Posted on 06/12/2003 5:58:28 AM PDT by Aurelius
Over the years I've heard many rail at the South for seceding from the 'glorious Union.' They claim that Jeff Davis and all Southerners were really nothing but traitors - and some of these people were born and raised in the South and should know better, but don't, thanks to their government school 'education.'
Frank Conner, in his excellent book The South Under Siege 1830-2000 deals in some detail with the question of Davis' alleged 'treason.' In referring to the Northern leaders he noted: "They believed the most logical means of justifying the North's war would be to have the federal government convict Davis of treason against the United States. Such a conviction must presuppose that the Confederate States could not have seceded from the Union; so convicting Davis would validate the war and make it morally legitimate."
Although this was the way the federal government planned to proceed, that prolific South-hater, Thaddeus Stevens, couldn't keep his mouth shut and he let the cat out of the bag. Stevens said: "The Southerners should be treated as a conquered alien enemy...This can be done without violence to the established principles only on the theory that the Southern states were severed from the Union and were an independent government de facto and an alien enemy to be dealt with according to the laws of war...No reform can be effected in the Southern States if they have never left the Union..." And, although he did not plainly say it, what Stevens really desired was that the Christian culture of the Old South be 'reformed' into something more compatible with his beliefs. No matter how you look at it, the feds tried to have it both ways - they claimed the South was in rebellion and had never been out of the Union, but then it had to do certain things to 'get back' into the Union it had never been out of. Strange, is it not, that the 'history' books never seem to pick up on this?
At any rate, the Northern government prepared to try President Davis for treason while it had him in prison. Mr. Conner has observed that: "The War Department presented its evidence for a treason trial against Davis to a famed jurist, Francis Lieber, for his analysis. Lieber pronounced 'Davis will not be found guilty and we shall stand there completely beaten'." According to Mr. Conner, U.S. Attorney General James Speed appointed a renowned attorney, John J. Clifford, as his chief prosecutor. Clifford, after studying the government's evidence against Davis, withdrew from the case. He said he had 'grave doubts' about it. Not to be undone, Speed then appointed Richard Henry Dana, a prominent maritime lawyer, to the case. Mr. Dana also withdrew. He said basically, that as long as the North had won a military victory over the South, they should just be satisfied with that. In other words - "you won the war, boys, so don't push your luck beyond that."
Mr. Conner tells us that: "In 1866 President Johnson appointed a new U.S. attorney general, Henry Stanburg. But Stanburg wouldn't touch the case either. Thus had spoken the North's best and brightest jurists re the legitimacy of the War of Northern Aggression - even though the Jefferson Davis case offered blinding fame to the prosecutor who could prove that the South had seceded unconstitutionally." None of these bright lights from the North would touch this case with a ten-foot pole. It's not that they were dumb, in fact the reverse is true. These men knew a dead horse when they saw it and were not about to climb aboard and attempt to ride it across the treacherous stream of illegal secession. They knew better. In fact, a Northerner from New York, Charles O'Connor, became the legal counsel for Jeff Davis - without charge. That, plus the celebrity jurists from the North that refused to touch the case, told the federal government that they really had no case against Davis or secession and that Davis was merely being held as a political prisoner.
Author Richard Street, writing in The Civil War back in the 1950s said exactly the same thing. Referring to Jeff Davis, Street wrote: "He was imprisoned after the war, was never brought to trial. The North didn't dare give him a trial, knowing that a trial would establish that secession was not unconstitutional, that there had been no 'rebellion' and that the South had got a raw deal." At one point the government intimated that it would be willing to offer Davis a pardon, should he ask for one. Davis refused that and he demanded that the government either give him a pardon or give him a trial, or admit that they had dealt unjustly with him. Mr. Street said: "He died 'unpardoned' by a government that was leery of giving him a public hearing." If Davis was as guilty as they claimed, why no trial???
Had the federal government had any possible chance to convict Davis and therefore declare secession unconstitutional they would have done so in a New York minute. The fact that they diddled around and finally released him without benefit of the trial he wanted proves that the North had no real case against secession. Over 600,000 boys, both North and South, were killed or maimed so the North could fight a war of conquest over something that the South did that was neither illegal or wrong. Yet they claim the moral high ground because the 'freed' the slaves, a farce at best.
