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U.S. Constitution
See other U.S. Constitution Articles

Title: The Supreme Court’s early years: When censorship was constitutional?
Source: soso
URL Source: http://www.minnpost.com/eric-black- ... -censorship-was-constitutional
Published: Jan 20, 2015
Author: Eric Black
Post Date: 2015-01-20 14:14:59 by SOSO
Keywords: None
Views: 23359
Comments: 72

The Supreme Court’s early years: When censorship was constitutional? TweetShare on printShare on emailBy Eric Black | 11/13/12

In the first decade-plus of its history, the U.S. Supreme Court struck down zero congressional enactments.

At the risk of being slightly snarky, I would point out that the first two presidents (George Washington and John Adams) were Federalists, the first Congresses were dominated by Federalists, so all of the early Supreme Court appointees were nominated and confirmed by members of the same party that was also passing and signing all the laws and, coincidentally or not, none of the laws were struck down, nor even challenged, as unconstitutional.

This is especially noteworthy because in 1798 the Federalist-dominated Congress passed and President John Adams signed the blatantly unconstitutional and highly partisan Alien and Sedition acts which, among other things, made it a crime, punishable by imprisonment, to:

“Write, print, utter or publish, or ... cause or procure to be written, printed, uttered or published, or ... knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.”

In other words: No criticizing the government (although technically the criticism has to be false, scandalous or malicious).

Under this law, 25 men, many of them editors of newspapers supportive of the nation’s first opposition party, the Democratic Republicans led by Thomas Jefferson and James Madison, were arrested and prosecuted. Some went to prison. In many instances, the newspapers were shut down. The First Amendment – “Congress shall make no law … abridging the freedom of speech, or of the press” -- was on the books and in effect.

Jefferson and Madison were learned in the law. Madison was the “father of the Constitution” and the chief author of the Bill of Rights, which included the free speech and press guarantees that were so blatantly flouted by the Alien and Sedition Acts. And the acts were clearly intended to intimidate and silence members of the Jeffersonian party. Yet, neither of them, nor anyone else, started a legal action seeking to have the Alien and Sedition Acts overturned by the Supreme Court as unconstitutional.

This is hard to understand if, at the time of the drafting and ratification of the Constitution and the Bill of Rights, it had been understood that the Supreme Court had this authority.

Instead, Jefferson and Madison redoubled their efforts to win the next election, making the Alien and Sedition Acts an issue against Adams and the Federalists. And they did win, which set the stage for the jaw-dropping developments that lead up to the Marbury v. Madison case, which established or created or made the first use of the Supreme Court’s power strike down congressional enactments that – in the court’s opinion – violated the Constitution.

The late professor Alexander Bickel, one of the leading 20th century scholars of constitutional law, once said of the Marbury ruling: “It is hallowed; it is revered. If it had a physical presence, like the Alamo or Gettysburg, it would be a tourist attraction.”

In the previous installment, I call the Marbury case “a stinkpot of hardball politics, partisanship, questionable logic and conflicts of interest.” I will attempt to back up that statement, beginning with the factual background of the case:

The Midnight Judges

John Adams deserves tremendous credit. After losing his bid for reelection in 1800, he became the first president to peacefully surrender power. There are still plenty of countries that can’t take a peaceful transition of power for granted. In the United States, many presidents have been defeated for reelection and never once has there been any question that the incumbent would peacefully accede to the will of the electorate.

On the other hand, Adams had several months to serve (in those days, the new president wasn’t inaugurated until March) and he still had a cooperative Federalist-dominated Congress.

Adams and the lame-duck Congress used those last months of power to, among other things, pass laws creating a great many new judicial positions and rushing through appointments of loyal Federalist to fill what the Constitution mandated would be lifetime appointments to federal judgeships. This was constitutional, but not really cricket. It’s also another example of a vulnerability that the framers inadvertently built into the system because of their belief that the republic they were designing would operate without the kind of partisanship that almost immediately developed.

In addition, Adams nominated and the Federalist Senate quickly confirmed John Marshall as the new chief justice of the Supreme Court. Leader of the Virginia Federalist Party, a rising national star of the pro-Adams party, one of President-elect Jefferson’s least favorite people (although they were cousins), Marshall was at the time of his appointment a young and healthy 45-year-old.

