Nullification and Liberty

Lew Rockwell ^ | 12/10/02 | Thomas E. Woods, Jr.

[justshutupandtakeit]

That is not an accurate understanding of the meaning of this phrase. It is speaking to the Territory of the United States not yet formed into States i.e. the Northwest Territory which later became Ohio, Indiana, Illinois, Michigan etc.

It is not speaking about already formed states but territories. Certainly you do not believe that States are the property of the United States do you? By that interpretation the Congress could have sold South Carolina to France or Spain. Such an idea is ridiculous on its face.

In order for the suicidal act of secession to be legal the constitution would have to be amended since neither States nor Congress can legislate any changes in it.

[Poohbah]

Actually, the key point was the disposition of Federal properties within the seceding states. The war only started when troops from South Carolina opened fire on Fort Sumter.

[WhiskeyPapa]

No, that is the point.

So you hold that The Lincoln was not bound to follow the procedures of the court system?

That was the standard of the day. Taney said the Constitution meant one thing; the executive branch was within its rights --by the standards of the day-- to say it meant something else.

I admit I --myself-- have been holding Lincoln to modern day standards on this -- but I have just in the last week become familiar with Attorney General Baker's opinion on this. Today's standard was not the one in effect in the 1860's.

You are throwing up your hands in disbelief "LOOK AT THAT BUM LINCOLN", when what he was doing was entirely within the useages of the day.

It's just silly to hold historical people to modern day standards.

This interpretation is buttressed by a couple of things: Andrew Jackson being reimbursed by Congress on a fine he paid for suspending the Writ -- he wasn't even president.

And the current Chief Justice saying that the question of whether the president can suspend the Writ has not been answered to this very day.

Walt

[justshutupandtakeit]

What is your obsession with White? Get over it.

While I have no need to fantasize about ladies desiring me I have not limited myself to interludes with only white women. Mostly but not entirely. Sort of like your namesake though Sally could not be called Black by any but a perverted measure. She was 1/8th black. His enslaved children were thus 1/16th black.

But that was enough for them to be slaves of this "Lover of Freedom." What a joke.

[WhiskeyPapa]

No Walt. I'm blasting The Lincoln over the simple fact that he ignored a court order without appeal or merit because he didn't like the outcome of the case.

There was no case. There was an ex parte decision.

Now, Merryman -was- indicted for treason. He spent a total of 49 days in jail.

Instead of blasting the Lincoln administration for arresting him (he was arrested without Lincoln's knowledge, BTW) you ought to be lauding Lincoln's mercy for not giving him the kind of justice that the 40 loyal Texans got the next year in Gainesville, Tx, or the type the 22 loyal North Carolinians got from George Pickett or the 100+ Union POW's got from their captors at Saltville, VA, and on and on and on.

As you know, not one person arrested on habeas corpus was executed.

Also, there is no definitive figure on the number arrests on habeas corpus grounds, although 13,000 seems about right. Mercy!

But the so-called CSA arrested @ 4,000 people on similar charges and for similar reasons.

You neo-reb cretins have too long set the parameters of all this.

Lincoln always held out the hand of mercy and conciliation; the so-called CSA was always ready with a gibbet.

Walt

[justshutupandtakeit]

The gentleman was trying to make the point that the constitution allowed secession since it gave Congress the right to dispose of and make rules and regulations for federal property and territory.

[Poohbah]

The Constitution, IMNHO, does make some allowance secession, but not on a unilateral basis by a disgruntled state. Essentially, the Constitution gives Congress authority to determine the territorial extent of the United States.

[GOPcapitalist]

That was the standard of the day. Taney said the Constitution meant one thing; the executive branch was within its rights --by the standards of the day-- to say it meant something else.

Your version of history is either a terrible misread or a willful distortion, Walt. Each branch of the Constitution was certainly within its rights to offer its own interpretation of the Constitution and, I would argue, still is today. But that does not mean other branches can simply ignore the check of judicial oversight when it is exercised by the courts. If it did, none of the major court rulings of the 19th century mean anything because they would be unenforceable against even a single differing opinion elsewhere in the government. If that is the way you want it, it is fine with me though...as long as you apply it consistently, which means I shouldn't expect to see you quoting your beloved Prize Cases anytime soon.

but I have just in the last week become familiar with Attorney General Baker's opinion on this.

The opinion of an attorney general does not carry the legal weight of the court's ruling, Walt, and has not carried the legal weight of the court's ruling since the beginning. Try again.

It's just silly to hold historical people to modern day standards.

It would be, but you have yet to demonstrate this is happening. Until then it appears obvious that you are grasping at straws as you drown in the sea of your own lies.

Andrew Jackson being reimbursed by Congress on a fine he paid for suspending the Writ -- he wasn't even president.

So what. Since when was it known that Congress always operates within the bounds of the constitution?

And the current Chief Justice saying that the question of whether the president can suspend the Writ has not been answered to this very day.

He can say it all he wants in speeches at every law school in the country. It still does not negate Bollman, the standing precedent on the matter. Try again.

[WhiskeyPapa]

Lincoln was not condemned the way you do --at the time--

Really? Cause Justice Taney says otherwise...

So what?

The Executive branch has as much right to interpret the Constitution as the Judicial branch did.

"The success of the Maryland policy became a political byword and was celebrated, beyond the borders of Maryland, throughout the war, Thus in 1863, a Loyal Publication Society pamphlet on the War Power of the President explained the necessity of military arrests rather than reliance on the courts by pointing to that familiar example:

When the traitors of the loyal state of Maryland were concocting their grand scheme to hurl the organized power of that state against the government, probably not a handful of them was known to be guilty of any act for which he could ever have been arrested by civil process. And whatever their offenses against the laws might have been, and whatever the fidelity of the courts in that lurisdictlon, the process of civil law would have been far too slow to prevent the consummation of the gigantic treason which would have added another state to the rebellion.... Courts could not have suppressed this unholy work, but the summary imprisonment of those few men saved the state of Maryland to the Union cause.

