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."
It has little to do with Abraham Lincoln.
Walt
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