Adams’ binge of judicial appointments is known to history as the Midnight Judgeships. Among those appointed were Adams’ son-in-law, Marshall’s brother and two of Marshall’s in-laws.

Oh, and while they were vastly expanding the federal judiciary, the Midnight Congress also reduced the size of the Supreme Court from six justice to five, for the undisguised purpose of postponing the day when Jefferson would have an opportunity to fill a Supreme Court vacancy. As I mentioned earlier, the Constitution did not specify the size of the Supreme Court, and it has been altered many times, generally for partisan reasons or to deprive a particular president of appointments.

One Federalist upon whom Adams bestowed a midnight judgeship -- actually a mere Washington D.C. justice of the peace-ship -- was William Marbury.

In the haste to complete all the paperwork for so many appointments, Marbury was one of several appointees for whom the commission was signed and sealed but not delivered by Inauguration Day. When Jefferson took over the (still-under-construction) White House, he decided not to complete the appointments of the judges that were still in process. Marbury sued, demanding his lifetime sinecure. James Madison (Jefferson’s new secretary of state) was the named defendant in the case, which would become perhaps the most famous in U.S. legal history.

Jefferson was furious about the midnight judgeships, writing to a friend that the defeated Federalists had “retired into the judiciary as a stronghold… There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of Republicanism are to be beaten down and erased by a fraudulent use of the constitution which has made judges irremovable, they have multiplied useless judges merely to strengthen their phalanx."

In fact, the Federalist Party would soon wither and disappear, leaving behind no serious national political organization. But John Marshall would remain on the court throughout the presidencies of both Jefferson and Madison and several more presidents after them, eventually setting the longevity record that still stands of more than 34 years as chief justice of the Supreme Court. Marshall’s career, in a sense, set a precedent for the recent practice of presidents appointing young, healthy justices who would carry influence of the appointing president and his party and his ideology decades into the future regardless of election results. There is little reason to believe that this is what the Framers had in mind when they decided to make federal judicial appointments good for life.

Although he remained ideologically “federalist” in the sense that he believed in a strong national government, Marshall’s key institutional loyalty transferred from a political party to a branch of the government. Marshall built the power of the federal judiciary beyond anything conceived by the Framers.

But in 1801, as he and Jefferson faced off across branch lines, Jefferson held the whip hand.

In 1802, Jefferson and his allies in Congress passed a bill uncreating many of the judgeships that had been signed into existence by Adams. You could, if you chose, view those repeal bills as unconstitutional.

Abolishing federal judgeships has the effect of firing the judges in those positions, which certainly violates the spirit and perhaps the essence of the lifetime tenure provision (although it’s easy to understand why Jefferson might have felt justified in pursuing such a strategy, considering the way the judgeships had come into existence).

The repeal issue didn’t result in a constitutional court case (more evidence, by the way, that judicial review wasn’t much in the air). But if it had reached the Supreme Court, and if Marshall had struck down the repeal and ordered Jefferson to reinstate the judges and resume paying them, there is every possibility that Jefferson would have ignored the order, with impunity, which would have resulted in exactly the opposite of establishing the power of judicial review or judicial supremacy over constitutional matters.

Marbury’s lawsuit, however, seeking the judicial appointment that had been signed and sealed but not delivered, did come before the court.

The Jefferson administration showed its contempt for the proceedings (and for Marshall) by refusing to defend itself or participate in the case in any way. This could be taken as yet another warning to Marshall that if he ordered Madison to hand over Marbury’s commission, the Jefferson administration would disregard the order, thus setting what might be the opposite of the precedent Marshall hoped to set.

This will come as a surprise, but it’s an important technical fact. The Supreme Court, with Marshall presiding, didn’t get the case on appeal but conducted the actual trial and heard the testimony, which showed that Marbury had been legally appointed by Adams, confirmed by the lame duck Federalist-controlled Senate and that his commission had been prepared, but that Adams’ secretary of state had failed to get the paperwork delivered by the last day of Adams’ term.

Article III of the Constitution assigns the Supreme Court original jurisdiction in a few small categories of cases (such as those involving ambassadors, for example). The Constitution says that the high court will hear appeals in other categories of federal cases “with such exceptions, and under such regulations as the Congress shall make.”

