Posted on 04/28/2002 1:24:25 PM PDT by Ditto
The point is that they had the right to withdraw their consent to the Constitution. The government belongs to the people and when they decide that it no longer serves their needs, they have the right to change it.
Someone once wrote that we chartered ourselves a government just like someone might charter a bus. If you hired a bus to go to Florida, but the driver insisted on going to Maine, you have every right to get off the bus. If a group of people go together and charter the bus and some decide in the middle of the trip that they no longer want to go where the bus is going, they have the right to get off. It's the same way with government.
We hired it. When it no longer does what we want it to do, we have the right to fire it. This is the best protection of our rights that we have.
The people of the south had no right to oppose the clear intent of the constitution to abolish slavery, as Article I section 9, infers. - They chose violent rebellion to resolve political differences over human rights, in the stead of constitutional remedies. Big mistake. Their fellow citizens had every right to enforce & defend the constitution & the entire republic from such a division.
They did not choose violent rebellion. They chose peaceful separation. They sent a delegation to Washington to pay for any federal property that was within the states and to arrange to pay the South's portion of the national debt. They did demand the surrender of Fort Sumter, and had been promised that it would be surrendered. When it became apparant that Lincoln was going to break that promise, they took the fort by force.
Also, Article I, section 9 does not imply an intent to abolish slavery. It was put in the Constitution to keep the federal government from doing so.
As you & others here have made clear, the Declaration qualifies; -- "That to secure these Rights, - [inalienable rights, - to life, liberty, property] - Governments are instituted among men," -----. Seeing that only a republican form of constitutional government can 'secure' such rights, it is specious of ROL to claim that our declaration would allow states to secede to form ANY type of government that a states majority would will.
In reality, his position is clear. He disagrees with certain basic principles of both the declaration & the constitution/bill of rights.
He favors majority rule, - statism. - And refuses to admit this simple truth.
As I have pointed out in a private reply to Mr. Quackenbush, I have not forgotten him and will reply when I collect the necessary data.
And? -- As I pointed out, -- you do not make public replies to certain posts.
Mr. Paine, I have asked you to quit these childish personal attacks on me. I will ask you one more time to cease.
Point out what you consider personal attack, in the above. You can't, You won't. There is none.
Your personal attacks on people (and I'm certainly not the only person you routinely attack) do not add to the debate. They do not do anything except disrupt this forum. If you have something to add, some fact or some, reasonable, logical argument, then by all means, add it. Don't distort other people's arguments. Don't insult people. And don't play out childish vendettas against people.
I made bold my logical argument to your view of the declaration. You seem to have ignored it, just as I pointed out initially.
You happen to think that observations on your political stance are personal abuse. - They are not. - Get over it, -- rebut if you will, quit whining if you can't, or choose not, - to reply. -- Its that simple.
If that is true then the Executive could claim ANY power. A despot for ruler? See Madison's opinion in Federalist 47 and others.
Note as I stated earlier that in Ex parte Bollman and Swartwout the Supreme Court held that the federal courts had the authority to issue a writ of habeas corpus even in the absence of statutory authorization from Congress. Where is that power enumerated in the Constitution?
Article III. It doesn't say that they can have a bathroom in their chambers either. No specific powers are delegated (contrasted with Articles I & II). In Article I there is no specifications on the mundane operations of Congress, the same for Article II. The legislature is delegated the power to suspend the writ, and historically, who commands that a person be brought into court at a given time and place? Lincoln?
Aside from the logistical difficulties of getting Congressmen from Oregon and California to D.C ... I'm not sure when Lincoln called for the special session, but it appears he wanted to give every Congressman plenty of time to get their personal affairs in order and travel to Washington ....
On 15 Apr 1861 Lincoln issued the order to convene a special session on 4 July 1861. How thoughtful of the President - basically declaring war by himself, appropriating millions for ships, suspending the writ of habeas corpus (and maintaining it after Taney ruled otherwise), to allow the congressmen to get their personal affairs in order. What emergency? A quorum could have quickly been assembled in days for the Eastern/Northern/Midwestern states. Lincoln avoided any possible repercussions by keeping Congress from meeting.
Stack up all of the paper it has taken to interpret the U.S. Constition and then tell me if you still believe that.
The only people that think it's ambiguous are those that try to read something into it that isn't there.
Of course, that provision still requires judges to determine exactly what power has been delegated and whether the powers not delegated are reserved to the people or the states.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." See prior comment. How hard is that to understand?
As I've stated, Lincoln was acting within the scope of a plausible, good faith interpretation of his Article II powers as Commander in Chief. Would you have preferred that he acted meekly and permitted the Southern slaveocracy to survive in perpetuity?
Yes. If the states had not seceded from the Articles, if the Constitution prohibited secession, or if the ratification agreements of Virginia, Rhode Island and Providence Plantations, and New York had not reserved the right to resume self-govenment, or if the 10th Amendment had not been added, or if the Constitution somewhere held that it was a permanent, unbreakable relationship, I might agree. Would you want X42 or any President to have any power (judicial, legislative and executive)?
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny."
James Madison, Federalist Papers, Federalist No. 47, "The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts", 1 Feb 1788.
I agree with the "father" of the Constitution.
Now you've gone way off the deep end into Confederate fantasyland. The Union forces prevailed on the battlefield without slaughtering women and children. Certainly there were innocent civilians who were caught in the crossfire from time to time as in all wars, but they were not targeted by the Union forces ... In comparison to other wars before and after, however, the Civil War was a rather civilized conflict.
Pulling a Buchanan? The Holocaust didn't occur? Sherman didn't destroy entire cities? More people were killed in that war than any war prior. Civil? It was most uncivil - civilians are not prone to running onto the battlefield and being caught in crossfires. And with the men off fighting the war, destroying homes, raping women (black and white), pillaging, looting, destroying towns, kidnapping women and children (read about the Roswell women), destroying crops are all evidence that UNARMED and DEFENSELESS civilians were attacked, either injured immediately, or left to starve with the wanton destruction of entire food-crops.
