Posted on 12/24/2001 4:25:26 AM PST by WhiskeyPapa
What is needed having been said, I ask you now. What exactly is it that you think yourself to know about the Corwin amendment and how does it pertain to this discussion? I ask this for the simple reason that you came here ranting and raving on the vaguest of terms about persons not understanding it after you noticed it had been mentioned by others in this thread.
In other words, if you posess information and familiarity with your all to often absent and unnamed "sources," what are they and why do you cite them so infrequently? At minimum, you should be able to provide a few details once and a while, and where applicable, give their sources. It's a fundamental concept of debating you seem unable to even begin, much less master. Considering you are a person who all to often smugly tells others who you do not know how they should use or acquire a library, I for one think it is high time for you to move out of the children's section. Other than that, have a nice day.
That is not fact. It's fantasy--at least in this case.
You sound shrill and out of control
Here are the -facts- re Jackson. Got this off the 'net:
"Indeed, citing the case of Andrew Jackson after the Battle of New Orleans, Lincoln noted that when a newspaper article appeared denouncing him while martial law was in effect, the author was arrested. When a lawyer defended the writer and cited the writ of habeas corpus, Jackson had the lawyer and the judge who ruled in the defendant’s favor both arrested. Lincoln supported this action, and noted that both were freed only after a treaty of peace was ratified."
Not only that--but Congress refunded to Jackson the $1,000 fine imposed by the judge.
There was ample precedent to support Lincoln,and--you guessed it--your position is simply fantasy.
Walt
Well, it's their party and they'll cry if they want to.
Walt
Both Merryman and Dred Scott both pretty much blast Taney's reputation completely out of the water.
But even with Taney in their back pocket, the slave holders didn't even consider (apparently) going before the court. Why do you think that was?
You've seen this before:
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
Remarks of Supreme Court Chief Justice William A. Rehnquist
Director's Forum, Woodrow Wilson International Center for Scholars
November 17, 1999
Your position is not supported by the record, and yet you continue to push it. Why is that?
Walt
The Articles of Confederation were a failure.
The states -voluntarily- transferred some of their soevereign rights to the federal government--because it was the onlt thing that would work.
They knew this, and they made no bones about it.
Of course, your opinion bucks that of the president of the Constitutional Convention, George Washington:
"In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existance. This important consideration, seriously and deeply impressed on our minds [at the constitutional convention] led each State in the convention to be less rigid on points of inferior magnitude...the constitution, which we now present, is the result of of a spirit of amity, and of that mutual deference and concession which the peculularity of our political situation rendered indispensible."
George Washington to the Continental Congress September 17, 1787
The states were not --involuntarily-- yoked into the Union. Your statement is false.
Note also that this date, 9/17/87 is generally considered the birthday of the Constitution.
You know, I'd much rather have George Washington on my side than you.
Walt
"The Federal Government is supreme." - Walt
Actually, I can't take credit for this.
"That the United States form, for many, and for most important purposes, a single natiion, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other.
America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empiure--for some purposes sovereign, for some purposes subordinate."
--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821
Walt
Unfortunately for you, Chief Justice Rehnquist's comments are not shrouded in a decision, and are only his personal opinion. And if Rehnquist actually believes that statement, then I would have to change my opnion of him and his knowledge of the Constitution.
So, where were we? You had stated that "there is nothing in the Constitution or in case law to keep the president from suspending the Writ." You posted the allegations and personal sentiment, I posted statements from at least three decisions, commonly known as facts. Even Justice Marshall disagrees with you.
Then enlighten us, please. When was the question of the legality of Lincoln's actions authoritatively answered?
NS, please see post #460. Unless of course, you too dismiss the citations of three separate opinions and justices, including Walt's revered Justice Marshall who made it plain as day.
You won't be offended if I defer to his personal opinion instead of yours.
'Shrouded' is certainly the word for what Taney wrote. That was not a decision of the court either.
Now, we -know- that the Taney court ruled in the 1862 "Prize Cases" -unanimously- that putting down the rebellion of the "so-called seceded states" (to use -their- phrase) was a legitimate function of the government.
Do you support what Taney did there--deny the legitimacy of secession?
Again, I don't write this for your benefit, but for the lurkers; no one who fairly examines the record will adopt your position.
Walt
The point is not whether it says "unless they leave", the point is that it does NOT bind the states into the Union, as you originally suggested.
If it doesn't bind the states, it gives the federal government perpetual say over the form of their government. That is, if a state should try and adopt any government other than a republican one, the federal government is empowered, under this clause, to intervene, and by implication, change any non-republican state government to a republican one.
This is just another example of how the states are not, and never were, completely sovereign under the Constitution--from day one.
Walt
Congress could not delegate the courts (nor the President) a power that was delegated to them. Chief Justice Roger B. Taney cited that decision in his case on habeas corpus,
This is good stuff, and I wouldn't be at all surprised if it did not form the basis for Chief Justice Rhenquist using the term "authoritatively" in his 1999 remarks, so thanks for this.
The fact remains that the Supreme Court did not rule on Lincoln's actions, and that Congress passed a "Habeas Corpus" act in 1863.
Probably how one reacts to this dueling sources between Taney and Rhenquist comes down to how one feels about the United States. If you love the United States, you support Rhenquist's ideas, if you hate the United States, Taney's interpretation might be more to your liking.
Walt
In this, as in so much, the secessionists screwed themselves right in the ground. Lincoln:
"The consent of the legislatiure of Virginia is constitutionally neccesary to the bill for the admission of West-Virginia becoming a law. A body claiming to be such a legislature has given its consent. We can not deny that it is such, unless we do so on the outside knowledge that the body was chosen at elections, in which a majority of the qualified voters of Virginia did not participate. But it is a universal practice in the popular elections of all the states, to give no legal consideration whatever to those who do not choose to vote, as against the effect of those, who do choose to vote. Hence, it is not the qualifed voters, but the qualified voters--who --choose--to--vote, that constitute the political power of the state."