In the Judiciary Act of 1789, Congress availed itself of that language about exceptions and assigned the Supreme Court original jurisdiction over cases in which a plaintiff is trying to get the court to order a federal official to do something like, in this case, order Secretary of State Madison to give Marbury his commission.

After hearing the case, Chief Justice Marshall devised a clever -- or diabolical or possibly diabolically clever -- solution to his dilemma. He ruled that Marbury was right and should have received his commission. But Marshall’s landmark decision also ruled the Supreme Court could not order Madison to give Marbury’s appointment because Congress, in passing the Judiciary Act of 1789, had exceeded its constitutional authority by assigning the Supreme Court to hear cases like Marbury’s because the Constitution sets out the limited kinds of cases in which the Supreme Court holds original jurisdiction.

Now that constitutional language, mentioned above, does empower Congress to make exceptions to the Supreme Court’s role as a trial court. If, in the spirit of Chief Justice John Roberts’ recent ruling on the health care law, Marshall believed that it was his duty to show deference to the elected branches and find a statute constitutional if there was any way to do so, he had plenty of ways to do so.

But no, Marshall concluded that the constitutional language didn’t mean Congress could give the Supreme Court jurisdiction over the Marbury case. So Marshall ruled that Marbury deserved to get his commission, but the Supreme Court couldn’t order Madison to give it to him because Congress had violated the Constitution when it assigned additional jurisdiction to the Supreme Court. That portion of the 1789 law was the first ever to be struck down as unconstitutional and that aspect of Marshall’s ruling established or discovered or invented the power of judicial review.

Was it unconstitutional? In my haste to introduce Chief Justice Marshall above, I neglected to tell you one important fact of his biography. In 1788, at the tender age of 33, already a minor war hero (who served under Gen. George Washington at Valley Forge), already a member of the Virginia Legislature, Marshall was chosen to serve on the Virginia ratifying convention that ultimately, and narrowly, voted to accept the draft of the Constitution.

I mention this because to strict “textualists” like today’s Associate Justice Antonin Scalia, the quest for the “original meaning” of the words in the Constitution is not limited to the meaning intended by those who wrote it, but the meaning as understood by those who ratified it and even by those who voted for those who ratified it. As a member of the Virginia ratifying convention, Marshall’s “understanding” of what the words in the Constitution meant would be of above-average importance.

Still, there are some serious problems with Marshall as the explicator of the original understanding of the 1789 law that he struck down. For example…

MinnPost illustration by Jaime AndersonHow about this: The act that was adopted in 1789 – by the very first Congress – was signed into law by President Washington, who had presided over the Constitutional Convention itself and who had taken the constitutionally prescribed oath to “preserve, protect and defend the Constitution,” but who had nonetheless signed a law that was (according to Marshall) unconstitutional.

And this: That first Congress included 13 members who had also been delegates to the Constitutional Convention, all of whom appear to have supported the 1789 law that Marshall ruled unconstitutional. In fact, the Senate sponsor of the law, Oliver Ellsworth of Connecticut, had not only been an influential member of the Constitutional Convention but had then been Washington’s nominee as chief justice of the Supreme Court, where he had served a few years and retired, creating the vacancy that President Adams had filled with John Marshall.

And if you can stand it: Among those joining Marshall’s unanimous opinion that the Judiciary Act violated the Constitution was William Paterson of New Jersey, who had been a member of the Philadelphia Convention in 1787 that wrote the Constitution, then a member of the first Senate in 1789 when it passed the Judiciary Act, which Paterson supported, then an associate justice of the Supreme Court who concurred with Marshall in 1803 that the law (for which he had voted) violated the Constitution (which he had helped draft).

But I’ve been saving this for last: (By rights I should have disclosed this several paragraphs ago but I saved it for the big finish.)

The reason Madison was the named defendant in Marbury v. Madison is that in those days the secretary of state was in charge of the paperwork for appointments like Marbury’s. So it was the secretary of state in the last days of the Adams Administration who had failed to get Marbury’s commission out the door in time, which gave rise to the whole lawsuit.

