Posted on 08/19/2013 9:27:39 AM PDT by don-o
The Obama administration announced last month via blog post that the president was unilaterally suspending ObamaCare's employer mandate—notwithstanding the clear command of the law. President Obama's comments about it on Aug. 9—claiming that "the normal thing [he] would prefer to do" is seek a "change to the law"—then added insult to constitutional injury. It also offers a sharp contrast with a different president who also suspended the law.
On April 27, 1861, President Lincoln unilaterally authorized his commanding general to suspend the writ of habeas corpus so that he could detain dangerous rebels in the early days of the Civil War. Lincoln's order was constitutionally questionable. The Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
A rebellion was in progress, so suspension was permissible. But the Constitution doesn't specify who can suspend the writ in such circumstances. Since the Suspension Clause appears in Article I of the Constitution, which is predominantly about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.
Lincoln's order was legally dubious, but what he did next showed remarkable constitutional rectitude. On July 4, 1861, he delivered a solemn message to Congress, in which he did everything possible to square his action with the Constitution. In this message, he set forth the best possible constitutional arguments that he had unilateral power to suspend the writ. These arguments may have been wrong, but they were serious, and they were presented seriously, in good faith.
(Excerpt) Read more at online.wsj.com ...
Regarding Prigg vs. Pennsylvania:
Writing for the Court, Justice Story reversed the conviction and held the Pennsylvania law unconstitutional as a denial of both the right of slaveholders to recover their slaves under Article IV and the Federal Fugitive Slave Law of 1793, which trumped the state law per the Supremacy Clause. Six justices wrote separate opinions.
Though Story ruled the Pennsylvania laws unconstitutional, his opinion left the door open for further such actions by the state in his writing:
As to the authority so conferred upon state magistrates [to deal with runaway slaves], while a difference of opinion has existed, and may exist still on the point, in different states, whether state magistrates are bound to act under it; none is entertained by this Court that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation — Justice Story (emphasis added)
This last phrase—”unless prohibited by state legislation”—became the impetus for a number of personal liberties laws enacted by Pennsylvania and the other Northern states. These laws did as the Court had suggested; they prohibited state officials from interfering with runaway slaves in any capacity. Runaways could not be caught or incarcerated, cases could not be heard, and no assistance could be offered to those wishing to recapture slaves. The Fugitive Slave Act still stood, but only federal agents could enforce it.
The Prigg case is particularly sad as 4 men pretending to act as slave catchers, assaulted and kidnapped a woman who had been given her freedom, and her two children, one of which had been born free in Pennsylvania. Prigg was properly accused of kidnapping, and his defense was kidnapping women and children was permitted by agents of the slave power.
The fugitive slave law did require citizens to act when called on as a posse by federal officials.
That aspect of the 1850 fugitive slave law was certainly in opposition to the legal principle of federalism. Analogous would be a federal law that required southern slave owners to act as a posse when called on by federal marshal to aid abolitionists. Certainly slave owners would be offended at such a provision. No provision like that was ever enacted.
So much was the policy of the US before the war in favor of the slave power. Despite that, the insurrection was begun by the slave power as they thought the federal policy and law was not enough in their favor.
[You]: Maybe, maybe not. But if you expect a declaration of war every time the US fights, you must have been disappointed over the last 70 years or so. In this case, though, you weren't going to get a formal declaration of war, because that would have meant recognition of the Confederacy as an independent state.
Thanks for the comment about recognizing the Confederacy. I hadn’t thought about that.
By not calling Congress into session, Lincoln did various unconstitutional things over the course of the next two and a half months. Congress does not have the constitutional authority to excuse unconstitutional actions by the President, but the Republican Congress certainly wasn’t going to impeach Lincoln over his actions.
Nobody expected any kind of declaration of war, and if the Senate thought it could handle the situation, it wouldn't have adjourned.
