Author of the The Real Lincoln to speak TODAY at George Mason University, Fairfax, Virginia

You applied emphasis to the comments of CJ Rehnquist as follows:

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A few weeks after the argument, at the close of its term in April, the Court entered an order that the writ of habeas corpus sought by Milligan and the others should be granted, but that opinions in the case would not be filed until the beginning of the next term in December 1866.

At that time, two opinions were filed: an opinion for the majority of the Court by Justice David Davis, and an opinion for four concurring Justices by Chief Justice Salmon P. Chase. All the Justices agreed that the trial of these defendants by a military commission was invalid. But they divided five to four on their reasoning. The five Justice majority basically adopted the position of the petitioners and held that a United States citizen not in the armed forces could not be tried before a military commission even in time of war if the civil courts were open for business. According to the majority, as the federal court in Indianapolis had been open for business throughout the war, these defendants should have been tried there, rather than before a military commission. The majority opinion relied on the definition of judicial power in Article III of the Constitution, and on the Sixth Amendment guarantee of the right to jury trial.

The concurring Justices held that a law passed by Congress in 1863 allowed those suspected of disloyal activity to be detained, but only until a Grand Jury had an opportunity to indict them. If the Grand Jury indicted, they were to be tried in the civil courts; if it did not, they were to be released. Thus, in effect, these Justices said Congress itself had ruled out trials of civilians by a military commission.

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It could easily be misconstrued that the second emphasized sentence is the opinion of the court. That would be incorrect. The second emphasized sentence is taken from the concurring opinion of four justices. Concurring opinions are NOT the opinion of the court. The majority opinion is the opinion of the court.

As CJ Rehnquist wrote, "The five Justice majority basically adopted the position of the petitioners and held that a United States citizen not in the armed forces could not be tried before a military commission even in time of war if the civil courts were open for business. According to the majority, as the federal court in Indianapolis had been open for business throughout the war, these defendants should have been tried there, rather than before a military commission. The majority opinion relied on the definition of judicial power in Article III of the Constitution, and on the Sixth Amendment guarantee of the right to jury trial."

Thus, the opinion of the Court was that it was violative of the Constitution to try a U.S. citizen civilian before a military commission, even in time of war, if the civil courts were open for business. This means Congress could not legally authorize such an action.

Five justices said the Lincoln administration violated Article III and Amendment VI of the Constitution. The five-justice majority made clear that even if the Congressional Act had authorized the Lincoln Administration to hold said military tribunal, they would have struck it down as unconstitutional.

http://writ.news.findlaw.com/commentary/20030224_grossman.html

The following article appears in FINDLAW's WRIT Legal Commentary from 2/24/2003. The above link goes to the complete article which is about six pages in length.

The 200th Anniversary of Marbury v. Madison:
The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind
By JOEL B. GROSSMAN

---- Monday, Feb. 24, 2003

Today, February 24th, 2003, marks the 200th anniversary of an extraordinary legal event: the Supreme Court's decision in the case of Marbury v. Madison

* * *

There, the Court - in an opinion authored by Chief Justice John Marshall - ruled that it was not bound by an act of Congress that was "repugnant to the Constitution."

* * *

Issue #3: Should the Judiciary Have a Monopoly on Constitutional Interpretation?

Was Marshall right when he suggested in Marbury that judicial review - testing statutes against the Constitution - is an exclusive power of the Supreme Court?

Certainly Marshall made a strong argument for judicial review as a power of the Supreme Court. But his argument for exclusive "monopoly" power is weak at best. He argued that "it is, emphatically, the province and duty of the judicial department, to say what the law is." But while he establishes fidelity to the Constitution as the judiciary's duty, he does not necessarily demonstrate that it is only the judiciary's province - as opposed to the province of all three branches of government. For example, Marshall notes that in a written constitution of enumerated powers, the constitution is superior to ordinary law. But his deductive argument that this implies exclusive judicial review is not compelling.

Marshall noted that the judges take an oath to honor the Constitution. But he neglected to say that so do members of the other branches of government, and therefore they are equally bound to act constitutionally. Why is the judgment of constitutionality the Court's job alone?

These are good questions, but Marshall's view, whatever its logical and historical shortcomings, has endured. That's because judicial review has worked reasonably well, and no one has come up with a better idea. Alternate theories, for example, that each branch may interpret the Constitution's meaning for itself, or that the first branch to interpret a provision of the Constitution prevails, have never commanded much support.

