Posted on 11/13/2004 11:12:00 AM PST by LouAvul
....snip......
Based on Margaret Mitchell's hugely popular novel, producer David O. Selznick's four-hour epic tale of the American South during slavery, the Civil War and Reconstruction is the all-time box-office champion.
.......snip........
Considering its financial success and critical acclaim, "Gone With the Wind" may be the most famous movie ever made.
It's also a lie.
......snip.........
Along with D.W. Griffith's technically innovative but ethically reprehensible "The Birth of a Nation" (from 1915), which portrayed the Ku Klux Klan as heroic, "GWTW" presents a picture of the pre-Civil War South in which slavery is a noble institution and slaves are content with their status.
Furthermore, it puts forth an image of Reconstruction as one in which freed blacks, the occupying Union army, Southern "scalawags" and Northern "carpetbaggers" inflict great harm on the defeated South, which is saved - along with the honor of Southern womanhood - by the bravery of KKK-like vigilantes.
To his credit, Selznick did eliminate some of the most egregious racism in Mitchell's novel, including the frequent use of the N-word, and downplayed the role of the KKK, compared with "Birth of a Nation," by showing no hooded vigilantes.
......snip.........
One can say that "GWTW" was a product of its times, when racial segregation was still the law of the South and a common practice in the North, and shouldn't be judged by today's political and moral standards. And it's true that most historical scholarship prior to the 1950s, like the movie, also portrayed slavery as a relatively benign institution and Reconstruction as unequivocally evil.
.....snip.........
Or as William L. Patterson of the Chicago Defender succinctly wrote: "('Gone With the Wind' is a) weapon of terror against black America."
(Excerpt) Read more at sacticket.com ...
I don't have contrary studies handy but will look into it I do know that most anthologies have essays and studies with both claims. I have read Fogel and enough econometric studies to know how they are set up and what is tested and I have read Taussig's book on the tariff but it is rare and I don't have a copy at hand despite trying to get one of my own. It took months to get one from the Chicago Public Library that I could check out.
I have explained the limitations of your claim that the tariff impeded technological changes because of the differences in the markets available to British and American iron makers and in the availability of capital to each. There was no period of equality between the two groups of makers so the is little certainty that the 50 yr claim is accurate. And if they were 50 yrs behind at the initiation of the policy then the statement means nothing.
Can a tariff slow development by protecting the wrong industries? Sure because it is as much a political device as an economic one. Did ours make mistakes? Likely. Was it run exactly as Hamilton wished. Not likely. He was notorious for doing tremendous empirical studies before recommending policies for more than any of his successors and he was NOT in favor of protection beyond the infant industry stage. But, as Taussig describes, after the Jeffersonian Embargo the politicians decided that the Nation should be made less dependent upon Europe and calculated it to increase our industry to achieve that end.
There was little jargon in my statement and it is derived from the reading of scores of econometic studies, if not hundreds, as well as doing them myself for different classes. Thus, I understand the methodology used. And I know that most are not capable of standing up to systematic analysis because they do not address and remove the effects of heteroskedasticity and autocorrelation if you want some real jargon.
So in other words, you don't even have a real article from the New York Times. You have a venom-laced editorial page rant that gives no specifics to substantiate its charges. Try again.
Incorrect. It is supported by the text of the Suspension Clause, the necessity and circumstances related to the suspension, and the Congressional approval of the suspension.
You are still affirming the consequent, and now abusing the timeline to do so. First off, there is nothing in the text of the suspension clause even remotely suggesting that the president has the power to employ it while everything about its location and what we know of it from the testimony of the founders points conclusively to the fact that it is a power of the legislature alone. Second, the "necessity and circumstances" claim you make is of no legal bearing upon whether or not Taney had jurisdiction and has been subsequently rejected by the Supreme Court as legal BS in Milligan and Hamdi, among others. Third, that congress later acted in 1863 has no bearing on Taney's jurisdiction in 1861 as it could not have been known or forseen and was, as it stands even today, two years removed from Taney's case.
Another case of telling a partial truth. His AB was in English. What about his PhD from the New School?
It doesn't state what subject it's in or even what his focus or dissertation topics were. Thus all we know for certain about his specific credentialed field of expertise is that he's got an English degree.
Incorrect again.
There's nothing incorrect about noting the simple fact that the user of an authority also bears the burden of establishing that authority's credentials to be used.
