Posted on 12/16/2003 1:15:09 PM PST by PeaRidge
Uncle Tom's Cabin by Gail Jarvis by Gail Jarvis
People who disagree with me often claim that my historical views do not conform with "modern" interpretations. For my enlightenment, they recommend "modern" history books, books written after the 1960s. However, one correspondent took the opposite approach insisting that I needed to read a book from the past, Uncle Tom's Cabin. Of course, like most of you, I read the book years ago when I was younger. And, although I thought I remembered it, I decided to read it again; this time slowly and analytically.
Its author, Harriet Beecher Stowe was the daughter, sister, and wife of ministers and fervent Abolitionists who used New England pulpits to passionately proselytize against slavery. So it is not surprising that she became an Abolitionist and wrote her influential novel Uncle Tom’s Cabin. Although the book is the most famous of all anti-slavery polemics, I suspect most people are not aware of many of the opinions held by its author.
In rereading her book, I was first struck by Mrs. Stowe insistence that slavery in the South was no worse than slavery in the North had been. Furthermore, Stowe did not condemn Southern plantation owners but rather placed the onus of slavery on the slave system itself; especially New England slave traders, New York bankers, and other Northern entrepreneurs who profited from slave commerce.
Writer and Civil Rights activist James Baldwin was incensed by her position, stating: "It was her object to show that the evils of slavery were the inherent evils of a bad system, and not always the fault of those who had become involved in it and were its actual administrators." To Baldwin this opinion was racist and abdicated slave owners of personal responsibility.
Civil rights activists were also irritated by Mrs. Stowe’s support of the American Colonization Society’s belief that slaves should be returned to Africa, support she shared with Abraham Lincoln.
Although an Abolitionist, Stowe belonged to the "gradual emancipation" school. She believed that slaves must receive at least a basic education before being freed. And she insisted that they be converted to Christianity. After these two conditions were met, they should be recolonized to Africa.
Uncle Tom’s Cabin was published two years after the Compromises of 1850. During a hectic two-month period, Congress enacted several laws designed to placate both pro-slavery and anti-slavery factions. The law that especially rankled Mrs. Stowe was the Fugitive Slave Act, which required that all run-away slaves be returned to their owners. She thought it was hypocrisy for Northern congressmen, who publicly condemned slavery, to enact the Compromises of 1850.
Harriet Beecher Stowe decided that she could make her point more dramatically by using a fiction format. Her goal was not to write the great American novel, but, like Charles Dickens, create sympathy for members of an underclass of society, slaves.
The character "Uncle Tom" grew up on the plantation of his first master, Mr. Shelby, a Southerner who was kindly disposed toward his slaves. In the course of events, Mr. Shelby incurs such large debts that he must either sell Tom, his most valuable slave, or sell all the others. This dilemma allows Mrs. Stowe to demonstrate how the economic realities of the slave system itself often precluded humanitarian considerations.
Uncle Tom’s second master, Mr. St. Clare, was also a Southerner and a compassionate slave owner. Mrs. Stowe uses St. Clare’s Vermont cousin, Miss Ophelia, to illustrate the Northern view of slavery. Miss Ophelia chastises St. Clare: "It’s a perfect abomination for you to defend such a system – you all do – all you southerners." But, annoyed by the slipshod manner in which the house servants conduct themselves; she calls them "shiftless." Miss Ophelia is also offended by the close companionship of St. Clare’s daughter, Little Eva, with Tom and the other slaves, which she deems inappropriate.
Uncle Tom’s third and final master is perhaps the most famous villain in American literature – Simon Legree: a New England Yankee. Legree amasses enough money pirating to purchase a plantation in Louisiana. As a plantation owner, he regularly beats, curses and abuses his slaves. In one of his beatings of Tom, Legree's rage boils over and he accidentally kills the noble slave.
Toward the end of the book, an escaped slave, George Harris, realizes he can now achieve his dream of joining the colony in Liberia: "Let me go to form part of a nation, which shall have a voice in the councils of nations, and then we can speak. We have the claim of an injured race for reparation. But, then, I do not want it. I want a country, a nation, of my own."