And that secretary of state was John Marshall. Yes, same John Marshall. In fact, Marshall had been sworn in as chief justice of the Supreme Court and still hadn’t resigned as secretary of state on the last day of the Adams presidency, which is weird enough on its own, but also means that, in his new capacity as chief justice, Marshall was sitting in judgment of his own failure, in his former capacity as secretary of state, to complete Marbury’s appointment.

Nowadays, we would call that a conflict of interest requiring Justice Marshall to recuse himself from presiding over the case in which Secretary Marshall played such a large role.

Other than to Marbury (whose home in Georgetown, by the way, is now the Ukrainian Embassy to the United States), the question of his justice of the peaceship is relatively unimportant to history. And given the totality of the circumstances described, I think it is reasonable to suspect that Marshall wasn’t exactly calling them as he saw them but rather trying to find a way out of his dilemma while aggrandizing the power of the judicial branch by establishing the doctrine which has come to be called “judicial supremacy,” which means mostly that in deciding issues of the proper meaning of the Constitution, the ruling of the Supreme Court is the final word.

If Marshall had ordered Jefferson and Madison to hand over Marbury’s commission, they would almost certainly have defied him, or even ignored him, which would have been a serious blow to the court’s prestige. By giving Jefferson no orders to defy, he seems to have accomplished both purposes and may have succeeded beyond his wildest hopes.

In a way, it creates a weird link to the case with which I started the previous installment, the Watergate tapes case. If President Richard Nixon thought he had the option of defying the court and destroying the Watergate tapes, he might well have done so. But two centuries after Marbury, such defiance of a Supreme Court ruling seemed almost unthinkable.

This installment has run on too long. But after all the disrespect I have displayed for Chief Justice Marshall’s conduct in this matter, I will begin the next installment with the famous, elegant statement he made in his Marbury ruling explaining the rationale for the power of judicial review.

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#10. To: Vicomte13 (#9)

Bigger Picture:

Like Washington, Adams was a Federalist, Jefferson was not. There were two very different philosophies, visions for the future of America. Indeed there was much debate and disagreement about our relationship with France. In the end both sides understood that the new Republic was to weak economically and militarily to get involved. Our physical isolation was also a significant factor in not being more involved in what as going on in Europe at the time and vice versa.

It is worth mentioning that Jefferson paid henchmen to publish what Jefferson knew were outrageous lies about Adams planning to attach France. In many ways Jefferson was a sleaze bag.

SOSO  posted on  2015-01-21   1:03:24 ET  Reply   Trace   Private Reply  


#11. To: SOSO (#8)

Which is what in your opinion?

That the Court, as we know it, did not exist until Marbury. Marbury was how the Court created itself.

The most outrageous case of legal bootstrapping in American history and it was carried out by the judges in the case, not the lawyers.

When we wonder how the courts can become so activist, look to Marbury. They do.

Tooconservative  posted on  2015-01-21   3:15:25 ET  Reply   Trace   Private Reply  


#12. To: Vicomte13 (#9)

Bigger Picture: America was then a young, fragile nation, sandwiched on the American continent between lands belonging to the three great Western European power: Britain to the North, France to the West, and Spain to the South in Florida and Cuba.

I'm not sure that I've ever encountered anyone who knows more in detail about the colonial era than you do. Obviously, you have a longstanding interest in the Founding and the politics of the early Republic.

Tooconservative  posted on  2015-01-21   3:19:20 ET  Reply   Trace   Private Reply  


#13. To: Vicomte13 (#9)

The War of 1812 did not go well for the Americans

Who told you that?

It went very well for New England yankees who continued to trade with Great Britain and prospered greatly.

And it turned out very well for the rest of the United States because without that war, the 'Original Six' would have rotted on the ways, 'Preble's boys' would never have commanded them, American frigates would not have wreaked havoc on the most powerful navy in the world (to the point where English captains were told not to engage American frigates unless they had at least a two to one advantage) and America would not have established itself as a world power.

And, of course, the Treaty of Ghent put the ol' kibosh on British ambitions of controlling Detroit, Mackinac Island and the Ohio Valley.

