Posted on 02/12/2003 12:07:03 PM PST by WhiskeyPapa
None of these was a misstatement.
~ The Constitution did not authorize conscription. Madison made the framers' intent specific, in portions of The Federalist that discussed the militia: The sole national authority was for the rules of engagement (to borrow the current term of art) to be made standard across all state militias by Congress, including training and discipline standards and permitted weaponry. This was to allow the various militias to work together in matters of tools and organization, when this was required and authorized by Congress. (Or the federal or state executives, when it would "not admit of delay.") All other matters, including the selection of officers, were explicitly left in the hands of the states.
Madison both pointed out that the states and localities had long been granted the ability to compel militia participation, and disavowed any intention for Congress to trample on that prerogative -- except for the same emergency cases of "rebellion or invasion" that allowed the Congress to act to suspend habeas corpus. (Lincoln did so two years in advance of Congress doing so.)
Any conscription was thus placed in the hands of the states, and this was a prime example of a power that was "reserved" under the 10th Amendment.
~ The legislative history of the (second) 13th Amendment showed considerable revulsion to the excesses both of the anti-draft riots, which nearly burned down New York City, and of what the Radical Republicans feared would be a use of militias in readmitted states against freed blacks. Conscription was, by then, seen as a tool that states could easily misuse.
This aversion on the part of Congress led to the phrase "nor involuntary servitude" being added after the 13th's prohibition of slavery -- for it was, in fact, not redundant. Unfortunately, this distinction was blithely disregarded in the case law for the only challenge to conscription to come before the U.S. Supreme Court, the Selective Draft Law Cases of 1918-1919. SCOTUS simply knuckled under to the supposed necessity of the Congress having supremacy on military issues, and refused to examine the rationales for the 13th Amendment.
~ The New York and other state militias were federalized to put down the anti-draft riots only by a tortured twisting of the term "rebellion." Even the governor of New York did not go so far as to use that term. Lincoln asserted it and refused to seek congressional sanction, even though nothing prevented his doing so.
It was Lincoln's diversion to Manhattan of both militiamen and U.S. regulars, from campaigns in Virginia against the Confederacy, that greatly turned up the heat of the protests. This created the (literal) firestorms that would very likely have been avoided, out of the rioters' sheer exhaustion, had Lincoln simply left matters to the New York State authorities in the first place. The defiance of Lincoln's draft, however, had challenged him on the home front in a way that could not be fully hidden, even in sympathetic newspapers, and this was a P.R. failure that he felt he could not tolerate. Thus was a fully competent Congress once again simply bypassed, as an American emperor would do.
I'm not surprised that you and others don't know about these aspects of the anti-draft riots, though, as that entire episode has been largely suppressed in the aftermath of the Union's victory, and its rewriting of textbooks. I look forward to seeing a small restoration of that facet of history in the story of Scorsese's "Gangs of New York."
Which is exactly how the draft was handled by both sides. I'm surprised you didn't know that.
What set them off were democrat scare stories about Lincoln sending "four million contraband blacks" to New York to take their jobs away. It was a full court propaganda press by Mayor Woods and Tamneny Hall.
Read the real history for a change, not the polished stuff created years after the fact to soothe guilty consciences and heal reputations. You'll see that the Democrats played the same damn politics of division and racial hatred in 1863 as they do today. They just deal from the other side of the deck now. Al Sharpton is nothing new in New York politics. He continues the most sacred and time honored traditions of the Democrat Party.
Nor does it forbid it. The Constitution requires the government to provide for a common defense (Preamble), to raise and support an army (Article 1, Section 8, Clause 12), and to provide and maintain a Navy (Article I, Section 8, Clause 13). The Supreme Court has ruled in the past that conscription is a valid means of achieving these goals. I should note that the Constitution does not authorize a Marine Corps or an Air Force. I suppose you would suggest we do away with them?
I look forward to seeing a small restoration of that facet of history in the story of Scorsese's "Gangs of New York."
And you can back it up with that other great historical reference, "Gone With The Wind."
By WHOM? You, and the liberal O'Conner?
As I recall, Justice O'Connor was one of the big players in throwing the 2000 election to Junior.
Walt
It ain't there.
I can't believe that piece of crap movie has been nominated for best picture.
Walt
"Silencing the agitator" IS trampling on the First Amendment, Madam Justice O'Connor.
Ya can't holler "fire" in a crowded theater and ya can't holler for the violent overthrow of the government.
Walt
It allows for the Congress to provide for the general wefare and common defense, which it did from 1861-65.
Walt
Maybe the Air Force, sure.
Walt
The preamble has long been considered, by both Madison and most serious constitutional scholars over two centuries, to be a mere rhetorical statement of purpose, not an act of authorizing Congressional or any other power, which would have made Article I's details superfluous. (That hasn't stopped demagogues from appealing to "the general welfare" for any number of statist schemes.)
Beyond this, are you sure you want to go there, to make these powers to institute an army and navy into yet more infinitely elastic creations? As has been done for 125 years with the powers to regulate commerce between states and with foreign countries?
