Debate continues over 'The Real Lincoln'

Editor's Note: WorldNetDaily talk-radio host Geoff Metcalf recently interviewed Dr. Thomas DiLorenzo, author of "The Real Lincoln." In his book, as in the interview published April 14, DiLorenzo claims the 16th president was far more concerned with economic centralization than the abolishment of slavery. The interview elicited strong responses from readers, about half of whom disagreed with the author's assertions. Among them was Dr. Richard Ferrier, president of the Declaration Foundation. According to Ferrier and scholars at the foundation, the evidence DiLorenzo uses to back his claims actually proves the author wrong. Ferrier, who calls DiLorenzo's scholarship "sloppy," explains the quandary in his interview with Metcalf.

Metcalf's daily streaming radio show can be heard on TalkNetDaily weekdays from 7 p.m. to 10 p.m. Eastern time.

A: Falsehood, basically. Falsehood in details, sloppiness of scholarship and a fundamentally wrong-headed view of the role of Lincoln and the Declaration of Independence, and American history and our political philosophy.

Q: One of the key items DiLorenzo focused on was his suggestion that the debate between Thomas Jefferson and Alexander Hamilton was won for Hamilton by Lincoln. Was he wrong?

A: Yes, I think he's wrong. I think Jefferson and Hamilton fundamentally agreed, and Jefferson is the one DiLorenzo will pick as being on his side – that the American Union began not with the Constitution but with the Declaration of Independence. Jefferson said so in a letter to the board of governors.

A: What that means is that we are a people with a limited but sovereign federal government under the rule of law whose spirit is given in the Declaration of Independence. I think on that point Hamilton and Jefferson agree, and they both disagree with Calhoun and Jefferson Davis and the people who started the rebellion of 1860-61. He's just wrong on that, but he's wrong on more gross and obvious matters.

Q: What I am specifically concerned with is what you claim are his factual errors.

A: Suppose I said to you, "Jesus said, 'I will do this: I will pull down my barns and build larger ones where I will store all my grains and all my goods, and I will say to my soul, soul you have ample goods laid up for many years. Take your ease and eat, drink and be merry.'" Is that true?

A: He did. It's in a parable. He has somebody else say it. Jesus tells the story about the rich man, and those are the words of the rich man. So in a way, it's true that Jesus said that; he said it in quotation marks. He didn't say it himself.

A: So listen to this from Tom DiLorenzo's book: "Lincoln even mocked the Jeffersonian dictum enshrined in the Declaration of Independence that all men are created equal. He admitted that it had become a genuine coin in the political currency of our generation but added, 'I am sorry to say that I have never seen two men of whom it is true. But I must admit that I never saw the Siamese twins and therefore will not dogmatically say that no man ever saw proof of this sage aphorism.'" That is supposedly from Lincoln. DiLorenzo goes on to add, "So with the possible exception of Siamese twins the idea of equality, according to Lincoln, was a sheer absurdity." This is in stark contrast to the seductive words of the Gettysburg Address 11 years later, in which he purported to rededicate the nation to the notion that all men are created equal.

Q: There is a footnote in DiLorenzo's book regarding that quotation, citing the first Lincoln-Douglas debate.

A: Yes, and when I was researching the book, I dutifully followed up the footnote and read the passage. Rather, I didn't find the passage because it isn't there. It is nowhere in the first debate. It is nowhere in any of the debates. Where it is is in an 1852 eulogy of Henry Clay, and Lincoln is quoting a Virginia clergyman with whom he disagrees. In other words, it's a lie. Lincoln never said those words in his own voice. It is not only a lie, but it is either an incompetent or malicious inference that Lincoln contradicts himself in the Gettysburg Address when he declares his solemn faith in the American creed that "all men are created equal."

Q: DiLorenzo quotes Lincoln from the Lincoln-Douglas debates, saying, "I have no purpose to introduce political and social equality between white and black races, and I have never said anything to the contrary." Did Lincoln ever say that?

A: He did say that. But DiLorenzo has the citation wrong there, too. It is from a speech Lincoln gave in Peoria in 1854. Lincoln, who was a lawyer and was careful with his words, did not say "I do not believe in that equality. I do not think it is a good thing." He said, "I have no purpose to introduce it." Those are the words of a careful lawyerly politician who knows perfectly well how much good you can accomplish in your time and how much (if you espouse it) will ruin your career and keep you from accomplishing the good you can accomplish. So yes, it's perfectly true that Lincoln said, "I have no purpose," meaning, "I don't at the moment intend to bring about such equality." And if he had said anything else in Illinois in the 1850s, he couldn't have been elected to dogcatcher.

Q: DiLorenzo includes the Lincoln letter to Horace Greeley in 1862. Is that accurate?

Q: Hold on, here's the quote: "My paramount objective in this struggle is to save the Union; it is not to either save or destroy slavery. If I could save the Union without freeing any slave, I would do it." What's the rest of it?

A: He continues, "I say nothing about my well-known desire that all men everywhere should be free." In other words, he's speaking as a public man with respect to his constitutional duty, which is to preserve the Union. Now it should be said that Lincoln thought the Union wasn't just a legal entity or a practical entity but an entity like a human being – a body and a soul. And the soul of that entity was the truths that are expressed in the Declaration, including the truth that all men are created equal.

I was a vice chair of the Proposition 209 [California's anti-discrimination law] campaign and a friend of Glynn Custred. This principle of human equality and treating people according to skin color or race is more than dear to me. I have labored in the vineyards for it. Lincoln thought the American Union was not just a matter of laws and conventions and agreements, but it was a kind of spiritual compact. He drew that from the Declaration that, itself, goes back to our Protestant colonial forebearers who believed from Scripture and reason that all men are created equal. So when Lincoln wanted to save the Union – and told Greeley that in a letter – Lincoln is thinking, "I will save the Union, whose heart and soul are the truths that are spoken of in the Declaration." In fact, if it was unwise in the short term to issue an Emancipation Proclamation, he would hold it off. When it was the right time to do it, he would do it.