To say that the Supreme Court has designated itself as the final arbiter of the Constitution's meaning, is not to say that the Court is "all-powerful." It dodges some questions on the ground that they are too "political" and should be decided by the other branches. And as Louis Fisher and others have noted, the Court's judgments are not always final, or obeyed. Talk about "judicial supremacy" thus is usually more rhetorical than real.

There are other gaps in the Court's alleged control of constitutional meaning. For example, there are many issues about which the Constitution is "silent," or where the Court has simply not spoken. These include, for example, the grounds for impeaching a president (what are "high crimes and misdemeanors?"), whether a president can pardon himself, and the extent of the president's "war powers." These constitutional issues, and others like them, are governed by what might be called "constitutional understandings"-- norms that prevail by agreement or circumstance unless and until the Court addresses them.

For all these reasons, while the Supreme Court is certainly no longer the "least dangerous branch" that Alexander Hamilton described in Federalist 78, it is also not all powerful, nor always "supreme in its exposition of the constitution.".

* * *

My point (or one of them) was that the Justices in 1942 had to back off on what Milligan plainly said.

What it comes down to is having honorable, good men running the process. If you don't have that, nothing else matters.

“In Mr. Lincoln’s message, we appreciate the calm thoughtfulness so different from the rowdyism we have been accustomed to receive from Washington. He is strong in the justice his cause and the power of his people. He speaks without acerbity even of the rebels who have brought so much calamity upon the country, but we believe that if the miscreants of the Confederacy -were brought to him today, Mr. Lincoln would bid them depart and try to be better and braver men in the future. When we recollect the raucous hate in this country toward the Indian rebels, "we feel humiliated that this 'rail splitter' from Illinois should show himself so superior to the mass of monarchical statesmen.

"Mr. Lincoln's brotherly kindness, truly father of his country, kindly merciful, lenient even to a fault, is made the sport and butt of all the idle literary buffoons of England. The day will come when the character and career of Abraham Lincoln will get justice in this country and his assailants will show their shame for the share they took in lampooning so brave and noble a man, who in a fearful crisis possessed his soul in patience, trusting in God. ‘Truly’, Mr. Lincoln speaks, 'the fiery trial through which we pass will light us down in honor or dishonor to the latest generation.' There is little doubt what the verdict of future generations will be of Abraham Lincoln.

"Before two years of his administration has been completed, he has reversed the whole constitutional attitude of America on the subject of Slavery; he has saved the territories from the unhallowed grasp of the slave power; he has purged the accursed institution from the Congressional District; he has hung a slave trader in New York, the nest of slave pirates; he has held out the right hand of fellowship to the negro Republicans of Liberia and Hayti; he has joined Great Britain in endeavoring to sweep the slave trade from the coast of Africa! There can be no doubt of the verdict of posterity on such acts as these. Within the light of the 'fiery trial' of which Mr. Lincoln speaks, another light shines clear and refulgent—the torch of freedom—to which millions of poor slaves now look with eager hope."

--From the London Spectator quoted in "Abraham Lincoln, The War Years", Vol. II, pp.331-333, by Carl Sandburg

Walt

Mr. Lincoln defends himself

"Gentlemen:

The resolutions of the Ohio Democratic Convention which you present me, together with your introductory and closing remarks, being in position and argument, mainly the same as the resolutions of the Democratic meeting at Albany, New-York, I refer you to my response to the latter, as meeting most of the points in the former. This response you evidently used in preparing your remarks, and I desire no more than that it be used with accuracy-- In a single reading of your remarks I only discovered one inaccuracy in matter which I suppose you took from that paper. It is when you say "The undersigned are unable to agree with you in the opinion you have expressed that the constitution is different in times of insurrection or invasion from what it is in time of peace & public security." A recurence to the paper will show you that I have not expressed the opinion you suppose-- I expressed the opinion that the constitution is different, in its application in cases of Rebellion or Invasion, involving the Public Safety, from what it is in times of profound peace and public security; and this opinion I adhere to, simply because, by the Constitution itself, things may be done in the one case which may not done in the other.

[Note 15 See Abraham Lincoln to Erastus Corning and others, [June] 1863.]