I think it worked out pretty well, all things considered, and Americans at the time (even many yankees) agreed.

cranky  posted on  2015-01-21   7:56:12 ET  Reply   Trace   Private Reply  


#14. To: cranky (#13)

I think it worked out pretty well, all things considered, and Americans at the time (even many yankees) agreed.

I've read that enthusiasm for independence had waned, given the costs of defense and other burdens the Brits had carried for the colonies. The War of 1812 cemented the public's loyalty to the Republic and a sharp rise in patriotism. Apparently, it was the burning of the Capitol that most stuck in the craw of the citizens.

Tooconservative  posted on  2015-01-21   8:55:28 ET  Reply   Trace   Private Reply  


#15. To: TooConservative (#14)

The War of 1812 cemented the public's loyalty to the Republic and a sharp rise in patriotism.

And gave America Andrew Jackson, for better or for worse.

cranky  posted on  2015-01-21   9:19:55 ET  Reply   Trace   Private Reply  


#16. To: cranky (#15)

Andy was both awful and awesome.     : )

Tooconservative  posted on  2015-01-21   9:58:38 ET  Reply   Trace   Private Reply  


#17. To: SOSO (#0)

"because in 1798 the Federalist-dominated Congress passed and President John Adams signed the blatantly unconstitutional and highly partisan Alien and Sedition acts"

And that law lasted for two whole years before it was allowed to expire. We've had worse laws last longer than that.

misterwhite  posted on  2015-01-21   10:19:09 ET  Reply   Trace   Private Reply  


#18. To: cranky (#13) (Edited)

The War of 1812 did not go well for the Americans

Who told you that?

It went very well for New England yankees who continued to trade with Great Britain and prospered greatly.

And it turned out very well for the rest of the United States because without that war, the 'Original Six' would have rotted on the ways, 'Preble's boys' would never have commanded them, American frigates would not have wreaked havoc on the most powerful navy in the world (to the point where English captains were told not to engage American frigates unless they had at least a two to one advantage) and America would not have established itself as a world power.

And, of course, the Treaty of Ghent put the ol' kibosh on British ambitions of controlling Detroit, Mackinac Island and the Ohio Valley.

I think it worked out pretty well, all things considered, and Americans at the time (even many yankees) agreed.

In the War of 1812, the US tried to invade Canada, and the result was a disaster.

Detroit fell to the British without a shot being fired.

The Americans won a few small sea battles, but ended up either losing their ships to capture or having them bottled up in port.

The British occupied the US capital and burnt the White House.

The victories of the war consisted of the Americans winning BACK territory they had lost to the British, but the key territorial objective of the war: seizing Canada, ended in abject failure and losses so deep that the Americans took the next 2 1/2 years to climb back out of the hole they dug for themselves.

The Americans declared war on the British, were immediately defeated on the main front, and spent the rest of the war fighting back to the starting line. That's not much of a victory.

The big victory was over the Indians. They allied with the British, of course, and were smashed, doubling the size of US territory open to settlement. Those territories were nominally American, but were not in fact open to settlement because of large numbers of hostile, British-armed Indians. The war cleaned all that up and opened it.

The potential territorial losses to the USA were real. The loss of Detroit meant the loss of Michigan. The Battle of Lake Erie was a near run thing. Had Perry lost it, the British would have controlled the Upper Great Lakes, and Michigan would be part of Canada.

Vicomte13  posted on  2015-01-21   10:28:14 ET  Reply   Trace   Private Reply  


#19. To: TooConservative (#12)

I'm not sure that I've ever encountered anyone who knows more in detail about the colonial era than you do. Obviously, you have a longstanding interest in the Founding and the politics of the early Republic.

To me, the origins of things at their roots contain the explanations of much. Hence the focus on Genesis, on the Gospels, on the Colonials, etc.

Vicomte13  posted on  2015-01-21   10:45:17 ET  Reply   Trace   Private Reply  


#20. To: Vicomte13 (#18)

In the War of 1812, the US tried to invade Canada, and the result was a disaster.

Detroit fell to the British without a shot being fired.

Neither was a disaster nor had any lasting effects.

As for being bottled up, Constellation required three ships of the line and several frigates to be kept in jail.

The frigate Constitution (defeating British frigates HMS Guerriere and HMS Java, as well as a couple of schooners) roamed the Atlantic at will.

