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)
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.'"
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?