In a postscript to Uncle Tom’s Cabin, Harriet Beecher Stowe catalogues the evils of the slavery system and then addresses Southerners:
"The author hopes she has done justice to that nobility, generosity, and humanity which in many cases characterizes individuals at the South. Such instances save us from utter despair of our kind. To you, generous, noble-minded men and women of the South – you, whose virtue, and magnanimity, and purity of character are the greater for the severer trial it has encountered – to you is her appeal."
Next she turns her attention to Northerners:
"Do you say that the people of the free states have nothing to do with it? The people of the free states have defended, encouraged, and participated; and are more guilty for it, before God, than the South. There are multitudes of slaves temporarily owned, and sold again, by merchants in Northern cities; and shall the whole guilt or obloquy of slavery fall only on the South? Northern men, Northern mothers, Northern Christians, have something more to do than denounce their brethren at the South; they have to look to the evil among themselves."
Uncle Tom’s Cabin was published almost ten years before the War Between the States. Harriet Beecher Stowe did as much as anyone to encourage "gradual emancipation" of the New England sort..
December 16, 2003
Gail Jarvis [send him mail], a CPA living in Beaufort, SC, is an advocate of the voluntary union of states established by the founders.
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LOL! What abilities?
Were you involved with making the film, or just representing the Piney Woods chapter of the Father Stonewall fan club?
you have NO IDEA how much care was taken to make the movie accurate.
Well, I do have an idea how much historical content was left out so we could be bored to exhaustion with scenes of confederate sing alongs and a damn near inappropriate relationship between Gen. Jackson and a five year old child.
this is a Yankee version of Sour Grapes.
The filmmakers ignored an important opportunity to add layers of historical context and complexity to the film for the sake of what seemed like an overdose of smarmy "auld lang syne". That's valid criticism, not sour gapes.
I'm sure Ted Turner was happy though.
USS Kearsarge: 232 feet by 33 feet, displacing 1,550 tons
USS Hatteras: 210 feet by 34 feet, displacing 1,200 tons
CSS Alabama: 212 feet by 32 feet, displacing 1,050 tons
As I said, the Alabama was the smallest of the three ships.
My poor unfortunate aunt Mary weighs 240 lbs., yet would be no match for a football player (or marine) of about the same weight.
Neither would you for that matter, pretzel boy.
How about one of about 15% less weight who also happened to be shorter and skinnier?
In case of insurrection, the President is empowered to call out the militia ONLY as specified in the Act which mandates a prior condition as follows: "it shall be lawful for the President of the United States, on application of the legislature of such state, or of the Executive, (when the legislature cannot be convened,) to call forth such number of the militia of any other state or states, as may be applied for, as he may judge sufficient to suppress such insurrection."
Sorry, but no.
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."
That language appears in the 2/28/1795 version.
To get back to the center, the Court ruled in part:
"By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare was against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States."
Walt
Kearsarge
Length at keel - 201 feet 4 inches
Beam - 33 feet 10 inches
Displacement - 1,031 tons
Alabama
Length at keel - 211 feet 6 inches
Beam - 33 feet 8 inches
Displacement - 1,040 tons
From "The Alabama and the Kearsarge", page 9 and page 11.
Then how did you miss this part?
"And in case any goods, wares, or merchandise, deposited in aforesaid, shall remain in the public store beyond one year, without payment of duties and charges thereon, then said goods, wares, or merchandise, shall be appraised by the appraisers of the United States, if there be any at the port, and if none, then by two merchants to be designated and sworn by the collector for that purpose, and sold by the collector at public auction, on due public notice thereof being first given in the manner, and for the time to be prescribed by a general regulation of the Treasury Department."
Or this part?
"…there to be kept with due and reasonable care, at the charge and risk of the owner, importer, consignee, or agent, and subject at all times to their order upon payment of the proper duties and expenses, to be ascertained on due entry thereof for warehousing, and to be secured by bond of the owner, importer, or consignee, with surety or sureties to the satisfaction of the collector, in double the amount of the said duties, and in such form as the Secretary of the Treasury shall prescribe."
Surety would require some sort of collateral be tied up.
You are entitled to your interpretation of that relationship, others have viewed it differently. I certainly would never let a child of mine venture into the private quarters of another adult unsupervised. Nor would I want to entertain another family's child alone in my private quarters.
