Posted on 04/16/2003 5:44:44 AM PDT by Lady Eileen
Washington, DC-area Freepers interested in Lincoln and/or the War Between the States should take note of a seminar held later today on the Fairfax campus of George Mason University:
The conventional wisdom in America is that Abraham Lincoln was a great emancipator who preserved American liberties. In recent years, new research has portrayed a less-flattering Lincoln that often behaved as a self-seeking politician who catered to special interest groups. So which is the real Lincoln?
On Wednesday, April 16, Thomas DiLorenzo, a former George Mason University professor of Economics, will host a seminar on that very topic. It will highlight his controversial but influential new book, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War. In the Real Lincoln, DiLorenzo exposes the conventional wisdom of Lincoln as based on fallacies and myths propagated by our political leaders and public education system.
The seminar, which will be held in Rooms 3&4 of the GMU Student Union II, will start at 5:00 PM. Copies of the book will be available for sale during a brief autograph session after the seminar.
Ah so. The only option left to Japanese-Americans, was “submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.”
U.S. Supreme Court
EX PARTE MITSUYE ENDO
323 U.S. 283 (1944)
Argued Oct. 12, 1944.
Decided Dec. 18, 1944.
Mr. Justice DOUGLAS delivered the opinion of the Court.
This case comes here on a certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. Judicial Code 239, 28 U.S.C. 346, 28 U.S.C.A. 346. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal.
Mitsuye Endo, hereinafter designated as the appellant, is an American citizen of Japanese ancestry. She was evacuated from Sacramento, California, in 1942, pursuant to certain military orders which we will presently discuss, and was removed to the Tule Lake War Relocation Center located at Newell, Modoc County, California. In July, 1942, she filed a petition for a writ of habeas corpus in the District Court of the United States for the Northern District of California, asking that she be discharged and restored to liberty. That petition was denied by the District Court in July, 1943, and an appeal was prefected to the Circuit Court of Appeals in August, 1943. Shortly thereafter appellant was transferred from the Tule Lake Relocation Center to the Central Utah Relocation Center located at Topaz, Utah, where she is presently detained. The certificate of questions of law was filed here on April 22, 1944, and on May 8, 1944, we ordered the entire record to be certified to this Court. It does not appear that any respondent was ever served with process or appeared in the proceedings. But the United States Attorney for the Northern District of California argued before the District Court that the petition should not be granted. And the Solicitor General argued the case here.
The history of the evacuation of Japanese aliens and citizens of Japanese ancestry from the Pacific coastal regions, following the Japanese attack on our Naval Base at Pearl Harbor on December 7, 1941, and the declaration of war against Japan on December 8, 1941, 55 Stat. 795, 50 U.S. C.A.Appendix note preceding section 1, has been reviewed in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375. It need be only briefly recapitulated here. On February 19, 1942, the President promulgated Executive Order No. 9066, 7 Fed.Reg. 1407. It recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104).' And it authorized and directed 'the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded there from, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order.'
***
Mitsuye Endo made application for leave clearance on February 19, 1943, after the petition was filed in the District Court. Leave clearance15 was granted her on August 16, 1943. But she made no application for indefinite leave. Her petition for a writ of habeas corpus alleges that she is a loyal and law-abiding citizen of the United States, that no charge has been made against her, that she is being unlawfully detained, and that she is confined in the Relocation Center under armed guard and held there against her will.
It is conceded by the Department of Justice and by the War Relocation Authority that appellant is a loyal and law-abiding citizen. They make no claim that she is detained on any charge or that she is even suspected of disloyalty. Moreover, they do not contend that she be held any longer in the Relocation Center. They concede that it is beyond the power of the War Relocation Authority to detain citizens against whom no charges of disloyalty or subversiveness have been made for a period longer than that necessary to separate the loyal from the disloyal and to provide the necessary guidance for relocation. But they maintain that detention for an additional period after leave clearance has been granted is an essential step in the evacuation program. Reliance for that conclusion is placed on the following circumstances.
