I'm more concerned that if I hang around with you I might develop your cranio-rectal inversion problem.
Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
I see the spelling and typo police got you too. I guess we might as well just stay here in spelling prison and grind hash-marks on the wall.
Nothing esle to do here, except continue reading these bookshelves of legal tomes, law books and constitutiuonal theses.
"constitutiuonal" - I wonder what that "Spell" button is for?
Got me!
"I'd rather be in agreement with the emminent jurist Taney, than the historian Fehrenbacher."
I am sure you would, but if you read Fehrenbacher's book, you'll see how Taney deluded and destroyed himself.
There is no confusion on Fehrenbacher's part. And regarding citizenship, there was no delusion on Taney's part either. Taney knew he had a big problem. If Federal citizenship was derived from State citizenship, then citizens in one states were constitutionally entitled to the prilileges and immunities of citizens in other states. If State citizenship was subordinate to Federal citizenship, then discriminatory state laws would necessarily fall by the wayside. If Congress had the power to determine the nature of Federal citizenship, the long-standing anti-black southern racism (such as the Negro sailor acts) could be striken. And if free black citizens in northen states in the founding era were recognized as having all the privileges and immunities under the Articles, then they were necessarily citizens under the Constitution.
Taney's entire rationale for his citizenship discussion in Dred Scott are a shell game, and just as dishonest.
Taney may have been, at one time, an "emminent jurist." However, by the mid-1850's he had simply become a southern partisan.
Taney had an unusual penchant for writing "opinions" before any case reached the court. One such fragment, a draft written in Taney's own hand, with copious side notes, edits, and cross-outs, was acquired by the Library of Congress in 1929. The fragment is eight pages in length, has no beginning section (lost) and no end (probably never finished). From citations of events in the fragment, it can be dated to the last week in Jaunary 1861 to the first few days in February 1861. Taney, by this time, had begun to lose his mental balance. Fehrenbacher (pg 554) notes:
"The fragment begins with Taney arguing that slavery had a firm legal foundation in the international law of Europe as it existed during the long epoch of the African slave trade. Europe, he concluded, was "therefore estopped from denying our right to an institution which it built up here fir its own benefit." As for the free states of the Union, they were doubly obligated to respect the institution of slavery because they also "bound themselves by the social compact of the Constitution to uphold it." Indeed, at the Constitutional convention, "the Northern States proposed to withhold the power to abolish the slave trade before the year 1820, and the Southern states, who wished it abolished in 1800, yielded and agreed to 1808. When the Constitution was published in Massachusetts, the paper printing it contained also an advertisement of a Negro for sale (These two pieces of historical misinformation so fascinated Taney that he repeated then on the very next page of his manuscript. The story of the Massachusetts advertisement also appears a third time along one of the margins.)
"Yet men were now violating their concractual obligation and appealing, said Taney, to a "higher law, which God discloses through their individual persons, commanding them to do acts which their forefathers considered perjury and theft." he attributes the "fanaticism against slavery" to radical individualism in religion and politics - the same doctrine, he added, that had produced the bloody excesses in the French Revolution.
"next, Taney traced the progress of "free state aggression" through the crises of 1820 and 1850; the passage of state laws defying the Fugitive Slave Act; the use of churches and schools for dissemination of antislavery propganda; and the publication of a novel "well calculated to rouse the morbid thoguht of fanatics, which portrayed in pictures of exaggeration the evils of slavery." finally, a [political] party "educated by this means" was about to take poseession of the federal government with all of its patronage and power. The party had proclaimed an irrepressible conflict between free labor and slave labor, had firmed it sectional character by nominating obly northern men for high office, and had rejected all terms of conciliation offered by the slaveholding states. it sonward march to power left southerners convinced that [Black] Republicanism was "at best abolitionism in diguise only waiting for the opportunity." This apprehension had already drive six states from the Union, and seven more were ready to leave unless they recieved "guarantees against wrongs for the future.
