Posted on 12/24/2003 10:30:18 AM PST by Grand Old Partisan
Abraham Lincoln, with his son Tad in tow, walked around Richmond, Virginia, one day 138 years ago, and if you try to retrace their steps today you won't see much that they saw, which shouldn't be a surprise, of course. The street grid is the same, though, and if you're in the right mood and know what to look for, the lineaments of the earlier city begin to surface, like the outline of a scuttled old scow rising through the shallows of a pond. Among the tangle of freeway interchanges and office buildings you'll come across an overgrown park or a line of red-brick townhouses, an unlikely old belltower or a few churches scattered from block to block, dating to the decades before the Civil War and still giving off vibrations from long ago.
One other provision that expressly relates to federalism is the Supremacy Clause found in Article VI of the Constitution. It declares that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." This provision sets up a clearly hierarchical relationship between the federal government and the states. Practically, the effect is that state and local laws are deemed preempted if they conflict with federal law."Constitutional Law, Principles and Policies, 2 Ed., Erwin Chemerinsky, 2002
As the Supreme Court declared: "[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.'"Ibid. 376
The Constitution gives the president the authority, "by and with the Advice and Consent of the Senate, to make treaties provided two thirds of the Senators present concur." These treaties are the law of the land and prevail over all conflicting state laws. If there is a conflict between a treaty and a federal statute, the one adopted last in time controls. The Court has explained that when a statute and a treaty "relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other."
Ibid at 275-6.
[Underline added]
A related issue is the extent to which Congress, by statute, may increase presidential powers beyond what are found in the Constitution. In Clinton v. City of New York, the Supreme Court considered the constitutionality of a federal statute which created authority for a presidential line-item veto. The statute empowered the president to veto (or more precisely to "cancel") particular parts of appropriation bills while allowing the rest to go into effect. Congress could overturn such a veto by a majority vote of both houses.The Supreme Court, in an opinion by Justice Stevens, declared this statutory increase in presidential power unconstitutional. Justice Stevens explained that the president, by exercising the line-item veto, was changing a law adopted by Congress; the final version of the law is diffferent after the veto than what Congress passed. The Court concluded that the Constitution does not allow such presidential authority. Justice Stevens wrote: "In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. '[R]epeal of statutes, no less than enactment, must conform with Art. I.' There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes." The Court emphasized that the procedures for enacting and vetoing laws contained in the Constitution must be strictly adhered to and that any changes must come from a constitutional amendment, not legislative action.
Ibid at 336-7
Treaties, agreements between the United States and a foreign country that are negotiated by the president and ratified by the Senate, are permitted unless they violate the Constitution. It is firmly established that if there is a conflict between a treaty and a federal statute, the one adopted last in time controls.* * *
Treaties, however, cannot violate the Constitution. In Reid v. Covert, the Court held that American civilian dependents of military personnel in a foreign country must be accorded a trial that meets the dictates of the Constitution. Justice Black explained that "no agreement with a foreign nation can confer power on the congress, or on any other branch of Government, which is free from the restraints of the Constitution."
Ibid at 361
In Marbury v. Madison (1803), the Supreme Court held § 13 of the Judiciary Act of 1789 unconstitutional. The Act was read by Justice Marshall, perhaps erroneously, to enlarge the Supreme Court's original jurisdiction beyond the limits defined in Art. III of the Constitution. Since the constitution prescribes the powers delegated by the people to the national govenrment, a congressional act contrary to the Constitution is invalid. The Constitution is supreme over ordinary federal or state law under the Supremacy Clause of Art. VI.Constitutional Law, 6 Ed., Jerome A. Barron and C. Thomas Dienes, Black Letter Series, West Group, 2003, 68
Art. VI provides that all treaties which are made "under the authority of the United States" are the supreme law of the land. They prevail, as do Executive Agreements, over inconsistent state law. Treaties and Executive Agreements are subject to constitutional limitations. Reid v. Covert (1957). Treaties and Acts of Congress are on a par, i.e., the last in time controls. The Chinese Exclusion Case (1889).