You know what monsters those have become. Now anything that ever once could conceivably have been carried in interstate commerce, whether it actually had been or not, is considered fair game. Such as with Roosevelt's original arguments for his National Recovery Act fascism, or the new proposals -- see Daschle's S. 22 -- for regulating firearm sales at gun shows.
Apart from this, the Congress has shown its contempt for any notion of limits by circumventing, with creative accounting, the Constitution's requirement that appropriations for a standing army be made for no longer than two years at a time. This was a check upon empire-builders in Congress, allowing those in the House to be voted out if the Army was used to impose domestic tyranny or create sources of graft.
Of course, they did the same thing to prepare for the 28th Amendment finally being ratified after 200-odd years, with how it disallowed Congressional pay-raise legislation without an election intervening ... they merely made the raise process permanent and automatic.
The Supreme Court has ruled in the past that conscription is a valid means of achieving these goals.
As I wrote, this has only reached them once (in 1918), and it took the form of the Court simply and ostentatiously refusing to second-guess Congress, clearly reading the political tea leaves. Which is not at all the same reasoning. It refused to explicitly endorse conscription as being constitutional, but it wouldn't stand in the way of such an action by Congress. (In much the same way as later cases stayed out of "political questions," such as, most recently, the revocation of treaties. I consider that to be judicial cowardice.)
And the rulings in those draft-law cases avoided any substantive discussion whatsoever, beyond that vague power of raising an army, of constitutional principles or text -- including, most notably, the 13th Amendment.
I should note that the Constitution does not authorize a Marine Corps or an Air Force. I suppose you would suggest we do away with them?
The Marine Corps predated the Constitution and has been the same, in essence, since 1775: a department of a larger Navy. The use of such seaborne troops was already fully understood to be within "providing a Navy" by the framers. It also had obvious restrictions -- most of all, the requirement for ship transport -- that made it less threatening to that generation than a permanent, land-based, national army.
The Air Force is a different matter, and genuine research and some constitutional controversy entered into the prospect of its becoming a separate service. That is, rather than its remaining part of the Army (the Air Corps), in analogy to the Marine Corps. This was finessed in two ways: The structure of command was made to follow the patterns and trappings of the Army, thus making it the equivalent of an "air army." And the question of funding was put aside by making the new Air Force part of a larger Department of Defense. (The two-years-at-a-time issue was worked around, once again, with unconstitutionally creative accounting.)
As for the movies touching on the 1863 draft riots: I meant "restoration" of a facet of history to the public consciousness, to spark inquiry and interest -- not taking fictional films as historical references. That last would be foolish, and has happened too often already, such as with Oliver Stone's "JFK."
> Which is exactly how the draft was handled by both sides. I'm surprised you didn't know that. <
I had understood that the 1863 draft was intended to repopulate the U.S. Army regulars, not the militias, though I could have missed that detail.
Nonetheless, the imposition of conscription by an act of Congress, whether implemented by national action or through state militias, remained unauthorized, and in violation of both the guarantee of state militia independence in Article I and of the Second and Tenth Amendments -- Madison made this clear long before, and he was in a position to clarify it.
(As to the Second, the word "state" in that long-disputed first clause actually did have a definite constitutional meaning -- though to justify, not to restrict, the scope of a "right of the people.")
And the Confederate States Constitution adopted all three of these provisions nearly verbatim from the United States Constitution. So it was against any semblance of the rule of law, and merely "justified" by the assertion of wartime necessity, on both sides of the Potomac.
The United States Marines were authorized 2 July, 1798.
Your whole argument is just a bit too slick and convenient.
Walt
Marines predated the Constitution of 1787, and were a part of the Navy, even if the present structure was not yet formed under the new Constitution.
Your whole argument is just a bit too slick and convenient.
Well, that rejoinder is both the politest in form and the emptiest in substance that I've seen around here in a long time! I thank you for the former, and shake my head in amusement (which is all it deserves) at the latter.
Thank you for this post. Just today my anti-cop, anti-Bush, pro-Castro, anti-Ashcroft criminal procedure professor was bitching about Lincoln doing this. She made the comment, "Most everybody will now say that this was a huge mistake my Lincoln." Sometimes I think she and others don't look back at the situation President Lincoln and the Union was facing.
Lay this on 'em:
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
-- Chief Justice of the United States William Rehnquist, February, 1999
Walt
And ignore #28, #29 and #30.
Walt
Yeah, I heard that.
Walt
Your #28 and #30 were answered by my reply to Non-Sequitur. Your #29 shows an adherence to the faulty reasoning of Justice Holmes, which dealt with the theater -- not with overthrows. (Which in itself has been given latitude under the First Amendment by the courts, especially in peacetime.)
Read the thread below your own replies first, please. Not everything can or even should be answered directly. Principles operate here, and time is scarce. Sorry if that all sounds condescending -- it's not meant to be. It's intended to note facts.
You were being too slick and convenient. The 1st amendment does not cover speech aimed at the violent overthrow of the government.
Walt
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