Yes, but instead of back-slapping, I'm here to annoy you with questions designed to help me understand your position, like:
Why were our gubernatorial fiefdoms originally called 'states,' and why did Jefferson choose that word in the quote being discussed?
Hey Gianni - Good job! Again, fabulous! You're on fire! Oww that hurt! And you don't just have their disdain, you earned it! And if you want to read all about it you can buy my book at www...
Nah. Doesn't work either.
Gee Wally, that's too easy in this case:
"In any event, if prior congressional authorization was needed, it probably did exist.
Either it did or it didn't. Justice Taney ruled it didn't exist. Farber is 0 for 1.
In the special secession called by Lincoln, Congress ratified all of his orders relating to the militia or armed forces.
Ex post fact legislation is unconstitutional. Even so, a majority sided with the legislature. Farber is 1 for 2.
Since Lincoln?s suspension directive took the form of an authorization to General Scott, this may well have ratified at least past suspension in cases like Merryman.
Nope. Justice Taney ruled Lincoln's suspension unconstituional. Farber is 1 for 3.
But, even before the special session, Lincoln already probably had whatever congressional authorization he needed, at least for the initial emergency suspension in Merryman.
Wrong again. Justice Taney ruled otherwise. Farber is 1 for 4.
This source of authority was the militia act. This theory was adopted in Ex parte Field, where the federal circuit held that the statutes empowering Lincoln to call out the militia also implicitly authorized him to declare martial law and hence to suspend habeas.
Wrong again. ex parte Field had nothing to do with the suspension of the writ. Field cited the following, '[u]nder the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ.' Farber is 1 for 5.
Interestingly in Luther v. Borden, Justice Taney also wrote,
'No one, we believe, has ever doubted the proposition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure.'
Taney is not your boy any more. Not -only- did he write his son in 1856 lamenting that the Union would not be dissolved, but he also flipped 180 degrees from what he said in Borden from what he wrote in Merryman.
LOL. The cases addresed separate and distinct issues. Luther was not a habeas corpus case, Merryman was.
I don't know what President Lincoln's thought process was, but he may have thought after the Merryman opinion came down that he could just ignore the old fool.
Lincoln swore to God his oath to defend the Constitution which contains Article III and the Supremacy clause. The dictator President is not supreme. Lincoln was the fool.
I am having a good enough time watching you attack me rather than address the record.
Attack you? ROTFL! Only in your mind. But don't despair, paranoia is treatable.
LOL. Nah, I don't want to do anything the DIMS do.
Ya think? What part of the Constitution was overturned to allow ex post facto legislation?
At least 127 Federal Acts have been declared unconstitutional. The states have overturned 4 Supreme Court decisions. Over 1,089 state acts have been held unconstitutional, another 124 state ordinances have been held unconstitutional. 204 SCOTUS decisions have been overturned by subsequent courts. SCOTUS has a history of inventing rights out of thin air - this week added several.
The legislators and justices are not perfect, nor are they gods.
I think GOPCapitalist was pointing out the absurdity of a position held by a Lincolnite that was unsubstantiated on the plain reading. IMHO, it was not an invitation to celebrate as is the manner of some.
'Southron' - Scottish for Southerner. I am Southern, and have Scottish roots. I am proud of both.
Justice Black wrote that, '[t]hey stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.' [United States v. Lovett, 328 U.S. 303 (1946)].
A more appropriate analogy would be the income tax amendment. The Supreme Court had ruled tax on personal income to be unconstitutional. An amemdment had to be ratified before that type of taxation was permitted. One could cite the original Court Ruling until blue in the face, but it would not make any difference.
Now, if you would, how did the "States overturn 4 Supreme Court decisions," unless you mean ratifying new constitutional amendments or by Congress changing the law? For instance, the 13th Amendment rendered Taney's majority opinion in the Dred Scott case moot.
No Supreme Court decisions have been overturned by inferior courts. They are not empowered to do that (as the 9th Circuit continues to find out). In the absense of specific law, such as in the United States vs California (1947), the Supreme Court ruled that the Federal Government had jurisdiction, regarding mineral rights, to all offshore and submerged lands. Congress passed, and the President signed, the OCS Lands Act and Submerged Lands Act (1953), which basically gave the coastal states back their tradition offshore jurisdictional claim. Since there was no Constitutional principle at stake, these acts of congress mooted the earlier USSC decision.