Q: I asked Dr. DiLorenzo if, in his opinion, Lincoln was a dictator. He said that even some of the most pro-Lincoln historians had called him a dictator. Do you consider Lincoln a dictator?

A: No, I don't. That is a vexed question. By the way, it's a good question for both sides of the Civil War. One of the unhappy things about DiLorenzo's scholarship is that he pays no attention to broad historical context and doesn't look for example at the actions of Jeff Davis and the Confederate government. He finds fault with Lincoln for the suspension of habeas corpus, for various measures taken to suppress sedition in the states under control of the Union, and pays no attention …

Q: I didn't realize so many American citizens were thrown in the slammer just for disagreeing with him.

A: They weren't thrown in the slammer for disagreeing with him. They were thrown in the slammer for encouraging sedition and desertion. There is a long and complex scholarship on this, and you won't get much of it or a balance of it from the book. There was suppression of newspaper editors in Richmond, declaration of martial law in numerous areas of the Confederacy. The Confederacy instituted conscription in advance of the Union. Tom is a libertarian, and he thinks economic issues dominate everything. He thinks personal liberty is the absolute trump card in every argument. He's entitled to think that, but he applies that to Lincoln and the Union without a glance at the corresponding actions in the Confederacy.

Both parts of the American republic in that unhappy war did similar things, and they both did them with respect to sustaining the integrity and security of the Confederacy or the Union. Lincoln is consistently modifying the actions of his subordinates in the direction of liberty and leniency. He has hotheads he has to keep under his control – notably Ambrose Burnside and Ben Butler, who are responsible for unwise actions. And down the line, Lincoln reverses those actions in the direction of liberty. He did that because he conceived of the war and of his sustaining of the Union as a defense of fundamental human rights as expressed in the Declaration.

Q: I was intrigued by Tom's book, because I don't have a dog in this fight. My litmus test is the Constitution and the Bill of Rights.

Q: Fine, we'll make it the troika. Several of the things Lincoln did were specifically designed to abrogate, eviscerate and destroy the very document to which he swore an oath. To say, "Well, gosh, the other guys were doing it too," is not an adequate defense.

A: That is fair enough. In a way, you almost want to look at what Davis and company said. Davis and company argued like Hamilton, and so did Lincoln. That is to say both men, Lincoln and Davis, saw their fundamental duty to support the integrity and security of the republic to which they saw themselves belonging. Of course, Lincoln never saw the Confederacy as a republic; he thought it was an insurrection. They looked at the sections of both the Confederate and U.S. Constitutions, in which the executive is given fairly broad powers with respect to seeing that the laws are upheld and that the public peace is maintained. They both made appeals of that sort. You can hammer out the details ad nasuem.

A: The one that is most plain and reasonable to think about, I think, is the suspension of habeas corpus. That is authorized in the United States Constitution. DiLorenzo and his friends niggle on a small point: that it's Article 1, Section 9, and not Article 2 under the executive power. But the whole first article is about the power of the United States government. Section 10 of Article 1 prohibits the states from doing a number of things. It is not restricted to the powers of Congress. The complaint, if I'm being obscure …

A: What I'm saying is this: The complaint is Lincoln suspended habeas corpus for the sake of the security of the national capitol. When the bulk of the active powers in Maryland were about to prevent him from being inaugurated, prevent the United States Congress from meeting, organizing military forces to oppose the national government and the like, Lincoln cited Article 1, Section 9. Namely, that habeas corpus could be suspended in the case of insurrection or rebellion in defense of the Constitution and laws that he was sworn to uphold.

The confederates suspended habeas corpus, too, and for the same reason. Namely, that they were concerned with security within the Confederacy. I think in their own lights, both men were right. If the Confederacy was a government and had real independence, it couldn't put up with insurrection in the Confederacy. And there was insurrection in the Confederacy.

Q: What about the repression of all those newspaper editors? The numbers vary; I've heard from 13,000 to a gazillion.

Q: No, but were the incarcerated people all preaching desertion and sedition, or were they merely critical of Lincoln and as a result got thrown in stony lonesome?

A: There were blockade runners. There was an extensive Confederate spy network. There were plans to disrupt public meetings in Ohio and Indiana. To look at that fairly, you have to look at the scholarship on it. There was an organized seditious campaign, especially in Ohio and Indiana. It was run in part by exiles from Canada in Canada, across the Great Lakes, with actual plans for violent acts and the encouragement of desertion from the United States armed forces. Among those people were newspaper editors. How would you have felt about that during the Vietnam War? What if there had been in Vancouver an organized pro-Viet Cong movement with financial arrangements to the North Vietnamese paying and organizing newspaper writers, agitators on the ground, and planning to disrupt American political meetings?

Q: I wouldn't tell or involve my government, but I'd take about four A-Teams and covertly visit and counsel the offenders with extreme prejudice.

A: Yes, but we didn't want to invade Canada. I feel kind of the same way. But that was the actual situation. When his generals went over the line on that and suppressed people who shouldn't have been suppressed, Lincoln was consistently on the side of clemency. It is an old and ugly grudge that is held against Lincoln and the Union for various reasons. I think partly regional sentimentality, partly racism sometimes and various other reasons make people state a one-sided case against a man who sustained the founding principles of this country.

Q: You are accusing DiLorenzo of sloppy and disingenuous scholarship. Can you give me an example?

