Posted on 02/17/2010 3:43:05 PM PST by Constitutionalist Conservative
Prior to the American Civil War, it was popularly assumed that states which had freely chosen to enter the Union could just as freely withdraw from said union at their own discretion. Indeed, from time to time individual states or groups of states had threatened to do just that, but until 1860 no state had actually followed through on the threat.
Since then, it has been considered axiomatic that the War “settled the question” of whether or not states had the right to secede. The central government, backed by force of arms, says the answer is No. As long as no state or group of states tests the central government’s resolve, we can consider the question to be “settled” from a practical viewpoint.
This assertion has long troubled me from a philosophical and moral viewpoint. We are supposedly a nation of laws, and the central government is supposedly subservient to the laws that established and empower it.
In a nation of laws, when someone asks, “Do states have a right to secede from the Union?”, a proper answer would have one of two forms:
Here, x would be an explanation of the laws that supported the Yes or No answer.
With the secession issue, though, we are given the following as a complete and sufficient answer:
“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”
There is no appeal to law in this answer – just brute force.
Based on this premise, the central government can amass to itself whatever right or power it chooses, simply by asserting it. After all, who has the power to say otherwise?
Come to think of it, that’s exactly how the central government has behaved more often than not since the Civil War.
This issue came to mind today because of an item posted today on a trial lawyer’s blog (found via Politico). The lawyer’s brother had written to each of the Supreme Court justices, asking for their input on a screenplay he was writing. In the screenplay, Maine decides to secede from the US and join Canada. The writer asked for comments regarding how such an issue would play out if it ever reached the Supreme Court.
Justice Antonin Scalia actually replied to the screenwriter’s query. I have a lot of respect for Scalia regarding constitutional issues, but his answer here is beyond absurd.
I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.")
He actually said that a constitutional issue was settled by military action. Oh, and by including the word “indivisible” in the Pledge of Allegiance, the issue became even more settled.
What if the president were to send out the troops to prevent the news media from publishing or broadcasting anything critical of his administration? This is clearly an unconstitutional action, but by Scalia’s logic, if the president succeeds, we must then say that the military action “settled the question” of free speech.
If these scenarios are not comparable, I’d like to hear why.
In the words of the men of the time, no less.
TO THIS: “Lincoln suspended the writ of habeas corpus and ordered the military to arrest tens of thousands of political opponents.”
YOU SAID: Complete and utter bullshit. Documented by legal scholars like Mark Neeley and Sandra O’Conner among others.
For your review and self correction:
Revoking Civil Liberties: Lincoln's Constitutional Dilemma
His suspension of habeas corpus is part of what some consider the “dark side” of his presidency
By Justin Ewers
February 10, 2009
Few presidents have interpreted their wartime powers as broadly as Abraham Lincoln, whose presidency—for all of its many successes—did have what some consider a “dark side.” Most famously, Lincoln suspended the writ of habeas corpus in the first year of the Civil War, responding to riots and local militia actions in the border states by allowing the indefinite detention of “disloyal persons” without trial.
Habeas corpus, which literally means “you have the body,” is a constitutional mandate requiring the government to give prisoners access to the courts.
Lincoln ignored a Supreme Court justice's decision overturning his order, and over the next few years, the Great Emancipator, in one of the war’s starkest ironies, allowed these new restrictions, which also imposed martial law in some volatile border areas and curbed freedom of speech and the press, to expand throughout the Northern states.
As the war drew to a close, though, some historians believe Lincoln may have begun to recognize the dangers of his own unprecedented expansion of presidential war powers. More than 13,000 civilians were arrested under martial law during the war throughout the Union. But it was in Missouri, in particular, nearly a thousand miles from the nation's capital and far beyond the federal government's day-to-day reach, that Lincoln was confronted with the most dramatic example of his internal security measures’ unintended consequences.
In the months before he was assassinated, Lincoln found, to his surprise, that he was unable to convince Missouri's Republican leaders—who had grown accustomed to their newfound powers—to put an end to martial law in the state.
The lesson he learned, historians say, may have been a simple one: “It is much easier,” says Eric Foner, a professor of history at Columbia University, “to put these restrictions in place than it is to stop them.”
For those interested, the rest of the article is here
Thank you. You've provided part of the evidence which makes it clear that one must doubt the sincerity of any claims that the Davis regime was every serious about compensating the U.S. for property stolen or debt repudiated.
