Posted on 01/17/2015 2:31:16 PM PST by BigReb555
During Robert E. Lee's 100th birthday in 1907, Charles Francis Adams, Jr., a former Union Commander and grandson of US President John Quincy Adams, spoke in tribute to Robert E. Lee at Washington and Lee College's Lee Chapel in Lexington, Virginia. His speech was printed in both Northern and Southern newspapers and is said to had lifted Lee to a renewed respect among the American people.
(Excerpt) Read more at huntingtonnews.net ...
Talking about yourself again. Pity.
I'll have to fish up the Cimmerian stuff. I usually always see the Scythian posts.
So who do you see suing whom in this scenario, or do you think the court will simply issue advisory opinions without an actual case?
I'm no expert on doodles except maybe the cheese ones, but we all know people who only "hear" what they want to "hear".
On the matter of Lincoln asking the Supreme Court for advice on the constitutionality of secession, there was precedent for such a request.
President Washington (at the prodding of Thomas Jefferson) asked the court for constitutional advice on an external matter (the Nuetrality Crisis of 1793) and the court demurred. President Monroe asked the court for constitutional advice on an internal matter(turnpikes circa 1822) and the court replied in a joint opinion.
A couple of interesting things about this; Washington, Jefferson, and Monroe are Founding Fathers and Oroginal Framers. They knew the limits of the constitution. Lincoln at least thought he did and would have considered secession to be an internal matter.
Below is an excerpt and a source link:
On July 8, 1793, Washington, finding himself harassed by the strained international situation then existing,08 acceded to the importunities of Jefferson,6 9 and took the liberty of instructing that a letter be sent to Jay asking the justices whether the President might have the benefit of their advice on certain questions of law.10 Finally,71 on August 20, the Court answered through Jay, stating with -due deference, but with firm conviction, their inability to assist the Executive in the matter without overstepping the limits of their duties as embodied in the Constitution. 2 It is to be noted that this refusal was made in the face of an impression then prevalent in various quarters that the President bad the right under the circumstances to require the advice of the Court. 73 Professor Thayer has commented that had the questions been of a different character or been proposed at a less tense moment, the justices might well have ventured their opinion and thus erected a precedent which would materially have altered the subsequent history of the device.74
An extraordinary incident occurred during the administration of Monroe." On May 4, 1822, the President had vetoed a bill which sought to extend the federal power over turnpikes within the boundaries of the states, and he had embodied his views as to the limitations of the power involved in a lengthy pamphlet, a copy of which was transmitted to each of the justices. Marshall replied, expressing his agreement in general terms with the Executive. 0 Story answered but merely acknowledged receipt of Monroe's communication, without expressing any opinion on the question.j 7 Shortly thereafter, it appears that Justice Johnson obtained the views of his associates and with their consent actually forwarded their joint opinion to the President."
Why do the Feds want to know?
No reason. Just for the file. And by the way, pay no attention to that van parked across the street.
Interesting. Now, let me ask you another question: By the time Lincoln was sworn into office, seven states had seceded from the union. If, on the day of his inaugural, Lincoln had asked the Supreme Court whether they considered, in their learned opinion, if that was legal, and they had replied “no,” do you think the states would have rescinded their secessions, shrugged their shoulders and said, “never mind.” Or would events have proceeded pretty much as they did, with the states announcing that they were now no longer subject to the whims of the Supreme Court of a different country?
I'm not worried. They're going to get towed tonight.
I had three or four over-ripe bananas, and an unwatched approach vector. :)
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B. Revisiting the Late Eighteenth Century
Today's belief that judges make laws and that the Supreme Court makes constitutional law lies at the heart of the contemporary understanding of the rule against advisory opinions. But the lawyers of the Founding Era had a radically different view of the judicial process.228 They were natural lawyers who, to the extent that they thought about the issue, believed without question that laws regulating society existed in nature just as surely as the law of gravity.229 Although this theory was somewhat problematic in the case of laws enacted by a legislature, the Founders especially cleaved to natural law principles when they thought about the judicial process. According to the eighteenth century faith, judges did not make laws, they merely identified and applied preexisting laws.23o In the case of statutes and written constitutions, the judges were supposed to read and apply laws and principles that had been established by the people through their elected representatives in legislatures or constitutional conventions. Even in the case of non-statutory law like the common law, the judges did not exercise lawmaking powers. The common law was a natural law that existed in nature independent from any particular government. In administering the common law, a judge's duty was to identify and apply those principles preexisting in nature.
About fifty years after 1793, Justice Story restated the traditional understanding of the judicial process. 231 In Swift v. Tyson, he noted that "[i]n the ordinary use oflanguage, it will hardly be contended, that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves laws.,,232 The most significant aspect of this statement is the fact that Story was not announcing a new theory or trying to be innovative.233 He was simply stating the jurisprudential theory that he and all other educated American lawyers accepted on faith.234 The natural lawyers of the eighteenth century understand that judicial precedent was entitled to more respect than an extrajudicial advisory opinion. This respect, however, was based upon a belief that the judicial process enhanced a judge's ability to discover the preexisting law rather than today's idea that judges are legislators235
If the early Supreme Court Justices' attitude toward advisory opinions is reexamined through this natural law lens, their willingness to render advisory opinions is more easily understood. Because the Justices lacked legislative powers, they never would have considered the possibility that rendering an advisory opinion might be considered an exercise of lawmaking authority.