"The South, Taney continued, was mistaken in claiming a constitutional right to secede; for secession was revolutionary and "only morally competnet, like war, upon failure of justice." At the same time, federal laws could be enforced within a state only by its own citizens, and federal military power could enter a state only at the request of state officials. Was it possible, then, to talk about a choice between war and peace? Taney's answer was the last complete sentence in the fragment: "There is no rightful power to bring back by force the states into the Union."
In this last part, Taney mimics Buchanan's feeble stand. Secession is unconstitutional, but the Federal government could do nothing about it. They got the first part right. Lincoln showed them what the government could do to remind insurrectionists of what the Constitution really meant.
Otherwise Taney tried to shift blame for contiiued slavery to anywhere but the South itself. It was Europe's. It was Black Republicanism's fault. It was Harriet Beecher Stowe's fault. It was the school's fault. It was religion's fault.
Taney even misrepresents the positions in the Constitutional Convention! (see Catherine Drinker Bowen, Miracle at Philadephia, pg 200-204; Carol Berkin, A Brilliant Solution, pg 110-115)
It can only be reasonably concluded, that as Taney grew older and more mentally infirmed, his abilty to rationally discuss the issue of southern slaveholding diminished as his anti-north hatred grew.
The powers of Google.
'nuff said.
As for the free states of the Union, they were doubly obligated to respect the institution of slavery because they also "bound themselves by the social compact of the Constitution to uphold it." Indeed, at the Constitutional Convention, "the Northern States proposed to withhold the power to abolish the slave trade before the year 1820, and the Southern states, who wished it abolished in 1800, yielded and agreed to 1808.
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics , New York: Oxford University Press (1978), p. 554.
"The South, Taney continued, was mistaken in claiming a constitutional right to secede; for secession was revolutionary and "only morally competent, like war, upon failure of justice."
Ditto.
But legally it was unenforceable to drag them at gunpoint.
But legally it was wrong for them to try and leave in the first place.
Taney's "misrepresentation" (I give him the benefit of the doubt - had a sane person said that, I'd call it a lie). I gave you the some easily obtained sources as citations. You can add Madison's own journal of the convention to that.
The ramblings of an old southern partisan.
Point 1 - A state in insurrection does not enjoy the protections afforded by the Constitution.
Point 2 - When these issues were litigated, Lincoln and the Federal government prevailed in the Prize Cases.
Calhoun was wrong. Buchanan was wrong. Taney was wrong.
"'nuff said."
I'm more concerned that if I hang around with you I might develop your cranio-rectal inversion problem.
Kill citizens while burning thier homes and starving their families?? And you guys think Taney read funny stuff into the constitution?
Needless to say, in wartime these sorts of things happen on both sides.
Nevertheless, the power to wage war implies the powers needed to win the war. In the Prize Cases, the Court answered two important questions: (1) Did a "blockade" amount to recognition of the confederacy as a legitimate state? and (2) Did recognizing that a state of war existed between the United States and the insurgent states concede legitimacy to the Confederacy. The answer in both cases was, "No." From Farber (pg 140-141): [The court wrote], "It is not the less a civil war, with belligerent parties in hostile array, because it may be called an 'insurrection' by one side, and the insurgents be considered as rebels or traitors." The independence of a rebelling province does not need to be recognizes in order for it to qualify as a "party belligerent in a war according to the law of nations." Such a state of war had been recognized by England and other European states that had declared themselves neutral in the Civil War. The court roundly rejected the argument that "insurgents who have risen in rebellion against their sovereign" are "not enemies because they are traitors." As a belligerent, the United States was entitled "not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property." This applied to everyone living in confederate territory. "They have cast of their allegiances and made war on their Government, and are none the less enemies because they are traitors."