A: In support of his thesis, he says, "In virtually every one of the Lincoln-Douglas debates, Lincoln made it a point to champion this corrupt economic agenda …"

A: It's like chartering canal companies and banks and things. He gives a footnote to that, and it's to the Lincoln-Douglas debates. Go look in those debates; there is not a word about this economic agenda. Not a word! Let me read from the Oxford history of this period. It's called "Battle Cry of Freedom," written by Dr. James McPherson, and it is a very respectable book. It's sort of the standard work on the matter. He talks about the Lincoln-Douglas debates:

"Desiring to confront Douglas directly, Lincoln proposed a series of debates." The famous debates that school kids used to read back in the days when we actually taught them something about American history. "The stakes were higher than a senatorial election. Higher even than the looming presidential contest of 1860 … for the theme of the debates was nothing less than the future of slavery and the Union. Tariffs, banks, internal improvements, corruption and other staples of American politics received not a word in these debates."

A: Nothing. I teach this at my college. I must have read and re-read seven debates 20 times. Trust me, Geoff, there is not a word about tariffs in those debates. Nothing.

Q: There is no argument that the tariffs imposed by the North on the South were draconian. You wouldn't refute that, would you?

A: The tariff of 1857, which was the existing tariff at the time, had bipartisan support. The South Carolina delegation voted for it. It was the lowest tariff in 20 years. That's not to say there wasn't debate about tariffs.

Q: The tariffs went from about 15 percent to 40 percent. I'd call that a big hike.

A: Yes, but that's two-and-a-half years later, in 1861. Democrat president James Buchanan signed that tariff, and it had bipartisan support. He called for its passage; he didn't just support it. In the '58 Senate contest and their seven famous debates, Douglas and Lincoln did not cross swords once over tariffs or the bank or internal improvements. I'm sorry to say this, Geoff, but what DiLorenzo says is a lie. These debates are available online. The books are widely published. Your readers should just go out and look. Also, the Declaration Foundation has a number of articles and a forum discussing this very matter of DiLorenzo's book and the legacy of Lincoln.

Q: DiLorenzo includes references to Frances Key Howard and Rep. Vallandigham. What can you tell us about them?

A: I don't know about the first one, but Clement Vallandigham was a Democrat from Ohio. When I mentioned Ambrose Burnside, Vallandigham was the congressman who gave speeches calling for the end of the war and for resistance to conscription …

A: That's right, but there was an income tax when he gave the speech that got him in trouble.

Q: My question is about congressional immunity. Unfortunately, Congress critters can get away with saying anything they want, as long as they say it in the well of Congress. How did Vallandigham end up getting his front door kicked in by federal soldiers?

A: He gave his speeches out in his home area in Ohio. The local general, Ambrose Burnside, thought it was treason and put him under arrest right away. When the facts came back to Lincoln, he thought it was unwise and possibly illegal, and he undid Burnside's action. What they offered him was a free pass through Confederate lines. And it's Vallandigham who wound up in Canada organizing seditious anti-Union, and sometimes violent, groups in the period of '63-'64, to undermine the national war effort. But Lincoln let him out. Lincoln turned the key. Burnside is the guy who did that, and Lincoln didn't think it was the right thing to do.

Q: What about the Morrill tariff bill, which bumped the tariff from 15 percent to 47 percent?

A: That bill would never have passed if the Southern states had not seceded. It passed in the Senate – before Lincoln was president, by the way – because 14 Southern senators were out of the Senate. They could have blocked it, but they walked out in advance.

When the neo-Rebels say the tariff was the cause of the war, they conveniently overlook the fact that South Carolina withdrew on December 20th of 1860 – not because of any tariff that had been passed or signed, but because Abraham Lincoln, who declared that slavery was a moral wrong, had been elected president of the United States. The Morrill tariff that you are referring to was not passed until three months after South Carolina and six other states went out.

Q: So if they blame secession on the tariff, they are being more than a little disingenuous.

No, it just renders it of little weight,

Yes, it does. But in consistency with other rulings on legislative authority, that does not become an issue.

as does Taney's well known pro-slavery inclinations.

Not really beyond the circumstantial attempts to discredit him that you make, which as I noted are irrational. Taney's opinion on habeas corpus is not the same thing as his opinion on slavery, making it absurd to discredit one based upon the other.

You're late for class. I've already explained in Post #60 that your Marshall quote was mere dictum.

No. You simply asserted it to be so, used your own assertion as grounds to ignore it, and left it at that.

There are legislative powers specified in Articles II, III, IV, and V. Art.

But all in relation to the primary functions of their respective articles. The legislature itself is established in Article I where its functions are described and where all pertains to either the legislature directly or a direct and immediate situation in which the legislature interacts with another branch on a matter of legislative issues (i.e. signing of bills into law)

I deals mostly but not exclusively with legislative powers.

It is exclusive in the sense that all within Article I directly pertains to the legislature itself or a direct relationship between it and another branch in a legislative funtion.

Things aren't as cut and dried as you and 4Con would have us believe.

They certainly are for any direct and strict reading of the Constitution. In fact, I would venture to say that the ONLY way you can make the argument you do is to exercise what may be, by all reasonable means, characterized as an extremely tortured and intentionally loose reading of the document. That much is evidenced in the great degree of bending you have gone through to simply reach your basic argument, much less defend it.

Restrictions contained throughout that section [9] are oriented to the national legislative branch alone...

So you and 4Con would have us presume.

No. So I assert to be so in any reasonable direct reading of the document.

I was wisely taught in law school to never make presumptions regarding the law.

If that is so, why do you do just that?

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"?

Because you intentionally truncated the last paragraph, which continues to read in full "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."

Federal Courts (including Taney's Circuit Court) have the power to enforce their habeas corpus orders with U.S. Marshals

Yet need not necessarily do so if the circumstances do not permit it. There was more than enough tension at the time for Taney to know that he himself was not immune to Lincoln's wrath. It is documented historical fact that Taney made sure Lincoln recieved a copy of his opinion in Merryman, which would have had definate relevance to acts being undertaken by Lincoln, and Lincoln basically ignored it. You figure out the rest.