Lincoln had nothing to do with reconstruction. In fact, it was the Confederates' assassination of him that triggered the harshness of reconstruction, and once again, the ambiguities of the Constitution made it easier for that harsh treament to occur.
Lincoln was the only decent person in the North?
Check the Illinois "Database of Servitude and Emancipation Records (1722-1863)", or their "Servitude Register". Blacks were sold into slavery in Illinois - The Illinois Senate issued the following: 1 SENATE JOINT RESOLUTION
2 WHEREAS, The State of Illinois, at the time of its
3 acceptance into the Union in 1818 and for a longtime
4 thereafter, practiced de facto slavery masqueraded as
5 "indentured servitude"; the census of 1840 enumerated slaves
6 in Illinois in violation of the Ordinance of 1787, which
7 outlawed slavery in the Northwest Territories; and
8 WHEREAS, The State of Illinois passed the infamous and
9 unjust Black Laws (1819), otherwise known as the Black Codes,
10 which were a denial of human rights designed to cover up
11 slavery and the slave trade within the borders of the State;
12 and
13 WHEREAS, The State of Illinois supported the Black Codes
14 for more than forty-six years until they were finally
15 repealed; and
16 WHEREAS, In the State of Illinois the majority of
17 Illinois citizens favored closing the State to
18 African-American residents and withholding the right of
19 citizenship from those African-American residents already
20 living in the State; and
21 WHEREAS, The State of Illinois passed dehumanizing laws
22 stating that slaves were not persons, but property, and as
23 property the ownership of enslaved Africans was to be fully
24 protected by Illinois law; and ...
There is an immense moral difference between merely not wanting to associate with people and enslaving them. Americans (especially poorer white people) have never been very enthusiastic about hordes of refugees pouring into their neighborhoods. The Northern Democrats certainly took advantage of that anxiety in their campaigns against the Republicans. Nevertheless, by the end of the war people like Frederick Douglass and Abraham Lincoln had made great strides in persuading most fair minded Americans that negroes could become full citizens without shattering American society.
Northerners wanted nothing to do with blacks, except to send them out of the country, keep them in the south, or prevent them from migrating north and west. In the South many whites worked side by side with the slaves. But you should read the Slave Narratives in the Federal Writers project. Real, honest-to-goodness, ex-slaves. You'll find some mistreated, and many more that state that they loved their masters, loaned them money, defended them, even wished for the good old days. "Our white folks was good to us an' treated us like we was w'ite as dey was ." "She was raised close by Springfield, but she was freed, and her master deeded her this property and grounds ." "The whites and colored people live next door to each other ." "But, honey, de good ole days is now gone foreber. De ole days was railly de good times. How I wish I could go back to de days w'en we lived at Johnson's landing on de riber, when de folks would come to ketch de steamboats and we neber knowed how many to put on breakfas', dinner or supper fo', cause de boats mought be behin' times.
The Slave Narratives, "Richard Kimmons", McLennan County, Texas
The Slave Narratives, "Charles Johnson", Nevada, Missouri
The Slave Narratives , "Parson and Hannah Allen", Fredericktown, Missouri
The Slave Narratives , "Aunt" Charity Anderson, Mobile, Alabama.
" By 1872, there were 4.25 million free blacks and mulattos, and they accounted for at least three-quarters of all African Brazilians (as compared to a mere 262,000 or 6 percent of all African Americans in the U.S. South on the eve of emancipation)." Source. Despite these much more favorable numbers, slavery was not abolished in Brazil until 1888. If you were a slave in the South in 1865, would you be comfortable with waiting even as little as 23 years for your liberty?
See prior post. There were never massive slave revolts before the war, no revolts against the women and children remaing at home when the EP was issued.
Hardly. Lincoln made it very clear when he was inaugurated that his first priority was preserving the Union.
"The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States in any interior locality shall be so great and universal as to prevent competent resident citizens from holding the Federal offices, there will be no attempt to force obnoxious strangers among the people for that object. While the strict legal right may exist in the Government to enforce the exercise of these offices, the attempt to do so would be so irritating and so nearly impracticable withal that I deem it better to forego for the time the uses of such offices."
Hardly. Lincoln made it very clear when he was inaugurated that his first priority was holding onto the forts, post offices, and tariff houses - and collecting the MONEY. He said nothing about forcing states to rejoin the union.
Stainless - sorry ;o)
Here is the personal attack: Notice how you get 'no response' when an obvious fallacy is pointed out in ROL's position.
Before you sent that garbage, I had emailed Mr. Quakenbush to tell him that I would answer his posts when I had the material together. Unlike some people on this site, I don't go off half-cocked. I gather data, marshall facts and arguments. I check to see if I might agree with some of the arguments made by the other person. I do not claim to be infallable and if an argument is valid, I am willing to change my mind.
That's what people do who are serious about discussing an issue. It might take more time than just putting down the first bit of nonsense that comes to mind. But respect for the people on this forum demands that we take the time to do things right.
The point is that they had the right to withdraw their consent to the Constitution. The government belongs to the people and when they decide that it no longer serves their needs, they have the right to change it.
Nope, they had no right to 'withdraw consent' because of ending slavery. Their rights were not being violated.
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The people of the south had no right to oppose the clear intent of the constitution to abolish slavery, as Article I section 9, infers. - They chose violent rebellion to resolve political differences over human rights, in the stead of constitutional remedies. Big mistake. Their fellow citizens had every right to enforce & defend the constitution & the entire republic from such a division.
They did not choose violent rebellion. They chose peaceful separation. They sent a delegation to Washington to pay for any federal property that was within the states and to arrange to pay the South's portion of the national debt. They did demand the surrender of Fort Sumter, and had been promised that it would be surrendered. When it became apparant that Lincoln was going to break that promise, they took the fort by force.
You deny what you admit. -- They initiated force, they rebelled.