...You say "Expunge from the constitution this limitation upon the power of Congress to suspend the writ of Habeas Corpus, and yet the other guarranties of personal liberty would remain "unchanged" Doubless if this clause of the constitution, improperly called, as I think, a limitation upon the power of Congress, were expunged, the other guarranties would remain the same; but the question is, not how those guaranties would stand, with that clause out of the Constitution, but how they stand with that clause remaining in it, -- in cases of Rebellion or Invasion, involving the public Safety-- If the liberty could be indulged, of expunging that clause letter & spirit, I really think the Constitutional argument would be with you-- My general view on this question was stated in the Albany response, and hence I do not state it now. I only add that, as seems to me, the benefit of the writ of Habeas Corpus, is the great means through which the guarranties of personal liberty are conserved, and made available in the last resort; and coroborative of this view, is the fact that Mr. V. in the very case in question, under the advice of able lawyers, saw not where else to go but to the Habeas Corpus-- But by the Constitution the benefit of the writ of Habeas Corpus itself may be suspended when in cases of Rebellion or Invasion the public Safety may require it.

You ask, in substance, whether I really claim that I may over-ride all the guarrantied rights of individuals, on the plea of conserving the public safety -- when I may choose to say the public safety requires it-- This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion or Invasion-- The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the Constitution, made the Commander-in-Chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it--. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands, to be dealt with by all the modes they have reserved to themselves in the Constitution--17

The apparent earnestness with which you insist that persons can only, in times of rebellion, be lawfully dealt with, in accordance with the rules for criminal trials and punishments in times of peace, induces me to add a word to what I said on that point, in the Albany response. You claim that men may, if they choose, embarrass those whose duty it is, to combat a giant rebellion, and then be dealt with in turn, only as if there was no rebellion. The constitution itself rejects this view. The military arrests and detentions, which have been made, including those of Mr. V. which is are not different in principle from the others, have been for prevention, and not for punishment -- as injunctions to stay injury, as proceedings to keep the peace -- and hence, like proceedings in such cases, and for like reasons, they have not been accompanied with indictments, or trials by juries, nor, in a single case by any punishment whatever, beyond what is purely incidental to the prevention. The original sentence of imprisonment in Mr. V.'s case, was to prevent injury to the military service only, and the modification of it was made as a less disagreeable mode to him, of securing the same prevention--

I am unable to perceive an insult to Ohio in the case of Mr. V. Quite surely nothing of the sort was or is intended. I was wholly unaware that Mr. V. was a candidate for the democratic nomination for Governor at the time of his arrest until informed by yourselves reading the resolutions of the convention.18 I am grateful to the State of Ohio for many things, especially for the brave soldiers and officers she has given in the present national trial, and very especially for giving birth to Generals Rosecrans and Grant.19

[Note 18 Lincoln's several revisions of this sentence, together with Nicolay's penciled efforts to improve upon them, make the manuscript somewhat confusing. Lincoln seems to have first written: "I was wholly unaware that Mr. V. was a candidate for the democratic nomination of Governor until informed by yourselves yesterday--" He then sought to clarify this by inserting "at the time of his arrest" and by expanding "informed by yourselves yesterday" to "informed by yourselves reading the resolutions of the convention," referring to his interview with the delegation on June 25. The penciled changes all seem to be by Nicolay, the most obvious being his repositioning the phrase "at the time of his arrest." This and Nicolay's other emendations, which can be seen in the accompanying image of the manuscript, have been ignored in the transcription.]

[Note 19 In the manuscript, John G. Nicolay has stricken with pencil the words "and very especially for giving birth to Generals Rosecrans and Grant" and substituted "to the armies of the Union."]