I'm not "attacking" anyone or anything.

Indeed you are. You are drawing into question the validity of Taney's opinion by posing what you presume to be arguments against its validity.

I'm simply pointing out the facts

And I am pointing out that your "facts" are riddled with circumstance, subjectivity, and questionable presumptions.

and speculating on why Taney didn't make more of an effort to have his order enforced.

And again, I am pointing out that you made your speculation with the express purpose of attempting to discredit the intrinsic merits of Taney's argument. I am also pointing out that your speculation is just that and nothing more.

Do you deny that Taney was a friend of the Confederates?

It is admissable that Taney's own beliefs were shared more so among the southern and border states than the north, but that in itself ammounts to little substantive in weighing the merits of his opinion beyond your admitted speculation. Therefore I question what your purpose of debating it is.

I strongly agree.

Good! There's one matter of agreement then.

No, because hiking the income tax could not reasonably be said to fall within the scope of being "commander in chief"

If one were to torture the language of the constitution enough, he could arrive at that conclusion. i.e. The commander in chief needs an army to exercise his authority and needs to pay that army, and in the absence of congress to appropriate funds to that army or raise such funds due to session being out and the inconvenience of calling it in. Therefore could one not suppose on the same ground that the president could raise the funds to appropriate for that legislative act of raising an army under his function as CoC, just as your argument says he may do under the legislative act of suspending habeas corpus?

Hardly. Plans by Maryland secessionists to invade and/or cut off Washington, D.C. from nonslave states were quickly being implemented.

And you are saying none of these incidents could have been thwarted by simple military force rather than the suspension of habeas corpus by one without the authority to make that suspension?

Get real. There is only one mention of Congress in nine paragraphs of Art. I, Section 9;

You are incorrect. Congress is mentioned specifically by name in both clause 1 and clause 8. It is also inherent to the language of several of the clauses that the reference could not be to anything but congress, as I previously noted and you failed to respond to.

Specifically...

Clause 3: "No Bill of Attainder or ex post facto Law shall be passed." Exempting your world of modern day judicial activism, this clause could ONLY apply to the legislature as it specifically refers to the act of legislation itself and the passage of such legislation in the legislature.

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." To lay a tax is again a legislative act, giving us the same situation - clause 4 pertains to the legislature and could not pertain elsewhere under any sane and direct reading of the text. Requirement of the census indicates that the reference is to the federal legislature

Clause 5: "No Tax or Duty shall be laid on Articles exported from any State." Same situation. To lay a tax is an act of the legislature inherently, and the specified applicability of this prohibition to areas between the states indicates that it is the national legislature being referenced.

Clauses 6 and 7 follow in the same suit.

So again, you are left in the same situation. Only by giving an extremely tortured reading of the Constitution may you legitimately arrive at the conclusion you do.

As I explained before you showed up for class, your Marshall quote re habeas coprus was dictum because it was not necessary to the opinion. One of the juriprudential reasons that dictum is given no precedential weight is that since the issue it relates to was not an issue in the case, the Court did not have the benefit of briefs on it from all interested parties.

And you are saying none of these incidents could have been thwarted by simple military force rather than the suspension of habeas corpus by one without the authority to make that suspension?

No, I'm just arguing that Lincoln had a good faith belief that suspension of habeas corpus was necessary to protect the public. Keep in mind that there were no great hordes of Justice Department lawyers at that time to prepare criminal cases against tens of thousands of rebels in close proximity to the capital. Moreover, all able bodied government officials were directly involved in defending Washington against the rebels. (See Battle Cry, pp. 285-286.)

It is also inherent to the language of several of the clauses that the reference could not be to anything but congress, as I previously noted and you failed to respond to.

No, your quoted provisions could also be read to restrict state governments.

As I explained before you showed up for class, your Marshall quote re habeas coprus was dictum because it was not necessary to the opinion.

And as I noted, you made no explanation but rather merely asserted it so and used that assertion to ignore the statement all together. I think it reasonable to note that this is sloppy at best on your part.

I believe a more detailed examination of this case is merited.

Marshall opens by very clearly stating its issue in that of the authority to issue a writ and the source of that authority: "The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court" meaning his own court, an issue where dispute had arisen.

To answer that question, Marshall examines the nature of such a writ in its legal history before posing the next question before the court "If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution." The answer, he notes, is found in the nature of the case, which is an appellate jurisdiction, hence the marbury issue does not impede. Accordingly, the court's duty is found in obeying the law prescribed by the legislature, hence Marshall's recognition of the fact that "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so." It is this issue of legislative action upon which the case itself turns. Marshall continues immediately "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. The motion, therefore, must be granted."

In other words, it would seem that the final question asked of Marshall in the case comes down to this issue of the legislature acting on article 1, section 9, clause 2, and thereby raising the point that his court's duty lies in obeying the laws. The answer turns around this duty, therefore it is an issue in the case.

One of the juriprudential reasons that dictum is given no precedential weight is that since the issue it relates to was not an issue in the case, the Court did not have the benefit of briefs on it from all interested parties.

But the legislature's role on the act WAS an issue in this case, and in fact the issue upon which the final question posed in the decision by Marshall turned, hence it immediately being followed by, in recognition, "The motion, therefore, must be granted."

No, I'm just arguing that Lincoln had a good faith belief that suspension of habeas corpus was necessary to protect the public.

Good faith belief or not, one's own whims do not give him the authority to supersede the constitution.

Keep in mind that there were no great hordes of Justice Department lawyers at that time to prepare criminal cases against tens of thousands of rebels in close proximity to the capital.

