "No mere review can do justice to this remarkable new book; suffice to say that it is a stunning work of scholarship and erudition that vindicates Lincoln against both his contemporary adversaries and those who in our own time would diminish him and the principles of the American Founding that he sought to perpetuate." -- Prof. Thomas Mackubin Owens, in The Washington Times
[nc note] LINK Thomas mackubin Owens is an Institute Fellow of the Claremont Institute where Harry V. Jaffa is a Distinguished Fellow.
[cr #184] "A New Birth of Freedom more than meets the critical expectations that Professor Jaffa has invited in the years since his acclaimed study, Crisis of the House Divided .... A work of profound historical erudition and disciplined philosophical criticism, Jaffa's new work offers and original analysis of the crisis of the Union in the perspective of the Western political tradition and in the context of the constitutional principles of the American Revolution." - Herman Belz, University of Maryland, College park
[nc note] This Herman Belz quote appears on the back of the dust jacket of "A New Birth of Freedom."
[cr #218] "Taney's obvious tilt toward the Confederacy showed that he had travelled far from the days when he advised Andrew Jackson on how to suppress nullificationists. Indeed, he had become one himself in all but name."
Another sourceless quote.
And your idea of complaining about GOPcapitalist's comparison (it wasn't a syllogism) is to offer one that is even stretchier and less true?
For the record, a syllogism is a logical argument, not a comparison or simile. The prefix syn- means "with", but the full word means "with reason" or "accompanying reasoning". The form of a syllogism is:
1. Virtue is laudable.
2. Kindness is a species of virtue.
3. Therefore, kindness is laudable.
Now, as to your invidious comparison of the South to Nazi Germany, there is something else to say.
Southern bigotry and intolerance were morally challengeable, and the political violence that they sought to sanction thereby often violated the laws and the rights of the people they attacked; but Southerners never rose to the heights of exterminative murderousness you ascribe to them, or to the systematic, pseudoscientific attempts to exclude blacks from the human race that Nazis and Neo-Nazis engage in with a comprehensive, originally "eugenic" (I use that word hazardously, I admit, in the context), but more recently pseudo-theological argument intended to shut blacks and other non-Caucasian races out of the company of humanity, and to stigmatize Jews with other, odious imputations. Southern racial relations, even under Jim Crow, were much more complicated, nuanced, and multifarious than what the Jews experienced under the intendency of Adolf Hitler.
When it comes to odious imputations, by the way, you're doing pretty well by yourself. You seem not to require the exegetical "support" that #3Fan resorted to on the other thread, in order to stigmatize masses of people you don't know.
I question my own adjective, "ante-bellum," because the record of southern bigotry has continued to this day. This type of prejudice is no longer sanctioned by law, but continues to smolder in the dung piles where the neo-rebs reside.
If you want to examine southern bigotry, we have to have a standard of comparison, whereby to measure it. How about northern bigotry? Do you really want to have a contest? With the words of Lincoln the Emancipator ringing in your ears, about transporting black people beyond the seas and preventing miscegenation, you want to keep pushing that line?
Yes, that is a form of argumentum ex so's your old man, a recrimination, but under the circumstances it's fair. If your standard of nondiscrimination is an absolute one, everyone must fail -- even Jesse Jackson. Therefore you cannot logically be proposing any but a comparative measurement of Southern bigotry -- so let's trot out your standard. Pacific Islanders? They used to eat the people they met! Mongols? The Chinese? (Chinese PLA general, in a moment of in vino veritas to American guests: "You Americans don't understand us. We don't hate Americans! We Chinese hate everybody!") Who have you got, amigo?
<computer voice>
"Shaall_wee_plaay_aa_gaame?"
</ voice>
Those who would justify and glorify a system of government, society, and culture that denies the most fundamental of human rights deserve to wallow in their own crapulence.
Well, yes, but we weren't discussing the Democratic Party.
It what the nazis got in WWII and what the disloyal southerners got in the ACW. They deserved it.
Your statement speaks more to your own envenomed view of the South than it does to your ability to make a rational comparison of the South to Nazi Germany. Indeed, as I pointed out above, your comparison is so far unsupported, and I'm not exactly trembling in anticipation that you will ever be able to support so odious and unfair a comparison.
But have at it, dung-flinger. We complacently await your worst.
I am not saying that Texas is DEEP South. Only Southern in character.
The catch on capitan's post #184 on Owens I agree with you about. The cite is inadequate and appears to be deliberately so. That looks like concealment of a bias to me.
How about that, capitan?
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