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
Answer: Nobody, because Marshall's opinion ordered Bollman and Swartout released. Ergo, habeas corpus had not been suspended.
Now go away. You're just trying to be annoying.
Okay Dan. We know your line. All those quotes you cited may be "fake" but they're still "accurate." And all us "partisan" non-professionals out here in freeperland who exposed their fakeness are simply nitpicking. Right, Dan? And what's the frequency, capitan?
Got cher MAHND RAHT, Luke?
...but not a lawyer. What we do know is that the overwhelming - nay, virtually unanimous - legal consensus from the day Bollman was handed down back in 1807 to the present states that it is a habeas corpus case dealing DIRECTLY with the issue of habeas corpus and the constitutional power to issue the writ. And the best you can come up with to challenge that is a non-lawyer who kinda sorta bucks the professional consensus. Pitiful, Dan, pitiful.
(1) Taney did espouse racist theories regarding the inferiority, and even the inhumanity, of black Africans. That has been abundantly documented here, and in the texts.
(2) Taney did rewrite and materially change the Dred Scott decision, after delivering it orally, in an attempt to blunt the immediate criticism it had received. The proof for this is manifest, but includes multiple copies of printers proofs, with significant changes and edits, in the National Archives, as well as contemporary accounts of the oral decision which are at odds with the published version.
(3) A simple textural analysis of the published version shows clear evidence of the addition of rebuttal - rebuttal written after the fact. A comparative analysis of the published version versus the documentation from the other justices (dissents, letters, etc), shows that Taney changed the decision.
(4) With his revised Dred Scott opinion, Taney created a monstrosity of a legal problem, because some of his opinion did not have the support of the majority of the Court and few or none of the other justices had the opportunity to review and comment on the revisions. Taney even refused to make a transcription of the oral decision available to another justice.
As Fehrenbacher notes, "As a matter of historical reality, the Court decided what Taney declared that it decided. The places only the stamp of legitimacy on his opinion however. Whether it was based on sound law, accurate history, and valid logic is another question, still to be considered [in the following chapters of the book] and not absolutely separable from the moral problem inherent in the enslavement of men." (Chapter 14 of 23, last paragraph).
Hairball, yourself. He pantsed you fair and square. You lied, he caught you, you recriminated.
Your non-responsive non-response is a testament both to your wilfulness and your refusal either to accept responsibility or to acknowledge that anyone but yourself has a point or an argument. Jail cells were built for guys that think the way you do. Good luck. Stay in front of your keyboard and keep surfing; you could wind up in prison if you take that attitude out of the house.
Actually, the passage you've cited several times from Taney's court briefs delivered in his earlier career could be read differently than you do. It could be read as a statement characterizing the legal mise en scene of the nationality and citizenship status of American Negroes, rather than advocacy or a personal opinion to the effect that that should remain their status under the law.
When a lawyer pleads, do you know whether his plea represents his personal opinion? An attorney representing a tobacco farmer or cigarette distributor in anti-smoking litigation would be a case in point.
You are a laugh riot!
Professor Levy, now retired, is a noted constitutional scholar and historian. A simple check of Barnes and Noble or amazon.com will show he has several of his many scholarly books still in print. Levy has been an author, co-author, and editor of several important volumes, and has authored and co-authored articles printed in peer-reviewed legal journals. Just a list of those people who consider themselves fortunate to have published with him would constitute a "Who's Who" list of the legal community.
You keep singing the same old song - and continue to sing it off key.
And all the southern ones?
Yes, Dan. You've said that many times. And Bill Glennon is also a "typewriting expert," which you may verify by checking the responses on the Daily Kos blog.
Of course back here in the real world we know that Levy is NOT a lawyer but rather a Claremonster with a lot of opinions and that Glennon is not an "expert" but rather just an old typewriter repairman who also has a lot of opinions. If you want to debate the _opinions_ of either of those men, fine by me. In fact both of their opinions have been discussed at length and refuted. Levy is wrong because his opinion neglects the plainly stated wording of the case, to wit that it is directly a habeas corpus case. Glennon is wrong because he can't reproduce the forgeries via typewriter despite all his blustering. But don't try to pass them off as experts in a field where they are not.