Also, Article I, section 9 does not imply an intent to abolish slavery. It was put in the Constitution to keep the federal government from doing so.
Before 1808. -- You are in simple denial again.
A valid comment, seeing that you had not answered that post, along with others you'd skipped [#101 & 105], for instance, while you had answered another.
- In any case, to call that an 'attack' is ludicrous.
Before you sent that garbage, I had emailed Mr. Quakenbush to tell him that I would answer his posts when I had the material together. Unlike some people on this site, I don't go off half-cocked. I gather data, marshall facts and arguments. I check to see if I might agree with some of the arguments made by the other person. I do not claim to be infallable and if an argument is valid, I am willing to change my mind. That's what people do who are serious about discussing an issue. It might take more time than just putting down the first bit of nonsense that comes to mind. But respect for the people on this forum demands that we take the time to do things right.
Garbage you say? --- Thanks. - Rants like that just confirm my comments. - To you, -- every disagreement is personal abuse. You need rest.
The point for our discussion, perhaps you will agree, is that those portions of the world making some serious effort to conform their practices to moral law and justice, i.e., Christendom, did eliminate slavery. And they did so as part of what Tocqueville identified as the irresistible force of the doctrine of human equality. The thesis of his book, Democracy in America, is that the tide of human equality was sweeping over the civilized world, and that rather than resist it, the old world should take careful thought how best to order affairs in light of it. I would be interested in what others who have read the history of this time would say about the thesis that emancipation in the British and French empires was entirely an economic phenomenon.
I think the point is that the South was unique, certainly among peoples tracing their political institutions to the Western or Christian civilization, in making a deliberate decision in the 19th century to embrace or defend slavery. In this, they departed diametrically from any society with whom they shared traditional or intellectual connection.
"Self-determination" is a euphemism for self-government, I presume. If not, please tell me what you mean by it.
If you mean self-government, then the definition of "government" given by the Declaration is part of its meaning. And the Declaration states what government is, by nature, when it says that it is to "secure these rights that governments are instituted among men." I think it is fair to read this as meaning that the purpose -- what Aristotle calls the final and governing cause, and most important part of a definition -- of government is that it be ordered to securing the unalienable rights which the document has just mentioned. That means that an arrangement that is not "for the sake of" that goal is, strictly speaking, NOT a government. Or, at least, it is not a legitimate or true government, ACCORDING TO THE DECLARATION.
Please notice further that the word "governed" is connected to the word "government." Again, I think a thoughtful reading requires that we understand "governed" to mean "people who are under the power of the instrument, called government, whose essential purpose we have just defined as being the securing of men's unalienable rights." Without a "government" there are no "governed" people. There may be oppressed people, or a bunch of strong guys having their way with property and weak people. But there is no government as the term is defined in the Declaration.
That means, further, that the statement that governments "derive their just powers from the consent of the governed" means that IF you have a government and governed, THEN the powers of that government ARISE from the original and ongoing assent of the people to that government. It identifies the source of the just powers, assuming that you have a government and a governed, terms with their own meaning.
So, if there really is a government, and that government does something beyond its charter -- like, say, arbitrary arrest -- that power is not just because it exceeds the legitimate charter the government does have.
Variations of circumstance in such error by government are infinite, of course, ranging from merely technical violations of the people's arrangement to secure their rights, to wholesale abandonment of even the pretence of that as a goal. But consent as the litmus test of legitimate governmental power is very precisely consent of the "governed" to the powers of a "government," terms that have defined meaning.
Here is the crucial point: ONLY a group of people acting formally as a "governed" people can give OR WITHHOLD consent from government. I don't mean that they have to have hats that say "governed" on them. I mean that the kind of approval the document means by "consent" is the kind of answer that a people gives to the precise question --- "is this arrangement we have made to secure our unalienable rights still behaving itself as an instrument devoted to that purpose?" For example, children and cows cannot withhold their consent, because they are not capable of giving it -- because they are not capable of acting as the authors of such an arrangement.
This is altogether different from a reading of the document to mean: "arrangements of power among people are just as long as people agree to them for any reason they please." There is nothing in the Declaration that suggests that any such power would be viewed as a government, except in so far as it is implicitly an institution by the people to secure the unalienable rights listed.
This means that a group claiming to escape the rule of their government by "withholding consent" on an arbitrary basis -- like the defense of slavery simply because they want it -- are not acting as "governed" people. They are not acting as actual, or even potential, participants in the very nature of the relation of government to governed. They are, in fact, acting as a group of people wholly ignorant of the very nature and purpose of government, and of the governed, defined by the Declaration. And they are, in the legal and moral sense, INCOMPETENT TO GIVE OR WITHHOLD CONSENT TO THEIR GOVERNMENT until they begin to notice, or remember, the nature and purpose of government.
I don't believe that the people in Iran, for instance, are morally right. They certainly don't believe in human equality. But I also believe they have the right to determine their form of government. I disagree with that form of government. But I don't think that anyone has the right to impose a government on the people of Iran without their consent. Do you?
The people of Iran, like all people, are competent to claim and exercise the right to self-government just in so far as they understand and assent to the nature and purpose of government. Whether or not someone else has the right to impose something on them if they are incapable of self-government at the moment, and are interfering with the self-government of a group that is capable of it, is another question. They have the right to self-government by nature, and can claim it legitimately in fact, in the measure that they know what it is.
I would say it was an attempt to rationalise, to paint the decision by the souths slaveholders in a better light. -- That once they came to their economic senses, they too would have emancipated.
It is almost a textbook example of being banal about evil, imo.
A President could claim any power, but his assertion will only be acquiesced in by Congress, the people, and/or the judiciary if it is a plausible claim. The basic reason for having a commander in chief is to enable to government to act quickly and efficiently to in an emergency (particularly a large scale rebellion which occurs close to the capital).