-btw did you ever wonder whether Little Jane would have gotten sick and died if she stayed at home with her mother instead of traipsing through an army camp in the middle of the winter? My hunch is the good General did.
Stonewall Jackson was probably the greatest General of that century, and probably the 20th as well.
Seeing as how he only fought for the first half of the Civil War, I would tend to disagree with you. But lets not change the subject.
Just what "layers of complexity" would you have had them add?
For better or worse, todays culture gets much of its education from movies. Unfortunately Oliver Stone has become as much of an American history teacher as say David McCullough or Jay Winick.
A film that spends an hour on a single battle and cannot find a few minutes to develop any of the other important nonfictional persons and events of that time period wastes an important opportunity to inform (imo).
As for the battles in the West,that was not in the book.
What a conveinent and original excuse. Usually screenplays end up being completely different than the books they're based on. In this case, slavish detail to the book excuses not provding a richer historical context to the film.
YOU have a personal problem with this movie...
No, but you seem to have a personal problem with anyone who critisizes it. My guess is you are either some kind of G&G groupie, or had some involvement with its production. In either case don't get your grey diaper in a bunch just because some of the rest of us thought it was less than stellar.
Name one.
How about "North & South" or "Roots"?
How do those movies bash the south?
Walt
| PAGES 1507-1508 | PAGES 1509-1510 |
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.
This is what Wlat "quotes"
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."
And Wlat continues to insist: "That language appears in the 2/28/1795 version."
EARTH TO WLAT: NO, THAT LANGUAGE DOES -NOT- APPEAR IN THE 2/28/1795 VERSION. If you must go on and on and on about your interpretation of the Militia Act of 1795, at least read the Militia Act of 1795. You cannot read the actual Militia Act of 1795 (which I both quoted and linked) and provide the above garbage as a "quote" of that Act.
NOW, I SHALL DEMONSTRATE WLAT'S INSISTANCE ON "QUOTING" TEXT WHICH IS NOT IN THE ACT, AND LEAVING OUT TEXT WHICH IS IN THE ACT, AND CHANGING THE PUNCTUATION OF THE ACT.
Any reader who goes to the provided link can view the Annals of Congress and see precisely how the Act of 1795 appears in the records of Congress. You may readily confirm that I am providing the text passed by Congress, and Wlat is providing... what Wlat usually provides... from the usual sources.
Below is a comparison of what I (n) quote from the official record, and what Wlat (w) insists on quoting as the text of the Act of 1795.
(n) Sec. 2. And be it further enacted,
(w) Sec. 2. And be it further enacted,
(n) That whenever the laws of the United States shall be opposed,
(w) That whenever the laws of the United States shall be opposed[,] [sic - missing comma]
(n) or the execution thereof obstructed in any State,
(w) or the execution thereof obstructed, in any state,[sic - added comma, missing capitalization]
(n) by combinations too powerful to be suppressed
(w) by combinations too powerful to be suppressed
(n) by the ordinary course of judicial proceedings,
(w) by the ordinary course of judicial proceedings,
(n) or by the powers vested in the Marshals by this act,
(w) or by the powers vested in the marshals by this act,[sic - missing capitalization]
(n) it shall be lawful for the President of the United States
(w) it shall be lawful for the President of the United States
(n) to call forth the militia of such State,
(w) to call forth the militia of such state[,] [sic - missing capitalization and comma]
(n)or of any other State or States, as may be necessary
(w)[sic - entire passage missing]
(n)to suppress such combinations, and to cause the laws to be duly executed;
(w)to suppress such combinations, and to cause the laws to be duly executed. [sic - punctuation]
(n)and
(w)And [sic - capitalization]
(n)
(w - Imaginary quote from the Act of 1795)[if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and]
(n)the use of militia so to be called forth, may be continued, if necessary,
(w)the use of militia, so to be called forth, may be continued, if necessary, [sic - punctuation]
(n)until the expiration of thirty days after the commencement
(w)until the expiration of thirty days after the commencement
(n)of the then next session of Congress.