No one should condone the wanton killing of civilians, or soldiers who have surrendered. But the destruction of the enemy's ability to make war, including their food, livestock, farms, manufacturing, raw materials, dwellings, and ultimately, their desire to continue, is proper and necessary. If the result is poverty, famine, disease, and economic catastrophe, those are the unfortunate results of traitorous behavior and an object lesson for those who would repeat that folly.
The original Opinion of the Court was the opinion of Justice Nelson, as filed by Nelson. Nelson did not even bother to change the phrasing which indicates he was writing for the majority. Nelson did not bring up the issue of U.S. Citizenship and it would not have been brought up except that Justice Benjamin Curtis insisted upon it in his dissenting opinion and Chief Justice Taney responded to the Curtis dissent. Don't blame Taney for bringing it up, it is all on Curtis.
The Opinion of the Court was reassigned to Taney to respond to all the stuff that Justice Curtis insisted on bringing up.
The subject of “U.S. Citizenship” was critical to the Robbins argument. In paragraph 1, below, it is made clear that Robbins found that if Scott were a U.S. citizen, then he need not be a “citizen” of Missouri but merely an “inhabitant” of Missouri.
Curtis argues that the court cannot go beyond the face of the documents of record and those do not say where Scott was born. While it was known fact that Scott was born in Virginia, Curtis argues that cannot be considered. He argues that a Black born in a state which prohibited slavery was born free and was, therefore, a citizen. As the court could not know, from the record to which it was limited, the court must conclude that Scott was a U.S. citizen. As the court must conclude that Scott was a U.S. citizen, and it is conceded that he was at least an “inhabitant” of Missouri, the lower court had jurisdiction.
In reality, Scott was born in Virginia which did not prohibit slavery and therefore, in fact, Scott was born a slave and was not a U.S. citizen.
QUOTING FROM Don E. Fehrenbacher, "The Dred Scott Case," pp. 406-7.
The Curtis argument ran as follows:1. According to the Marshall Court formula, nothing in the law of Missouri could deprive Dred Scott of his rights under the diverse-citizenship clause, provided that he was a citizen of the United States and a resident of Missouri at the time of bringing suit.
2. Since his residence had not been controverted, the only question was whether Scott's African ancestry and slave parentage made him ineligible for United States citizenship.
3. If any person of such background could be a United States citizen, Scott had the right to claim citizenship too, since no other reason for excluding him had been advanced in the plea in abatement.
4. United States citizenship antedated the Constitution, having originated under the Confederation government. This was indicated by the language of Article Two, Section Four, referring to "a citizen of the United States at the time of the adoption of the Constitution."
5. But the Confederation was a government of severely limited authority and had been delegated no power "to act on any question of citizenship, or to make any rules in respect thereto." The matter was left entirely in the hands of the states, and thus United States citizenship was synonymous with state citizenship in 1789.
6. Under the Confederation government, free Negroes in five states, being recognized as citizens of their respective states, were also citizens of the United States.
7. The fourth of the Articles of Confederation in fact included free Negroes among those persons who, "by reason of their citizenship in certain States, were entitled to the privileges and immunities of general citizenship of the United States."
8. There was nothing in the Constitution which, proprio vigore, deprived any class of persons of citizenship possessed at the time of its adoption.
9. The Constitution in fact neither defined citizenship nor invested Congress with any authority to do so, except in regard to naturalization of aliens. Instead, all relevant clauses of the Constitution pointed to the necessary conclusion that "those persons born within the several States, who, by force of their respective constitutions and laws, are citizens of the State, are thereby citizens of the United States."
10. The plea in abatement therefore showed no facts inconsistent with Dred Scott's being a United States citizen or a resident of Missouri, entitled to bring suit in federal court.
What all of this demonstrated, it should be noted, was not the citizenship of Dred Scott but merely the absence of any disproof of citizenship within the narrow confines of the plea in abatement. Other parts of the record showed clearly that Scott had not been born free within a state that recognized Negroes as citizens. The validity of Curtis's conclusion thus depended upon the validity of his technical argument (strenuously contested by Taney) that the Court could not pursue the question of jurisdiction beyond what appeared on the face of the plea in abatement.