Perhaps you forget that at that point with most senators from seceded states gone, the Senate was controlled by Republicans who could decide to whether to extend the session or not. At the time that the Senate ended the session and adjourned, the official line of the Administration was that Fort Sumter was to be evacuated (widely reported in the newspapers, I believe). Evacuation would have been a step toward peace. A cabinet majority in favor of not evacuating the fort and sending the Sumter expedition only happened on March 29 after the Senate had adjourned.
Declaration of war or not, people who were paying attention to Lincoln’s inaugural address (including Democrat newspapers north and south and Southern newspapers) said the actions proposed in Lincoln’s inaugural (keeping and possibly retaking forts and collecting import revenues) would lead to war. On the other hand, Republican newspaper editorials thought the speech wonderful and peaceful. Based on what did happen, it is easy to see which side was blowing smoke.
Texas Senator Wigfall was still in the Senate waiting for official notification that Texas had seceded. Here was his analysis (similar to Democrat and Southern newspaper editorials) of what Lincoln’s actions would bring [Source: Congressional Globe, March 7, 1861, page 1441]
I cannot believe that the Senator from Illinois [Douglas], by the speech which he made yesterday, intended to follow up the train of reasoning which the President of the United States has seen fit to adopt, of producing war, and yet throwing the responsibility upon the wrong party. The President of the United States says that if there is war he is not responsible for it; he is not going to shed blood; he is not going to assail anybody. Why, sir, if the President of the United States were to send a fleet to Liverpool and attempt there to enforce the laws of the United States, and to collect revenues, and that fleet were fired at, would anybody say that the British Government were responsible for the blood that might follow?
These States have withdrawn from your Union; they have formed a government of their own; they have interfered with nobody, they intend to interfere with nobody; and yet you attempt to enforce the laws of the United States beyond the limits of the United States; and because we are not willing to pay tribute, and acknowledge a foreign – and under these circumstances hostile – flag, it is said that we make war. You may amuse women and children with arguments of this sort, but men will otherwise understand them.
In response, Senator Douglas said he believed the inaugural meant peace. He continued, saying:
If I had arrived at the conclusion that it meant war, I would have denounced it in unmeasured and unrelenting terms. I am with the President, as far as he is for peace; I am against him the moment he departs from that policy.
Obviously, Senator Douglas did not know that on March 5 Lincoln issued a verbal order to reinforce Fort Pickens without telling the Confederates thereby breaking the truce there. The truce had been negotiated with President Buchanan, and both sides had been honoring the truce. When Lincoln’s order to reinforce Pickens (sent by Scott) finally reached the Union forces on ships offshore of Fort Pickens, the Navy commander there refused to offload the Union troops into Fort Pickens, saying in part that reinforcing the fort [and violating the truce] was, ”not only a declaration but an act of war.” Meigs, who had helped plan the Pickens reinforcement, said that it was the beginning of the war. The ship Meigs was traveling on to Pickens attempted to enter Pensacola Harbor flying English colors. More deceit by the Union.
To paraphrase and change what you said in your post, perhaps reinforcing Pickens was a situation in which “outright, planned deceit” was rewarded. The Southern forces did not attack after Pickens was reinforced because they had only a day’s worth of ammunition and shells and it would take longer than that to take the fort. That and the fact the the attack on Sumter happened at the same time. Actually, Union troops began offloading into Pickens a few hours before the attack on Sumter.
Well, Lincoln had said in his inaugural that he would hold the forts. It could be argued, I guess, that he was simply doing what he said he would do in the inaugural. But was he acting with honor to violate the truce there without telling the Confederates? I don’t think so. Would I trust such a man? No. Was he trying to start a war? Yes.