You claim, as I understand, that according to my own position in the Albany response, Mr. V. should be released; and this because, as you claim, he has not damaged the military service, by discouraging Enlistments, encouraging desertions, or otherwise; and that if he had, he should have been turned over to the civil authorities under recent acts of congress. I certainly do not know that Mr. V. has specifically, and by direct language, advised against Enlistments, and in favor of desertion, and resistance to drafting; We all know that combinations, armed in some instances, to resist the arrest of deserters, began several months ago; and that more recently the like has appeared in resistance to the enrolment preparatory to a draft; and that quite a number of arrests assassinations have occurred from the same animus. These had to be met by military force, and this again has led to bloodshed and death. And now under a sense of responsibility more weighty and enduring than any which is merely official, I solemnly declare my belief that this hindrance, of the military, including maiming and murder, is due to the course in which Mr. V. has been engaged, in a greater degree than to any other cause; and is due to him personally, in a greater degree than to to any other one man. These things have been notorious, known to all, and of course known to Mr. V. Perhaps I would not be wrong to say they originated with his special friends and adhereants. With perfect knowledge of them, he has frequently, if not constantly made speeches, in Congress, and before popular assemblies; and if it can be shown that, with these things staring him, in the face, he has ever uttered a word of rebuke, or counsel against them, it will be a fact greatly in his favor with me, and one of which, as yet I am totally ignorant. When it is known that that the whole burthen of his speeches has been to stir up men against the prossecution of the war, and that in the midst of resistance to it, he has not been known, in any instance, to counsel against such resistance, it is next to impossible to repel the inference that he has counselled directly in favor of it-- With all this before their eyes the convention you represent have nominated Mr. V. for Governor of Ohio; and both they and you, have declared the purpose to sustain the national Union by all constitutional means. But, of course, they and you, in common, reserve to yourselves to decide what are constitutional means; and, unlike the Albany meeting, you omit to state, or intimate, that in your opinion, an army is a constitutional means of saving the Union against a rebellion: or even to intimate that you are conscious of an existing rebellion being in progress with the avowed object of destroying that very Union. At the same time your nominee for Governor, in whose behalf you appeal, is known to you, and to the world, to declare against the use of an army to suppress the rebellion. Your own attitude, therefore, encourages desertion, resistance to the draft and the like, because it teaches those who incline to desert, and to escape the draft, to believe it is your purpose to protect them, and to hope that you will become strong enough to do so. After a short personal intercourse with you gentlemen of the Committee, I can not say I think you desire this effect to follow your attitude; but I assure you that both friends and enemies of the Union look upon it in this light. It is a substantial hope, and by consequence, a real strength to the enemy-- If it is a false hope, and one which you would willingly dispel, I will make the way exceedingly easy-- I send you duplicates of this letter, in order that you, or a majority of you, may if you choose, indorse your names upon one of them, and return it thus indorsed to me, with the understanding that those signing, are thereby committed to the following propositions, and to nothing else.

1 That there is now a rebellion in the United States, the object and tendency of which is to destroy the national Union; and that in your opinion, an army and navy are Constitutional means for suppressing that rebellion--

2. That no one of you will do any thing which in his own judgment, will tend to hinder the increase, or favor the decrease, or lessen the efficiency of the army or navy, while engaged in the effort to suppress that rebellion; and,

3. That each of you will, in his sphere, do all he can to have the officers, soldiers, and seamen of the army and navy, while engaged in the effort to suppress the rebellion, paid, fed, clad, and otherwise well provided and supported--

And with the further understanding that upon receiving the letter and names thus indorsed, I will cause them to be published, which publication shall be ipso facto within itself, a revocation of the order in relation to Mr. V.

It will not escape observation that I consent to the release of Mr. V. upon terms, not embracing any pledge from him, or from others as to what he will, or will not do. I do this because he is not present to speak for himself, or to authorize others to speak for him; and because I should expect that on his returning, he would not put himself practically in antagonism with the position of his friends-- But I do it chiefly because I thereby prevail on other influential gentlemen of Ohio to so define their position, as to be of immense value to the Army -- thus more than compensating for the consequences of any mistake in allowing Mr. V. to return; and so that, on the whole, the public safety will not have suffered by it. Still, in regard to Mr. V. and all others, I must hereafter as heretofore, do so much as the public safety may seem to require---"

Walt

...damn... this guy Lincoln likes to hear himself talk... but ... as i hear his voice start blathering... his image comes into focus... and there is a long, tall, stretched-out version of Yasser Arafat... and I am unable to maintain concentration...

But seriously, he makes no legal argument. He could have had his case heard in court. He did everything possible to prevent that from happening.

When the Supreme Court ruled in Ex Parte Milligan, it was composed of four Lincoln appointees, four other northerners, and one southerner. The Court ruled 9-zip that actions of Abraham Lincoln, and actions of those who acted under a grant of authority by Abraham Lincoln, were unlawful and in violation of the U.S. Constitution.

[Walt] My point (or one of them) was that the Justices in 1942 had to back off on what Milligan plainly said.

They backed off from a non-authoritative statement made as dicta. They did not back off or reverse the actual ruling of the court.