Ibid at 156
On February 24, 1803, Chief Justice Marshall delivered the opinion of the Supreme Court in Marbury v. Madison. In the opinion the court held that Marbury had a right to his judicial commission. In so doing the Court found that the executive was subject to certain legal and constitutional restraints that could be enforced by the judiciary.Yet the Court found that it could not grant the remedy in an original action because it was not within the jurisdiction fixed for the Court by Article III. The opinion interpreted a section of the Judiciary Act of 1789 as placing this action within its jurisdiction but found that this law conflicted with the Constitution. Marshall concluded by holding that the Supreme Court had the power to declare such a law to be invalid as a violation of the Constitution.
Constitutional Law, 4 Ed., John E. Nowak and Ronald D. Rotunda, West Publishing Co., 1991, p. 2
This clause [The Supremacy Clause] at one time had been interpreted by legal authorities to suggest that treaties were equal to the Constitution. As a consequence the theory developed that said that treaties were not subject to any constitutional limitations.....That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear.... The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments.... It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession or any portion of the territory of the latter without its consent....
Ibid at 210
Quoting Mr. Justice Field of the Supreme Court in De Geofroy v. Riggs.
If there were any remaining doubt on the issue whether there is any outer limit to the treaty-making power, that question was closed resoundingly in Reid v. Covert, where a plurality of the Supreme Court, in holding American civilian dependents of overseas military personnel entitled to civilian trial, stated that neither a treaty nor an executive agreement "can confer power on the Congress, or on any other branch of government, which is free fom the restraints of the Constitution."American Constitutional Law, 3 ed., Vol. I, West Publishing Co., Laurence H. Tribe, p. 647
Footnote 18
see also The Cherokee tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871)(dictum) ("a treaty cannot change the constitution or be held valid it it be in violation of that instrument").Ibid at 647
"[A]ll those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legialature, repugnant to the constitution, is void."Ibid at 210
Quoting from Marbury v. Madison, 5 U.S. at 177.
[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.font color="blue">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
-- Page 32 --
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.font color="blue">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
-- Page 37 --
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.font color="blue">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.
Look at the abuses of the Davis regime and tell me that Lincoln was worse.
No.
No.
It stands to reason that goods would be shipped to those consuming them. For example, if 80% of the imports are destined for southern consumers the it makes more sense to send those goods directly to southern ports like Charleston and Mobile and New Orleans. Ports closest to the consumers and which would ensure the consumers would receive their goods without any unnecessary additional costs. Yet you would have us believe that the ports where only 20% of the consumers were received 95% of the imports, only to turn around and send them hundreds of miles away to those actually consuming them. By your way of thinking that makes perfect sense apparently. But to me it seems an unnecessary additional cost.
Madison did no such thing, Walt. How'd your Vols do?
Partisan, you were sorely missed on these threads... Seriously, my eyes are watering from laughing so hard. Whew!
Secession occurred peacefully. Establishment of the CSA and her government occurred peacefully, and with no significant objections. Attempts were made to resolve federal debts and lands peacefully, and rejected. Were they to tolerate a Northern ship of war in their harbors? Not likely that a CSA ship bringing troops to New York harbor would have fared any differently.
As far as those objecting to what the South did with her independence, it is a moot point. The war did not start because of any action that the CSA took as a result of their newfound would-be independence, but rather the notion that she could have independence. To say "others will respond based on how you pursue your independence and on what you do with it when you get it" is a non-sequitur, as it was independence itself which was so repugnant as to bring the wrath of the North.
How the CSA would gain independence? Moot.
What the CSA would do with independence? Moot.
That the CSA desired independence? Death to rebels.
And really, x, your attempt at linking Davis with Wilhelm or Hussein is a cheap parlor trick more easily turned on Lincoln than you'd probably like.
Yet every single example I can think of, then and now, indicates that your reasoning is flawed, as reality shows otherwise.
