You repeat your legal error
ad nauseam, that an unconstitutional act became a law, in various forms, the following being just a sample:
[BroJoeK #297] Woodpusher's suggestions to the contrary, my point here is not to defend the repealed law, but simply to notice that it was a law and President Andrew Johnson broke it, for which he was impeached. [BroJoeK #297] Johnson did break the 1867 Tenure of Office law, woodpusher's propaganda to the contrary notwithstanding.
http://law2.umkc.edu/faculty/projects/ftrials/impeach/imp_tenure.html
In 1926, in the case of Myers vs. United States, the Supreme Court, in an opinion by Chief Justice Taft, held unconstitutional a law requiring the consent of the Senate for removal of certain non-Cabinet officials.
I cite the comment of a law school, not an anonymous Wikipedia article. It is well beyond clear the the U.S. Supreme Court held the 1867 statute to be repugnant to the Constitution.
The holding in Marbury is well beyond argument that a legislative act, repugnant to the Constitution, cannot become a law.
Legally, the 1867 Statute, and all subsequent statutes to the same effect, never became laws. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
The other branches treat a statute as law until the Judiciary proclaims otherwise. When the Judiciary proclaims a statute to have been enacted as repugnant to the Constitution, it holds that the Legislature had no authority to issue the statute in the first place, and its act of issuance was entirely void.
As Marbury stated at 5 U.S. 178
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.
For a statute, repugnant to the Constitution, to have ever been effective as a law, one must recognize the power of Congress to change the Constitution with a statute. There is no such power. The the statute was enacted, the Constitution was the superior, supreme law, and any law in conflict with the Constitution is a nullity.
Statutes are treated by the other branches with a presumption of regularity until the Judiciary decides otherwise. A judicial holding of repugnance to the Constitution holds that the offending statute never became a law.
Your ignorant blustering is no substitute for knowledge.
Norton v. Shelby County, 118 U.S. 425, 442 - 443 (1886), Justice Field, Opinion of the Court
But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the supreme court of the state. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers. [...]
Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement: an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
A decision striking down a law as unconstitutional must, of necessity, operate retroactively, even to just apply to the case decided. All relevant acts must have occurred before the case was decided by the Court.
Randy Barnett, Constitutional Law, Cases in Context, Aspen Publishers, 2008, at 105:
The fact that judicial nullification was taken as given by all members of the Constitutional Convention does not mean everyone liked this power. John Mercer (Maryland) “disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void.” Instead he “thought laws ought to be well and cautiously made, and then to be uncontroulable.” But Mercer’s was a lone voice. Even John Dickenson (Delaware) who “was strongly impressed with the remark of Mr. Mercer as to the power of the Judges to set aside the law,” said he “was at the same time at a loss to know what expedient to substitute.” Gouverneur Morris took issue with Mercer more sharply, stating that he could not agree that the judiciary “should be bound to say that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences. But view the danger on the other side.”
Hamilton, Federalist 78
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
The constitution is not a suicide pact. Maybe Lincoln did act unconstitutionally to save the union. Maybe he didn’t.
Let’s say, for the sake of argument he did. The question then becomes was he justified in doing so. That leads to the question if secession, as done by the southern rebels in 1860-61 was constitutional. If it was then everything that Lincoln an the northern states did was unconstitutional. If it wasn’t constitutional then I say Lincoln gets a pass because he was suppressing an unconstitutional rebellion.
To determine if secession was constitutional we have to look first at the constitution. The constitution itself is silent on secession. The word appears nowhere in the constitution. In fact the only power delegated involving states is given to the legislature in adding states and changing state boundaries.
Some argue that the 10th Amendment is where the power of secession lies. For that to be true we have to look at who are the parties to the constitution. Is it the states or the people. If the states are a party to the constitution then since they made it they can unmake it. If the people are the party then only they can unmake it.
What does the constitution say about who made it? It is very clear on this in the preamble.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Some claim that the preamble has no force of law. Perhaps true but it is, if you will, the mission statement for what the constitution does and who is doing it.
However, let us see if their is any support for this assertion that the constitution was formed by the people and not the states. Where in the constitution does the power to interpret it reside? In the judicial branch with it’s highest branch being the US Supreme Court. Are there any antebellum US Supreme Court cases that explain who are the parties to the constitution? Yes there is.
Just five years after adoption of the constitution the court said this;
“We the people of the United States, do ordain and establish this Constitution. Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc.” – Chisholm v. Georgia, 1793
Then in 1821 it said this;
“That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. . . . America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. The people have declared, that in the exercise of all the powers given for these objects, it is supreme.... The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire-for some purposes sovereign, for some purposes subordinate.
“The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 U.S. 264] 1821
Cohen vs Virginia 1821
“The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.” Joseph Story Martin v Hunter 1821
It is crystal clear on who created the constitution. In fact I can find no antebellum cases where the US Supreme Court ever stated that the states made or were a party to the constitution. It is clearly “We the people” that made the constitution, and that is all the people, no sub-set of the people.
Therefore “secession” by the southern rebels was unconstitutional and President Lincoln had a constitutional duty to suppress this insurrection. Making any actions by him that might be unconstitutional a moot point. His overriding constitutional duty was the preservation of America.