The clear purpose of Art. I, Sect. 9, paragraph 2 is to prevent the government from suspending habeas corpus when there is no rebellion or invasion taking place. From Jefferson's writings it is apparent that he thought (at least initially) that habeas corpus should never be suspended, but Art. I, Sect. 9 certainly makes it clear that habeas corpus may be suspended during a rebellion when the public safety so requires, even though it doesn't make clear who has the power to suspend it. The commander in chief is obviously in charge of responding quickly and efficiently to rebellions and invasions which threaten the public safety. Thus if the President determines that the public safety requires the suspension of habeas corpus, the implication of Articles I and II is that he has the power to do so -- particularly when Congress cannot convene in time to respond effectively to the threat. But as I've stated, if you don't like what Lincoln did, propose an amendment to the Constitution whcih forbids a President from doing what he did.
[Article III] doesn't say that they can have a bathroom in their chambers either. No specific powers are delegated (contrasted with Articles I & II). In Article I there is no specifications on the mundane operations of Congress, the same for Article II. The legislature is delegated the power to suspend the writ, and historically, who commands that a person be brought into court at a given time and place? Lincoln?
Your point is a little obscure here. Are you suggesting that suspending habeas corpus is not "mundane" enough to be included in the scope of being the commander in chief? What about holding prisoners of war without an indictment? Is that "mundane" enough for you to include it within the scope of Art. II, Section 2? Or do you think that prisoners of war are entitled to habeas corpus protection absent a Congressional suspension of the writ?
A quorum could have quickly been assembled in days for the Eastern/Northern/Midwestern states. Lincoln avoided any possible repercussions by keeping Congress from meeting.
The fact that the President (rather than say the Speaker of the House or the Senate Majority Leader) is given the power to convene a special session also implies that he is to exercise his discretion in the best interests of the United States. Mr. Quakenbush makes a good point in Post #128 above that the Congressmen should be given suggicient time to consult with their constituents before convening. You are obvious being rather blind to the logistical realities of 1861 America. And to suggest that Congress should convene without even giving Far Western Congressmen any chance to reach Washington is ridiculous.
As for "repercussions", you seem to be ignoring the fact that the Republicans controlled both houses by a substantial majority. While Republican control and Lincoln's popularity slipped somewhat as the war dragged on, in 1861 even the Democrats were "rallying around the flag".
The only people that think [the Constitution is] ambiguous are those that try to read something into it that isn't there.
You seem to be saying that if everyone were to interpret the Constitution exactly how you want them to, it would not be ambiguous. I agree.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." See prior comment. How hard is that to understand?
Please list all of the powers not delegated to the U.S. or prohibited by it to the States, and then tell me which of those are reserved to the people and which are reserved to the States. Then tell me whether "the people" refers to individuals or the people that have been elected by majorities/pluralities. That should be a simple task for soemone like you who does not believe in the existence of Constitutional ambiuguities.
I'll address your other points when I have time later.
I would hope that a lawyer would have understood the simple concepts of "limited, enumerated powers", and "separation of powers". Taney didn't agree that Lincoln had the power to suspend the writ of habeas corpus. And if Lincoln disagreed with Justice Taney, then it was Lincoln's duty to appeal it to the Supreme Court - a concept that Lincoln certainly understood. Previously you had asserted that it was up to Taney to arrest him, or in some other fashion force Lincoln to obey the law. Again, a President that considers himself above the law is a dictator, not a leader. And the people did not "acquiesce" to Lincolns action, as more states seceded in response to sveral of Lincolns actions.
Thus if the President determines that the public safety requires the suspension of habeas corpus, the implication of Articles I and II is that he has the power to do so -- particularly when Congress cannot convene in time to respond effectively to the threat.
The whole point was that Taney had ruled it was not for Lincoln to decide. And every quote I could find by the founders during debate always regards it as a legislative power - never an executive one. Why resort to a contorted reading of Article I that finds a solitary Executive right amidst Legislative powers and limitations? Obviously, if the founders wanted to delegate/limit that power to the executive then they would have enumerated it in Article II. A careful reading of Article I, sections 9 & 10 will result in the understanding that the founders had considered this, as Section 9 limits federal legislative powers, Section 10 limits state legislatures.
Article I, Section 5: "Each House shall be the Judge of the Elections, Returns and Qualifications ofTo hear some on your side, fire hadn't even been invented. The telegraph had been invented years before, and trains as well. A simple majority of congressmen could have assembled in days, enough to LEGALLY sanction Lincoln's actions if so desired.
its own Members, and a Majority of each shall constitute a Quorum to do Business."
But as I've stated, if you don't like what Lincoln did, propose an amendment to the Constitution whcih forbids a President from doing what he did.
Amendment X - why not admit to the PLAIN meaning of the amendment? And if Lincoln didn't follow that one - what then? Propose another? And another? That's exactly why secession/nullification protects states.
Are you suggesting that suspending habeas corpus is not "mundane" enough to be included in the scope of being the commander in chief?
What I meant was that the Constitution does not describe in minute detail HOW certain powers are exercised, only that the power had been delegated/prohibited.
You seem to be saying that if everyone were to interpret the Constitution exactly how you want them to, it would not be ambiguous. I agree.
No, I maintain that a plain reading of the Constitution is all that is required. It was written for the people to understand - not only by lawyers and justices. If the power is not there, the courts are failing to uphold their duties by inventing "rights" and "powers" that were unknown to the founders with some contorted reading. They gave us the amendment process to make whatever changes were necessary. Not just to fill space on some parchment.
Please list all of the powers not delegated to the U.S. or prohibited by it to the States, and then tell me which of those are reserved to the people and which are reserved to the States.
Make a list of every "power" known to man. Strike from this list every power delegated to the federal government by the Constitution. Strike ever power prohibited by the Constitution to any federal or state government (note: powers could be prohibited at the federal level, and allowable for state governments). There's your list.
The powers that are performed by individuals are retained by individuals (the Bill of Rights list a few). What can only be performed by a government is retained to the states. Sescession would be a power reserved to the states, not individuals, as inividuals were not a party to the ratification, the states were. But I like Justice Thomas' explanation:
"In each State, the remainder of the people's powers-- "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt.10--are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it."