Irrelevant. The issue is on the constitutionality of Lincoln's act. Taney's ruling in merryman suggests unconstitutionality. Story's famed legal scholarship suggests unconstitutionality. Marshall's ruling does the same. In other words, Lincoln's act came up against the expressed writings of three prominent supreme court justices, two of them chief justices, one of them being made in the immediate time frame on a directly related issue, and the other having been made as an opinion of the supreme court as a whole drafted by the justice who is perhaps the single most respected authority on the constitution before the court itself in american history.

No, your quoted provisions could also be read to restrict state governments.

Untrue.

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." - census provision renders the clause applicable in itself only by the federal congress

Clause 5: "No Tax or Duty shall be laid on Articles exported from any State." - refers to interstate commerce, an inherently and explicitly federal congressional authority. States themselves cannot legislate an intrastate duties policy for the rest of the nation as to do so would be to extend beyond the scope of state authority.

Clause 6: "6: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another" - State A cannot legislate preference to its own ports in statutory relation to those of State B as to do so would require authority to write statute governing both. The Massachussetts legislature cannot write statute governing the port of Charleston, as that falls under South Carolina, not Massachussetts.

Clause 7: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law" - a state cannot legitimately legislate itself money from the nation's treasury on a whim. Congress must act, therefore this clause is directed to congress and may only reasonably apply to Congress.

Clause 8: "No Title of Nobility shall be granted by the United States" - a state cannot grant something that is beyond itself and its own authority, of which a title of nobility from the nation as a whole would be. So yet again, this is not applicable to states.

In other words, your argument, as I previously demonstrated and demonstrate to you again, fails you under any circumstance other than the intentionally tortured and unreasonably loose reading of the constitution you are giving.

You prefer no change to change for the better. That's why you're a conservative and I'm a libertarian.

Political ideology aside, I do prefer change for the better. But unlike some, I insist that it be done legally.

"Nor would I want a constitution like the Confederates' that prohibited the abolition of slavery. Talk about the despotic power! "

And what clause of the US Constitution prohibits slavery?

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."

And now thanks to Lincoln I'm stuck in one that sanctioned the murder of 30 MILLION unborn children. The states once had sovereignty, now thanks to Federalism all states must allow a Doctor to suck the brains out of a child seconds from being born. Thanks but no thanks.

Name one [city destroyed by Sherman] .Although Sherman's tactics were hard on civilian property, few citizens were harmed by his tactics compared to other wars.

Try Randolph, Tennessee. Jackson and Meridian, Mississippi, where Sherman boasted that "Meridian no longer exists." The town of New Manchester, Georgia was completely destroyed - Sherman ordered the arrest and deportation of women and children, "I have ordered General Garrard to arrest for treason all owners and employees, foreign and native, and send them under guard to Marietta, whence I will send them North...... The Women can find employment in Indiana." The town was never rebuilt. Pardon me if I don't share in your admoration for a man targeting civilians.

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.

Yes - dictators do hide behide human shields. Ever heard of the "Immortal Six Hundred"? FYI , they were Confederates.

War is hell, but for some 4 million negroes, life itself under slavery was also hell.

If life was hell for slaves, were are the records of 4 million of them fleeing to the North after emacipation? With the men off fighting the war, a slave revolt and mass escapes would have been common. Again, read the Slave Narratives from the Federal Writers project for the truth about slavery. And newspapers also give creedence to "real" truths:

"A day or two ago a letter was received at the Treasury Department from a negro man, named Henry Jones, the property of Mr. E. Cannon, of Clarksville, in this State, which is worthy of the highest commendation, and justly entitled to be imitated by those who have been hoarding their treasure during the troubles which at present afflict the country. Henry places at the disposal of the Secretary of the Treasury $465 in gold, which he hopes will be of some service to the Government. In his letter he speaks of "our glorious cause," and declares that the slaves of the South have a deeper interest in the establishment of Southern independence than the white population. He thinks if the Yankees are successful the negroes are destined to the most cruel treatment at their hands."
"Patriotism of a Colored Man", Staunton Spectator, Staunton, VA, 18 Aug 1863, p. 2, c. 3

There were plenty of Northerners who were quite sympathetic to the plight of negroes and attempted to help them, including Mary Todd Lincoln.

But the most remarkable testimony on the subject, is borne by no less a personage than the notorious Henry Ward Beecher. In a recent sermon, Mr. Beecher says the free colored people at the North "are almost without education, with but little sympathy for ignorance." "They cannot even ride in the cars of our city railroads. They are snuffed at in the house of God, or tolerated with ill-disguised disgust." The negro cannot be employed as a stone mason, bricklayer, or carpenter. "There is scarcely a carpenter's shop in New York in which a journeyman would continue to work if a black man was employed in it." There is scarcely one of the common industries of life in which he can engage. "He is crowded down, down, down, through the most menial callings to the bottom of society." "We heap upon them," says Beecher, moral obloquy more atrocious than that which the master heaps upon the slave. And notwithstanding all this, we lift ourselves up to talk to the Southern people about the rights and liberties of the human soul, and especially the African soul."
Staunton Spectator, Staunton, VA, 6 Dec 1859, p. 2, c. 1

So why did Northern states like Illinois have laws preventing blacks from immigrating into those states?

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. ... 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.

Believe it or not, to an extent - I just happen to agree with you. I do hold that the courts can rule on the legality of an execution of powers (a la suspension of the writ of habeas corpus by executive), after all, there are checks and balances on each branch of government. Thomas Jefferson wrote that it "is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions".

Who stated in 1859 that the "people of these United States are the rightful masters of both Congresses and courts--not to overthrow the constitution, but to overthrow the men who pervert that constitution"? Abraham Lincoln, and he left out a branch.

But the other whole point is that Taney can't decide for the President the limits and priorities of his office. ... 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. ... 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.