Yeah. More than doubled in 20 years. Up 50% between 1850 and 1860. Busy people, weren't they? But you look at the free blacks in southern states and I guess that they must not know nothin' 'bout birthin' no babies down there because the growth rates were so much smaller. That's in those cases where the free black population actually grew between 1850 and 1860. In a couple of cases it actually declined.
Quite the contrary, there was U.S. Federal property (nice redundancy there) all over Texas. Pray tell what automatically transfers ownership of it to Texas? After the revolution it took the Treaty of Paris to define what belonged to whom. After the Mexican-American war, the Treaty of Guadaloupe Hidalgo was negotiated to settle ownership. But in your case, Texas leaves and bang! Everything belongs to them. All due to international law. So why didn't that international law apply in the other cases? Why the need for negotiations and treaties?
Nah, I like it here. So when Capitan Refugio stated that the matter of who could suspend habeas corpus was not a question before the bench in Bollman, and you asked for a source, were you just trying to be annoying, too? Because you just admitted that habeas corpus had not been suspended. And since it had not been suspended then it could not be ruled on. So what was your point, if you had a point?
Bwahahahahaha!!!!!! You're killing me!
Well gee, non-seq, by that measure Michigan must've really been unusual. They jumped from only 707 in 1840 to 6,799 in 1860!
But you look at the free blacks in southern states and I guess that they must not know nothin' 'bout birthin' no babies down there because the growth rates were so much smaller.
No, it's a simple matter of a geometric growth curve. When populations begin at a very low number they quickly double their size by adding an equally low number to their ranks. When the population is high though, an equal numerical growth will constitute a substantially smaller percentage growth upon the previous population. Thus Virginia added almost 10,000 free blacks to its population over the same 20 year period and Maryland added over 20,000. Illinois added 4,000 yet since Virginia's and Maryland's existing free black populations were so much larger, the percentage growth was smaller.
Well, let's see if we can project then, shall we? Look at Alabama and Georgia. The free black population in both states in 1850 were 2265 and 2931 for a 5196 total. Closs to Illinois' total of 5436. But 10 years later, the total in Illinois is 7628 and the total for Alabama and Georgia is 6190. I guess geometric growth curves work differently down south, huh?
So in other words you are quibbling over a 1,500 person difference in population growth? You might as well be whining that the 2000 census places two more neighborhoods in Congressional District 4 than Congressional District 5.
And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.
Justice Curtis dissenting, Scott v. Sandford, 19 How. 393, 621 (1857)
It's called statistical variance, BTW. Statistically there is no one perfectly fitting geometric curve. There is a fit line that approximates the data though, with individual states falling around it. Some will be a little higher producing a positive error term, some will be a little lower giving a negative error, some will land exactly on the line giving no error. But if the line fits fairly well it will show a geometric trend and predict geometric growth within a plus or minus variation. I don't expect you to comprehend mathematical techniques like that though, and even if you did you're too dishonest to admit it.
...which is a classic non-sequitur (of the small n and s type, though the larger N and S do their best to approximate it daily). Technically speaking there are two ways the court can directly rule on an issue and a third it can indirectly yet explicitly rule.
Directly, it can strike down an affirmative act for its violation of an explicit constitutional principle OR it can strike down an affirmative act for its failure to abide by a constitutional principle. An example of the former would be "law X violates Amendment Z and is therefore unconstitutional." The recent Hamdi decision in a mild degree, and to a more extreme degree the Scalia dissent, took the latter course WRT habeas corpus, to wit: Hamdi was denied a writ of habeas corpus despite the administration having failed to secure a suspension of that writ from Congress.
Indirectly, the court can materially rule upon a constitutional provision in the case of its direct corrollary opposite, which when true also makes its counterpart necessarily true. This is what Bollman did, to wit: the court derives its writ authority from the act of congress under the constitution and therefore must issue the writ unless that authority be suspended by the agent that provided it, namely Congress.
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