Justice Thomas, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)
Yes.
You prefer no change to change for the better. That's why you're a conservative and I'm a libertarian.
Would you want X42 or any President to have any power (judicial, legislative and executive)?
No. I certainly wouldn't want any President to have the power that Jefferson Davis had. Nor would I want a constitution like the Confederates' that prohibited the abolition of slavery. Talk about the despotic power! That's the problem with you Confederate glorifiers. To you, the state can do no wrong. If a majority of the citizens of your state wanted to secede so that they could form a state based on the ritual kidnapping and raping of nine year old girls, your analysis would support their "right of secession and self-government."
Sherman didn't destroy entire cities?
Name one. (If you'd like to read a fair and comprehensive analysis of the ethics of Sherman's battlefield tactics, read this.) Although Sherman's tactics were hard on civilian property, few citizens were harmed by his tactics compared to other wars. Consider, for example, the fact that hundreds of thousands of Japanese civilians died in bombing raids even before nuclear weapons were employed.
The problem with rules of war which seek to protect civilians is that they only encourage dictators and their armed forces to hide behind human shields. War is hell, but for some 4 million negroes, life itself under slavery was also hell.
More people were killed in that war than any war prior.
I didn't say it wasn't a long and bloody war. Nevertheless, disease killed far more soldiers than battles.
It was most uncivil - civilians are not prone to running onto the battlefield and being caught in crossfires.
They didn't have to run anywhere. The people of Atlanta only had to stick around town long enough for the Confederates to retreat into town to try to use them as human shields.
Northerners wanted nothing to do with blacks, except to send them out of the country, keep them in the south, or prevent them from migrating north and west.
Nonsense. There were plenty of Northerners who were quite sympathetic to the plight of negroes and attempted to help them, including Mary Todd Lincoln.
In the South many whites worked side by side with the slaves. But you should read the Slave Narratives in the Federal Writers project. Real, honest-to-goodness, ex-slaves. You'll find some mistreated, and many more that state that they loved their masters, loaned them money, defended them, even wished for the good old days.
It's not too hard to find accounts of a few slaves who were relatively well treated. I read one recently about a slave whose job was being a stud. Of course, if slavery was so popular with the slaves, why were the slaveholders so adament about the enforcement of fugitive slave laws? (Check out these accounts of escaped slaves.) And why did all able bodied Southern white men have to serve in the slave patrols?
And how do you explain the negroes that jumped and sang in joy when they were freed by Union troops and were very helpful in providing information on troop strengths and movements to them? (The history of my gggrandfather's Illinois cavalry regiment contains many such accounts.) Any negroes who enjoyed life as a slave were perfectly free after the passage of the 13th Amendment to continue to live the same way, but few (if any) chose to do so.
There were never massive slave revolts before the war
It's pretty hard to revolt when you have no weapons or other resources and are threatened with brutal whippings for even talking about escaping.
...no revolts against the women and children remaing at home when the EP was issued.
The Emancipation Proclamation specifically urged slaves to abstain from violence.
Lincoln made it very clear when he was inaugurated that his first priority was holding onto the forts, post offices, and tariff houses - and collecting the MONEY. He said nothing about forcing states to rejoin the union.
You expected him to announce his strategy in public? From Battle Cry:
"Lincoln had hoped to cool passions and buy time with his inaugural address -- time to organize his administration, to prove his pacific intent, to allow the seeds of voluntary reconstruction to sprout." (See page 264.)
Of course, the Confederate attack on Fort Sumter ended any realistic thoughts of voluntary reconstruction, both because it galvanized pro-war Northern opinion and made it clear that the Confederates were bloodthirsty rebels.
In further response:
"Then came the Freedmen's Aid Societies, born of the touching appeals for relief and help from these centres of distress. There was the American Missionary Association, sprung from the Amistad, and now full grown for work, the various church organizations, the National Freedmen's Relief Association, the American Freedmen's Union, the Western Freedmen's Aid Commission, -- in all fifty or more active organizations, which sent clothes, money, schoolbooks, and teachers southward." Source.
I do not understand your idea of sovereign executive power. The Supreme Court cannot be considered an authority that can overrule the President's judgment about what is necessary and Constitutional in order to accomplish the essential tasks of the President's office. On matters the President judges of fundamental importance, he is his own ultimate authority on the Constitutionality of his actions. The only recourse available in the Constitution is not a correction or restraint on him, but his removal from office. A sitting president bears the executive power of the sovereign American people in his person, and the ultimate responsibility for judgment as to the use of that power. If the Supreme Court can simply overrule his judgment about his own office, then he is the agent of the Court, and not the bearer of co-equal sovereignty.
The whole point was that Taney had ruled it was not for Lincoln to decide.
But the other whole point is that Taney can't decide for the President the limits and priorities of his office. Presidents can take council from the decisions of the judicial branch, may be well advised normally to presume that they are reliable guides of Constitutional interpretation, and are bound to enforce court decisions on the entities over which those decisions are sovereign. But those decisions cannot be sovereign over the sovereign executive power. Supreme Court decisions can, of course, exercise moral authority or rational authority over the President's judgment. But they cannot dictate it.
A president who violates his own fundamental judgment about what is necessary to fulfill his oath, because a judge tells him to, is unfit for his office. Lincoln had the most solemn responsibility to seek to fulfill his oath under the most reasonable and prudent understanding of his office that he could form. Neely's book makes it clear that this is what he did, however many particular judgments one might quarrel with. What he did not do, and could not do without violating his oath, was to place the responsibility for determining his duty in the hands of the Chief Justice.
And every quote I could find by the founders during debate always regards it as a legislative power - never an executive one.
It is clear enough that it is implicitly contemplated by the Constitution as being under the supervision or concern of the Congress to suspend habeus corpus -- the Congress being normally the body most concerned to guard civil liberties, I suppose. But it is, to me, more clear that the Constitution does not explicitly restrict the power to Congress, and that the duties of the executive -- of executive power in principle -- in time of crisis include a general responsibility that the national sovereignty not fail of its legitimate application because of merely implicit and technical considerations.