When compulsory evacuation from the West Coast was decided upon, plans for taking care of the evacuees after their detention in the Assembly Centers, to which they were initially removed, remained to be determined. On April 7, 1942, the Director of the Authority held a conference in Salt Lake City with various state and federal officials including the Governors of the inter-mountain states. 'Strong opposition was expressed to any type of unsupervised relocation and some of the Governors refused to be responsible for maintenance of law and order unless evacuees brought into their States were kept under constant military surveillance. Sen. Doc. No. 96, supra, note 7, p. 4. As stated by General De Witt in his report to the Chief of Staff: 'Essentially, military necessity required only that the Japanese population be removed from the coastal area and dispersed in the interior, where the danger of action in concert during any attempted enemy raids along the coast, or in advance thereof as preparation for a full scale attack, would be eliminated. That the evacuation program necessarily and ultimately developed into one of complete Federal supervision, was due primarily to the fact that the interior states would not accept an uncontrolled Japanese migration.' Final Report, supra, note 2, pp. 43-44. The Authority thereupon abandoned plans for assisting groups of evacuees in private colonization and temporarily put to one side plans for aiding the evacuees in obtaining private employment. As an alternative the Authority 'concentrated on establishment of Government-operated centers with sufficient capacity and facilities to accommodate the entire evacuee population.' Sen.Doc. No. 96, supra, note 7, p. 4. Accordingly, it undertook to care for the basic needs of these people in the Relocation Centers, to promote as rapidly as possible the permanent resettlement of as many as possible in normal communities, and to provide indefinitely for those left at the Relocation Centers. An effort was made to segregate the loyal evacuees from the others. The leave program which we have discussed was put into operation and the resettlement program commenced.
It is argued that such a planned and orderly relocation was essential to the success of the evacuation program; that but for such supervision there might have been a dangerously disorderly migration of unwanted people to unprepared communities; that unsupervised evacuation might have resulted in hardship and disorder; that the success of the evacuation program was thought to require the knowledge that the federal government was maintaining control over the evacuated population except as the release of individuals could be effected consistently with their own peace and well-being and that of the nation; that although community hostility towards the evacuees has diminished, it has not disappeared and the continuing control of the Authority over the relocation process is essential to the success of the evacuation program. It is argued that supervised relocation, as the chosen method of terminating the evacuation, is the final step in the entire process and is a consequence of the first step taken. It is conceded that appellant's detention pending compliance with the leave regulations is not directly connected with the prevention of espionage and sabotage at the present time. But it is argued that Executive Order No. 9102 confers power to make regulations necessary and proper for controlling situations created by the exercise of the powers expressly conferred for protection against espionage and sabotage. The leave regulations are said to fall within that category. First. We are of the view that Mitsuye Endo should be given her liberty. In reaching that conclusion we do not come to the underlying constitutional issues which have been argued. For we conclude that, whatever power the War Relocation Authority may have to detain other classes of citizens, it has no authority to subject citizens who are concededly loyal to its leave procedure.
***
We approach the construction of Executive Order No. 9066 as we would approach the construction of legislation in this field. That Executive Order must indeed be considered along with the Act of March 21, 1942, which ratified and confirmed it (Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at pages 87- 91, 63 S.Ct. at pages 1379-1381) as the Order and the statute together laid such basis as there is for participation by civil agencies of the federal government in the evacuation program. Broad powers frequently granted to the President or other executive officers by Congress so that they may deal with the exigencies of war time problems have been sustained. And the Constitution when it committed to the Executive and to Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully. Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382. At the same time, however, the Constitution is as specific in its enumeration of many of the civil rights of the individual as it is in its enumeration of the powers of his government. Thus it has prescribed procedural safeguards surrounding the arrest, detention and conviction of individuals. Some of these are contained in the Sixth Amendment, compliance with which is essential if convictions are to be sustained. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241. And the Fifth Amendment provides that no person shall be deprived of liberty (as well as life or property) without due process of law. Moreover, as a further safeguard against invasion of the basic civil rights of the individual it is provided in Art. I, Sec. 9 of the Constitution 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.' See Ex parte Milligan, supra.
We mention these constitutional provisions not to stir the constitutional issues which have been argued at the bar but to indicate the approach which we think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of rights specifically guaranteed by the Constitution. This Court has quite consistently given a narrower scope for the operation of the presumption of constitutionality when legislation appeared on its face to violate a specific prohibition of the Constitution. We have likewise favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality. Those analogies are suggestive here. We must assume that the Chief Executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a war-time measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.
The Act of March 21, 1942, was a war measure. The House Report (H. Rep. No. 1906, 77th Cong., 2d Sess., p. 2) stated, 'The necessity for this legislation arose from the fact that the safe conduct of the war requires the fullest possible protection against either espionage or sabotage to national defense material, national defense premises, and national defense utilities.' That was the precise purpose of Executive Order No. 9066, for, as we have seen, it gave as the reason for the exclusion of persons from prescribed military areas the protection of such property 'against espionage and against sabotage.' And Executive Order No. 9102 which established the War Relocation Authority did so, as we have noted, 'in order to provide for the removal from designated areas of persons whose removal is necessary in the interests of national security.' The purpose and objective of the Act and of these orders are plain. Their single aim was the protection of the war effort against espionage and sabotage. It is in light of that one objective that the powers conferred by the orders must be construed. Neither the Act nor the orders use the language of detention.