I do not see the relevance of your statistical recitation to the question at hand.
9 states claimed to no longer be part of the former Union, regardless of whether the other 4 ever ratified the Constitution.
The 4 states did not have to say they were outside the union. 9 of the thirteen states had left and the government under the AoC had dissolved. The union under the AoC ceased to exist. The 4 states had not yet joined the new union. 2 states had voted NOT to join the new union.
The 9 states could not lawfully change one word of the AoC without unanimous consent. They lawfully seceded and formed a new union.
Case in point: the laws in existance prior to the ratification of the Constitution remained in effect. Laws such as the Northwest Ordinances of 1784, 1785, and 1787. These are sometimes called "pre-Constitutional law," and are just as valid today as when passed. Some of the institutions of Government remained intact as well, such as the United States Postal Service, the Army, and the Navy. Ambassadors remained the same too.
It is easy to understand that Constitutional ratification was not largely viewed in the late 1780's as seceding from one country and forming another, but as a change in the way that the country conducted its business.
~ Patrick Henry ~
Taney ruled it -did- exist.
"In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitimacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.”
...Luther was later strongly reaffirmed in Justice Holmes’s opinion in Moyer v. Peabody. In response to a violent miner’s strike, the governor had declared the affected county to be in a state of insurrection and called out the national guard. He arrested the union’s president and held him for several months without trial. Justice Holmes saw no constitutional difficulty. “Of course,” Holmes said, the “plaintiff’s position is that he had been deprived of his liberty without due process of law.” But due process depends on the circumstances. Under federal law, the governor was authorized to call out the national guard in response to invasion or insurrection.”That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.”
-- Lincoln’s Constitution” pp 148-49 by Daniel Farber
Why would you tell a big fib like that?
I hadn't thought of it, but Dr. Farber (and the Courts) did. How could the president be empowered to kill rebels (as the Court ruled unanimously he could in the Prize Cases) and he not be able to arrest and detain them?
You are the one batting "0 forever."
Walt
You are forgetting something:
“To begin with, the Constitutional Convention had been called by Congress, and Congress, without endorsing the Constitution, also approved its transmission to the states for consideration. Thus, as Madison argued in Federalist 40, the convention had some colorable claim to be operating under the authority of the existing government. Secession, on the other hand, was a wholly unilateral activity by individual states. Moreover, at the convention itself, Madison had pointed to the ratification process as a method of making the Union more solid than it had been under the articles. Because there were more treatylike, the Articles of Confederation were more easily broken. So far as the Articles “were to be considered as a Treaty only of a particular sort, among the governments of Independent states, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation.” Hence, Madison said, it was indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.” Thus, the Framers would have regarded secession under the Constitution as raising much different issues than under the Articles.”
The Tenth Amendment really adds nothing to Davis’s arguments. To the extent that the states had the power to secede prior to 1789, it was not because such a power was granted by the Articles of Confederation. On the contrary, the Articles purported to be perpetual and irrevocable. Rather, any such power existed only because, under international law, nations have the power to repudiate their treaties. That power is relevant only if the Constitution was a treaty between sovereign nations, as the compact theory insists. So the Tenth amendment argument is really only a restatement of the compact argument, rather than a source of additional support.
In basing his argument on compact theory, Davis built on a weak foundation. The evolution of American concepts of sovereignty was too complex and confused to support confident conclusions about the right to secede. Davis focused on one aspect of the record, ignoring a great deal of evidence with more nationalistic implications. For the argument to work, only did states have to retain some residual sovereignty after ratification, but they had to be the exclusive receptacles of sovereignty. Nether the text of the Constitution nor the weight of the historical record can support such a strong version of state sovereignty.”
--Lincoln’s Constitution, pp. 84-85 by Daniel Farber
Walt
LOL. The cases addresed separate and distinct issues. Luther was not a habeas corpus case, Merryman was.
So what?
In Borden, Taney wrote:
“[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.”
Are you saying that the presdent can order the military to shoot people, but not arrest them?