Professor Jaffa is a recognized authority in the subject matter quoted.
Jaffa is a constitutional scholar? According to who? Where'd he get his training and credentials in constitutional studies then? And why does every real constitutional scholar consider his ideas to be on the fringe of the discipline?
In citing Jaffa as a constitutional authority you violate two key assumptions that must hold true for the appeal to have any validity: he must have credentials in the subject area and his judgment itself must be in the area of his credentials. Jaffa meets neither when it comes to the matter you are citing him for.
If find the fact that you shy away from contacting the professor as evidence, on its face, that you are more interested in cheap shots than finding the answer
It's not my burden to answer, capitan. That burden is yours and yours alone.
It is clear you cite the people listed about, but you have demonstrated little ability to understand what they wrote. I recall you quote from Marshall and Scalia in dicta and dissent, and from commentaries by Rawle, Tucker, and Story.
Your dicta charge against Marshall is without substantiation as I have shown through quoting the case many times. The excerpt I posted from Scalia's dissent, it should be noted, is also a part that is in full agreement with the ruling by O'Conner.
What you quoted from Jefferson about habeas I can not recall.
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821
Yates, the Antifederalist, is of little consequence as he was on the losing side of that particular political skirmish
Yawn. THe anti-federalists, who included such notable founders as Richard Henry Lee, Patrick Henry, and George Mason in their ranks, are just as valid authorities on the founding as anybody else. The passage from Yates (who was a delegate to the constitutional convention, BTW) is a noncontroversial summary of the document's provisions as reported back to his readers:
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good."
and the only time I can recall you quoting from Curtis was in an attempt to boost Taney's reputation.
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief." - Justice Benjamin R. Curtis, "Executive Power," 1862
And at the same time you tout this level of accomplishment, you state that Professor Fehrenbacher's or Professor Wood's work is not authoritative?
I said nothing about either that I can recall insofar as this particular discussion is involved. Come to think of it, I don't recall you ever citing a passage from either of those men on the subject of habeas corpus. Your clip from Fehrenbacher was about the Dred Scott decision and the one from Wood was about the Declaration of Independence. I commented upon Jaffa and Jaffa alone as he relates to habeas corpus and stand by my assertion that he is wholly uncredentialed and unqualified to be used as an authority on the matter, your attempts to divert attention from him as the focus of my comment notwithstanding.
Your ego is showing.
Bullsh*t. YOU asked me what credentials I had in law. To turn around and portray my perfectly honest, polite, and reasonable effort to comply with this request as a matter of egotism is fundamentally dishonest and fraudulent, not that I would expect anything less from a filthy liar like you.
Is there an incorrect statement regarding Esquire Graham's background?
By all means do. I'd be curious to see one. Having searched for them myself and found nothing substantial that contradicts any of them.
I have read Fogel and enough econometric studies to know how they are set up and what is tested and I have read Taussig's book on the tariff but it is rare and I don't have a copy at hand despite trying to get one of my own.
Fortunately it's a public domain text now since it's out of its copyright. There's at least one e-text version of it on the web so here you go: http://www.mises.org/etexts/taussig.pdf
That link should also save you about $75, which is the cheapest the printed versions were going for the last time I looked.
He then proceeded to destroy the idea of "secession at will."
Of course the neo-confederates reject Madison and Hamilton. They were key proponents of American nationalism - something the neo-confederates despise.
A failed thesis if there ever was one. Madison was the primary author and shepherd of the proposed amendments in the 1st Congress. He let nothing in that "substantively altered both the content and the nature of the Constitution." The Federalists were in firm control of the 1st Congress and they were not about to undo their recent successes.
That is a far cry from being "heaven-sent." Thank you for clarifying your position. I disagree with your supposition regards "megadeaths," but the issue is purely hypothetical.
I don't even think Tommy Delusional has written that Lincoln was found in contempt of court. But since you have been supplying him with information, maybe you could give us the reference, if one exists.
Court processes should never proceed in the lack of jurisdiction. With habeas constitutionally suspended, they had none.
The ruling was a finding that Lincoln had arrested the court's procedings and that Porter's responsibility in the actions transfered directly to Lincoln. Since the case itself was a contempt hearing against Porter, the charge of contempt would necessarily be among that which was assumed by Lincoln himself. They phrased it in a very careful and clever way so as not to berate the office of the presidency but the message they sent to Lincoln was also very clear - he had acted in contempt.