One can no doubt fret at great length about the danger of tyranny in such cases, but I find it a wholly abstract and impractical fretting.
A simple majority of congressmen could have assembled in days, enough to LEGALLY sanction Lincoln's actions if so desired.
The idea of a snap quorum of representatives from states that happen to be close to Washington raise such other, alarming questions as to make my general point in this whole discussion -- the Constitution envisions real men making real prudential judgments. Lincoln summoned a special session in what I consider to be clearly the shortest time he could reasonably have done so. In the meantime he attended to the manifest and pressing executive concern of maintaining the execution of the laws and the safety of the national capitol. Both before and after the special session was convened, he did what he thought was necessary to accomplish his oath, believed he was respecting the spirit and letter of the Constitution, and did not allow the fate of the national government to hang on legalistic technicalities. I think he did his job.
Here is what Neely quotes James Randall as saying on this point (page 13 of "The Fate of Liberty: Abraham Lincoln and Civil Liberties)referring to Lincoln's message to that special session:
"one may read [here], as it were, the President's mental struggling at the time the decision was taken. In this remarkable document may be seen the clearest indication that the appearance of military dictatorship was a matter of deep concern to the nation's war chief and that his action was determined by what he believed to be the imperative demands of the actual situation."
Neely goes on to say: "Randall denied that Lincoln needed Taney's criticism: 'As a matter of fact, few measures of the Lincoln administration were adopted with more reluctance than this suspension of the citizen's safeguard against arbitrary arrest.'"
Indeed it was, but in no way does that fact alone discredit it as a legal opinion. Even if it did, I'd direct your attention to John Marshall's majority opinion for the supreme court in Ex parte Bollman & Swartwout:
"If at any time, the public safety should require the suspension of the powers [editors note: "powers" refers to that of the court to award a writ of habeas corpus] vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws."
In his opinion, Taney suggests that Article I of the U.S. Constitution [which contains the habeas corpus suspension provision] "is devoted to the legislative department of the United States, and has not the slightest reference to the executive department." Taney is clearly erroneous about that.
Though in the strict sense, article I does have a reference to the executive department, Taney is absolutely correct that article I is devoted to the legislative department, not the executive. I direct your attention to section I of the said article, which states very plainly "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Executive powers are vested in the president in article II.
Moreover, there are numerous others references in Article I to the powers of individual states
But only to the degree that:
A. such states are entitled to representation in the legislative body
B. Congress may enact certain types of legislation pertaining to the said states
C. Congress may not enact certain types of legislation pertaining to the states
D. Individual states may not exercise certain authorities that are of Congress, namely section 10, (i) which prevents state intrusion upon certain enumerated congressional powers and (ii) requires the consent of congress for certain activities of states
Accordingly, Article I is directly oriented in practically every way around the legislative branch of the government.
In fact, Section 9 therein (which contains the provision for suspending habeas corpus) contains one specific reference to what Congress can do (in the first paragraph), but the rest of that section contains no references limiting its applicability to Congress,
Such a limitation is inherent to Article I itself: "All legislative Powers," meaning that which is specified, "herein granted," meaning in Article I, "shall be vested in a Congress of the United States," meaning the legislative branch of the government.
"which strongly suggests that those restrictions apply to all branches of Congress
The branches of congress are the house and senate. If you instead mean all branches of government, you are mistaken on both precedence and for reasons which I will discuss shortly.
(and arguably to individual states as well).
Not really, and such a statement is rather absurd considering the contents of the said section. Restrictions contained throughout that section are oriented to the national legislative branch alone. Consider clause 4 "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." The requirement of proportion to the census very clearly demonstrates this legislative restriction's applicability specifically to the congress itself. Then there is clause 5: "No Tax or Duty shall be laid on Articles exported from any State," a clear reference to commerce that exists among the states and not of one state alone, therefore again making it a federal legislative restriction.
It gets even more difficult for your argument as we continue. Clause 6 opens: "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another;" First, regulation of commerce is a direct reference to Congress' power to do such among the states. Second, an individual state's legislature would likely find it quite difficult to give preference in the regulation of commerce to its own state by legislating over the ports of another state in which no such authority to legislate exists. Therefore this clause can only be a reference to the United States Congress. Clause 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." An individual state would find similar difficulty in appropriating itself money drawn from the national treasury beyond congressional approval of such, or provision upon which such could occur. Clause 8: "No Title of Nobility shall be granted by the United States" - an individual state would have great difficulty granting a title of nobility for the united states as a whole, as to do so would again extend beyond its authority. Clause 8 continued: "And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." Again, a clear reference to Congressional consent itself, not state legislatures or any other branch.
According to McPherson, "several prominent constitutional lawyers rushed into print to uphold the legality of Lincoln's position [on the suspension of the writ of habeus corpus]".
That they may have, but a simple lawyer's opinion does not fulfill the role of arbiter of the constitution. That role is in the supreme court, and as was noted, Marshall, writing on the part of the supreme court, noted the courts authority to grant writs came from the legislature and that the suspension of such vested authority in a time that public safety should require it was an act for the legislature to say.
Taney made a weak attempt to have his order to free Merryman enforced by U.S. marshals, but ultimately he complained that he had "exercised all the power which the constitution and laws confer upon [him], but that power has been resisted by a force too strong for [him] to overcome", so he merely called for the President "in fulfillment of his constitutional obligation to 'take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."
This last statement makes it clear that Taney either lacked the courage of his convictions
I ask you then how so? I further question based upon your assertion of this to be the case, your familiarity with the constitutional history of the court itself. It was recognized dating back to marbury that the court itself had only its own authority and word. Enforcement came elsewhere. Taney was simply reasserting this principle, and correctly so.
or (more likely) was just making his latest attempt to please his Confederate friends.