The courts cannot tell the President what to do - the congress, people, states and courts can correct any deficiences - they can tell him when he's wrong. Taney was not telling Lincoln how to run the war, he simply ruled that Lincoln was wrong in one area. Congress could have suspended the writ, and Taney would have been content - the Constitution had been followed. But holding the executive above reproach is the 1st step to tyranny.

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.

The founders had taken pains to prohibit the states (Article I, section 10), several of the same powers prohibited to the federal legislature (Article I, section 9). The Suspension clause in contained within Article I, not even mentioned in Article II. The clause is both a delegation and limitation of powers. Advocating that it applies to the Executive is just as ludicrous as stating that it applies to the judiciary. If the Executive is legally entitled to suspend the writ, why would Congress need to legislate approval?

Regarding fretting about it, in ex parte Milligan, Justice Davis commented thusly, "[t]he Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

Either the Constitution means what it says, or why bother having a written Constitution?

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.

The idea of a quorum was written into the Constitution by the founders for a reason - to obviate the necessity of having every member present. As it was, a simple majority of Congressmen could have been assembled in days - enough to grant legislative sanctions to Lincoln's actions. In the age of trains and telegraphs, it's absurd to suggest that every member of Congress wait almost 2 and 1/2 months to convene if such an dire emergency existed.

I think it is clear enough that the clause is not an explicit and direct delegation of a power to the Congress. It is literally a statement of when the writ shall not be suspended, and only implicitly a delegation of the power to do so to the Congress. But I do not dispute that implicit delegation. The limitation of that power exclusively to the Congress is a further, and more implicit point, depending much on an overall theory of limitation of powers and separation of branches.

I am aware of no one that suggests that the president simply "has the power to suspend the writ" the way he has the power to veto bills or negotiate treaties. The question is whether a clause that only implicitly (by its negative formulation) grants the power to suspend the writ at all, and even more implicitly assigns that power to Congress, and even more implicitly denies it to the executive or judicial branches in their own right, must be read as making it absolutely unconstitutional for the president to anticipate Congressional approval of a suspension for the purpose of securing the nation's capitol, which (under his duty to take care that the laws be faithfully executed) is the President's job.

I don't object to Taney's fussiness. But I don't think it is reasonable to make such a big deal out of this, when the President clearly (see Neely on this) was operating only out of a judgment of the necessary measures to secure the capitol, and was perfectly ready to submit his actions to the Congress, once it convened. Lincoln's notion of executive authority was pretty Whiggish, and that means that he had a very vivid sense of the president's duty not to overstep the voice of the people as the Congress continually manifested it. I think that an under-examined aspect of this whole business is the possibility that he had a duty to act on his understanding of what any damn fool knew Congress would want him to do.

Regarding quorums, I thought quorums were to prevent all kinds of various mischief, from minorities leaving to prevent business to minorities gathering to conduct it illicitly. I don't see how telegraphs and railroads help when you have Western delegations who can't arrive by either means, and hostile troops surrounding the capitol. I believe special elections were necessary in two states even to produce representatives.

Isn't this right?: the function of the special session is really, in significant measure, a function of the reasons the President calls it. I think he called it because he knew that he needed the people's endorsement for the things his oath plainly required him to begin doing, but not that he needed that endorsement instantly. He thought his job description was pretty clear. I think he called it for July 4, among other reasons, because it was a reasonable period for representatives to gather, and because he didn't judge that it was extremely urgent to have them assemble at once, and it might well be dangerous and counter-productive to do so. This decision, as the Constitution makes clear, is his to make.

The proof is in the pudding of Lincoln's overall action as chief executive. Those who believe he demonstrated contempt for the Constitution over the next four years will no doubt read the suspension as a first step. Those who believe he was striving always to be measured by the Constitution and the will of the people, and above all by the Declaration, will see him doing what he judged to be necessary and just, without undue concern for technicalities that he believed the framers would also have viewed as trivial. He know that our Founders also had a proper respect for the fact that government is finally a matter of principled prudence, not legal slavishness.

Lawyers, and particularly judges, will always be more fastidious about technicalities than politicians and executives. This should not make us easily agree that the executives are careless about rule of law. Judges will be more impatient for genuine technical legality, executives for the just accomplishment of the things they have been charged with accomplishing. Each will tend both to disparage and respect the concerns of the other, and the tension between them is fruitful.

This is such a rich question that I do wish we could move on beyond assertion and counter-assertion regarding the legality of the Constitutional interpretation. Finally, the Constitution cannot substitute for the living and good faith political and moral judgment of our principal citizens. The Constitution cannot be a computer program, with rigid logic and binary interpretation. It is the instrument of self-government for rational animals. It is discouraging how difficult it is to have an examination of these matters with the assumption that the actors had good faith, and good reason, and still disagreed richly and tragically. That's surely what the war represented, for the most part, and I don't understand what is hoped to be gained by trying to portray Lincoln as contemptuous of the Constitution. (I do not say that you are doing this last thing -- I am reflecting on this whole dispute which DiLorenzo's hatchet job has provoked, and wishing it had a more edifying occasion.)

And what clause of the US Constitution prohibits slavery?

Try the 13th Amendment.

And now thanks to Lincoln I'm stuck in one that sanctioned the murder of 30 MILLION unborn children.

It fugures that a narrow mind like yours would enlist in the "abortion is murder" army. Apparently you long for the "good old days" in the antebellum South when black women were raped to produce more slaves, which to you would apparently constitute a laudible "pro-life" agenda.

Try Randolph, Tennessee. Jackson and Meridian, Mississippi, where Sherman boasted that "Meridian no longer exists."

"According to the official website of Meridian, Sherman was wrong about Meridian no longer existing. Apparently he left four homes standing and spared the residents, who complained most bitterly about losing their slaves.

