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
You miss the point. He's trying to degrade them all to mere administrative departments of the Mystical Union, and make the People into thralls of the Executive.
Or should that be, mystische Einheit?
That's right. All equal in their degradation.
Do the other 49 have to wait their turn to get raped like Georgia?
Just wondering where you are going with this.
Well, that's what I thought, based on history, but when I checked the Article, that isn't what it said, hence the confusion -- the wording of the relevant clauses doesn't match what was actually done later. That's what I meant.
Your concept of forming a state first and then petitioning for statehood is a case of putting the cart far in front of the horse.
It's not my concept, and it isn't what I think actually happens with an application for admission to statehood. I was just trying to understand the implication of Article IV's wording. Hence my confusion at the wording, which seems not to be what the Framers intended -- but if it isn't, it would be the first case I've encountered in which they didn't say exactly what they meant.
The fact that Constitutionally the approval of the people in the territory is not necessary for statehood,....
Concur.
.... although I'm not aware of a single case where the people of the territory did not first apply for admission to statehood, also refutes the idea of the people forming a state first and Congress somehow rubber-stamping the creation.
Same here, except that the latter case happens to describe Texas, which was created from Mexican territory not U.S. territory. Someone will have to inform me whether California came in under the same circumstances; I think it did.
So there is no sovereign state without Congressional approval.
No, that's not correct. It's not true of the original 13 at all. They received their sovereignty -- full sovereignty -- from George III.
And since they depend on Congress for their existence then how can they trump the Constitution?
Once the new States are given a grant of statehood, they are States just as are the original 13, with all the powers, immunities, and reserved powers of the original 13, by a grant of sovereignty parallel to, and similar in form to, the original grant from George III.
As long as these districts remain Territories or Possessions or affiliated Commonwealths, none of the above applies. The grant of Statehood by the sister States of the Union is the creative act that empowers.
That grant also confers all the powers reserved after ratification to the original 13, including the power to secede.
The problem in your understanding is that ratification was not a "threshold" or "express" (Locke's word) consent, a one-time, irrevocable consent. It was a "perpetual" or "tacit" consent, which is "perpetual" in the Latin sense, of being concurrently and continuously consented to, but not necessarily irrevocably. Refer to Elaine Scarry's article where she talks about these different forms of consent as they apply, e.g., to the Second Amendment.
The tacit or perpetual nature of the People's consent to the terms of the Constitution and Bill of Rights is demonstrated by the articles' being always subject to repeal, and the Union to dissolution.
I was wondering the same thing with your stuff.
But as we know, the people of the states entered into a binding agreement to provide a common government. Just as no person has the right to withdraw unilaterally from the laws of the state or the land, so too NO state had the constitutional right to withdraw unilaterally.
GOPc contends the confederates left behind their sick and wounded at Fort Bliss and other places because it was too hot in the summer to transport them. I contend that the Federal were able to transport them under essentially the same conditions.
The federal forces came upon the abandoned confederates in August, meaning, according to GOPc's timeline, left to fend for themselves for a month or more.
Do you doubt this statement?
Non-Sequitur and I were just discussing the nature of that binding, see above.
Just as no person has the right to withdraw unilaterally from the laws of the state or the land, so too NO state had the constitutional right to withdraw unilaterally.
1. The analogy between States and individuals is inappropriate, since individuals are not Sovereign unless they're kings. States have sovereignty, and the right to resume full sovereignty, by withdrawing from the Union. Individuals don't.
2. You are correct that no State has a constitutional right to secede unilaterally. Rather, they have a supraconstitutional right, a power reserved at the level of People-to-People sovereignty, to withdraw. Not under the Constitution, because of the operation of the Supremacy Clause, but above the Constitution, at the level of the People in convention assembled in their dreadful aspect as Sovereign, at the level where kings walk arm-in-arm as peers and equals and speak the familiar thou and tu.
They have these rights, just as the United States has the right to withdraw from a treaty or convention.
Not just territories. Consider the cases of Texas and Hawaii too. NO state beyond the original 13 came into the Union on its own volition. NONE of the original thirteen became states outside of their joint declaration.
There is no constitutional mechanism for secession. The constitutional responsibility and power to create, organize, reorganize, and reconstruct states rests with the Congress, and in unique cases, with the states affected.
Thank you. I will review the comments. I have been replying to those posts that I was addressed.
Sorry, Congress cannot do any of that with States that already exist -- without their permission, i.e., No.
You keep trying to use language to get over "no". The answer is "no", Congress has no such power.
And no, they didn't have the power to reconstruct States, either -- not without a request from the legislature or the executive of the State affected.
They did it anyway. That was tyranny.
If you now contend that a "supraconsitutional" right, or in other words, a natural law right, exists to "dissolve the political bonds that have connected them with another," I agree with you.
Harry Jaffa agrees with you. Daniel Farber agrees with you. Andrew Jackson agrees with you. Abraham Lincoln agrees with you. James Madison agress with you. And Thomas Jefferson agrees with you.
It is called "revolution."
History and the Suprem Court disagree with you.
We have been through this particular misrepresentation before. But since we have some new posters in the debate, why don't you quote what Madison said?
"NOTHING prevents them from leaving."
Their binding ratification prevents them from leaving unilaterally.
"Despite your assertions, John Marshall in the Virgina convention opined that whatever powers Virgina delegated could be taken back at will. Several states expressly stated as a stipulation of their ratification that the states could resume the powers of self-government at their leisure."
Again, quote John Marshall's "opinion" during the debate. We can get into the issue of whether it means a hill of beans later. And there were NO conditional ratifications of the Constitution.
Members in good standing of the Lincoln-haters Club of Free Republic.
According to the records, the pow's asked to be returned to their own lines.
[*cheering*] I'm number 1. I'm number 1. I'm number 1.
I'm not at the court, I'll post those later.
Their binding ratification prevents them from leaving unilaterally.
Please cite the clause that makes them binding in perpetuim and in servo.
And there were NO conditional ratifications of the Constitution.
Stipulated. The convention's understanding that DELEGATED powers could be resumed.
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