Again, your ignorance of the constitutional history of the court is showing. You are attacking Taney's decision not on its intrinsic merits or legal scholarship, but rather on an unsubstantiated appeal to vaguely asserted and presumed external motives. Considered in and of itself, Taney's opinion is in consistency with prior precedent and legal scholarship, specifically the Marshall opinion I cited for you and the commentaries on the same subject by Story, not to mention a common sense strict reading of the Constitution.
Don't forget that this was the same Taney who issued the infamous Dred Scott decision.
Again, you give me reason to doubt your familiarity with the constitutional history and processes of the supreme court. The Scott decision was indeed infamous, and Taney was part of the majority on that decision. But that in no reasonable way renders every single decision he has ever made null and void any more than a bad decision on a single modern case renders the vote of any particular justice today on all other given cases null and void. If you knew your constitutional history, which obviously seems to be a point of trouble for you at least in this area, you would note that the Taney court produced more than its fair share of landmark rulings on items of basic constitutional principles in consistency with that document's original intent and meaning. Dred Scott was obviously an error in and of itself, but it does not make all Taney decisions erronious in and of themselves. To assert otherwise as you appear to do is fundamentally irrational.
As McPherson points out, Taney's "main theme of his twenty-eight year tenure on the Court was the defense of slavery."
I would disagree with you there, noting Taney's court to have been characterized most prominently by its decisions on commerce regulation, economic issues, and the sort.
Taney also had a well known grudge against the Lincoln administration even before inauguration,
In other words, you are again trying to discredit Taney's opinion per se on external circumstance. As a side note, one could easily make and document the argument that Lincoln had a grudge against the Taney court as exhibited during his senate debates and presidential campaign speeches, thereby making him less inclined to abide by any ruling by Taney. But that's only if we argue in circumstance as you insist upon doing.
To summarize, the habeas corpus provision is rather ambiguous
Not really. It is under an article explicitly directed to the legislative branch with little more save the direct interaction of other branches in a legislative function (such as impeachment and signing legislation).
and a strong argument could be made that the President is entitled to suspend the writ of habeas corpus during a rebellion
Historical constitutional scholarship on the part of the supreme court and its greatest justices, such as Marshall, argue otherwise, and I would argue that they, along with a common sense reading of the constitution (as opposed to the tortured one you yourself give it) are the opinion that matters.
particularly when Congress is not in session or does not object.
Again, Marshall seems to think otherwise.
In any event, in the case of Lincoln's suspension of habeas corpus, Congress specifically approved of and ratified his decision.
But it was not his decision to make in the first place. It was congress' decision. Your argument is akin to the president deciding all of a sudden he wants to hike the income tax by 10%, instructing the IRS to make it so, and then after the fact recieving a simple congressional acknowledgement that states "yeah, we agree with you" and fails to legislate by statute that decision to be so.
Keep in mind that when the rebellion broke out in 1861 Congress was not in session, and organizing a special session was not easily done at that time given the state of communications and transportation.
Still, it nevertheless could have been done. The "rebellion" broke out in an isolated event on the coast of South Carolina and proceded slowly from there.
The fastest route from California and Oregon then was by ship and overland through Central America.
And that was exactly the problem that plagued those state's senators and representatives regardless of the circumstances and timing. If you look at the congressional records from those times, you will note widespread extended and frequent absences of those said persons, yet the senate and house operated just fine.
Congressmen also had families, jobs, and responsibilities at home which made it quite difficult for them to drop everything and head for Washington
Well sorry for the inconvenience! That's life!
Lawyers understand that there is nothing simple about the concepts of "limited, enumerated powers", and "separation of powers".
Taney didn't agree that Lincoln had the power to suspend the writ of habeas corpus. And if Lincoln disagreed with Justice Taney, then it was Lincoln's duty to appeal it to the Supreme Court - a concept that Lincoln certainly understood. Previously you had asserted that it was up to Taney to arrest him, or in some other fashion force Lincoln to obey the law. Again, a President that considers himself above the law is a dictator, not a leader. And the people did not "acquiesce" to Lincolns action, as more states seceded in response to sveral of Lincolns actions...The whole point was that Taney had ruled it was not for Lincoln to decide.
I thought I already plowed this ground earlier. Refusing to obey an order of a lower court has always been a valid (albeit risky) option for challenging the order. When the habeas corpus issue eventually reached the Supreme Court in the Vallandingham case, the Court determined that it did not have jurisdiction over the proceedings of a military court (see Battle Cry, page 599, fn. 17), thus confirming the propriety of Lincoln's refusal to abide by Taney's Circuit Court order.
...every quote I could find by the founders during debate always regards it as a legislative power - never an executive one.
Yet they didn't specifically limit habeas corpus suspension to the legislature as they had other powers, nor did they exclude it from the President's powers as "commander in chief" (in itself a very broad and ambiguous concept).
Why resort to a contorted reading of Article I that finds a solitary Executive right amidst Legislative powers and limitations? Obviously, if the founders wanted to delegate/limit that power to the executive then they would have enumerated it in Article II.
Get real. There is only one mention of Congress in nine paragraphs of Art. I, Section 9; Section 8, on the other hand, makes it clear that all paragraphs are referring to Congressional power; and Section 7 specifically mentions powers of the President in two of three paragraphs. The only pattern there is the lack of one.
A careful reading of Article I, sections 9 & 10 will result in the understanding that the founders had considered this, as Section 9 limits federal legislative powers, Section 10 limits state legislatures.
Section 10 places restrictions on state government in its entirety, not merely on state legislatures. Are you saying that if a state constitution permits a governor to enter into treaties, Art. I, Sect. 10 does not prohibit him from doing so?
"...a Majority of each [House of Congress] shall constitute a Quorum to do Business..." A simple majority of congressmen could have assembled in days, enough to LEGALLY sanction Lincoln's actions if so desired.
So I take it that you would consider it Constitutional for a majority of Congressional members to convene and transact business without even giving the other Congressmen any possible opportunity to join them? Not only would that violate the essential nature of a representative democracy, it would probably be ruled a violation of due process.
