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
The weakness and absurdity of your analogy is typical for radicals of your ilk. You wear your prejudices like badges of honor. Your anti-intellectual screed is transparent.
Sure thing, Dan. Levy's a great lawyer who regularly does battle in courtrooms across the nation and Bill Glennon's a full fledged professor of the IBM selectric. All if you say so, because we all know that CBS would only consult "unimpeachable" sources.
If you had the least of credentials yourself, you'd realize how foolish you are acting.
Yes Dan, but not a lawyer. And Bill Glennon's also a typewriter repairman...but not a typesetting expert. And just like you never permitted critiques of Glennon's rather sorry defense on the air, you have thus far completely ignored the legal profession's virtually unanimous consensus that Bollman was a habeas corpus case. Where's the frequency on that one?
One does not need to be a lawyer to understand questions of constitutional history, especially in the case of Prof. Levy, who spent about 50 years of reseach in that field. I would dare say that Prof. Levy knew and understood more about constitutional issues than most lawyers.
"And just like you never permitted critiques of Glennon's rather sorry defense on the air, you have thus far completely ignored the legal profession's virtually unanimous consensus that Bollman was a habeas corpus case. Where's the frequency on that one?"
Your meager attempts at humor indicate you really have nothing of value to add to the discussion ... not that you ever did have anything of value to add.
Do us a favor and specify some of the "virtually unanimous consensus." So far, both Freedman and Levy have been cited, and neither is supportive of your position.
Nor did I say otherwise, Dan, however you portray Levy as an individual of unimpeachable authority on the matter as a means of avoiding the intense scrutiny that has come upon his apparent account of the Bollman case or, put another way, you employ an argumentum ad verecundiam. In doing so you premise your position on his name rather than the content of his work, in which case it suffices to note that he is not credentialed in law as a means of outing your fallacy.
Do us a favor and specify some of the "virtually unanimous consensus."
FindLaw's annotation of the Constitution summarizes it as follows:
Since Chief Justice Marshall's opinion in Ex parte Bollman,233 it has been generally accepted that ''the power to award the writ by any of the courts of the United States, must be given by written law.''234 The suspension clause, Marshall explained, was an ''injunction,'' an ''obligation'' to provide ''efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.''235 And so it has been understood since,236 with a few judicial voices raised to suggest that what Congress could not do directly it could not do by omission,237 but inasmuch as statutory authority has always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus the Court has never had to face the question
So far, both Freedman and Levy have been cited, and neither is supportive of your position.
In other words, an ad verecundiam appeal to (a) an expert who is not credentialed as a lawyer and (b) a lawyer who by his own admission is arguing an unconventional critique from outside of the scholarly norm.
The holding is final. As I stated previously, decisions can be 'bench', 'slip', 'preliminary' and 'final' published versions.
The 1834 rule states, 'the original opinions of the Court, delivered to the reporter, be filed in the office of the Clerk of the Court for preservation as soon as the Volume of Reports for the term, at which they are delivered, shall be published."
Yeah, it's a puzzlement. If you look, for example, at every southern state that participated in the rebellion and not a single one had the rate of growth in free black population between 1850 and 1860 that Illinois had. In spite of the Black codes that you claim should have prevented it, the same kind of black codes that the southern states had. You try to palm it off as a function of population, but Illinois had more free blacks than every one of the original confederate states except Louisiana and South Carolina. By your explanation then those 5 states should have doubled their free black population faster than Illinois. Yet none did, two actually lost black population. You try to explain the growth away as through procreation, but none of the southern states had growth rates near as fast as Illinois. Didn't their free black populations procreate at all? So I'm not sure that you yourself have any concept of statistics or variance or any of that. Illinois would be far to the right on the bell curve. In spite of the laws you claim were there to discourage that population growth.
Yeah, but one thing that the court cannot do is rule on a matter of law that has not come before it. Habeas corpus had not been suspended, the Court cannot rule on who may suspend it. Does the term obiter dictum ring any bells with you?
...which goes back to the geometric nature of population growth again. If your town has ten black residents it is very easy to post astounding growth numbers because every new resident will, at first, increase the total population by almost 10%. Thus you can boast 900% growth by simply adding 90 people to your population!
Compare that to a state with 50,000 of a given group. It can easily add 90 people to that or even 900, yet the growth rate is a fraction of a percent. Why? Because the geometric curve for growth percentage tapers off as group size grows.
You are partially incorrect. It cannot rule on an advisory matter simply out of the blue, that is sure. It can however rule on a constitutional clause that materially impacts and materially pertains a situation that is not before the court.
The three instances I described, two direct and one indirect, can easily constitute a case of this type.
Does the term obiter dictum ring any bells with you?
Indeed it does, however not by the definition you use, which tends to state that obiter dictum = any and every portion of a given court decision that Non-Sequiture personally does not like and cannot escape by any other means than dismissing it under the label "obiter dictum."
No, it cannot. The court cannot issue an advisory ruling under any circumstances. And issuing a ruling on an action which had not happened, like the suspension of habeas corpus, most certainly falls under that.
Indeed it does, however not by the definition you use, which tends to state that obiter dictum = any and every portion of a given court decision that Non-Sequiture personally does not like and cannot escape by any other means than dismissing it under the label "obiter dictum."