The judges were clear perturbed that they could not run roughshod over the Adminsitration in a time of war.
You got it backwards there buddy. No judge was trying to "run roughshod" over the administration - they were simply trying to meet as a three judge panel of their court! Lincoln obstructed them from meeting by placing one of the judges under house arrest. In doing so he violated the separation of powers and ran roughshod over the judiciary himself.
maybe you could give us the reference
Already did. Here it is again: 2 Hay. & Haz. 394; 1861 U.S. App
Affirmation of the consequent. Habeas Corpus had to be constitutionally suspended in the first place and Lincoln never established that it had been.
They were meeting to hear an issue in which they had no jurisdiction. They were attempting to act as a rogue court. This is precisely why the Suspension Clause was proposed and exists.
Your reference to the case is fine. It is your credential-less interpretation of it that is suspect.
That was not Lincoln's obligation. His obligation was to see that the laws were faithfully executed and that the Constitutional Union was protected. In a wartime situation, the suspension of the writ was both correct and necessary.
If Congress, who you claim had sole authority to suspend the privilege of the writ (regardless of the situation), had objected to Lincoln's action, they could have made it known. Instead, they approved of his actions.
You are affirming the consequent again. That, and you are also just plain wrong. The Supreme Court ruled in Ex Parte Bollman and Swartwout that the court's jurisdiction in habeas corpus comes from the Judicial Act of 1789. Therefore the ONLY way to remove the court's jurisdiction is to repeal, alter, or otherwise suspend the Judicial Act of 1789.
Furthermore, since you are making a jurisdictional argument about a federal court, you necessarily bring Article III, Sections 1 and 2 into play. They read:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."and
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
The short end of these clauses is to say that the federal court system gets its jurisdiction from Congress and Congress alone. Only Congress can "ordain and establish" the courts and only congress can make "such exceptions" and "such regulations" as to the judiciary's jurisdiction. Yet we know from 1861 that Congress never altered the judiciary's jurisdiction. Thus it is necessarily so that no jurisdiction was ever stripped from them in that year, making the Murphy case perfectly within the D.C. Circuit Court's realm of cases.
Your reference to the case is fine. It is your credential-less interpretation of it that is suspect.
If having absolutely no credentialed background or expertise in constitutional law is enough to make Harry Jaffa a "constitutional scholar" in your eyes, my coursework in constitutional law is more than good enough of as a credential to rebut him.
If he was purporting to suspend it, it was!
His obligation was to see that the laws were faithfully executed and that the Constitutional Union was protected.
Fine! Then he failed at that test as well by failing to faithfully execute the Judicial Act of 1789.
If Congress, who you claim had sole authority to suspend the privilege of the writ (regardless of the situation), had objected to Lincoln's action, they could have made it known.
They did by killing his bill in 1861.
Farber refutes that line of reasoning.
"But there is an important exception. A court that lacks the power to hear a case - lacks jurisdiction over the defendant or over the subject matter of the case - cannot give itself jurisdiction by fiat. The court's judgment is open to attack on the basis of lack of jurisdiction....
"It probably goes too far to say that the president can always make his own independent determination of whether a court had jurisdiction.... But if the court's exercise of judicial power is a clear usurpation of authority over a case that it has no colorable claim to be hearing, or if the court's claim of jurisdiction invades some critical constitutional policy, then the president may not be obligated to obey. Regard for checks and balances should make us reluctant to go much beyond such extraordinary cases. But when a court acts without jurisdiction at the expense of critical constitutional values, presidential noncompliance coheres with our normal understanding of the biding effect of judicial decrees.
"Whether we take the traditional approach and speak of jurisdiction, or a pragmatic approach based on constitutional policy, the question is ultimately the same: how drastic an effect does habeas suspension have on the courts? Does it merely require them, on the merits, to reject the petition if they find that the suspension is valid? Or does it render them utterly powerless to go forward after being notified of the situation, so that the executive is excused from paying further attention to the proceedings?
"Arguably, a valid suspension of the writ does eliminate the court's very power to proceed. This was apparently Congress's view in the Habeas Corpus Act, which confirmed the suspension. The jurisdictional view is also supported [ironically] by Taney's comment in another case. When a state court received a habeas petition from a federal prisoner, Taney did not merely say that granting relief had been erroneous. Instead, he said, when state judges learn that the petitioner is held in federal custody, 'they can proceed no further.' Thus, when habeas runs into a paramount federal interest, something more than ordinary legal error is involved if the court does not desist.