I'm not familiar with Randolph, Tennessee. Was it a "city" during the Civil War or just a hamlet? (Dittos re New Manchester, GA.) Jackson received a great deal of damage after Joe Johnston unwisely decided to dig in there and try to hold off the Union forces moving toward Vicksburg, but it could hardly be considered "destroyed".

By the way, the Confederates burned and pillaged plenty of homes and businesses when they had the rare opportunity to reach enemy territory (eg. Chambersburg, PA). The residents of Frederick, MD paid the demanded Confederate ransom to avoid the pillaging.

Yes - dictators do hide behide human shields. Ever heard of the "Immortal Six Hundred"? FYI , they were Confederates.

I was referring to civilians. You've changed the subject to union mistreatment of prisoners as retaliation for Confederate mistreatment of prisoners. The Civil War prisoner exchange program broke down when the Confederates started talking about executing all captured negro Union soldiers and their officers, and the Confederates implemented their negro soldier execution program at Fort Pillow under the command of the brutal slaveholder Nathan Bedford Forrest (who by the way once said "if we ain't fightin' fer slavery, I don't know what we're fightin' fer.")

If life was hell for slaves, were [sic] are the records of 4 million of them fleeing to the North after emacipation [sic]?

So you believe that the fact that most freed negroes couldn't afford to move north after emancipation means that they enjoyed life as slaves? You're a real comedian who has apparently never heard of the Underground railroad and slave patrols.

With the men off fighting the war, a slave revolt and mass escapes would have been common.

Actually, slaveholders received exemption from the draft. They also made liberal use of whips, chains, dogs, and slave patrols to discourage "servile insurrection". Also, most negroes were smart enough to figure out that their freedom was being won by Union forces.

In his letter he speaks of "our glorious cause," and declares that the slaves of the South have a deeper interest in the establishment of Southern independence than the white population. He thinks if the Yankees are successful the negroes are destined to the most cruel treatment at their hands." "Patriotism of a Colored Man", Staunton Spectator, Staunton, VA, 18 Aug 1863

Surely a Confederate paper would only be interested in printing the gospel truth about slavery (particularly just after Gettysburg had rendered their cause so desperate)?

But the most remarkable testimony on the subject, is borne by no less a personage than the notorious Henry Ward Beecher. In a recent sermon, Mr. Beecher says the free colored people at the North "are almost without education, with but little sympathy for ignorance." "They cannot even ride in the cars of our city railroads. They are snuffed at in the house of God, or tolerated with ill-disguised disgust." The negro cannot be employed as a stone mason, bricklayer, or carpenter. "There is scarcely a carpenter's shop in New York in which a journeyman would continue to work if a black man was employed in it.

Henry Ward Beecher is talking about New York City, which was full of Democrats and the poor immigrants they cultivated with warnings about how negroes would take their jobs. That's why they had draft riots there. NYC was hardly representative of the State of New York, let alone the North, with regard to enlightened attitudes about negroes.

So why did Northern states like Illinois have laws preventing blacks from immigrating into those states?

Because many lower North states like Illinois were still dominated by Democrats well into the 1860's, and even many Republicans had understandable fears about their communities being overrun with desperate negro refugees. Nevertheless, 3/5 of the Illinois Republicans voted against the 1862 exclusion law. (See Battle Cry, p.507.)

By the way, do you support open borders?

I am just not confident that it is fair to view the matter this way. It seems to me that Lincoln did not view assembling Congress as being simply for the sake of gaining immediate approval of the details of his first responses to the outbreak of war. I don't think he was summoning a body to give him technical approval of specific security measures in Maryland, but the representatives of the loyal part of the Union to express the people's will over the entire crisis. Congress, once assembled, would have the entire range of its powers, and it doesn't seem unreasonable to me that the President would want it to assemble with its full complement of members, after having time to consider with constituents what should be done.

Congress could NOT easily consult with constituents once assembled. Decisions reached on fundamental matters with the delegations of some states not present, and not having spoken, could have important implications in a sectional crisis.

But I don't know if any of this was actually going on. My suspicion is that the whole discussion today is dominated by anachronistic civil libertarian concerns that played no part in anybody's thinking at the time. Do you know if there is any good scholarship on the question at all? Was the delay considered long? Short? Just right? The whole debate about the "delay" of summoning a body that he knew perfectly well could throw him out on his butt once they got there strikes me as strange. But I am eager to learn more about the particular circumstances and motives involved.

Well, if things were so bad down here - why did ANY stay? Certainly out of 4 MILLION blacks, huge numbers would have fled north. It's not like the slaves were guarded by men with guns - those men were off fighting in the war. To the contrary, many remained - "guarded" by women and children. To insinuate that blacks couldn't flee from such conditions - if they had so desired - is a disservice to them. But of course, many believe that conditions were bad for blacks in the South, and heaven for them in the north. Even some northern editors saw the absurdity of that position:

A band of colored musicians from Hagerstown visited this place on Monday last. They discoursed some very fine music through our streets and after enjoying themselves among their "free brethren," on this side the line, returned home to "bondage," in the evening train, very well convinced, we have no doubt, that the worst form of Slavery that can possibly exist may be found among the negroes of Pennsylvania. We believe it is the custom in Maryland, at Easter time, to allow the negroes the largest liberty, and this Band had the audacity, on this occasion, to come into a free State as if for no other purpose than to show the sympathizers of John Brown, deceased, that their pikes and Sharpe's Rifles were not required to improve their condition, and that all the Republican philanthropy expended on the slave could be more appropriately used in bettering the condition of the free negro in the North.
Valley Spirit, Chambersburg, PA, 11 Apr 1860 p. 5 c.2

Regarding the Underground Railroad - it ended in CANADA. The blacks certainly weren't in a rush to settle in Illinois and other northern states. No welcome mat waiting for them - most prohibited the immigration of blacks.