(w)of the ensuing session. [sic - Another imaginary quote from the Act of 1795]
[The link goes to a PDF file - http://caselaw.lp.findlaw.com/data2/circs/2nd/032235p.pdf]
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2003
(Argued: November 17, 2003 Decided: December 18, 2003)
Docket Nos. 03-2235 (L); 03-2438 (Con.)
JOSE PADILLA, Donna R. Newman, as Next Friend of Jose Padilla,
Petitioner-Appellee-Cross-Appellant,
-v-
DONALD RUMSFELD,
Respondent-Appellant-Cross-Appellee.
* * *
II. Power to Detain
-- Page 24 --
A. Introduction
The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the President’s power as Commander-in-Chief. The power to detain Padilla is said to derive from the President’s authority, settled by Ex parte Quirin, 317 U.S. 1 (1942), to detain enemy combatants in wartime - authority that is argued to encompass the detention of United States citizens seized on United States soil. This power, the court below reasoned, may be exercised without a formal declaration of war by Congress and “even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, . . . engages the President’s full powers as Commander in Chief.” Padilla I, 233 F. Supp. 2d at 590. Specifically, the District Court found that the Joint Resolution acted as express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent such authorization. Id. at 598-99. In addition, the government claims that 10 U.S.C. § 956(5), a statute that allows the military to use authorized funds for certain detentions, grants authority to detain American citizens.
These alternative arguments require us to examine the scope of the President’s inherent power and, if this is found insufficient to support Padilla’s detention, whether Congress has authorized such detentions of American citizens. We reemphasize, however, that our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield or while actively engaged in armed conflict against the United States. As the Fourth Circuit recently - and accurately - noted in Hamdi v. Rumsfeld, “[t]o compare this battlefield capture [of Hamdi] to the domestic arrest in Padilla v. Rumsfeld is to compare apples and oranges.” 337 F.3d 335, 344 (4th Cir. 2003) (“Hamdi IV”) (Wilkinson, J., concurring).
-- Page 25 --
B. The Youngstown Analysis
Our review of the exercise by the President of war powers in the domestic sphere starts with the template the Supreme Court constructed in Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring). Youngstown involved the validity of President Truman’s efforts during the Korean War to seize the country’s steel mills on the eve of a nationwide strike by steelworkers. Id. at 582-85. Writing for the majority, Justice Black explained that the President’s power “must stem either from an act of Congress or from the Constitution itself.” Id. at 585. The Court held that the seizure could not be justified as a function of the President’s Commander-in-Chief powers and that it had not been authorized by Congress. Id. at 587-88. Justice Jackson’s concurrence, which provides the framework for reviewing the validity of executive action, posits three categories for evaluating the exercise of emergency powers by the President. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981); Hamdi v. Rumsfeld, 296 F. 3d 278, 281 (4th Cir. 2002) (“Hamdi II”).
First, when the President acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). This category is exemplified by the power exercised by the President in Quirin and in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Second, when the President acts in the absence of either a congressional grant or denial of authority, “he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Youngstown, 343 U.S. at 637. Finally, the third category includes those situations where the President takes measures incompatible with the
-- Page 26 --
express or implied will of Congress. In such cases, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. The “[c]ourts can sustain exclusive presidential control [in this situation] only by disabling the Congress from acting upon the subject.” Id. at 637-38.
Here, we find that the President lacks inherent constitutional authority as Commander-in- Chief to detain American citizens on American soil outside a zone of combat. We also conclude that the Non-Detention Act serves as an explicit congressional “denial of authority” within the meaning of Youngstown, thus placing us in Youngstown’s third category. Finally, we conclude that because the Joint Resolution does not authorize the President to detain American citizens seized on American soil, we remain within Youngstown’s third category.
i. Inherent Power
The government contends that the President has the inherent authority to detain those who take up arms against this country pursuant to Article II, Section 2, of the Constitution, which makes him the Commander-in-Chief, and that the exercise of these powers domestically does not require congressional authorization. Moreover, the argument goes, it was settled by Quirin that the military’s authority to detain enemy combatants in wartime applies to American citizens as well as to foreign combatants. There the Supreme Court explained that “universal agreement and practice” under “the law of war” holds that “[l]awful combatants are subject to capture and detention as prisoners of war by opposing military forces” and “[u]nlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” 317 U.S. at 30-31.
