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?
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.