Still don't know the definition, huh?
Wrong as usual. The court can rule on virtually anything that is material to the case. If the habeas corpus clause is material to the case, and Marshall found that it "most certainly" was just that, the court can rule on it, end of story. An advisory opinion is NOT the parts of the case that Non-Sequitur does not like and it is not the parts of the case that have yet to be legislative. An advisory opinion would be comparable to two congressmen getting into a debate over whether a bill was constitutional and then one of them saying "you know what, let's ask the supreme court and whatever they say will determine whether we pass this bill or not."
Still don't know the definition, huh?
Oh, I understand it just fine. You are convinced, however, that it is a term of convenience for you to personally apply to any part of any case that you dislike and cannot get around by other means. But go ahead and wallow in your idiocy for the world to see, non-seq. Heck, maybe you can even google the term "obiter dictum" with "ex parte bollman" again and dig up yet another wholly unrelated article by another fringe theorist that happens to use the two in the same paragraph, thus inducing your excitement-driven response of posting your great new "find." Your buddy capitan has become quite fond of that method of late, you know. Laughably he experienced the same lack of success that you did though. Maybe you can be his Mary Mapes though and help him collaborate, help him put together another "story."
Racist???? Bwahahahahaha! The Scott's lost their suit versus Irene Emerson (for trespass, assault, and false imprisonment) before the St. Louis Circuit Court. A jury finds for the Scotts, which the Missouri Supreme Court overturns. The US Federal Court in St. Louis rules against Scott. The US Supreme Court rules against Scott.
"The African race in the United States even when free, are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right."
Roger B. Taney:
"[Negroes are] subordinate and inferior beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority."
Roger B. Taney, purporting to relate "history," but actually presenting his own views:
"[Negroes] had for more than a century before been considered beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which a white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his own benefit."
Taney, "Dictum and purely arbitrary":
"It will be observed, that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves."
Taney, making it up as he goes along:
"In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."
It has been said of the Dred Scott decision:
"Even worse, Taney’s racist rant disguised as jurisprudence turned both the Declaration of Independence and the Constitution into empty promises in their common foundation on the premise that 'all men are created equal,' making them serve as mere window dressing for a brutal and backward system.... The decision had far-reaching consequences. Trying to apply a judicial remedy to a political, and indeed moral, problem sent shockwaves through the country. Far from solving the problem of slavery and easing North-South tensions, the case widened the distance between the country’s two halves. To add insult to injury, Taney didn’t limit his opinion to the matter of Scott’s freedom and citizenship. He also declared unconstitutional congressional actions that barred slavery in new states, a matter the Constitution surely left to Congress. This gave pro-slavery forces a chance to legislate slavery and spread it throughout the West. But the grimmest consequence of Taney’s opinion was how it slammed the door shut to reform and common sense. The Supreme Court was supposed to be the nation’s ultimate locus of justice and fairness; Chief Justice Taney obliterated that notion. By declaring that slaves could never become free and free black men could never be citizens of the United States under the Constitution as written, Taney blocked the last avenues of legal and realistic political recourse for changing the status quo. Former slave Frederick Douglass and other abolitionists realized that a higher authority would have to overrule the ultimate constitutional authority of our country. After the Scott decision, the only recourse the reformers had was revolution and ultimately war." Alan W. Dowd and James White, American Outlook
I'm still waiting. I'm sure there must be at least one incidental quotation, don't you think?
Long on accusation. Short on proof. It's how you guys operate.
The Mitchell case. I said I had not read it, still haven't, but that I had read a passage about it. I characterized it as a "footnote" which was incorrect. It was not a footnote, but what it said, and what I quoted and related WAS CORRECT. Mitchell was an American citizen, so the case was not analogous to the point that was being made. You missed the main point and continue to misrepresent what was stated.
Bollman. Bollman was not a habeas corpus case. It was a case about the definition of treason and the jurisdiction of the courts to issue writs. I have cited my sources. You can argue, but to characterize my position as a lie, is itself dishonest. But I expect nothing less from you.
Lemmon. You have posted the entire three sentences I ever wrote about Lemmon over and over again. You might recall, at the time, I wrote that I had "gotten that one wrong" at 2:30 in the morning, and had confused Lemmon with some other sojourn and transit case. Again, no dishonesty on my part - I freely admitted the error. But you continued citation of it, out of context and without the correction I made, suggests dishonest motivation on your part. Par for the course.
Amy Warwick was one of the "Prize CaseS." The point being made was with regard to what constituted a "blockade." You are consistently and refutably wrong on that point. It is clear that "blockading" one's own ports is not the subject of international law. It is also clear that a nation assuming a neutral stance with respect to the belligerents in a civil war, does not provide diplomatic recognition.
You have embarrassed yourself sufficiently. The mods did not pulls threads as you requested - there was no reason to do so. There was no dishonesty involved on my part - but it is abundantly clear there is a great deal of dishonesty on yours.
As usual, blowing it out your butt.
Provide your evidence that the majority did not support the decision in Scott.
SEVEN justices formed the majority.
Quote one word of discontent with the decision emanating from Justice Nelson, Catron, Campbell, Daniel, Wayne, or Grier.
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