I've seen this numbers game played too many times. Here are the facts of the tarrif argument:
1. The Southern economy was heavily dependent on international trade.
2. Protectionist tarrifs stifle international trade.
To prove your point, you need to refute one of the above facts. Whether a tarrif is paid in New York or New Orleans is immaterial. The percentages of goods shipped to Pennsylvania vs Tennesee is irrelevent to the core of the argument.
The reason he wanted or needed that was because the country was already sliding into civil war whatever he did. The border states and territories would doubtless have seen much fighting, as would some Southern states with unionist strongholds. Perhaps other parts of the country would try to break away too. Some today will see the break up of the federal government and the union as a triumph for liberty. That's probably because they have grown up with the federal government as the center of power in their world, and can't imagine that oppression or danger could come from other institutions. At the time, though, many people could only see this as the coming of anarchy and destruction.
So given that Lincoln wanted to maintain that fig-leaf, what were his options? He could have gone to the Confederates and asked them for supplies or permission to buy supplies. I don't know whether it would have been granted, or whether it would have made the federal government and union look weak and sickly. If his token of continued federal union required South Carolinian or Confederate aid to maintain it, then it couldn't have been very robust, and eventually the rebels would have turned the tables on Lincoln and told him to either withdraw the garrison or let it starve.
I don't know about the details, but it doesn't seem to me that one needs to assume that Lincoln was looking for war to explain why he sought to resupply the garrison. Whether Davis was looking for war is another question that also deserves attention.
In the bigger picture, some people will tell you that secession was a good idea, a necessary idea, that we lost because of Lincoln's tyranny. But what if unilateral secession was a bad idea? What if it was most likely to be used in support of unworthy causes and by the rashest and most hot-headed of politicians? What if, on balance and in the general scheme of things, secession caused more pain and suffering than it could be said to relieve, and was likely to do much more harm than good?
Given that war is violence and destruction and that hundreds of thousands of lives were devastated by the Civil War, I do sometimes wish Lincoln had simply given up or opted out. That's only human. But it would have been hard for him to hand over authority without violence, vengeance, and panic continuing or breaking out anew in large areas. It was natural that the duely elected President, whoever he was would try to hold the line on secession.
Some people construct a model based on the defeat and humiliation of the South: they say secessionists only wanted peace, and to live in freedom in their own country. Then they take this model for the reality of the 1860s. They ignore provocative actions by slaveowners and secessionists, and forget about the statist and repressive elements in Southern society to create a picture of the Confederacy as something close to a libertarian utopia. And that just isn't the case.
Such people project the modesty and humility of the postbellum South back on a section that was quite expansionist and certain of itself, to produce a distorted picture of conditions in the 1850s and 1860s. They take all the passion out of the era, turn it into something that it wasn't, and try to present legalistic arguments in defense of those who weren't bound by laws and legal processes in their own day.
On the whole, I think Americans might well have been willing to let the Southern states go, but not on their own terms, and once violence began, it wouldn't be easy to put things on a peaceful footing again. In other words it wasn't the idea of Southern independence that was regarded as frightening or threatening. Most Northerners probably would have accepted that, but they didn't accept way the rebel states or the CSA conducted themselves.
Most Northerners probably didn't have an objection to dissolving their union with the slave states, but they would have preferred a slower process of separation conducted through national constitutional institutions like Congress. Probably Northerners would have accepted unilateral secession if its leaders had been less provocative and more deferential to Northern concerns. The Confederates weren't interested in such a course. The Sumter crisis was their probationary period and they didn't pass it.
The secessionist leaders apparently wanted to crow about the new unrestricted freedom of action of their government and to put it to use immediately. A more modest, restrained, ... and well humble ... approach that moved slowly and paid a certain tribute to the nation and institutions that were being abandoned would have had better results. It was precisely how the secessionists behaved that got them into trouble, not the desire for independence itself. Do you deny it?