Taney flipped his position 180 degrees, once he saw he help accomplish in 1861 what he lameneted was not happening in 1856. He wanted a dissolution of the Union, and Merryman was the agent of that desire.
"Recently I read the chapters on Dred Scott in the official History of the Supreme Court.
The history examined a letter from Taney to his son-in-law in the summer of 1856. Taney expected Fremont or Fillmore to be elected. But (according to the History's interpretation) he thought this would be a disaster for the South, _because_ secession would not follow. In Taney's own words:
"But how can the Southern states divide [from the Union], with any hope of success, when in almost every one of them there is a strong and powerful party, acting in concert with the Know-Nothings, and willing to hold power from the North, if they may be enabled thereby to obtain the honors and offices of the general government and domineer in their own states."--- From the ACW moderated newsgroup
Taney is no longer on the field because of his traitorous sentiments>
And consider this:
“Finally, there was Lincoln’s great judicial adversary, Chief Justice Taney. Although not a bad man by any means, Taney was arrogant and rigid. His Merryman opinion was deliberately written to weaken the president as much as possible. It was not just that he ruled against the Lincoln on the habeas issue, but he went out of his way to undermine any claim of emergency power of any kind. Taney even seemed oblivious to the existence of the emergency itself, as if the unrest in Maryland were merely a routine law enforcement problem. He failed to realize the relevance of his own experiences with Andrew Jackson or of his own opinion in Luther v. Borden, both of which should have given him a clearer view of presidential authority. To top it all off, he failed to give government a genuine opportunity to be heard, mocked Lincoln for failing to observe his oath of office, and widely publicized his opinion in order to undermine the administration.
A judge with a little less self-righteousness and a little more humility might have ruled against Lincoln, but he would not have overreached so badly. It was much the same arrogance that lead Taney to think he could settle the slavery issue single handedly with his Dred Scott decision intact.
It was Lincoln’s character – his ability, judgment, courage, and humanity – that brought the Union through the war with the Constitution intact. It was as much dumb luck as anything else that placed Lincoln in the White House in this critical time. To expect another Lincoln would be foolish. Nor should the legal system be designed on the assumption that all leaders will have his qualities. Even the wisest rulers must be restrained by law. But no matter how many checks and balances and protections we build into the system, we must keep in mind Hamilton’s admonition. “Sir, when you have divided and nicely balanced the departments of government; when you have strongly connected the virtue of your rulers with their interest; when, in short you have rendered your system as perfect as human forms can be – you must place confidence; you must give power.” In the end, all power can be abused, so we must take the risk of putting confidence in those who exercise power. This as much true of generals and justices as it is of presidents. We had best take care that, like Lincoln, they are worthy of our trust.”
--Lincoln’s Constitution” p. 200 by Daniel Farber
You need to look at Borden, and Moyer and refute what Dr. Farber's research indicates. But you can't do that, so you just dismiss the whole thing out of hand.
But maybe it doesn't matter:
"The Court’s claim to be the final authority on the meaning of the Constitution has been vigorously challenged, not least by occupants of the White House. The dispute has existed since early in our history. …Jefferson den [ied] the right they [judges like Marshall] usurp of exclusively explaining the constitution.” If the judges had this right, vis-à-vis the other branches of government, the Constitution would be self-defeating. “For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the nation.” If judges had the final word over its meaning, the Constitution would be “a mere thing of wax in the hands of the judiciary, which they may twist and shape in any form they please.” In Jefferson’s view, “[E]ach department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.”
--"Lincoln's Constitution" P. 181 by Daniel Farber
Note that the bolded quote is semantically the same as what President Lincoln said in his first inaugural.
Walt
When you take a quote out of context you can build any meaning you want into it. When you read the entire letter then Jefferson's meaning appears as if by magic.