Senator Douglas continued responding to Senator Wigfall:
… The Senator from Texas says that, but for those two forts, Pickens and Sumter, situated as they are, there would be no danger of collision. I think so, too. I fear that these forts cannot long remain in the position they are, with safety to either party. Fort Sumter could have been reinforced a few weeks since. I am no military man; but I believe it is admitted by all military men that it cannot be reinforced now, even by the use of the whole American Navy, without at least an army of ten thousand men on land to cooperate. [rb note: Scott said 25,000 men and Anderson said 20,000]
A few days later (March 15), Douglas made the following comments on the Senate floor about needing to know whether the policy was peace or war and that the South was entitled to the forts in their states. He would seem to be asserting the right of Southern militia to take control of federal property within their state. Sometimes that property was seized and held in the name of the United Trust until the state settled the secession question (Georgia, Arkansas) and in some case receipts were issued itemizing what was taken (Texas, before the voters ratified secession). Here's Douglas again:
The people have a right to know whether the policy is peace or war. They have a right to know whether they are to send members here in favor of peace or in favor of war. Is dealing fairly with the people, to keep them in the dark on this question until the members of Congress are elected, and then to precipitate the country into war, without giving the people [Congress?] an opportunity to vote on it?
… We certainly cannot justify the holding of forts there, much less the recapturing of those that have been taken, unless we intend to reduce those States themselves into subjection. I take it for granted no man will deny the proposition that whoever permanently holds Charleston and South Carolina is entitled to possession of Fort Sumter. Whoever holds Pensacola and Florida is entitled to the possession of Fort Pickens. Whoever holds the States in whose limits those forts are placed is entitled to the forts themselves, unless there is something peculiar in the location of some particular fort that makes it important for us to hold it for the general defense of the whole country, its commerce and interests, instead of being useful only for the defense of a particular city or locality.
And, yes, I know that Douglas lost the election for president, but his comments illustrate some of the thinking, certainly northern Democrat thinking, during the period right after Lincoln’s inauguration.
The clause [rb: the fugitive slave clause of the Constitution] manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control or restrain. The slave is not to be discharged from service or labor, in consequence of any state law or regulation.
Now certainly, without indulging in any nicety of criticism upon words, it may be fairly said, that any state law or state regulation which interrupts, limits, delays, or postpones the right of the owner of the slave to the immediate possession of the slave, and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom.
I suspect some of the state laws resulted in blocking or greatly delaying the "immediate" return to service of the slave. As the Michigan legislature said, their law was intended to block the return of fugitive slaves.
Ha! Typo. United Trust = United States
Agree completely.
And Prigg revealed that state regulations which required little things like evidence, due process had the effect of both protecting people who did not owe service, and protecting slave catchers from liability from (surely inadvertant) kidnapping of innocent persons.
Prigg had kidnapped at least one person who had never been a slave, and was found innocent of kidnapping. Such was the deference given to the slave power in 1826.
In 1859, less deference was given to the slave power, and state officials were not required in their official capacity to aid. Individual citizens, when called up as a posse by the federal marshal were required.
Differences between the state power, and those who gave that pretended power less deference were obliged to be resolved peacefully by litigation. If a state was involved, it would be litigated at the Supreme Court as original jurisdiction.
Isn’t it amusing how ‘consent of the governed’ went out the window whenever the slave power demanded its obscene right to the objects of its lust.
Odd how you simultaneously claim that Lincoln stated his goals in his inaugural address, and at the same time you assert that he broke the truce by reinforcing Pickens without notification.
So did he say in his inaugural that he would, or didn’t he? Which lie am I supposed to believe?
The truce at Ft Pickens was violated first by members of the local militia that attempted to enter, but were driven off.
The 1850 Fugitive Slave Act was ruled constitutional by SCOTUS (Prigg was 1843, I think). Once the government commissioner found that the person in question was a slave, state laws no longer applied.
Source and specific date, please. Could you be mistaking Barrancas for Pickens?
IIRC, he said he would hold, occupy, and possess the forts. What exactly did that mean? Much of the language in his inaugural speech was ambiguous. Here are some editorials about the inaugural speech:
The Mobile (AL) Register:
… his language leaves it doubtful whether he will even attempt to execute the laws “so far as practicable.” … There is the same impenetrable fog about what he says concerning the holding of public property and collection of duties.
The New Orleans Picayune:
These passages in the inaugural are susceptible of a construction just the opposite of peace. … he would be compelled to send upon us obnoxious strangers enough to make mince pies of the southern people and cook them over their blazing dwellings.