"The jurisdictional view of suspension also fits the purpose of suspending the writ. Suspension takes place only when needed to preserve public safety during invasion or insurrection. Thus, by definition, we are dealing with dire emergencies. It would be a considerable burden on the officers who are seeking to cope with the emergency if they are required to attend to habeas litigation. habeas proceedings would require them to produce prisoners before a potentially disloyal tribunal and engage in litigation over the validity of their actions. It would also introduce the possibility of release with or without bail. All of this would be highly disruptive to efforts to cope with the emergency. Thus, a plausible argument can be made that during a suspension, the executive not only has a valid legal defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner."
Farber's alleged refutation is as circular as your own. You cannot prove a point by affirming it as a consequent, capitan.
"But there is an important exception. A court that lacks the power to hear a case - lacks jurisdiction over the defendant or over the subject matter of the case - cannot give itself jurisdiction by fiat.
The court did not need to give itself jurisdiction in habeas corpus matters - it already had it from the Judicial Act of 1789 and that same jurisdiction had been upheld in Bollman. Lincoln, on the other hand, had the burden of proving that he could magically take the jurisdiction of the court away despite no evident constitutional mechanism for him to do so, seeing as the constitution gives jurisdictional control exclusively to congress.
"It probably goes too far to say that the president can always make his own independent determination of whether a court had jurisdiction.... But if the court's exercise of judicial power is a clear usurpation of authority over a case that it has no colorable claim to be hearing, or if the court's claim of jurisdiction invades some critical constitutional policy, then the president may not be obligated to obey. Regard for checks and balances should make us reluctant to go much beyond such extraordinary cases. But when a court acts without jurisdiction at the expense of critical constitutional values, presidential noncompliance coheres with our normal understanding of the biding effect of judicial decrees.
More affirmation of the consequent. Farber has not demonstrated that the courts lost their jurisdiction on habeas corpus at any point and neither have you. Taney, in fact, specifically addresses the issue of jurisdiction from the outset of his case and finds it to exist in the Judicial Act of 1789. Barring your discovery of a heretofore unknown repeal, alteration, or suspension of that act by Congress in 1861, it is physically impossible that the court could have lost its jurisdiction.
Farber's alleged refutation is as circular as your own. You cannot prove a point by affirming it as a consequent, capitan.
"But there is an important exception. A court that lacks the power to hear a case - lacks jurisdiction over the defendant or over the subject matter of the case - cannot give itself jurisdiction by fiat.
The court did not need to give itself jurisdiction in habeas corpus matters - it already had it from the Judicial Act of 1789 and that same jurisdiction had been upheld in Bollman. Lincoln, on the other hand, had the burden of proving that he could magically take the jurisdiction of the court away despite no evident constitutional mechanism for him to do so, seeing as the constitution gives jurisdictional control exclusively to congress.
"It probably goes too far to say that the president can always make his own independent determination of whether a court had jurisdiction.... But if the court's exercise of judicial power is a clear usurpation of authority over a case that it has no colorable claim to be hearing, or if the court's claim of jurisdiction invades some critical constitutional policy, then the president may not be obligated to obey. Regard for checks and balances should make us reluctant to go much beyond such extraordinary cases. But when a court acts without jurisdiction at the expense of critical constitutional values, presidential noncompliance coheres with our normal understanding of the biding effect of judicial decrees.
More affirmation of the consequent. Farber has not demonstrated that the courts lost their jurisdiction on habeas corpus at any point and neither have you. Taney, in fact, specifically addresses the issue of jurisdiction from the outset of his case and finds it to exist in the Judicial Act of 1789. Barring your discovery of a heretofore unknown repeal, alteration, or suspension of that act by Congress in 1861, it is physically impossible that the court could have lost its jurisdiction.
"The courts could not rule on Lincoln's suspension of habeas corpus because they lacked jurisdiction to rule. The courts lacked jurisdiction to rule because Lincoln had suspended the writ of habeas corpus."
He's even cooked up a multi-paragraph excerpt from Berkeleyite law prof Daniel Farber saying little more than the same in about 10 times as many words.
Except in cases where the writ has been suspended. Farber, a fully credentialled legal scholar provides the rationale. You, who have no similar credentials, are in no position to authoritatively reject the argument.
You set the bar.
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.