[Walt] What it comes down to is having honorable, good men running the process. If you don't have that, nothing else matters.

http://www.apfn.net/Doc-100_bankruptcy27.htm

"Beware the leader who bangs the drums of war in order to whip the citizenry into a patriotic fervor, for patriotism is indeed a double-edged sword. It both emboldens the blood, just it narrows the mind. And when the drums of war have reached a fever pitch and the blood boils with hate and the mind has closed, the leader will have no need in seizing the rights of the citizenry. Rather, the citizenry, infused with fear and blinded by partiotism, will offer up all of their rights unto the leader and gladly so. How do I know? For this is what I have done. And I am Caesar."--Julius Caesar

The law must serve to withhold excessive power from honorable people as well as the villain. Be it otherwise, the first dishonorable person with the opportunity to do so, seizes power, holds on, consolidates, and does not let go. There can be no "honorable person" exemption to the limits on Presidential authority.

I firmly believe that Lincoln, among others, clearly exceeded the legal limits of his authority. Fair minded people may, or may not, feel impelled to attach any greatness to his deeds.

As a question of law, can anyone (not just your beloved Lincoln) in the position of authority declare an emergency and just expand his powers? For example, could FDR declare a national emergency in 1933 to combat the Great Depression and could that state of National Emergency be continued in effect today by Act of Congress, thereby creating a perpetual expansion of Presidential powers? Let's see.

http://www.bartleby.com/124/pres49.html

On March the 4th of 1933, FDR, in his inaugural address said:

"I am prepared under my constitutional duty to recommend the measures that a stricken nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to speedy adoption. But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis -- broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe."

FDR asked Congress for extraordinary authority. Indeed, he sought the powers of a president who was waging a military war.

On March the 9th, at a special session of Congress he called for, FDR presented a bill, an Act, to provide for relief in the existing national emergency in banking and for other purposes. The enabling portion of that Act states:

"Be it enacted by the Senate and the House of Representatives of the united States of America in Congress assembled, That the Congress hereby declares that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national application."

The Act of March 9, 1933, Title 1, Section 1 states: "The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March the 4th, 1933, pursuant to the authority conferred by subdivision (b) of Section 5 of the Act of October 6, 1917, as amended, are hereby approved and confirmed."

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Note: The Act of October 6, 1917 conferred emergency powers to help fight WW1.

Now look at the Federal Statutes of today.

Look at 12 USC Section 95b, a law which states:

http://www4.law.cornell.edu/uscode/12/95b.html
http://caselaw.lp.findlaw.com/casecode/uscodes/12/chapters/2/subchapters/iv/sections/section_95b.html

"The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March the 4th, 1933, pursuant to the authority conferred by Subsection (b) of Section 5 of the Act of October 6th, 1917, as amended [12 USCS Sec. 95a], are hereby approved and confirmed. (Mar. 9, 1933, c. 1, Title 1, Sec. 1, 48 Stat. 1.)".

It means that everything the President or the Secretary of the Treasury has done since the Emergency Banking Act of March 9, 1933, (48 Stat. 1, Public Law 89-719), or anything that the President or the Secretary of the Treasury is hereafter going to do, is automatically approved and confirmed.

Note: The Act of March 9, 1933 was called the Emergency Banking Act. We had to wage war against the Great Depression.

Language in Title 12, USC 95b is exactly the same as that found in the Act of March 9, 1933, Chapter 1, Title 1, Section 48, Statute 1. The Act of March 9, 1933, is still in full force and effect today. We are still in a declared state of national emergency, a state of emergency that has existed, uninterrupted, since 1933, or for over seventy years.

Gee, whatever emergency powers they seized to fight the Great Depression 70 years ago... they've still got 'em!

Now let's backtrack to 1933 again. The Act of March 9, 1933, Title 1, Section 1 states: "The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March the 4th, 1933, pursuant to the authority conferred by subdivision (b) of Section 5 of the Act of October 6, 1917, as amended, are hereby approved and confirmed."

We know that the Act of 1933 was the Emergency Banking Act. How about the Act of 1917? What was the name of that one?

That was "An Act To define, regulate, and punish trading with the enemy, and for other purposes." It specifically applied to persons "other than citizens of the united States." In this Act, citizens of the US were not enemies. As revised in 1933, this relevant section became "by any person within the united States or anyplace subject to the jurisdiction thereof."

All monetary transactions, whether domestic or international in scope, were now placed at the whim of the President through the authority given to him by the Trading with the Enemy Act.

At the beginning of WW1, the original purpose of this act was to empower the government to take control over any and all commercial, monetary or business transactions conducted by enemies, or allies of enemies, within our borders. At least then, U.S. citizens were not considered the enemy and were excluded from the definition.

