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
A lie. And not even a particularly defensible one.
"Documentation #2: You extensively quoted and defended Farber, a left of center loose constructionist law professor at Berkeley."
I have quoted "extensively" from Farber - I have his book. Farber's style is to present opposing views on the issues and analyze them for strengths and weaknesses. Your friend nolu chan has also quoted "extensively" from Farber. That doesn't make him, or Farber, a "left-wing hater."
Slothful documentation from a slothful, narrow mind. You need to put a little thought into your otherwise knee-JERK responses.
No cliff notes, but I'll probably have to changes clothes once the pissing contest is over.
bttt
False syllogism. It was the ante-bellum(?) Southern heritage of inequality and the denial of humanity based on racial or religious factors that is most comparable to Nazism. I question my own adjective, "ante-bellum," because the record of southern bigotry has continued to this day. This type of prejudice is no longer sanctioned by law, but continues to smolder in the dung piles where the neo-rebs reside. Those who would justify and glorify a system of government, society, and culture that denies the most fundamental of human rights deserve to wallow in their own crapulence. It what the nazis got in WWII and what the disloyal southerners got in the ACW. They deserved it.
Running count on my FR page.
I'm invoking Godwin's Law on this thread.
"... intellectually accurate point about the Fuehrerprinzip's role in the Lincolnian unionism argument"
To be intellectually accurate, Lincoln's views about the origin of the Union were not entirely new, even in 1861. How Nazi political theory played a "role" in the development of Lincoln's ideas, considering they came 70 years later, it fodder for your "slothful" thought processes.
What's that?
Latin, ante, adjective (pre or before) bellum, 2nd declension neuter noun nominative, base = bell (war). Antebellum.
In November 1862, Atty General Bate issues an official Administration opinion holding that freemen of color were citizens of the United States, if they were born here. Fehrenbacher notes:
"But what about the status of free Negroes before 1789? The Chief Justice acknowledged that 'every person, and every class and description of persons, who were citizens in the several States, became citizens of this new political body.' This would seem to mean that some blacks, recognized as citizens by their states at the time of the Revolution acquired national citizenship in 1789." (pg 346)
"Taney was thinking of slaves when he declared that the Negro had 'no rights which the white man was bound to respect.' Even then, the statement was not absolutely true, for slaves had some rights at law before 1789, and as a summary of the status of free Negroes in the 1780's, it was plainly a falsehood."
"Just as he failed to concentrate on free Negroes as a class, although they were presumably the subject of his inquiry, so Taney also refused to confine his attention to the relevant period of time, 1776-89, for determining whether free Negroes were state citizens before the constitution went into effect. For example, he referred to the universality of slavery in the thirteen colonies with no mention, at this point, of post-Revolutionary abolition in several states. he cited two colonial laws, both forbidding miscegenation, and several state laws passed in the nineteenth century which excluded Negroes from certain privileges. The letter citations were obviously irrelevant to the matter at hand, and Taney's logic was peculiar, to say the least. Having earlier held that no state law passed after 1789 could make a Negro a citizen 'within the meaning of the constitution,' he now cited state laws passed after 1789 as part of his proof that Negroes were not citizens before the adoption of the Constitution....
"Seldom did Taney stick to the subject of state citizenship. Instead of examining state laws and constitutions of the Confederation period to see whether the word 'citizen' was used in such a way as to include or exclude free Negroes, he merely cited various discriminatory acts as evidence that Negroes were regarded as 'beings of an inferior order and altogether unfit to associate with the white race.'" (pg 348-350)
Or are you just complaining about the hyphen?
Last time I checked, Bates was not a member of the Supreme Court that issued the decision in Scott v Sanford. The 14th Amendment starts with, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Sort of redundant if Bates was correct.
Godwin's Law /prov./ [Usenet] "As a Usenet discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one." There is a tradition in many groups that, once this occurs, that thread is over, and whoever mentioned the Nazis has automatically lost whatever argument was in progress. Godwin's Law thus practically guarantees the existence of an upper bound on thread length in those groups.
LOL! good idea
To: lentulusgracchus
Remember, at FR the first person to invoke the "Nazi" comparison loses by default. Lincoln acted according to the principles upon which this nation was founded.
312 posted on 08/29/2004 6:09:20 PM PDT by capitan_refugio
[ Post Reply | Private Reply | To 301 | View Replies | Report Abuse ]
It's like beating a dead horse. When you get to the end of a usenet debate, Nazi comparisons start coming out. Nazi - CSA comparisons are a fool's argument of the left-wing propagandist.
Ah I get it! ;-)
Oh Really?
What principles would THAT be? If you don't get your way, throw someone in jail?
Or force an unwilling state back into a Union by bayonet?
The only principles Abe had were power and greed ones.
This thread is under 500 posts. I think you have time to catch up with the discussion.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.