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To: nolu chan; fortheDeclaration; justshutupandtakeit; Non-Sequitur; Heyworth
Farber writes:

"It may seem that Lincoln violated the rule of law in his effort to vindicate the legal order. Much of this apparent paradox dissolves on closer examination, partly because most of his actions were indeed lawful, and partly because the rule of law in not an inflexible concept. Yet, a subtler paradox persists. The rule of law is usually contrasted with the 'rule of men.' But at least in a time of crisis, maintaining the ideals of the rule of law depends in a crucial way on the character and courage of society's leaders.

"As we have seen, most of what Lincoln did, then and later, was in fact constitutional. he was correct that secession was unconstitutional, a revolutionary act rather than a legitimate exercise of state sovereignty. He was also correct that, in actual areas of war and insurrection, he had emergency power to suspend habeas and impose martial law. This is not to say everything he did was constitutional. Military jurisdiction was extended beyond constitutional bounds in the North; money was spent and the military expanded without the necessary authority from Congress; and freedom of speech was sometimes infringed. Not a perfect record, but a credible one, under incredibly trying circumstances." (p 196-197)

He later continued:

"Most of Lincoln's emergency actions fell within a much narrower power to suspend the normal legal process in the actual vicinity of war or insurrection, where the authority of the government was challenged by forces too strong for the conventional legal system to control. This narrower power was still subject to abuse, with unnecessary harm to civil liberties, but it was confined to areas where force had already displaced law as the operative principle. The fact that Lincoln acted under narrower powers does not disprove the existence of broader ones, but it does not support them either....

"Lincoln's form of nationalism remains relevant for us today.... In interpreting the very real role of states in the constitutional scheme, we must not forget that the primary purpose of the constitution was not to enshrine state sovereignty but to create 'a more perfect Union.' As Lincoln recognized, the Constitution was an exercise in nation building." (p 197-198).

These were lessons that Taney, Calhoun, the fire-eaters, and the confederate leadership were unable, or unwilling, to understand.

1,989 posted on 12/01/2004 9:50:40 PM PST by capitan_refugio
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To: capitan_refugio; nolu chan
[cr quoting Farber] and partly because the rule of law in not an inflexible concept.

Sorry, I quit reading after this... was there anything worthwhile in the rest of the passage?

Is this the sort of thing that California Conservatives buy into?

2,033 posted on 12/02/2004 5:26:29 AM PST by Gianni
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To: capitan_refugio

The Constitution was specifically designed to limit state sovereignty and control its damage to the Union.


2,044 posted on 12/02/2004 7:28:50 AM PST by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: capitan_refugio
REALITY CHECK:

Some of Lincoln's initial acts were unconstitutional even under the relatively favorable view of his powers taken in this book. At least his unauthorized expansion of the regular army and disbursement of funds fall into this category. Disobedience of Taney's order may fall into the same category, unless that order was a nullity.

Farber, page 192.



2,143 posted on 12/02/2004 10:49:19 PM PST by nolu chan
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