In the Acts of 1917 and 1933 it states, "during times of war or during any other national emergency declared by the President..." War powers are thereby granted not only in times of war, but in any time of national emergency declared by the President.

The Act of 1917 applied to specified matters "other than credits relating solely to transactions to be executed wholly within the United States)."

The Act of 1933 applied to like matters, "by any person within the united States or anyplace subject to the jurisdiction thereof."

The Trading with the Enemy Act went into the Witness Protection Program and assumed the identity of the Emergency Banking Act.

And "We the People" seemingly became "We the Enemy."

And the 70-year old emergency continues.

When either war or a declared national emergency exists, the President may,

"through any agency that he may designate, or otherwise, regulate or prohibit under usch rules and regulations as he may prescribe by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President and export, hoarding, melting or earmarking of gold or silver coin or bullion or currency by any person within the united States or anyplace subject to the jurisdiction thereof."

http://laws.findlaw.com/us/255/239.html

U.S. Supreme Court
STOEHR v. WALLACE
255 U.S. 239 (1921)
Argued Jan. 4 and 5, 1921
Decided Feb. 28, 1921.

The Trading with the Enemy Act, whether taken as originally enacted, October 6, 1917 (40 Stat. 411, c. 106) [255 U.S. 239, 242] or as since amended, March 28, 1918 (40 Stat. 459, 460, c. 28 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, 3115 1/2 ff]); November 4, 1918 (40 Stat. 1020, c. 201 [Comp. St. Ann. Supp. 1919, 3115 1/2a]; July 11, 1919 ( 41 Stat. 35, c. 6), and June 5, 1920 (41 Stat. 977, c. 241), is strictly a war measure, and finds its sanction in the constitutional provision ( article 1, 8, cl. 11) empowering Congress 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.' Brown v. United States, 8 Cranch, 110, 126; Miller v. United States, 11 Wall. 268, 305.

http://www.nidlink.com/~bobhard/war_ep1.html

In 1973, in Senate Report 93-549 (93rd Congress, 1st Session, 1973), the first sentence reads, "Since March the 9th, 1933, the united States has been in a state of declared national emergency."

This situation has continued uninterrupted since the Emergency Banking Act, March 9, 1933, 48 Stat. 1, Public Law 89-719

In the introduction to Senate Report 93-549: "A majority of the people of the united States have lived all their lives under emergency rule." The introduction also says [in 1973]: "For 40 years, freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency." "And, in the united States, actions taken by the government in times of great crisis have -- from, at least, the Civil War -- in important ways shaped the present phenomenon of a permanent state of national emergency."

Glad to find out what is really stuck in your craw.

It has little to do with Abraham Lincoln.

Walt

They backed off from a non-authoritative statement made as dicta. They did not back off or reverse the actual ruling of the court.

I think we've seen amply shown that the court behaves one way during war and a different way after the war. No one said 'boo' to President Lincoln during the war.

He explained himself pretty cogently in the Corning letter to New York Democrats and in the letter to Ohio Democrats. And people felt so strongly against President Lincoln that he carried every state except New Jersey in the 1864 election.

You've also got to allow for the fact that President did not have Vallandigham arrested. He didn't have Milligan arrested. He had Vallandigham released and he made sure that Milligan was around to collect his $5 in damages. He took pains to support his generals and officials in the field. He wouldn't have had either man arrested on his own. You discount all this because your object is to smear his memory. The people of the day knew better.

The London Spectator said in 1862:

“In Mr. Lincoln’s message, we appreciate the calm thoughtfulness so different from the rowdyism we have been accustomed to receive from Washington. He is strong in the justice his cause and the power of his people. He speaks without acerbity even of the rebels who have brought so much calamity upon the country, but we believe that if the miscreants of the Confederacy -were brought to him today, Mr. Lincoln would bid them depart and try to be better and braver men in the future. When we recollect the raucous hate in this country toward the Indian rebels, "we feel humiliated that this 'rail splitter' from Illinois should show himself so superior to the mass of monarchical statesmen.

"Mr. Lincoln's brotherly kindness, truly father of his country, kindly merciful, lenient even to a fault, is made the sport and butt of all the idle literary buffoons of England. The day will come when the character and career of Abraham Lincoln will get justice in this country and his assailants will show their shame for the share they took in lampooning so brave and noble a man, who in a fearful crisis possessed his soul in patience, trusting in God. ‘Truly’, Mr. Lincoln speaks, 'the fiery trial through which we pass will light us down in honor or dishonor to the latest generation.' There is little doubt what the verdict of future generations will be of Abraham Lincoln.

