It has been wisely said that while the Constitution was designed to handle an enormous range of issues, it was not designed to handle a civil war.
That is, of course, why the Founders allowed for suspension of civil liberties in cases of insurrection or invasion. It is notable that this is permitted by simple majority vote of Congress. The courts cannot overrule it.
I have never quite understood those who claim that no emergency justifies suspension of liberties. If liberties are suspended and the body politic survives, then there is at least the possibility of reviving them.
If the body politic is permanently destroyed, so are the liberties it was designed to protect.
This is well shown by the original Roman institution of the dictatorship. In extreme existential emergency the Senate appointed a dictator to exercise all functions of the state for a limited period. When this period was over he reverted to ordinary status.
But the Romans were wise enough to see that limited short-term loss of liberty is better than its permanent loss.
The USA has of course never been in this type of crisis, though the Civil War is the closest we've come. When compared to any other great civil war, ours had fewer atrocities and suspension of liberties. That's the logical comparison, not to time of peace.
very well said!
I should have stated the courts may have a role in determining whether a state of insurrection or invasion sufficient to justify such a suspension of liberties does indeed exist.
After the Civil War the Supremes ruled that martial law could not be used in areas where the civil courts were functioning, overturning several convictions by military tribunals during the war.
“It has been wisely said that while the Constitution was designed to handle an enormous range of issues, it was not designed to handle a civil war.”
Yes, it was. It was desinged for everything. Hence the lack of a “civil war” or “emergency” clause saying, “In the event you don’t want to bother with the rest of this document, aw hell, do whatever feels right.”
“That is, of course, why the Founders allowed for suspension of civil liberties in cases of insurrection or invasion. It is notable that this is permitted by simple majority vote of Congress. The courts cannot overrule it.”
You’re talking about the suspension of habeas corpus I presume. Well, that is not specified as being permitted by simple majority vote. We only infer that given how the Constitution says it can only be suspended in so and so a situation. The Constitution is incomplete in that way.
That being said, I see no reason why the courts can’t overrule it. Say there was no insurrection, for instance.
That also being said, Lincoln did not get Congress to suspend habeas corpus for him. He did that all on his own, without any clause to point to for justification. He did a great many unprecedented things unilaterally, all based on the emergency and his so-called war powers. Most of which in my opinion were unjustified, and which aren’t even implied in the Constitution.
“If the body politic is permanently destroyed, so are the liberties it was designed to protect”
First of all, who said the body politic was in danger of being destroyed? Where? When? Did somehow the volley on Ft. Sumter land on freedom of speech?
More importantly, this is the old “the Constitution is not a suicide pact” argument. Yes, it is. There is no way out. You cannot save it by breaking it like Bush the Younger saved capitalism by abandoning it for socialism. The country ceasing to exist is a better outcome than the government ruling outside the Constitution.
“If the body politic is permanently destroyed, so are the liberties it was designed to protect.”
We’ll never know what relation to liberty the seperate North and South would’ve had. What we do know is that the North, on its own, during the war abandoned it. We know one of the reasons the South pulled the eject lever was because it was upset with the liberties already trampled upon and the fear of further trampling in future by the more numerous North. What I also know is that the North and South under the Constitution is not liberty itself. Liberty can exist with or without it.
I also know that we lost our liberty and our Constitution nominally under it eventually.
“This is well shown by the original Roman institution of the dictatorship. In extreme existential emergency the Senate appointed a dictator to exercise all functions of the state for a limited period. When this period was over he reverted to ordinary status.”
I trust you’re aware we are not Rome and never had such an institution. I’ve heard a great many justify Lincoln this way, and it is refreshingly honest. It’s just that a lot of us, you must understand, do not hear the word “dictator” and smile. A lot of us think it’s a bad thing to be. A lot of us think Caesar, for instance, killed the republic.
“The USA has of course never been in this type of crisis, though the Civil War is the closest we’ve come”
This gets to the nub of the issue, and why your words seem so off the wall to me. You make a seperation between North and South akin to, say, Nazi Germany besieging Russia. The U.S. Constitution was not being conquered from without. Some of the entities under it opted out, is all.
Well, and fired on one of the forts the states under the Constition held onto. But this, even, is not like a foreign sword coming to tear into our liberties. The union would’ve still been there, just smaller. The South did not invade the North to impose a new government upon them.
This whole idea of an “extreme existential emergency” is extremly preposterous.