The documenetation stream actually goes back to the provisional confederate constitution adopted on February 8th. A clause in Article 6 of the provisional constitution called for, "...settlement of all matters between the States forming it, and their other late confederates of the United States in relation to the public property and public debt at the time of their withdrawal from them; these States hereby declaring it to be their wish and earnest desire to adjust everything pertaining to the common property, common liability, and common obligations of that Union..." But a week later that got watered down somewhat. In a bill passed on February 25th calling for the dispatch of commissioners, the congress only said that they wanted "the settlement of all questions of disagreement between the two governments..." Suddenly specifics were off the table. Talk about public property, public debt, common property and common liabilities was dropped in favor of a vague 'questions of disagreement'. And the letter Davis sent to Lincoln watered it down even more. Now 'questions of disagreement' became 'matters and subjects interesting to both nations'. Talk of payment for anything had long since gone and in the end there was nothing left indicating any desire to compensate for property stolen and obligations repudiated. And then the final confederate constitution adopted on March 11th dropped all mention of payment or discussion of anything.
It's clear that there was no interest in compensation for anything. All Davis wanted was recognition of confederate soverignty. He was not prepared to offer anything in exchange for that recognition, and once Lincoln had given into his ultimatum it's pretty clear that any other discussions would occur only if the confederates felt that they were 'interesting'. One has to assume that payment for stolen property was not going to be interesting to them at all.
For you, for the same purpose:
"The writ of habeas corpus is something that comes to us from English common law, and was the means by which one who was arrested or confined by governmental authority could ask a court to require the person holding him in custody to show cause why he was being held. The court would then decide whether there was sufficient reason to hold the person, and if there was not would order him set free. It has been rightly regarded as a safeguard against executive tyranny, and an essential safeguard to individual liberty. The United States Constitution provides that the writ of habeas corpus shall not be suspended, except when in time of war or rebellion the public safety shall require it.
The day after Merryman sought the writ, Chief Justice Roger Taney, who was sitting as a circuit judge in Baltimore, ordered the government to show cause why Merryman should not be released. A representative of the commandant of Fort McHenry appeared in court for the government to advise Taney that the writ of habeas corpus had been suspended, and asked for time to consult with the government in Washington. Taney refused, and issued an arrest warrant for the commandant. The next day, the marshal reported that in his effort to serve the writ he had been denied admission to the fort. Taney then issued an opinion in the case declaring that the President alone did not have the authority to suspend the writ of habeas corpus -- only Congress could do that -- and holding that Merryman's confinement was illegal. The Chief Justice, knowing that he could not enforce his order, sent a copy of it to Lincoln.
Lincoln ignored the order, but in his address to the special session of Congress which he had called to meet on July 4, 1861, he adverted to it in these words:
"Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?"
Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police." - Chief Justice William Rehnquist, May 3, 2000.
So you can trot out your Southon historian to claim Lincoln acted illegally. And I'll quote from a Chief Justice of the U.S. Supreme Court who said he did not, not definitively. The long and short is that actions are not unconstitutional and illegal because you say that they are. They are not constiutional and legal because I say that they are. They are constiutional or unconstitutional based on what the Supreme Court said. And the court never ruled on Lincoln's act.
You repeat my source and facts as if they support your contention, but that's nothing more than a pantsload.
The documentation stream that you already knew existed, and you were baiting to obtain, does nothing to strengthen your position.
1. You yourself gave the evidence that the provisional Confederate Congress passed the mechanism by which the Union would be compensated for any claims.
2. Jefferson Davis and his people increased the initiative by offering anything that would promote peace, (see your bill reference).
3. They even went further by sending three representatives to Washington, although uninvited, to negotiate.
Your claim that the initiative went from being “watered down somewhat” to “suddenly specifics were off the table” to “in the end, there was nothing left” is nothing but contrived prevarication.
The prime example of this is your statement that “...then the final confederate constitution adopted on March 11th dropped all mention of payment or discussion of anything...”.
Why would the Confederate Congress pass any more legislation, especially when the ball was already rolling. Nitwit.
At that very moment, the Peace Commissioners had gathered in Washington to carry out the stipulations of the original proclamation and Davis’ government wishes.
March 12, 1861.....”The three Southern Commissioners, Messrs. Crawford, Forsythe, and Roman, all having arrived in Washington, sent their request to the State Department to present their credentials to Mr. Lincoln.
"By this time, it was now public knowledge that these Confederate commissioners had come to Washington offering payments for apportioned public debt and seized federal property. They were now addressing Secretary of State William Seward with an official letter of intent."
Welllll doggies! That's mighty fancy, boy!