"Before two years of his administration has been completed, he has reversed the whole constitutional attitude of America on the subject of Slavery; he has saved the territories from the unhallowed grasp of the slave power; he has purged the accursed institution from the Congressional District; he has hung a slave trader in New York, the nest of slave pirates; he has held out the right hand of fellowship to the negro Republicans of Liberia and Hayti; he has joined Great Britain in endeavoring to sweep the slave trade from the coast of Africa! There can be no doubt of the verdict of posterity on such acts as these. Within the light of the 'fiery trial' of which Mr. Lincoln speaks, another light shines clear and refulgent—the torch of freedom—to which millions of poor slaves now look with eager hope."

--Abraham Lincoln, The War Years, Vol. II, pp.331-333, by Carl Sandburg

You seem to think (as many on FR seem to) that the actions of Abraham Lincoln are somehow the root cause of the ills we suffer today. I don't think that is very fair. Lincoln's position was simply that the government had a right to maintain itself against its domestic foes -- and that bullets cannot follow the lawful outcome of ballots -- that you can't pull a gun if you don't like the outcome of the election.

That is essentially what the rebels did.

I think Lincoln would just as appalled as anyone at the lengths that the federal government has gone to -- this 70 year state of emergency that you so rightly point out. He said:

"As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy."

Does that seem reasonable to you? Could FDR shoehorn his actions into that sentiment? I don't think so.

But to blame President Lincoln for the federal bohemoth is just silly; it's a modern day judgment on an historical person, which is silly.

Walt

But seriously, he makes no legal argument. He could have had his case heard in court. He did everything possible to prevent that from happening.

Such as?

Walt

When the Supreme Court ruled in Ex Parte Milligan, it was composed of four Lincoln appointees, four other northerners, and one southerner. The Court ruled 9-zip that actions of Abraham Lincoln, and actions of those who acted under a grant of authority by Abraham Lincoln, were unlawful and in violation of the U.S. Constitution.

And Milligan collected his $5.

Lincoln did not have Milligan arrested. When Milligan WAS arrested, there was no proscription on the type of arrest he was subjected to.

What exactly is your point?

I think I know, I just want to hear it from you.

Walt

Lincoln's position was simply that the government had a right to maintain itself against its domestic foes -- and that bullets cannot follow the lawful outcome of ballots -- that you can't pull a gun if you don't like the outcome of the election.

Very well stated. The slave power south, having failed to subvert the presidential election of 1860, and unhappy with the outcome at the ballot box, resorted to bullets against the United States government.

[707 WhiskeyPapa] Glad to find out what is really stuck in your craw. It has little to do with Abraham Lincoln.

[708 WhiskeyPapa] You seem to think (as many on FR seem to) that the actions of Abraham Lincoln are somehow the root cause of the ills we suffer today.

I said no such thing.

The Court stated the facts, the Court stated the law, the Court applied the law to the facts, and found that actions of Abraham Lincoln and those acting on behalf and at the direction of Abraham Lincoln, during the war, violated Constitutional rights.

But... what the heck... fair and balanced... I report... you decide.

Title III of the Agricultural Adjustment Act, also called the Emergency Farm Mortgage Act of 1933 :

"Title III -- Financing - And Exercising Power Conferred by Section 8 of Article I of the Constitution: To Coin Money And To Regulate the Value Thereof."

"Whenever the President finds upon investigation that the foreign commerce of the united States is adversely affected ... and an expansion of credit is necessary to secure by international agreement a stabilization at proper levels of the currencies of various governments, the President is authorized, in his discretion... To direct the Secretary of the Treasury to enter into agreements with the several Federal Reserve banks..."

The Constitution states that Congress has the authority to coin all money and regulate the value thereof.

Here the Executive branch is quoting the Constitution as its authority to do so.

Under Section 1 of this Act we find: "To direct the Secretary of the Treasury to cause to be issued in such amount or amounts as he may from time to time order, United States notes, as provided in the Act entitled "An Act to authorize the issue of United States notes and for the redemption of funding thereof and for funding the floating debt of the united States, approved February 25, 1862, and Acts supplementary thereto and amendatory thereof"

What is the Act of February 25, 1862? It is the Greenback Act of President Abraham Lincoln.