The New York News: The inaugural is not satisfactory; it is ambiguous, and we fear the Republicans, even while professing the most peaceful intentions. Coercion could not have been put in a more agreeable form; it reads like a challenge under the code, in which an invitation to the field is veiled in the most satisfactory syllables.
The New York Day Book:
In other words, though you do not recognize me as President, I shall not molest you if you will pay taxes for the support of my government. We must have your money, that we cannot bring ourselves to decline, and if you do not let us have it peacefully, why, we shall be compelled to take it from you by force; in which case you, not we, will be the aggressors. This means coercion and civil war and nothing else.
Ah yes, it was there. Like Ft Sumter, Ft. Pickens was part of a fort complex, and like Ft Sumter, the officer in command acted to protect his men from the insurrection.
If it was at Fort Barrancas, then the incident you are thinking of happened well before Buchanan's truce at Fort Pickens. A day or two after the incident you are thinking of, Union troops abandoned Fort Barrancas and moved over to Fort Pickens. This happened maybe January 10 or 11 (too lazy to look up the exact date).
The truce with Buchanan didn't go into effect until late January or early February, 1861. In late January, Buchanan secretly sent the ship Brooklyn loaded with troops with which he intended to reinforce Fort Pickens. This was much like his earlier secret effort to reinforce Fort Sumter with troops on the Star of the West. Florida troops found out the ship was coming and said basically we will attack Fort Pickens unless you stop the reinforcement. The truce that was then agreed to by both sides was to keep the status quo -- the Union would not reinforce Pickens and the South wouldn't attack it. If the Union tried to reinforce the truce, the South was free to attack the reinforcement effort and the fort. Pickens was a large fort, and the small Union force inside the fort at that time could not have adequately defended it from attack.
Knew him well, did ya?
As I’ve said prior, to the victor goes the writing of history. Using that same source material, to frame the ‘truth’, is folly. This whole thread is based upon conjecture and personal opinion/theories.
SLAVE slave SLAVE slave SLAVE slave SLAVE slave SLAVE slave SLAVE slave SLAVE slave ....."
Did I forget to point out that slavery was everywhere legal, except in Mexico (where the law was honored in the breach -- ask any Mexican Indio) and England?
So what is your point? You're doing the same thing that a workman who owns only one tool would do. Abusing the job, and your fellow discussants, when you just rant about slavery, slave-slave-slave, as a form of abuse in lieu of argument.
And you accuse me of ad hominem attacks?
Well, yeah. And you just did it again.
Mysticism is what you get when you strip away all facts and data, and just demand that other people believe what you tell them because it's true on some metaphysical level invisible to them because of their own shortcomings.
Aimee Semple McPherson/Billy Graham-type calls to belief and subjection of the self to the Higher Power are fine in a big tent-meeting, but not in discussions of U.S. history, I don't think, and not in political discussions.
Here's Grotius II. 9 VIII. &ff.:
Chapter 9, "In What Cases Jurisdiction and Property Cease."
VIII. Whenever two nations become united, their rights, as distinct states, will not be lost, but will be communicated to each other. Thus the rights of the Albans in the first place, and afterwards those of the Sabines, as we are informed by Livy, were transferred to the Romans, and they became one government. The same reasoning holds good respecting states, which are joined, not by a federal UNION, but by having one sovereign for their head.IX. On the other hand, it may happen that a nation, originally forming but one state, may be divided, either by mutual consent, or by the fate of war; as the body of the Persian Empire was divided among the successors of Alexander. When this is the case, many sovereign powers arise in the place of one, each enjoying its independent rights, whatever belonged to the original state, in common, must either continue to be governed as a common concern, or be divided in equitable proportions.
To this head may be referred the voluntary separation, which takes place when a nation sends out colonies. For thus a new people as it were is formed, enjoying their own rights; and as Thucydides says, sent out not upon terms of slavery, but equality, yet still owing respect and obedience to their mother-country. The same writer, speaking of the second colony sent by the Corinthians to Epidamnus, says, "they gave public notice that such as were willing to go should enjoy equal privileges with those that staid at home."