The Act says that no one shall 'enter, remain in leave, or commit any act' in the prescribed military areas contrary to the applicable restrictions. Executive Order No. 9066 subjects the right of any person 'to enter, remain in, or leave' those prescribed areas to such restrictions as the military may impose. And apart from those restrictions the Secretary of War is only given authority to afford the evacuees 'transportation, food, shelter, and other accommodations.' Executive Order No. 9102 authorizes and directs the War Relocation Authority 'to formulate and effectuate a program for the removal' of the persons covered by Executive Order No. 9066 from the prescribed military areas and 'for their relocation, maintenance, and supervision.' And power is given the Authority to make regulations 'necessary or desirable to promote effective execution of such program.' Moreover, unlike the case of curfew regulations (Kiyoshi Hirabayashi v. United States, supra), the legislative history of the Act of March 21, 1942, is silent on detention. And that silence may have special significance in view of the fact that detention in Relocation Centers was no part of the original program of evacuation but developed later to meet what seemed to the officials in charge to be mounting hostility to the evacuees on the part of the communities where they sought to go.
We do not mean to imply that detention in connection with no phase of the evacuation program would be lawful. The fact that the Act and the orders are silent on detention does not of course mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program. At least we may so assume. Moreover, we may assume for the purposes of this case that initial detention in Relocation Centers was authorized. But we stress the silence of the legislative history and of the Act and the Executive Orders on the power to detain to emphasize that any such authority which exists must be implied. If there is to be the greatest possible accommodation of the liberties of the citizen with this war measure, any such implied power must be narrowly confined to the precise purpose of the evacuation program.
A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.
Nor may the power to detain an admittedly loyal citizen or to grant him a conditional release be implied as a useful or convenient step in the evacuation program, whatever authority might be implied in case of those whose loyalty was not conceded or established. If we assume (as we do) that the original evacuation was justified, its lawful character was derived from the fact that it was an espionage and sabotage measure, not that there was community hostility to this group of American citizens. The evacuation program rested explicitly on the former ground not on the latter as the underlying legislation shows. The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded. If we held that the authority to detain continued thereafter, we would transform an espionage or sabotage measure into something else. That was not done by Executive Order No. 9066 or by the Act of March 21, 1942, which ratified it. What they did not do we cannot do. Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character. Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground, the Act of March 21, 1942, Executive Order No. 9066, and Executive Order No. 9102, offer no support. And none other is advanced. To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. As the President has said of these loyal citizens: 'Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions and work loyally with the rest of us, making their own valuable contribution to the national wealth and wellbeing. In vindication of the very ideals for which we are fighting this war it is important to us to maintain a high standard of fair, considerate, and equal treatment for the people of this minority as of all other minorities.' Sen. Doc. No. 96, supra, note 7, p. 2.
Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority.
***
The judgment is reversed and the cause is remanded to the District Court for proceedings in conformity with this opinion.
REVERSED.
Mr. Justice MURPHY, concurring.
I join in the opinion of the Court, but I am of the view that detention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program. As stated more fully in my dissenting opinion in Fred Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, racial discrimination of this nature bears no reasonable relation to military necessity and is utterly foreign to the ideals and traditions of the American people.
Moreover, the Court holds that Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority. It appears that Miss Endo desires to return to Sacramento, California, from which Public Proclamations Nos. 7 and 11, as well as Civilian Exclusion Order No. 52, still exclude her. And it would seem to me that the 'unconditional' release to be given Miss Endo necessarily implies 'the right to pass freely from state to state,' including the right to move freely into California. Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 19; Crandall v. Nevada, 6 Wall. 35. If, as I believe, the military orders excluding her from California were invalid at the time they were issued, they are increasingly objectionable at this late date, when the threat of invasion of the Pacific Coast and the fears of sabotage and espionage have greatly diminished. For the Government to suggest under these circumstances that the presence of Japanese blood in a loyal American citizen might be enough to warrant her exclusion from a place where she would otherwise have a right to go is a position I cannot sanction.
Mr. Justice ROBERTS.
I concur in the result but I cannot agree with the reasons stated in the opinion of the court for reaching that result. As in Fred Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, the court endeavors to avoid constitutional issues which are necessarily involved. The opinion, at great length, attempts to show that neither the executive nor the legislative arm of the Government authorized the detention of the relator.