When Abraham Lincoln was elected and inaugurated, he didn't have a Congress for the first six weeks. He did not, however, call an extra session of Congress. He issued money, he declared war, he suspended habeas corpus, it was an absolute Constitutional dictatorship. There was not even a Congress in session for six weeks.

When Lincoln's Congress finally came into session, they entered the following into the Congressional record: "The actions, rules, regulations, licenses, heretofore or hereafter taken, are hereby approved and confirmed..."

This is the exact language of March 9,1933 and Title 12, USC, Section 95 (b), today.

Maybe Abe started a trend, he showed 'em the way. Ya think?

[705 nolu chan] But seriously, he makes no legal argument. He could have had his case heard in court. He did everything possible to prevent that from happening.

[709 Walt] Such as?

MY POST NUMBER 663

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.

[710 Walt] Lincoln did not have Milligan arrested. When Milligan WAS arrested, there was no proscription on the type of arrest he was subjected to. What exactly is your point?

Those who arrested Milligan acted under authority claimed by and delegated by Abraham Lincoln. Lincoln authorized them to do it.

The Supreme Court held that the Constitutional rights of Milligan were violated.

My point is, and has been, that President Lincoln violated the Constitution. The Supreme Court held that he violated the Constitution. He granted authority he assumed unlawfully and delegated it to others who acted unlawfully.

You are free to say he did it in an act of greatness.

The Constitution does not contain a Lincoln Act of Greatness exception. There were violations of Constitutional rights. It happened. It is a matter of history. It was so held by the Supreme Court, 9-zip.

My point is, and has been, that President Lincoln violated the Constitution.

Your point is wrong.

If he had someone arrested after a case with language like that of Milligan had come down, that would be one thing, or if he had kept someone incarcerated -after- such a ruling, that would be one thing. He never did that.

When Milligan was arrrested, as he said, the Constitution allowed HB to be suspended. The Constitution does not have any territorial limitations; it doesn't say HB may be suspended only in active theaters of war.

You neo-rebs throw up your hands, "oh my gosh, look what Lincon did!", when there is nothing to it.

Walt

Those who arrested Milligan acted under authority claimed by and delegated by Abraham Lincoln. Lincoln authorized them to do it.

Too easy.

President Lincoln authorized them to exercise executive power in their areas of responsibility. He expected them to. In the case of Vallandigham, he had the guy released. In Milligan's case, he wouldn't sign off on the sentence.

Your statement as written is misleading at best, and disingenuous at worst. It's typical of the neo-reb intent to mislead and dissemble.

Walt

705 nolu chan] But seriously, he makes no legal argument. He could have had his case heard in court. He did everything possible to prevent that from happening.
709 Walt] Such as?
MY POST NUMBER 663
During the ACW, Congress curtailed the appellate jurisdiction of the Supreme Court...

Oh, -Congress- did.

You said President Lincoln did.

I guess you were just a little confused.

Abraham Lincoln and every one else who participated in these events is long dead. They faced situations that you have not, and they reacted in a certain way. You attempt to besmirch what they found laudable -- I mean President Lincoln -was- re-elected in a landslide, after all.

Making modern day judgements on historical people is just silly. Even in 1866, there was an entirely different set of circumstances facing the Justices, and they, like the Justices of WWI and WWII, reacted differently than they did during war time. They were only human -- just like Lincoln was. You throw up your hands in dsgust at actions that they found on the whole pretty reasonable. It doesn't seem like you are interested in a fair or even useful examination of these events.

Walt

...immediately after the South's unsuccessful attempt to secede from the Union.

Glad we finally got that straightened out.

Walt

The Court stated the facts, the Court stated the law, the Court applied the law to the facts...

What law?

Walt

He did not, however, call an extra session of Congress. He issued money, he declared war, he suspended habeas corpus, it was an absolute Constitutional dictatorship. There was not even a Congress in session for six weeks.

Well, that's all wrong. President Lincoln DID call a special secession of Congress to meet July 4.

President Lincoln never declared war, or asked for a declaration. The Supreme Court ruled in 1862 that it was impossible to declare war on one of the states.

Issue money? When?

He suspended HC. So what?

The Constitution pretty much grants dictatorial powers to the president in time of war. And that's what the SCOTUS likened the rebellion to. Hey, if the pres messes up, you can always vote him out.

Walt