Paragraph IX is the one that applies to the case of the departing States. The powers and competencies of the United States Government evaporated in the seceding States, and their portion of sovereignty, and all the powers flowing therefrom, returned to their source, the States that had made the Union, and then unmade it.
Which side, indeed? It's not like these were all disinterested predictions of what would happen. They were expressions of emotion and also attempts to persuade. So of course, if you believed the secessionists were right or if you wanted peace at any price, you'd argue that any resistance to secessionist demands would mean war.
You're still making the assumption that Lincoln was the only actor who had free will and responsibility. The seceded states and the Confederacy were ... what? Machines that would only act in one way if the federal government didn't give them exactly what they wanted? They could demand and take without consequences, but any resistance to them was a cause for war?
Texas Senator Wigfall was still in the Senate waiting for official notification that Texas had seceded. Here was his analysis (similar to Democrat and Southern newspaper editorials) of what Lincoln’s actions would bring [Source: Congressional Globe, March 7, 1861, page 1441] ...
Analysis? That's rhetoric from a lunatic in love with the sound of his own voice. Since you found the quote, leap forward a few pages to see Foster's response. That Wigfall claimed not to be a citizen but still spoke as a senator raised not a few eyebrows.
Foster also refers to the many aggressions committed against federal property by secessionist mobs and authorities. Under the circumstances, it was strange indeed for secessionists and their sympathizers to say that all this must be borne by Americans, but that any small steps taken to stand in their way were declarations of war or acts of war.
When Lincoln’s order to reinforce Pickens (sent by Scott) finally reached the Union forces on ships offshore of Fort Pickens, the Navy commander there refused to offload the Union troops into Fort Pickens, saying in part that reinforcing the fort [and violating the truce] was, ”not only a declaration but an act of war.” Meigs, who had helped plan the Pickens reinforcement, said that it was the beginning of the war. The ship Meigs was traveling on to Pickens attempted to enter Pensacola Harbor flying English colors. More deceit by the Union.
I don't have the time or inclination to go over all this stuff yet again. I'm not going to try to sort out just who knew what and when and who told what to whom. Other posters have done some research into the matter, so they may be able to respond better than I can.
I will note that Gideon Welles denied knowledge of any specific "truce" agreement beyond the general "do-nothing" policy of the Buchanan administration. It may have been unclear just who ordered what and what was "settled" or "agreed to" by whom.
We don't know whose idea the British flag was, but Meigs entered Pensacola harbor on April 17th some days after Sumter had been fired on. At that point war had already begun. Once you've started shooting, you can't expect your opponents to play by your rules.
Here's Douglas again ...
It's politics again. Anybody would be able to tell you that holding on to some government property was a way of holding onto the idea that the union was unbroken. And if we entered into negotiations, it was certainly a good idea not to let the other side take all your bargaining chips before even getting to the table.
And looking at how the British held on to Calais or Gibraltar or Singapore or Hong Kong or the Falklands, sheer bloody-mindedness can't be overlooked as a factor in political history either. Douglas himself recognized that the US might well want to hold on to Key West or the Dry Tortugas, far away from the rest of the country, so I get the feeling he wasn't entirely honest here.
No. Douglas was talking that way because he wanted to influence the outcome, not because he'd considered all the alternatives and decided that only one explanation was possible.
Or more correctly, of the War Between the States. Or Between the States, and the Plutocratic Cabal.
… he would be compelled to send upon us obnoxious strangers enough to make mince pies of the southern people and cook them over their blazing dwellings.
Funny how that is about what happened. And here I had never thought of the old Times-Picayune as anyone's font of clairvoyance. <wink>
Which side, indeed?
Are you serious?
One side said it meant war, the other said it meant peace, and the outcome was the greatest war in American history -- and you try to pettifog his blazingly obvious argument?
I'm surprised at you. You don't usually try to have us on like that -- that was more Non-Sequitur's gig.
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