Amendment X - why not admit to the PLAIN meaning of the amendment?
I'm still waiting for you to provide me with what you think the "plain meaning" of the 10th Amendment is.
And if Lincoln didn't follow that one - what then?
I've plowed this ground before. Impeachment is the people's remedy for getting rid of a President who violates his oath. Not only was Lincoln not impeached, he was re-elected. If Lincoln was a "dictator", he must have been an extremely benevolent one.
What I meant was that the Constitution does not describe in minute detail HOW certain powers are exercised, only that the power had been delegated/prohibited.
So since your Constitution is not ambiguous, please explain what a President can and cannot do as commander in chief. Is he allowed to set up military courts? Can he order the capture and holding of prisoners of war without indictments? If so, how would you define a prisoner of war under your unambiguous Constitution? Can he hold suspected spies without an indictment?
Make a list of every "power" known to man. Strike from this list every power delegated to the federal government by the Constitution. Strike ever power prohibited by the Constitution to any federal or state government (note: powers could be prohibited at the federal level, and allowable for state governments). There's your list.
OK, please explain to me what powers Congress does not have, given the Art. I, Section 8 clause granting them the authority to "make all laws which shall be necessary and proper for carrying into execution ... the powers vested [in] the Constitution in the Government of the United States..."? If the U.S. Government can only "secure the blessings of liberty" (see the Preamble) for negro slaves and defend the property and civil rights of Unionists against an insurrection in the South by using the military to quash a rebellion there dedicated to seceding from the U.S. and preserving slavery, is that not "necessary and proper"?
What can only be performed by a government is retained to the states.
There is nothing that can only be done by government, so by your analysis the Constitution was intended to grant the states no power at all. I'm beginning to like your interpretation of the Comstitution, but I doubt that any Supreme Court Justice (even Thomas) would agree with it.
Sescession would be a power reserved to the states, not individuals, as inividuals were not a party to the ratification, the states were.
You've just contradicted yourself. An individual can issue a "declaration of secession" just as nonsensical as those issued by the Confederate states. And if individuals were not party to the ratification of the Constitution, how can they be bound by it? What if they choose to be bound by it anyway? How can the state they happen to reside in take that away from them by seceding? Could the state of Georgia Constitutionally secede and declare you a slave of the state?
I like Justice Thomas' explanation: "In each State, the remainder of the people's powers-- "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt.10--are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them.
Why is it up to state constitutions? Where is that in "the plain language of the Constitution"? Why is it not up to individuals residing in the state to specify which powers they wish to give away to the state? If the state Thomas resides in chose to secede and declare all black people slaves, do you think Thomas would go along with that?
No, it just renders it of little weight, as does Taney's well known pro-slavery inclinations.
I'd direct your attention to John Marshall's majority opinion for the supreme court in Ex parte Bollman & Swartwout:
You're late for class. I've already explained in Post #60 that your Marshall quote was mere dictum.
Such a limitation is inherent to Article I itself: "All legislative Powers," meaning that which is specified, "herein granted," meaning in Article I, "shall be vested in a Congress of the United States," meaning the legislative branch of the government.
There are legislative powers specified in Articles II, III, IV, and V. Art. I deals mostly but not exclusively with legislative powers. Things aren't as cut and dried as you and 4Con would have us believe.
Restrictions contained throughout that section [9] are oriented to the national legislative branch alone...
So you and 4Con would have us presume. I was wisely taught in law school to never make presumptions regarding the law. If Section 9 is only intended to apply to Congress, why does the last paragraph state "No Title of Nobility shall be granted by the United States" instead of "by the Congress"?
I ask you then how so [it is clear that Taney either lacked the courage of his convictions...]? I further question based upon your assertion of this to be the case, your familiarity with the constitutional history of the court itself. It was recognized dating back to marbury that the court itself had only its own authority and word. Enforcement came elsewhere. Taney was simply reasserting this principle, and correctly so.
Federal Courts (including Taney's Circuit Court) have the power to enforce their habeas corpus orders with U.S. Marshals, who are at their disposal pursuant to the Judiciary Act of 1789. Taney could have asked the Marshals to use whatever force was necessary to free Merryman from military control. He did not.
You are attacking Taney's decision not on its intrinsic merits or legal scholarship, but rather on an unsubstantiated appeal to vaguely asserted and presumed external motives.
I'm not "attacking" anyone or anything. I'm simply pointing out the facts and speculating on why Taney didn't make more of an effort to have his order enforced. Do you deny that Taney was a friend of the Confederates?
As a side note, one could easily make and document the argument that Lincoln had a grudge against the Taney court as exhibited during his senate debates and presidential campaign speeches, thereby making him less inclined to abide by any ruling by Taney.
I strongly agree.
Your argument is akin to the president deciding all of a sudden he wants to hike the income tax by 10%, instructing the IRS to make it so, and then after the fact recieving a simple congressional acknowledgement that states "yeah, we agree with you" and fails to legislate by statute that decision to be so.
No, because hiking the income tax could not reasonably be said to fall within the scope of being "commander in chief" of the armed forces, whereas suspending habeas corpus to protect the public during an invasion or rebellion arguably could.
The "rebellion" broke out in an isolated event on the coast of South Carolina and proceded slowly from there.
Hardly. Plans by Maryland secessionists to invade and/or cut off Washington, D.C. from nonslave states were quickly being implemented. Mobs in Baltimore attacked the 6th Mass. Infantry on April 19th, and the mayor and chief of police ordered the cutting of telegraph wires and the destruction of bridges on the main railroad connecting Washington to the North (which Merryman participated in). Virginia was seceding and capturing Harper's Ferry and Norfolk. The War Department under Buchanan had treacherously transfered many armaments to Southern forts and armories, so the Confederate operatives were working fast and furiously to undermine the Union even before Lincoln assumed office. You're way out in fantasyland with 4Con and the other Confederate glorifiers.
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