1. With respect to the executive, it is said that none of the executive orders in question specifically referred to detention and the court should not imply any authorization of it. This seems to me to ignore patent facts. As the opinion discloses, the executive branch of the Government not only was aware of what was being done but in fact that which was done was formulated in regulations and in a so-called handbook open to the public. I had supposed that where thus overtly and avowedly a department of the Government adopts a course of action under a series of official regulations the presumption is that, in this way, the department asserts its belief in the legality and validity of what it is doing. I think it inadmissible to suggest that some inferior public servant exceeded the authority granted by executive order in this case. Such a basis of decision will render easy the evasion of law and the violation of constitutional rights, for when conduct is called in question the obvious response will be that, however much the superior executive officials knew, understood, and approved the conduct of their subordinates, those subordinates in fact lacked a definite mandate so to act. It is to hide one's head in the sand to assert that the detention of relator resulted from an excess of authority by subordinate officials.
2. As the opinion states, the Act of March 21, 1942, said nothing of detention or imprisonment, nor did Executive Order No. 9066 of date February 19, 1942, but I cannot agree that when Congress made appropriations to the Relocation Authority, having before it the reports, the testimony at committee hearings, and the full details of the procedure of the Relocation Authority was exposed in Government publications, these appropriations were not a ratification and an authorization of what was being done. The cases cited in footnote No. 24 of the opinion do not justify any such conclusion. The decision now adds an element never before thought essential to congressional ratification, namely, that if Congress is to ratify by appropriation any part of the programme of an executive agency the bill must include a specific item referring to that portion of the programme. In other words, the court will not assume that Congress ratified the procedure of the authorities in this case in the absence of some such item as this in the appropriation bill:-'For the administration of the conditional release and parole programme in force in relocation centers.' In the light of the knowledge Congress had as to the details of the programme, I think the court is unjustified in straining to conclude that Congress did not mean to ratify what was being done.
3. I conclude, therefore, that the court is squarely faced with a serious constitutional question,-whether the relator's detention violated the guarantees of the Bill of Rights of the federal Constitution and especially the guarantee of due process of law. There can be but one answer to that question. An admittedly loyal citizen has been deprived of her liberty for a period of years. Under the Constitution she should be free to come and go as she pleases. Instead, her liberty of motion and other innocent activities have been prohibited and conditioned. She should be discharged.
[623 WhiskeyPapa] It wasn't unlawful when he did it.
When a court rules someone's action unlawful, it is ruled to be unlawful at the time of the act.
But I like your logic.
Perhaps I can knock over a bank and offer a compelling defense:
(1) It was not unlawful when I did it. No court had yet told me it was unlawful. The court telling me today, that what I did then was unlawful, is ex post facto.
(2) There is no evidence that I bucked any ruling of the Supreme Court.
The second highest court in the land does not count? It can just be defied, ignored, whatever?
[Non-Sequitur] The Lincoln administration should have taken the matter to the full court but they did not. Had they done so I expect that the court would have ruled against them.
I think you may be right.
[Non-Sequitur] Still, the fact still stands that the Supreme Court has never ruled on the matter.
During the ACW, Congress curtailed the appellate jurisdiction of the Supreme Court in order to prevent them from passing on the constitutionality of the legislation. 327 U.S. 304 324, quoted below.
http://laws.findlaw.com/us/327/304.html
U.S. Supreme Court
DUNCAN v. KAHANAMOKU
327 U.S. 304 (1946)
Argued Dec. 7, 1945.
Decided Feb. 25, 1946.
327 US 304 324
Congress prior to the time of the enactment of the Organic Act had only once authorized the supplanting of the courts by military tribunals. Legislation to that effect was enacted immediately after the South's unsuccessful attempt to secede from the Union. Insofar as that legislation applied to the Southern States after the war was at an end it was challenged by a series of Presidential vetoes as vigorous as any in the country's history. [21]
And in order to prevent this Court from passing on the constitutionality of this legislation Congress found it necessary to curtail our appellate jurisdiction. [22]
[Footnote 21] In one of these vetoes President Johnson said: 'The trials having their origin under this bill are to take place without the intervention of a jury and without any fixed rules of law or evidence. The rules on which offenses are to be 'heard and determined' by the numerous agents are such rules and regulations as the President, through the War Department, shall prescribe. No previous presentment is required nor any indictment charging the commission of a crime against the laws; but the trial must proceed on charges and specifications. The punishment will be, not what the law declares, but such as a court-martial may think proper; and from these arbitrary tribunals there lies no appeal, no writ of error to any of the courts in which the Constitution of the United States vests exclusively the judicial power of the country.' Messages and Papers of the Presidents, Richardson, Vol. VI, 399. In another he said: 'It is plain that the authority here given to the military officer amounts to absolute despotism. But to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he chooses to appoint, for it declares that he shall 'punish or cause to be punished.' Such a power has not been wielded by any monarch in England for more than five hundred years. ... This broad principle limits all our functions and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place more than in another that which the Constitution says we shall not do at all.' Id., pp. 502, 503.