Republicans would later enjoy substantial bipartisan agreement on the necessity of the early arrests in Maryland.

William K. Seward thought they worked, too. When an old associate of Seward came to Washington to plead for the release of a political prisoner from Kentucky held in Fort Lafayette, the secretary of state readily admitted that no charges were on file against the prisoner. When asked whether he intended to keep citizens imprisoned against whom no charge had been made, Seward apparently answered: "I don't care a d—n whether they are guilty or Innocent. I saved Maryland by similar arrests, and so I mean to hold Kentucky."

The earliest days of the Uncoin administration taught the president and his cabinet lessons they never forgot. In fact, these days left fiercely indelible marks on them. This was especially true of Seward. in 1864, when the artist Francis B. Carpenter unveiled his huge historical canvas commemorating the first reading of the Emancipation Proclamation to the cabinet, the secretary of state scoffed at It. He told the artist, at a party given at Gideon Welles's residence, that he had been wrong to choose emancipation as "the great feature of the Administration."

Seward told him [Welles recalled] to go back to the firing on Sumter, or to a much more exciting one than even that, the Sunday following the Baltimore massacre, when the Cabinet assembled or gathered in the Navy Department and, with the vast responsibility that was thrown upon them, met the emergency and its awful consequences, put in force the war power of the government, and issued papers and did acts that might have brought them all to the scaffold.

The first suspension of the writ of habeas corpus occurred the very week after that fateful Sunday cabinet meeting. Gideon Welles, the secretary of the navy, did not care for Seward, but he remembered those days just as the secretary of state did:

Few, comparatively, know or can appreciate the actual condition of things and state of feeling of the members of the Administration In those days. Nearly sixty years of peace had unfitted us for any war, but the most terrible of all wars, a civil one, was upon us, and it had to be met. Congress had adjourned without making any provision for the storm, though aware that it was at hand and soon to burst upon the country. A new administration, scarely acquaited with each other, and differing essentially in the past, was compelled to act, promptly and decisively.

And act they did.

--"The Fate of Liberty, Abraham Lincoln and Civil Liberties" p. 31 by mark Neely.

Walt

[GOPcapitalist]

As you know, not one person arrested on habeas corpus was executed.

Downplaying the severity of conditions experienced by the victims of The Lincoln's act does not get you around that act itself, Walt. Nor does it make that act any less unconstitutional. Really. You should know better than to try that excuse. Try again.

[Libertarianize the GOP]

It is true that there is no provision for kicking a State out or selling it to another Country, but all the legitimate property claims and powers of the United States could be negotiated in allowing any State to secede. The power is there and nothing in the Constitution prevents such an outcome.

[WhiskeyPapa]

But that does not mean other branches can simply ignore the check of judicial oversight when it is exercised by the courts.

That is a modern day idea. It was only starting to have currency in the 1860's. The idea current --then-- was that court rulings only applied to the specific case.

And Ex Parte Merryman was not even a case. It was an opinion, and the Executive branch was entitled to its own opinion, by the standard of the day.

Walt

[GOPcapitalist]

So what?

'What' is that you said "Lincoln was not condemned the way you do --at the time--." Yet Justice Taney condemned him --at the time-- for the same action I condemn him today. Hence your statement is a lie.

The Executive branch has as much right to interpret the Constitution as the Judicial branch did.

But NOT the right of judicial review of the other branches which, established firmly in Marbury, is the main judicial check on the power exercised by the other branches. Try again, Walt.

[WhiskeyPapa]

Downplaying the severity of conditions experienced by the victims of The Lincoln's act does not get you around that act itself, Walt. Nor does it make that act any less unconstitutional. Really. You should know better than to try that excuse. Try again.

ROFL!!

Merryan was released on bail. That's a lot better than being hanged.

Walt

[WhiskeyPapa]

The Executive branch has as much right to interpret the Constitution as the Judicial branch did.

But NOT the right of judicial review of the other branches which, established firmly in Marbury, is the main judicial check on the power exercised by the other branches. Try again, Walt.

What I am seeing in the record is that Marbury gave the Court the right to judge cases, not to counteract the Executive. That is what Lincoln's comments in his inaugural address mean.

Lincoln was under -no- charge, based on the standards of the day, to release Merryman based on anything Taney did or said as a circuit court and certainly not based just on an Ex Parte decision.

Walt

[WhiskeyPapa]

It is true that there is no provision for kicking a State out or selling it to another Country...

What if all the other states seceded from the one?

Walt

[WhiskeyPapa]

But that does not mean other branches can simply ignore the check of judicial oversight when it is exercised by the courts.

The courts? What courts? You mean Taney?

There was no case, there was an Ex Parte decision by a man who showed in Dred Scott that he cared nothing for the law.

Walt

[GOPcapitalist]

That is a modern day idea. It was only starting to have currency in the 1860's.

History says otherwise:

" It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply...The judicial power of the United States is extended to all cases arising under the constitution." - Marbury v. Madison, 1803

The idea current --then-- was that court rulings only applied to the specific case.

If that is so, then Taney's ruling, which The Lincoln ignored and refused to appeal, applied to The Lincoln's suspension of habeas corpus.

[justshutupandtakeit]

The entire logic of the constitution and the history of its creation and the thought of its writers are all contradicted by the idea of secession.

Only with a constitutional amendment could it possibly be legalized. That, of course, would be equivalent to tearing it up.