Finally, since the designation of an enemy combatant bears the closest imaginable connection to
-- Page 27 --
the President’s constitutional responsibilities, principles of judicial deference are said by the government to assume heightened significance.
We agree that great deference is afforded the President’s exercise of his authority as Commander-in-Chief. See Dep’t of the Navy v. Egan, 484 U.S. 518, 530 (1988). We also agree that whether a state of armed conflict exists against an enemy to which the laws of war apply is a political question for the President, not the courts. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (“Certainly it is not the function of the Judiciary to entertain private litigation - even by a citizen - which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”); The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862). Because we have no authority to do so, we do not address the government’s underlying assumption that an undeclared war exists between al Qaeda and the United States. We have no quarrel with the former chief of the Justice Department’s Criminal Division, who said:
For [al Qaeda] chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision.
Michael Chertoff, Law, Loyalty, and Terror: Our Legal Response to the Post-9-11 World, Wkly. Standard, Dec. 1, 2003, at 15.
However, it is a different proposition entirely to argue that the President even in times of grave national security threats or war, whether declared or undeclared, can lay claim to any of the powers, express or implied, allocated to Congress. The deference due to the Executive in its
-- Page 28 --
exercise of its war powers therefore only starts the inquiry; it does not end it. Where the exercise of Commander-in-Chief powers, no matter how well intentioned, is challenged on the ground that it collides with the powers assigned by the Constitution to Congress, a fundamental role exists for the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). To be sure, when Congress and the President act together in the conduct of war, “it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” Hirabayashi v. United States, 320 U.S. 81, 93 (1943). But when the Executive acts, even in the conduct of war, in the face of apparent congressional disapproval, challenges to his authority must be examined and resolved by the Article III courts. See Youngstown, 343 U.S. at 638 (Jackson, J., concurring).
These separation of powers concerns are heightened when the Commander-in-Chief’s powers are exercised in the domestic sphere. The Supreme Court has long counseled that while the Executive should be “indulge[d] the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society,” he enjoys “no such indulgence” when “it is turned inward.” Youngstown, 343 U.S. at 645 (Jackson, J., concurring). This is because “the federal power over external affairs [is] in origin and essential character different from that over internal affairs,” and “congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Curtiss-Wright, 299 U.S. at 319, 320. But, “Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.” Youngstown, 343 U.S. at 644 (Jackson, J., concurring). Thus, we do not concern ourselves with the Executive’s inherent
-- Page 29 --
wartime power, generally, to detain enemy combatants on the battlefield. Rather, we are called on to decide whether the Constitution gives the President the power to detain an American citizen seized in this country until the war with al Qaeda ends.
The government contends that the Constitution authorizes the President to detain Padilla as an enemy combatant as an exercise of inherent executive authority. Padilla contends that, in the absence of express congressional authorization, the President, by his June 9 Order denominating Padilla an enemy combatant, has engaged in the “lawmaking” function entrusted by the Constitution to Congress in violation of the separation of powers. In response, no argument is made that the Constitution expressly grants the President the power to name United States citizens as enemy combatants and order their detention. Rather, the government contends that the Commander-in-Chief Clause implicitly grants the President the power to detain enemy combatants domestically during times of national security crises such as the current conflict with al Qaeda. U.S. Const. art. II, § 2.
As an initial matter, we note that in its explicit vesting of powers in Articles I and II, the Constitution circumscribes and defines the respective functions of the political branches. INS v. Chadha, 462 U.S. 919, 946 (1983) (“The very structure of the Articles delegating and separating powers under Arts. I, II, and III exemplifies the concept of separation of powers . . . .”). The Constitution gives Congress the full legislative powers of government and at the same time, gives the President full executive authority and responsibility to “take care” that the laws enacted are faithfully executed. U.S. Const. art I, § 1, art. II, §§ 1, 3; Loving v. United States, 517 U.S. 748, 758 (1996) (“[T]he lawmaking function belongs to Congress . . . and may not be conveyed to another branch or entity”); Field v. Clark, 143 U.S. 649, 692 (1892). Thus, while the President
-- Page 30 --
has the obligation to enforce laws passed by Congress, he does not have the power to legislate. The propriety of a given branch’s conduct does not turn on the labeling of activity as “legislative” or “executive.” See Mistretta v. United States, 488 U.S. 361, 393 (1989).