My point was to offer an explanation of why things happened as they did, and why the secessionists' actions were bound to bring about war. Yours seems to be to defend the actions that produced the war and, apparently to argue that they could have or ought to have had a different effect. I don't know how one could ever prove such a thing. It seems to be a rather dubious proceeding -- to cut out all the actions, ideas and emotions that produced a given result and argue that the result should have been different.
I stand by my comparison to more recent wars. It wasn't wholly intended as a condemnation of Davis, more as an indication of the way history, especially American history works. Rouse passions by starting a war, and we will make you pay. Reason or mercy may dictate half-measures and compromise, but once the fighting starts, we don't take them.
Complete and utter nonsense.
So did Alexis de Tocqueville...
"If one of the federated states acquires a preponderance sufficiently great to enable it to take exclusive possession of the central authority, it will consider the other states as subject provinces and will cause its own supremacy to be respected under the borrowed name of the sovereignty of the Union. Great things may then be done in the name of the Federal government, but in reality that government will have ceased to exist."
The exact same thing happened in Missouri. Except for Governor Jackson, practically all of the state officers and most of the legislature opposed secession and voted against it early in the crisis. By June 1861 things had changed significantly and Lincoln was beginning to invade the southern states. Uneasy about this presence, the unionist state legislature of Missouri called up the state militia and sent them to keep the war off of Missouri soil. They even appointed former governor Sterling Price, a unionist who had just served as president of the Missouri Convention that voted down secession, to lead the militia. None of that meant anything to Lincoln though so what does he do? He literally attacks the state capitol.
Practically all of the legislature and all but two of the state constitutional officers fled for their lives as Lincoln's army marched on Jefferson City. What happened next was an affront to the constitution and the notions of democratic government that Lincoln professed to be upholding: having chased the government out of town, he simply appointed his own military government to fill their place by decree. Of the two officers that remained behind, one, the State Treasurer, resigned in protest. The other, the Attorney General, attempted to remain on board as the last duly elected official in Missouri and continued to profess his loyalty to the union despite the trying circumstances of Lincoln's rule. But even that wasn't enough - Lincoln's military thugs demanded that he sign a loyalty oath to them. He replied that he had already taken his oath when he was elected and that oath was to the constitution and nobody else. Lincoln's response: they arrested him, threw him in prison, declared his office vacant, and appointed a new military AG in his place.
As all this was happening, the real government of Missouri convened an emergency legislative session in the southwest and voted on a secession ordinance. Sterling Price, the unionist who had led the Missouri Convention's successful efforts to block secession back in February and March, was now defending the exiled state government from Lincoln's attackers and would soon become a general for the confederacy.
Lincoln not only used aggression to stop seceding states - he used it against loyal states like Maryland, Missouri, and parts of Kentucky that were not percieved as pro-war enough for his agenda.
Still quoting that leftist hag Sandra Day O'Connor, eh Walt? Sorry, but she forfeited any credibility she ever had to comment on the constitution the day she started embracing UN rulings and fake concepts like "diversity" as a basis for her judgments in the place of sound legal reasoning. And if a fair appreciation of the habeas corpus issue is what you desire, I'll happily give you one. Instead of quoting jacobins like O'Connor, I prefer to quote the founding fathers and jurists of the period:
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months." - Charles Pickney, announcing the proposal to limit the suspension of habeas corpus, Constitutional Convention, 1787
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Richard Henry Lee, Anti-Federalist #16, "Federal Farmer"
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, delegate to the Constitutional Convetion, Anti-Federalist #9, "Brutus"
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also." - Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
"In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ." - St. George Tucker, Commentaries, 1803
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide." - Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted." - Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." - Justice Roger B. Taney, Ex Parte Merryman, US Circuit Court of Appeals, 1861
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President. Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief." - Justice Benjamin R. Curtis, "Executive Power," 1862
...and the parrot goes "Squack! Tu Quoque! Tu Quoque! Davis was worse! Tu Quoque!"
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.