"Objections are raising to the Eastward against the vast extent of our boundaries, and propositions are made to exchange Louisiana, or a part of it, for the Floridas. But, as I have said, we shall get the Floridas without, and I would not give one inch of the waters of the Mississippi to any nation, because I see in a light very important to our peace the exclusive right to it's navigation, & the admission of no nation into it, but as into the Potomak or Delaware, with our consent & under our policeObjections are raising to the Eastward against the vast extent of our boundaries, and propositions are made to exchange Louisiana, or a part of it, for the Floridas. But, as I have said, we shall get the Floridas without, and I would not give one inch of the waters of the Mississippi to any nation, because I see in a light very important to our peace the exclusive right to it's navigation, & the admission of no nation into it, but as into the Potomak or Delaware, with our consent & under our police. These federalists see in this acquisition the formation of a new confederacy, embracing all the waters of the Missipi, on both sides of it, and a separation of it's Eastern waters from us. These combinations depend on so many circumstances which we cannot foresee, that I place little reliance on them. We have seldom seen neighborhood produce affection among nations. The reverse is almost the universal truth. Besides, if it should become the great interest of those nations to separate from this, if their happiness should depend on it so strongly as to induce them to go through that convulsion, why should the Atlantic States dread it? But especially why should we, their present inhabitants, take side in such a question? When I view the Atlantic States, procuring for those on the Eastern waters of the Missipi friendly instead of hostile neighbors of it's Western waters, I do not view it as an Englishman would the procuring future blessing for the French nation, with whom he has no relations of blood or affection. The future inhabitants of the Atlantic & Missipi States will be our sons. We leave them in distinct but bordering establishments. We think we see their happiness in their union, & we wish it. Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Missipi descendants? It is the elder and the younger son differing. God bless them both, & keep them in union, if it be for their good, but separate them, if it be better. The inhabited part of Louisiana, from Point Coupée to the sea, will of course be immediately a territorial government, and soon a State. But above that, the best use we can make of the country for some time, will be to give establishments in it to the Indians on the East side of the Missipi, in exchange for their present country, and open land offices in the last, & thus make this acquisition the means of filling up the Eastern side, instead of drawing off it's population. When we shall be full on this side, we may lay off a range of States on the Western bank from the head to the mouth, & so, range after range, advancing compactly as we multiply."
I think that Jefferson is not discounting the possibility of a separate confederation along the Mississippi, and while he points out that historically neighbor has not coexisted peacefully with neighbor in the international arena, such might not be the case here because both nations would have common roots. But nowhere in this letter do I see any indication that Jefferson is talking about areas in Louisiana becomming a state and then separating at some later date. If it was the fate of the Mississippi territories to become independent of the United States then that would be done from the first. Jefferson's preference was for one country, and he makes it clear in his description of what he predicted for Spanish Florida and the settled areas of Louisiana that certain sections were not open for negotiation. They were to become immediate territories of the United States if not outright states.
Either it did or it didn't.
You surely know that the courts do not issue advisory opinions. The court cannot act until a case is brought before it. The point is that President Lincoln had plenty of leeway to -act-. It was -then- for the courts to decide the validity of that act.
Walt
Ex post fact legislation is unconstitutional.
Then how could one ever cite precedent?
President Lincoln went through a mine field of military, legal and political problems and he rightly is regarded as a great president and great man.
Walt
I didn't forget.
Article 2 of the Articles of Confederation reads, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expresslydelegated to the United States, in Congress assembled."
Under the AoC, the states expressly retained their sovereignty. The Federal government did not even have an executive department. It's titular head, the President of the United States in Congress Assembled was the head of the Legislative body.
Farber is reaching and distorting.
The members of the convention DID have a "colorable claim" to be meeting under the authority of the existing government. But what they were thereby authorized to do was, meet "for the sole and express purpose of revising the Articles of Confederation."
They were authorized to meet to report back recommended changes to the AoC. Any such changes, under the AoC, would have required a unanimous vote of the existing states to be enacted.
The congress did not, and legally could not, authorize them to meet to create a new form of government which would become effective upon ratification by 9 states.
They had a colorable claim to meet for a specifically stated purpose. They exceeded their authorized purpose.
The original compact, the AoC, contains an explicit agreement by the larger states that no change whatever shall be made without the approval of the smallest state, Rhode Island.
Might made right. Rhode Island was not a viable independent nation so it was forced to submit to the will of the others. Military force could not have stopped the 11 who left, and was not needed to coerce NC and RI.
In the civil war, military force was an option. The North was able to impose its will on the South.
If something similar were to happen today, i.e., if a region composing about one third of the union formed another union and seized all the military assets within the area, there would be no viable military option.
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