Legislative action depends “not on form but upon whether [it] contain[s] matter which is properly to be regarded as legislative in its character and effect.” Chadha, 462 U.S. at 952 (internal quotation marks omitted). Thus, we must look to whether the exercise of power in question has been “subject to the carefully crafted restraints spelled out in the Constitution,” id. at 959, to ensure that authority is exercised only by the branch to which it has been allocated. See Youngstown, 343 U.S. at 587-88.
The Constitution entrusts the ability to define and punish offenses against the law of nations to the Congress, not the Executive. U.S. Const. art. II, § 8, cl. 10; United States v. Arjona, 120 U.S. 479, 483 (1887). Padilla contends that the June 9 Order mandating his detention as an “enemy combatant” was not the result of congressional action defining the category of “enemy combatant.” He also argues that there has been no other legislative articulation of what constitutes an “enemy combatant,” what circumstances trigger the designation, or when it ends. As in Youngstown, Padilla maintains that “[t]he President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President.” Youngstown, 343 U.S. at 588.
The Constitution envisions grave national emergencies and contemplates significant domestic abridgements of individual liberties during such times. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963). Here, the Executive lays claim to the inherent emergency
-- Page 31 --
powers necessary to effect such abridgements, but we agree with Padilla that the Constitution lodges these powers with Congress, not the President. See Youngstown, 343 U.S. at 649-50 (Jackson, J., concurring).
First, the Constitution explicitly provides for the suspension of the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. This power, however, lies only with Congress. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807). Further, determinations about the scope of the writ are for Congress. Lonchar v. Thomas, 517 U.S. 314, 323 (1996).
Moreover, the Third Amendment’s prohibition on the quartering of troops during times of peace reflected the Framers’ deep-seated beliefs about the sanctity of the home and the need to prevent military intrusion into civilian life.23 See, e.g., Laird v. Tatum, 408 U.S. 1, 15 (1972); Katz v. United States, 389 U.S. 347, 350 n.5 (1967). At the same time they understood that in times of war - of serious national crisis - military concerns prevailed and such intrusions could occur. But significantly, decisions as to the nature and scope of these intrusions were to be made “in a manner to be prescribed by law.” U.S. Const. amend. III. The only valid process for making “law” under the Constitution is, of course, via bicameral passage and presentment to the President, whose possible veto is subject to congressional override, provided in Article I, Section 7. See Chadha, 462 U.S. at 946-51.
The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the
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Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement. See id. at 946. The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II’s catalogue of executive powers compels us to decline to read any such power into the Commander-in-Chief Clause. In sum, while Congress - otherwise acting consistently with the Constitution - may have the power to authorize the detention of United States citizens under the circumstances of Padilla’s case, the President, acting alone, does not.24 See Youngstown, 343 U.S. at 631-32 (Douglas, J., concurring).
* * *
The dissent also relies on The Prize Cases, which, like Milligan, arose out of the Civil War, to conclude that the President has the inherent constitutional authority to protect the nation when met with belligerency and to determine what degree of responsive force is necessary. We believe that neither the facts of The Prize Cases nor their holding support such a broad construction.
First, The Prize Cases dealt with the capture of enemy property - not the detention of persons. The Court had no occasion to address the strong constitutional arguments against deprivations of personal liberty, or the question of whether the President could infringe upon individual liberty rights through the exercise of his wartime powers outside a zone of combat. Second, the dissent would have us read The Prize Cases as resolving any question as to whether the President may detain Padilla as an enemy combatant without congressional authorization. The Court did not, however, rest its decision upholding the exercise of the
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President’s military authority solely on his constitutional powers without regard to congressional authorization. Rather, it noted that the President’s authority to “call[] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government” stemmed from “the Acts of Congress of February 28th, 1795, and 3d of March, 1807.” Id. at 668. In any event, Congress’s subsequent ratification of the President’s wartime orders mooted any questions of presidential authority. Id. at 670. Finally, the Court in The Prize Cases was not faced with the Non-Detention Act specifically limiting the President’s authority to detain American citizens absent express congressional authorization.