And the state of Virgina agreed to the formation of West Virginia under the laws established by the United States.
This "How can Virginia be chopped up if secession is not allowed" argument is but another of the confederate apologists arguments, made in ignorance, that will not stand the slightest exposure to the historical record.
Walt
Not in the least. You certainly have the right to believe what you want. Rehnquist is an adherent of "inter arma silent leges" (in time of war the laws are silent). Heartwarming isn't it. Even after ex parte Milligan - which held that the Constitution cannot be suspended even in time of war - we have a justice today that thinks the Constitution is suspendable. By the way, Milligan was not just the opinion of Justice Davis. Back to Rehnquist, who had this to say as well,
I would have agreed with his view as to suspending the writ of habeas corpus, I think, because that seemed to be a real threat to the union. When the upper South seceded, Washington became a capital right on the frontier, right across the Potomac was Virginia, and the union simply could not afford to lose the nation's capital. So there I think you have a real situation that calls for some executive determination. On the other hand, when his postmaster general, Montgomery Blair, decided just to deny mailing privileges to all the newspapers in New York that were opposed to the war, there really was no justification. You've got to continue to have free speech and freedom of the press during the war.
Chief Justice Rehnquist, Interview with David Gergen, 11 Nov 1998.
So much for Rehnquist basing his opinion on anything contained within the Constitution. And as an aside, its questionable that the right enshrined in the body of the Constitution is deemed dismissable, yet the rights within the Bill of Rights are set in concrete.
'Shrouded' is certainly the word for what Taney wrote. That was not a decision of the court either.
LOL! - Not a decision. I know it was ex parte decision (meaning "for the benefit of"), and issued from the Maryland District Circuit court by Taney. In that decision Taney remanded it back to Lincoln, so that would have to use Constitutional means to accomplish his goals. In Taney's own words,
I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
According to the laws of these united states, it was an official decision. Of course, referring to that same interview quoted above, here's Lincolns response to Taneys decision, "[t]he President then ignored it. Taney issued his opinion, I think, in May, and Lincoln paid no attention to it." A President above the law, now he's President and Supreme Court Justice too?
Now, we -know- that the Taney court ruled in the 1862 "Prize Cases" -unanimously- that putting down the rebellion of the "so-called seceded states" (to use -their- phrase) was a legitimate function of the government. Do you support what Taney did there--deny the legitimacy of secession?
Attempting to change the subject? Settle this arguement first.
Again, I don't write this for your benefit, but for the lurkers.
I'm glad you didn't write it for my benefit. I'm sure the lurkers are grateful as well. Taney states, rather plainly I might add, that the Presidents powers are limited:
So too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of government, nor make a treaty with a foreign nation or Indian tribe, without the advice and consent of the senate, and cannot appoint even inferior officers, unless he is authorized by an act of congress to do so. He is not empowered to arrest any one charged with an offence against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the constitution expressly provides that no person 'shall be deprived of life, liberty or property, without due process of law' that is, judicial process.
Besides illegally suspeding the writ of habeas corpus, Taney also held that Lincoln also violated Amendments IV, V, and VI of our Constitution.
[N]o one who fairly examines the record will adopt your position.
Please refute the three cases I cited, especially the opinion of Chief Justice Marshall. Unless you have the ability to wave a magic wand to make at least three cases disappear - and only until then - anyone that does examine the official record, must adopt my position. Not one, but several courts and numerous justices held that only Congress may excercise the suspension of the writ of habeas corpus.
So please provide the decisions by the Supreme Court holding that the cited decisions were illegal, erroneous and unconstitutional. If you don't mind, I won't hold my breath in anticipation.
It's still a decision. Until overruled by the Supreme Court, it was and still is a binding decision. Where in the Constitution does it grant the self-appointed Chief Justice Lincoln the power to ignore the opnions and decisions of the judiciary?
Ex Parte Milligan said that habeas corpus could not be suspended in states like Indiana which were not in rebellion and where the courts operated freely. It did not address Lincoln's actions in 1861.
They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction."
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.
The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong.
Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence.
Davis stated that the Constitution could not be suspended in war or peace, and reiterated that the suspension of the writ does not destroy the writ. The entire case is based on the suspension of habeas corpus, which was of course, found unconstitutional. The President is the Commander-in-Chief of the military, Davis makes it clear that he cannot suspend the laws and subvert the Constitution.
It appears that Chief Justice Rehnquist's opinions are correct, but then he knows more about the law and the Constitution than you.
I never stated that I knew more about the law than Chief Justice Rehnquist, I have the utmost respect for the man. But again, how can his non-judicial opinion overrule that of multiple decisions on the subject?
Probably how one reacts to this dueling sources between Taney and Rhenquist comes down to how one feels about the United States. If you love the United States, you support Rhenquist's ideas, if you hate the United States, Taney's interpretation might be more to your liking.
Who died and made you God? All hail, Walt, mindreader extraordinaire! Anyone who agrees with Justice Marshall's opinion that congress cannot delegate authority to suspend the writ of habeas corpus is now anti-American. Can't argue with facts, so you resort to accusations? I flew the US flag long before 11 Sep 2001, and still do today. BTW, his name is spelled R-e-h-n-q-u-i-s-t, as in William H. Rehnquist.
Let's look at other parts of the decision, shall we?
"It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration...It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."
So it is not a question of who suspended habeas corpus but where and when.
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.