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
See Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective, by Fehrenbacher.
Furthermore, you have there entire process wrong wrong wrong. As Fehrenbacher notes, pg 308-309:
Wrong, wrong wrong. I wrote "[o]riginally Nelson's opinion was to be the "court" opinion, but upon a motion by Justice Wayne the justices re-voted to accept Taney's version as that of the court." Which did occur, as Justice Taney did write the version that was accepted by the majority. This revised version addressed the larger points brought up by Justice Curtis. Please note too that Fehrebacher puts the date of this occurring in February, BEFORE the date of the bench opinions. On page 167 Grier responds to Buchanan, "I have agreed to concur with him [Taney]."
Furthermore, per their "Rules of Practice", the opinions were to be given to the court reporter for publication, and then to the Clerk of the court. Therefore, Justice Curtis violated the Rules of the Court, by releasing his opinion to the press.
That is certainly more true today, but recall that Blackstone wrote in the 1760's at a time when the king was still very powerful and very much the executive function of the state. Nice try, but as usual you're grasping at straws.
John Marshall in Ex Parte Bollman says otherwise. That this was also believed to be so is evidenced in the fact that Curtis stated it to be settled case law in his critique of Lincoln.
...which leads to the next question: exactly what kind of "proclamation" allows the president to unilaterally overturn an enrolled law of Congress and where is this, shall we say, rather unique power found in the constitution?
Article I, Section 1:
All legislative Powers herein granted shall be vested in a Congress of the United States
leg·is·la·tive ( P ) Pronunciation Key (lj-sltv) adj. 1. Of or relating to the enactment of laws. 2. Resulting from or decided by legislation.
YES, THEY HAVE. Your leader in exile Wlat used to say all the time that ending slavery was the defining theme of Lincoln's political career from 1854 to his death or some other such nonsense.
Fine by me! Then his argument is not a valid matter of law!
It is an historical and philosophical argument,
Historical? Not really, as it has very little if any basis in the history of the constitution itself. Philosophical? Perhaps, but a philosophy of a very insidious form.
based on the the rationale for why the Constitution exists at all.
Incorrect. As I previously demonstrated, Jaffa not only got the rationale for that clause in the Constitution wrong - he got it backwards!
Lincoln had all the justification he needed from the Constitution
Your logic is circular and therefore specious (e.g. "Lincoln's actions were constitutional because the constitution justified Lincoln's actions" - a circular falsehood that intentionally evades the fact that salient challenges have been raised to the latter claim). The burden was on Lincoln to demonstrate that the constitution permitted him to do what he did and sustain his position through the processes and challenges of the constitution's designated arbiter, the judicial branch. He failed on both counts.
and it was reinforced by the Act of Congress.
Ex Post Facto and negligent of the fact that Lincoln operated in suspense of the writ for two full years WITHOUT congressional sanction.
As Richard Hofstadter observed, virtually everything Lincoln ever did in his adult life was political. The fact remains though that Lincoln not only endorsed the Corwin amendment but also carried it through congress and even helped write the thing. A person of true and uncompromising anti-slavery convictions would never do that, ergo Lincoln was not of true and uncompromising anti-slavery convictions as is often assumed.
Notice that El Capitan completely glossed over the many flaws in Jaffa's argument, instead only trying to "redefine" the Abratollah's ad verecundiam expertise. He is walking proof of what Swift reportedly observed: "You cannot reason a person out of a position he did not reason himself into in the first place." The same could be said for Harry and the entire Cult of Lincoln.
And I'll concede more or less that position to be valid. I've said many times myself that Lincoln exhibited what could be called a latent personal opposition to slavery. The problem though is his position did not generally translate into an active policy stance unless, of course, that stance happened to coincide with the winds of political convenience.
Any man can have strongly felt personal beliefs, but it takes a lot more than that to act on them under adversity and Lincoln simply did not do that. His PUBLIC POLICY view of slavery fluctuated from permanently enshrining it to completely banning it and virtually everything in between. It was, to say the least, Kerry-esque.
As is often assumed by who? Like I said before, the Lincoln quote I posted is not an obscure one. And "uncompromsing" is a dangerous term. You might have an uncompromising attitude against doing something, but it I pointed a gun at your child's head, would you do it? Would that then prove that you weren't "true and uncompromising" in that conviction?
The only thing you have demonstrated is that you nothing if not dogmatic."
"Your logic is circular and therefore specious ..."
Not at all. The President's powers are spelled out in the Constitution and by the very nature of the position. Rebellion and insurrection were preventing the rule of law, the the President had a obligation to "take Care that the Laws be faithfully executed." And I suppose you'll next complain that Congress's retroactive ratification and authorization of Lincoln's emergency actions violated some imaginary "ex post facto" requirement that only you have ...
"Ex Post Facto and negligent of the fact that Lincoln operated in suspense of the writ for two full years WITHOUT congressional sanction."
It is of little concern when the ratification came, but only that it came. It is, however, a matter of historical record that the Congress did not so much as peep any condemnation concerning Lincoln's emergency actions. Save for the later ratification of his habeas suspension, they were on board with Lincoln in 1861.
Absolutely. As much as some here might claim that Lincoln was some sort of raging dictator, he was only able to achieve what he could muster political support for. But in the end, slavery was gone.
When Congress finally convened in JULY, what would you expect them to do? Judicial opinions were ignored, some justices were impeded, the Chief Justice even feared for his own arrest; legislators, editors, and civilians that got in his way were arrested by the military and denied all constitutional protections. Abe was the Queen of Wonderland.
You'll have to provide a little more evidence than that. A scholarly source perhaps?
i especially am NOT pleased that he seems to think that SLAUGHTERING all but 4 members of my family was A-OK, just because they were NOT white!
free dixie,sw
LOL! Prepare to be assimilated.
lincoln would say/do ANYHTING to get ahead in politics/personal power. ANYTHING!
all one has to do is go read his collected private letters to friends/supporters.
free dixie,sw
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