But as long as I can still yank your chain then my life has purpose
Truly pathetic, especially since you've never been able to 'yank my chain'.
Of course not.
Well go ahead and try with some more of your fancy Greek!!
I don't care!!!!!!!!!!
And just which article of the Constitution delegates this power to the Supreme Court? (please be specific)
It may be Greek to you but the Latin phrase quidquid latine dictum sit altum viditur simply says that “anything said in Latin is profound”.
You know spouting Latin makes some folks feel OH so superior!
Not when looked at rationally.
1. You yourself gave the evidence that the provisional Confederate Congress passed the mechanism by which the Union would be compensated for any claims
What I showed was that any intent there may have been originally to pay for property stolen and debt repudiated was quickly watered down until it was dropped completely in favor of vague platitudes.
2. Jefferson Davis and his people increased the initiative by offering anything that would promote peace, (see your bill reference).
They offered nothing of the sort. They decreased the offer by taking all specifics off the table, changing offers to settle matters relating to property and obligations to discuss settlement of disagreements to the final 'matters of interest to both nations'. There was no interest in settlement, only a demand that the rebel ultimatum be met.
3. They even went further by sending three representatives to Washington, although uninvited, to negotiate.
They sent three people to accept Lincoln's surrender, as Davis' letter said he would. They were not there to negotiate.
Your claim that the initiative went from being “watered down somewhat” to “suddenly specifics were off the table” to “in the end, there was nothing left” is nothing but contrived prevarication.
It is completely accurate. "Watered down" is a polite way of putting it. It would be more accurate to say that your claims that they were there to offer payment is the prevarication. "Prevarication" is a polite way of putting that, too.
Why would the Confederate Congress pass any more legislation, especially when the ball was already rolling.
Especially when all plans to pay for anything had long since been dropped.
Nitwit.
What was that you were asking cowboyway about ad hominums?
At that very moment, the Peace Commissioners had gathered in Washington to carry out the stipulations of the original proclamation and Davis’ government wishes.
To demand Lincoln give in to rebel demands on recognition and nothing else concrete. As the Davis letter makes clear.
March 12, 1861.....”The three Southern Commissioners, Messrs. Crawford, Forsythe, and Roman, all having arrived in Washington, sent their request to the State Department to present their credentials to Mr. Lincoln.
And given their purpose I don't see what there was to talk about. Was an end to secession a topic for discussion? No, only the rebel position was on the table. It was an ultimatum, nothing less.
"By this time, it was now public knowledge that these Confederate commissioners had come to Washington offering payments for apportioned public debt and seized federal property. They were now addressing Secretary of State William Seward with an official letter of intent."
I have no idea what your source for that was, but they obviously didn't read the Davis letter.
Article III, Section 2 where it defines the court's jurisdiction.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. 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 Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Once again I find not a word in the material YOU cited that supports your claim that "They are constiutional or unconstitutional based on what the Supreme Court said."
Are we back to this invisible ink and implication thing again?
Do you not understand what jurisdiction is?
I know EXACTLY what jurisdiction means but I’m not sure you do.
How do you get that the supreme court has the power to over rule either of thee other two branches on anything out of Article 3 Section 2?
Just like you know EXACTLY where the Constitution authorizes an Air Force? Then by all means tell us.
How do you get that the supreme court has the power to over rule either of thee other two branches on anything out of Article 3 Section 2?
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." - Chief Justice Marshall, Marbury v Madison, 1803
—Thomas Jefferson to W. H. Torrance, 1815
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820
"If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate 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 others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." (emphasis added)
—Thomas Jefferson to Spencer Roane, 1819.
If not the Supreme Court then who? Should the president have the power to decide if his actions are Constitutional? Jefferson Davis thought so, but that is hardly an endorsement given his excesses and anyway, do you want Obama to decide that his policies are legal or not? Should Congress have that power? The right to decide that everything they do is Constitutional? Do you want Pelosi and Reid to be able to do that? Or the states? In that case even though you claim states cannot expel another state against its will, though you cannot show where it is prohibited to begin with, the states could do it by just saying that it’s Constitutional. That’s what you think should happen, huh? Figures.
In 2009-2010, so far 36 of the 50 states have re-inforced the sovereignty recognized of them in the 10th ammendment to the Federal Constitution.
The 36 state legislatures have done this by passing their own state statutes in which they re-assert their sovereignty. I may be wrong, but I believe that Gov. Palin was the first to endorse this kind of legislation and she got it passed in Alaska prior to her departure from public office.
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