Their primary concern with the practice of advisory opinions was with the President's unilateral power to demand an opinion and perhaps with the possibility of appearing to have prejudged an issue that might later arise in litigation. The latter problem, however, involved the exercise of discretion rather than an absolute rule.
Lacking lawmaking authority, the Justices' opinions were just that-merely opinions. This belief that judges lack lawmaking powers is subtly pervasive in the late eighteenth century American legal culture. For example, the early published volumes of judicial decisions frequently report at great length the advocate's oral arguments to the Court. This practice, which has long since been abandoned, is puzzling to today's lawyers, but was quite consistent with the old natural law theory. Insofar as the applicable legal principles were concerned, there was not a radical difference between the advocates' arguments and the judges' opinions. Neither the advocates nor the judges had lawmaking powers. Both were capable human beings who were simply stating their opinions as to the applicable laws that preexisted in statutes or in nature.
The predominant belief in natural law also explains the quaint phraseology that Jefferson used in describing the decision to seek the Justices' advice. 236 Acting as a de facto recording secretary, he noted that the Cabinet had resolved to consult "persons learned in the laws.,,237 Jefferson and the Cabinet wished to consult the Justices because they were learned in the law, not because they were judges. The Justices' opinion would not be a binding legal precedent, but it would be good evidence as to what capable lawyers believed was the law.
C. The Justices' Refusal Reconsidered
The relevance of the Justices' refusal to advise President Washington must be reconsidered. Clearly their refusal remains good precedent for the proposition that the President may not compel federal judges to render advisory opinions. It is equally clear, however, that their refusal cannot be read as precedent for an absolute rule barring federal judges from issuing an advisory opinion if they believe an opinion is appropriate. The early Justices' practice of rendering advisory opinions on a discretionary basis is simply too well established. The early Justices believed that they had a discretionary power to advise the executive branch in appropriate situations, and they frequently exercised their discretion in favor of rendering an advisory opinion. Their pattern of conduct, however, is not contrary to today's absolute rule against advisory opinions. Today's rule is founded upon the Constitution's case or controversy language and is informed by a belief that judges make laws. The early Justices made no mention of the case or controversy restriction and would have emphatically denied that they had any lawmaking authority. Therefore, their practice is simply irrelevant to the modem absolute rule.
Similarly, today's absolute rule against advisory opinions does not bar judges from rendering advisory opinions as long as the opinion is not an exercise of the judicial power ofthe United States. Just as the early Justices did, today's Justices may give advisory opinions to the executive branch, but their opinions would not have the force of law because they would not be rendered in the context of a judicial case or controversy. But today's Justices-like the early Justices-would have to consider the problem of prejudging an issue, and today'sJustices undoubtedly would be disinclined to exercise their discretion in favor of providing advice. 238 Moreover, the executive branch would be unlikely to seek an extrajudicial advisory opinion because the Executive has its own corps of attorney/advisers who are as competent as judges to give legal advice. Of course, lawyers in the executive branch are not empowered to make laws, but neither are judges when they render an extrajudicial advisory opinion.
The Justices' 1793 refusal to render an advisory opinion neatly illustrates a serious objection to some, but not all original intent analyses. The problem is that in respect of some issues, the Founding Era was so different from the present that the wisdom of that Era is irrelevant to the present. Except for the question of Presidential power, the early Justices' advisory opinion practice is irrelevant to today's problems because no one in the Founding Era believed that judges make laws.
Yes we do.
LOL! Straight from the horse’s mouth...
Handsome feller, that Jim Thompson. :)
Yeah because you don't care. I don't care about individual names in this incident or that involving southern criminals like Brooks. But I do care about the overall theme of what happened to cause the Civil War, and I know a lot more than you on that. I know that southerners went into an orgy of looting federal depots, you didn't know that. I know of the attack on the floor of Congress that typified those that supported the plantation owners, you show the typical bloodlust that the plantation owners had. I know that the south had their way with tariffs in the 1830s through 1861, you didn't know that either.
You walked into my wheelhouse, which is Civil War history, and started shooting your keyboard off.
Don't make me laugh, you've been wrong about everything on this thread. Name one thing you were right about.
Obviously the South did NOT rule the tariff issue for decades before the Civil War.
See, you know nothing about this. Look up tariffs in the US and you'll see your mistake. Tariffs were lowered again and again at the urging of southern congressmen since the 1830s.
Cut n paste, Cut n paste, Cut n paste, Cut n paste, Cut n paste, Cut n paste. Don’t you guys have an original thought on anything?
Jeez, is this thread still going?
Hasn’t even hit 4 digits yet. lol
I notice you have no comment on the plethora of Scythian posts on Free Republic, and the fact that I follow them closely.
But I do care about the overall theme of what happened to cause the Civil War, and I know a lot more than you on that
I've been to a third of the Civil War battlefields in the Eastern theater of the war, yet you know "a lot more".
You have pinwheels-for-eyes.
I know that southerners went into an orgy of looting federal depots, you didn't know that.
And how do you know that I didn't know that?
From Monty Python and The Holy Grail: How do you know she's a witch? She turned me into a newt!
Are you a newt, Partisan Pooslinger?
I know that the south had their way with tariffs in the 1830s through 1861, you didn't know that either.
It must be true, because you wrote it down on the Internet, then you read it. TRUE DAT!
Don't make me laugh, you've been wrong about everything on this thread. Name one thing you were right about.
Tariffs.
Wipe the foam off your face. LOL! :)
@ smooth: they're BACK!!!
Make the most of it. Monday's coming! ;-)
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