I thought that ALL southerners were slaveholders. < /sarcasm >; My gggrandfather didn't own a single slave, he VOLUNTEERED. And there were many slaveowners that volunteered, ofter accompanied willingly by their slaves. If most blacks understood that the union for fighting for their freedom, why didn't they join them en masse, or revolt?

The Petersburg Express is informed by Lieut. Daniels, who has just arrived at Petersburg from Fort Norfolk, that some 35 or 40 Southern negroes, captured at Gettysburg, are confined at Fort McHenry. He says that they profess an undying attachment to the South. Several times Gen. Schenck has offered to release them from the Fort, if they would take the oath of allegiance to the Federal Government and join the Lincoln army. They had peremptorily refused in every instance, and claim that they should be restored to their masters and homes in the South. They say they would prefer death to liberty on the terms proposed by Schneck.
Staunton Spectator, Staunton, VA, 13 Oct 1863, p. 2, c. 5
A chaplain who, having been left behind with the wounded at Gettysburg, was carried to New York, says that but a few of the negroes captured at Gettysburg took the oath of allegiance to the Yankees. Most of them steadily refused to work or fight for Lincoln. He relates the following conversation between Gen. Morris, U.S.A., and Titus, a negro from South Carolina:
Morris--Well, Titus, are you willing to enlist and fight for liberty under the Stars and Stripes?
Titus--No sir; you may shoot me fust, and den I won't fight ginst my Government.
Morris--Well, Titus, they are going to put you all in the army if you go South.
Titus--Dat's jist what I want, sir.
Staunton Vindicator, Staunton, VA, 13 Nov 1863, p. 1, c. 6

Surely a Confederate paper would only be interested in printing the gospel truth about slavery (particularly just after Gettysburg had rendered their cause so desperate)?

That's why they printed the sory of Mr. Jones - a slave - who donated $465 in gold to the Southern cause.

The draft riots occurred when Lincoln instituted the draft, white northerners revolted and sacked the city, killing blacks. The article cited was prefaced by: "Mr. Beecher says the free colored people at the North", not of NYC. Check the date of the riots, and that of the EP. Many saw the war now - not as Lincoln's big lie, but as an attempt to free slaves, which one Pennslyvania newspaper stated that they were "Willing to fight for Uncle Sam", but not "for Uncle Sambo". The archbishop of New York wrote Seward, and stated

"We have had a week of trouble and apprehension in this city. I think the trouble is now over. The plea of the discontents is, on the surface, the draft. At its bottom, however, in my opinion, the discontent will be found in what the misguided people imagine to be a disposition on the part of a few here and elsewhere to make black labor equal to white labor, and put both on the same equality, with the difference that black labor shall have local patronage over the toil of the white man."

BTW, did the south ever revolt over conscription and kill blacks?

By the way, do you support open borders?

Open where anyone can saunter into the US at will - no. Allow foreign terrorists, criminals and such egress - no. Paying benefits or subsidizing non-Americans - no. Otherwise to allow immigration to those wishing to immigrate, that want to become Americans, and support America - yes.

Re: the delay. It is interesting, and given time, will pursue the matter.

It seems to me that Lincoln did not view assembling Congress as being simply for the sake of gaining immediate approval of the details of his first responses to the outbreak of war. I don't think he was summoning a body to give him technical approval of specific security measures in Maryland, but the representatives of the loyal part of the Union to express the people's will over the entire crisis.

I think Lincoln pushed the convening of Congress out far enough into the future. It then becomes a matter of why it was so far out - given the nature of things. One would think that a lawyer of Lincoln's repute would want legislative sanction for his actions, assuming of course that he understood that it was Congress that declared war. Is there any evidence that this was the case?

"I suppose he [Judge Douglas] knows that under the constitution, Congress, and not the president, declares war."
Abraham Lincoln, "Speech to the Springfield Scott Club", 14 Aug 1852, Collected Works of Abraham Lincoln, (Roy P. Basler, ed.), Vol. II, p. 153

That answers that. But considering the amount of time involved, I would assume that Lincoln could have forgotten. Again, is there evidence to the contrary? To that end, I refer to a letter that Lincoln wrote Seward, in response to some points Seward had raised. In those points, Seward demanded non-intervention responses from several European nations, and "if satisfactory explanations are not received from Spain and France, Would convene Congress and declare war against them." Lincoln's response included that "[w]hen a general line of policy is adopted, I apprehend there is no danger of its being changed without good reason, or continuing to be a subject of unnecessary debate." (Abraham Lincoln, "To William H. Seward", 1 Apr 1861, Collected Works of Abraham Lincoln, (Roy P. Basler, ed.), Vol. IV, pp. 317-318.). Delay convening, and few would disagree with Lincoln.

Someone once wrote a famous lawyer asking his esteemed opinion on the Contitutionality of the President being the sole arbiter of necessary force to repel invasion. The lawyer restated the supposition when framing his response:

"It is, that if it shall become necessary, to repel invasion, the President may, without violation of the Constitution, cross the line, and invade the teritory of another country; and that whether such necessity exists in any given case, the President is to be the sole judge." [italics in original]

In his reply, the lawyer voiced his opinion:

"Before going further, consider well whether this is, or is not your position. If it is, it is a position that neither the President himself, nor any friend of his, so far as I know, has ever taken."
"But to return to your position: Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose---and you allow him to make war at pleasure."
"The provision of the Constitution giving the war-making power to Congress , was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us . But your view destroys the whole matter, and places our President where kings have always stood." [italics in original]
Abraham Lincoln, "To William H. Herndon", 15 Feb 1848, Collected Works of Abraham Lincoln, (Roy P. Basler, ed.), Vol. I, pp. 451-452.

It looks like he didn't think it was Constitutional.

Freegards,

4CJ

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