Based on the text of the Constitution and the cases interpreting it, we reject the government’s contention that the President has inherent constitutional power to detain Padilla under the circumstances presented here.27 Therefore, under Youngstown, we must now consider whether Congress has authorized such detentions.
[23] The full text of the Third Amendment states: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.
[24] The dissent misreads us to suggest that the President has no power to deal with imminent acts of belligerency on U.S. soil outside a zone of combat and absent express authorization from Congress. See infra at [57-58]. We make no such claim. As we have discussed, criminal mechanisms exist for dealing with such situations. We only hold that the President’s Commander-in-Chief powers do not encompass the detention of a United States citizen as an enemy combatant taken into custody on United States soil outside a zone of combat.
[27] The dissent expresses deep concerns that our holding means that the President lacks inherent authority to detain a terrorist in the face of imminent attack. The President’s authority to detain such a person is not an issue raised by this case. The dissent’s concerns overlook the fact that Padilla was detained by the military while a maximum security inmate at the MCC. Thus, issues concerning imminent danger simply do not arise in this case.
[Walt 471] Sorry, but no.
Sorry, but "yes" when speaking of the Militia Act. It is clear, specific and explicit. Read section 1, clause 2 until it penetrates.
And, in case of an insurrection in any State against the Government thereof, it shall be lawful for the President of the United States, on application of the Legislature of such State, or of the Executive, (when the Legislature cannot be convened,) to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection.
[Walt 471]
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."
That language appears in the 2/28/1795 version.
No, it does not. See my 423, 475 and 476.
The real Section 2 states:
Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such State, or of any other State or States, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.
That language does not refer to insurrection. Section 1, Clause 2 refers to insurrection.
This is to provide assistance to the courts or to the Marshals of the courts. U.S. courts did not exist in the CSA. Nobody can claim with a straight face that Lincoln's war was to assist the Marshals of the courts.
[Walt 471]
To get back to the center, the Court ruled in part:
"By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare was against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States."
That is a restatement of law, not a ruling. The Court correctly states that the President "is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States."
Regarding invasions, said Act of 1795 provides, "That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia as he shall think proper. "
Regarding insurrection, said Act of 1795 provides that, "in case of an insurrection in any State against the Government thereof, it shall be lawful for the President of the United States, on application of the Legislature of such State, or of the Executive, (when the Legislature cannot be convened,) to call forth such number of the militia of any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection."
U.S. Const, Article 1, Section 8, Clause 15 provides that Congress has the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."
U.S. Const, Article 2, Section 3, provides that the President "may, on extraordinary Occasions, convene both Houses, or either of them."
U.S. Const, Article 4, Section 4, provides that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." The Application by the State in the case of domestic Violence is a Constitutional requirement and cannot be waived by Congress. Regarding insurrection, the Congress used the specific language of the Constitution when issuing the Militia Act of 1795.
U.S. Const, Article 1, Section 8, Clause 18, provides that Congress has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Pursuant to this clause, and to Article 4, Section 4, Congress issued the Militia Act of 1795. Nowhere in that Act does it say, "The Lincoln is King." Of course, Lincoln could and should have convened the Legislature.
In the Prize Cases the Court did not find a state of domestic violence. They did not find a civil disturbance, they found a civil war. The Court cited the principles of international law, not the Militia Act of 1795. The Court validated the blockade according to the Laws of War, not the Militia Act of 1795.
Regarding the ruling on the issue before the Court in the Prize Cases, Justice Grier wrote:
Mr. Justice GRIER.There are certain propositions of law which must necessarily affect the ultimate decision of these cases, and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each.
They are,
1st. Had the President a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States?
2d. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as 'enemies' property?'
Those are the two questions stated, addressed, and answered by the Court in its holding. Only the first question is of interest to our discussion. Here is what the Court said:
On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.
Before the Court was the issue of Lincoln's blockade. The Court validated it pursuant to the Laws of War, not the Militia Act of 1795.
Surety would require some sort of collateral be tied up.
Identified and issued, yes, but tied up entirely until the warehousing ended? Not at all. Or does your house become "tied up" and its residents kicked out when you use it as a surety for a loan, mortgage or whatenot?
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