[Footnote 22] In re McCardle, 6 Wall. 318. See also Warren, The Supreme Court in United States History, Vol. 2, 464, 484.
At least I had the rest of the legal community to keep me company. And, thanks to nolu chan's post, I have the legal community on my side in the ex post facto issue as well. But keep it up, GOP. You are an endless source of amusement to me.
I never said that it didn't count or that it could be ignored. But the circuit court is not the final authority on what is constitutional or what is not, the Supreme Court is.
During the ACW, Congress curtailed the appellate jurisdiction of the Supreme Court in order to prevent them from passing on the constitutionality of the legislation.
The Congress is continuously trying to limit the court's jurisdiction. Their latest attempts, if I recall, was preventing the court from ruling on flag burning issues. So congressional attempts during the Civil War to limit the court wasn't new and it wasn't the last time.
No, it affects subsequent acts, not previouus. There were plenty of questions about the president's actions. It has still not been decided.
You're not going to adopt the neo-reb "playing stupid" act, are you?
Walt
The rebel battle emblem will not appear on any Georgia state flag in the forseeable future.
Walt
Just as legal unilateral state secession has always been barred by the wording of the Constitution, the Militia Act of 1792 as amended in 1795 and the Judicial Act of 1789.
Walt
Not really. You just looked up a common dictionary definition of dictum and arbitrarily decided from it that the term applied to whatever you wanted it to apply to.
And, thanks to nolu chan's post, I have the legal community on my side in the ex post facto issue as well.
John Marshall says otherwise.
Care showing exactly what Taney did that was "treasonous," Walt?
Care showing exactly what Taney did that was "treasonous," Walt?
He was out to hamstring the government's war on the rebellion, as the one selection from MHQ said. That's close.
Walt
As I have said at least twice now, there was a different perception then. You are making a modern day judgment on an historical person.
Walt
So your rational then is that anything that in any way impedes the government's waging of a war the way it so chooses is "treasonous." Sorry Walt, but that argument will not fly. War by definition operates under various rules of waging, practice, and engagement. The Constitution prescribes some of those rules, and one of them pertains to habeas corpus suspensions. Simply enforcing the prescribed rule for habeas corpus suspensions is not treasonous, Walt, as it is exercised under the very same document from which treason may be said to have occurred.
Now if you want to see a case of real treason, look at that committed against the states of Virginia, North Carolina, Missouri and others by the yankee aggressors.
Does that mean the southern states and the effected merchants were free to disregard the Prize Cases ruling as well, since they were entitled to their own "interpretation" of the Constitution? Just curious.
Does that mean the southern states and the effected merchants were free to disregard the Prize Cases ruling as well, since they were entitled to their own "interpretation" of the Constitution? Just curious.
The Militia Act and the Judiciary Act were already on the books. They block unilateral state secession. No one could mistake that. The rebels didn't even bother going to court - even with Taney on the bench.
Also, the southern states and affected merchants were not branches of the federal government.
The way the law was perceived in 1860 was that each of the three branches of government interpreted the Constitution themselves. Court rulings applied only to the parties in the suit.
Walt
Taney could have gotten the issue before the whole Supreme Court. But as that selection from MHQ that I posted indicated, most of the Justices agreed with the president.
Only a ruling of the Supreme Court could challenge the president on this.
Walt
All you've done is shown how fast perceptions changed. Before 12/7/41 there was no comprehension that the Japs could attack Pearl Harbor. Once they did that, there came the perception that -maybe- they could mount a serious attack on the West Coast. Japanese-American --citizens--, as we know, were carted off to detention camps without any sort of due process or even charges leveled at them. Even before the end of the war this perception changed.
You are making my points for me. The Supreme Court has consistently ruled during the ACW, WWI and WWII that the life of the nation comes before the rights of the individual. Then the Court gets feeling guilty and backs off, as they did for instance in Milligan.
It still means that you are making out of context judgments on historical persons.
At least in President Lincoln's case, there were American citizens who --were-- aiding and abetting treason. Merryman DID burn bridges, he DID serve in the rebel army. Milligan WAS in an organization attempting to overthrow and undermine the government. Merryman absoulutely conducted traitorous acts. He was released. Lincoln stayed the execution of Milligan.
You have cropped up here with a lot of research but you look no less the fool than the usual crop of FR neo-reb America hating buffoons.
Walt
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