From the DISSENTING opinion of Justice CURTIS at 60 U.S. 393, 571.
In Gassies v. Ballon, (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the United States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri, in the courts of the United States.
In attempting to argue Negro citizenship, Justice Curtis notes that Negroes voted in several states. He makes the following, somewhat lame argument, at 60 U.S. 393, 581.
But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions made by a Constitution on this subject must therefore be looked to as bearing directly on the question what persons are citizens under that Constitution; and as being decisive, to this extent, that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Government of the United States, must be deemed citizens of the United States.
land-poor. owning so much unprofitable or encumbered land as to lack funds to develop the land or pay the charges due on it.
Webster's Ninth New Collegiate Dictionary
Washington certainly paid the charges, kept the land, and when he died in 1799 he was filthy rich.
Can you find any Black historians or leaders who have ever bought the load of crap that you are selling?
Writing for the Supreme Court in 1857, Chief Justice Taney penned the following passage in the Dred Scott case, on the issue of whether, in the eyes of the Framers, slaves were "constituent members of the sovereignty," and were to be included among "We the People":"We think they are not, and that they are not included, and were not intended to be included…. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race …; and so far inferior, that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit…."
And so, nearly seven decades after the Constitutional Convention, the Supreme Court reaffirmed the prevailing opinion of the Framers regarding the rights of Negroes in America….
"We the People" no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality," and who strived to better them.
-- U.S. Supreme Court Justice Thurgood Marshall, [From "Reflections on the Bicentennial of the U.S. Constitution," Harvard Law Review 101 (November 1987), 1-4.]
There can be no pure memory of an American Revolution that published a declaration that liberty was a right accorded to "all men" and then created a Constitution that specifically prohibited blacks from enjoying that right. The only logical conclusion that modern blacks can draw from such circumstances is that their forefathers were not regarded as "men" by the white founders of this country.
-- Ralph Abernathy [From "And the Walls Came Tumbling Down: An Autobiography" (New York: Harper Perennial, 1990), 17.]
What to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which would disgrace a nation of savages....You invite to your shores fugitives of oppression from abroad, honor them with banquets, greet them with ovations, cheer them, toast them, salute them, protect them, and pour out your money to them like water; but the fugitives from your own land you advertise, hunt, arrest, shoot, and kill. You glory in your refinement and your universal education; yet you maintain a system as barbarous and dreadful as ever stained the character of a nation -- a system begun in avarice, supported in pride, and perpetuated in cruelty....
-- Frederick Douglass, ["The Life and Writing of Frederick Douglass," edited by Philip S. Foner, Vol 2, pp. 181-204]
Who divided this house?The house was divided by George Washington, who was at least as diligent in maintaining control over his wealthy wife's slaves as he was in prosecuting the war against Britain. It was divided by Thomas Jefferson, who not only graciously acquiesced in the deletion of the antislavery clause from the Declaration of Independence but also pleaded unsuccessfully with his protege, Edward Coles, not to set his slaves free and migrate to Illinois but to remain in Virginia and uphold the institution of slavery.
Who divided this house?
The house was divided by James Madison, the author of the Constitution, who was not only responsible for the style in which slavery was written into the document, but who also helped enact the laws of the first and second Congresses that respectively barred African-Americans from becoming naturalized citizens and prevented them from becoming members of the United States militia.
Who divided this house?
It was divided by all the other slaveholders and their accessories, who believed in the obscene incongruity that they could establish a prosperous social order from the exploitation of a labor force without its consent and with no thought of just compensation for it....
The house was divided by the... nonslaveholding leaders at the Constitutional Convention, and in subsequent years by those whose fears, like those of Benjamin Franklin, seemed to be limited to the possible Africanization of the country if too many Africans were imported....
-- Dr. John Hope Franklin, "Who Divided This House?" speech to the Chicago Historical Society, July 4, 1990.
"When the authors of the Declaration of Independence proclaimed that all men were created equal and endowed with unalienable rights, they meant 'men' quite literally and white men specifically"
-- Paula Rothenberg, ["African-American Review," Fall 2000]
"One is astonished in the study of history at the recurrence of the idea that evil must be forgotten, distorted, skimmed over…. The difficulty, of course, with this philosophy is that history loses its value as an incentive and as an example; it paints perfect men and noble nations, but it does not tell the truth."
-- Dr. William Edward Burghardt Dubois
No discerning person believes that Abraham Lincoln believed on November 19, 1863, that George Washington and Thomas Jefferson believed on July 4, 1776, that they were conceiving a nation dedicated to the proposition that the slaves at Monticello and mount Vernon were equal to George Washington and Thomas Jefferson in the same way that George Washington and Thomas Jefferson were equal to George III.
-- Lerone Bennett, Jr. [From: Forced Into Glory, p. 564.]
Did Jefferson think of Negroes when he wrote, "all men are created equal"? His subsequent career indicates that he did not; that in his view Negroes were not "men."
-- Dr. Samuel Eliot Morison [From "Oxford History of the American People" (orig. pub. 1965; New York: Mentor, 1972), 1:295.]
What was radical about the Declaration in 1776? We know it did not mean that blacks and women were created equal to white men (although it would in time be used to justify those equalities too). It was radical in 1776 because it meant that all white men were equal.
-- Dr. Gordon S. Wood ["Equality and Social Conflict in the American Revolution," William and Mary Quarterly 51 (1994), 707.]
It is accepted that the words "all men are created equal" do not, in their literal meaning, apply to women, and were not intended by the Founding Fathers (collectively) to apply to slaves. Yet it is also accepted that the expectations aroused by this formula have been a force which eventually changed the meaning of the formula, to include women and people of all races.…The sublime principles of the Declaration did not apply to them [i.e., blacks]. They are for whites only.
-- Conor Cruise O'Brien ["The Long Affair: Thomas Jefferson and the French Revolution," 1785-1800 (Chicago: University of Chicago Press, 1996), 319.]
Lincoln "does not recognize the Negro as a man; he does not remember the Negro as a soldier; he does not blot out races; he does not forget them; he does not tell of rights, he talks of benefits."
-- Wendell Phillips [Liberator, January 1, 1864]
No one has understood better than the educated Negroes that Lincoln was not, above all other things, the liberator of the colored race. They have honored his name in literature with sparing reference to their freedom. Perhaps they have not found the Emancipation Proclamation a sign to conjure with.
-- Roy P. Basler, ["The Lincoln Legend," p. 220]
Now, then, the principle that I had insisted upon, and all the principle that I have insisted upon, from the Declaration of Independence, as applicable to this discussion and this canvas, is in relation to laying the foundation of new societies. I have never sought to apply this principle to those old States where slavery exists for the purpose of abolishing slavery in those States. It is nothing but gross perversion to assume that I have brought forth the Declaration of Independence to ask that Missouri shall free her slaves.
-- Abraham Lincoln, Alton, Illinois, October 15, 1858.
In our greedy chase to make profit of the Negro, let us beward, lest we 'cancel and tear to pieces' even the white man's charter of freedom.
-- Abraham Lincoln, Peoria, Illinois, October 16, 1854
[nc] Did Abe just call the Declaration of Independence "the white man's charter of freedom?" Yeah, I think he did.
What was this new meaning of "due process?" Does it have a name?
What is wrong with it?
Has it been struck down as invalid, or is it still in use?
Lincoln apologists swoon over the Prize Cases decision. Why do they not complain about Justice Grier inventing the "Belligerent" that was not a nation, but was a party to a war, and then pulling it out of his butt?
Has that invention ever again been applied to any case?
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