The United States defeated the HMS Macedonian and made.

Chesapeake was a bad luck ship, starting with the Leopard affair a few years earlier and ending with her capture by HMS Shannon.

Congress stayed at sea throughout the war but captured few enemy merchant ships.

President was a fairly successful commerce raider throughout the war and of course, savaged HMS Little Belt.

And while not one of the Original Six, Essex (under the command of David Porter) harrassed, captured and/or sank dozens of British whalers in the Pacific until her capture in 1814 or so.

That the nascent American Navy could fight the mightiest navy to standstill was a remarkable feat and was recognized as such at the time.

The Treaty of Ghent basically affirmed the status quo of antebellum British-American relations except that America was now a world power, Britain ceased to have designs on Detroit, the Ohio Valley and Mississippi River and impressment largely ended.

The War of 1812 made clear to the world that America was to be reckoned with as a world power.

The British occupied the US capital and burnt the White House.

No, they didn't. They burned a lot of it but didn't occupy it so much as vandalized it as they were passing through.

And they burned the President's residence. It wasn't white or called the White House until it was repaired or/rebuilt, iirc. At least, that's the way I heard it.

cranky  posted on  2015-01-21   12:07:33 ET  Reply   Trace   Private Reply  


#21. To: cranky (#20)

As for being bottled up, Constellation required three ships of the line and several frigates to be kept in jail.

The frigate Constitution (defeating British frigates HMS Guerriere and HMS Java, as well as a couple of schooners) roamed the Atlantic at will.

The United States defeated the HMS Macedonian and made.

Chesapeake was a bad luck ship, starting with the Leopard affair a few years earlier and ending with her capture by HMS Shannon.

Congress stayed at sea throughout the war but captured few enemy merchant ships.

It sounds like someone has been reading his Aubrey-Maturin :)

If not then I highly recommend it. It's an incredibly good work of naval historical fiction. One of the best series of books of its kind IMHO. The attention to detail is second to none as is its historical accuracy.

Fibr Dog  posted on  2015-01-21   12:26:50 ET  Reply   Trace   Private Reply  


#22. To: Fibr Dog (#21)

It sounds like someone has been reading his Aubrey-Maturin :)

Actually, it's mostly from the Time-Life Seafarers series Fighting Sail, iirc.

It's been awhile since I dug it out.

cranky  posted on  2015-01-21   12:41:44 ET  Reply   Trace   Private Reply  


#23. To: cranky (#22)

Well, if you enjoy reading about late 18th/early 19th century Naval battles, I can't recommend the series enough. It focuses upon the British Navy, which makes sense considering their dominance at the time. I put this series above The Horatio Hornblower series of the same genre.

Fibr Dog  posted on  2015-01-21   12:54:17 ET  Reply   Trace   Private Reply  


#24. To: cranky (#20)

Neither was a disaster nor had any lasting effects.

The lasting effect was that the US failed to capture Canada, and Canada went on to become an independent nation and a major power.

Canadian influence on America after the War of 1812 was most keenly felt during the slavery period. As the northern terminus of the Underground Railroad, Canada served as a beacon of freedom for escaping American slaves. If they could make it to British territory, they would be free.

After the Fugitive Slave Act began to be enforced in the North, the urgency to get out of the United States and into Canada became ever more acute. Probably 50,000 people made it out of America into Canada, about 1.5% of the total slave population. Tensions with Canada during that period were high. Had the British come in on the Confederate side during the Civil War, they would have opened a second front on the Union, from the North. But of course it was the very fact of slavery's legality in America and abolition in the British Empire, and Canada's role as the land of freedom for escaped slaves that made it unlikely the British would ever actually intervene on the Confederate side.

The naval successes of the American frigates were remarkable, but let's not exaggerate: the US frigates did some mischief, and sunk some small British ships. They could not engage British Ships-of-the-Line. By the end of the war, of the original 6 capital ships of the American Navy, two had been captured, and one was out of action, and two were blockaded in port. Two got free, but were limited to raiding commerce.

The Americans lost a total of 500 merchant ships to the British during the war. The British lost about 1250 to the Americans. Privateering hurt both sides.

Still, the Americans lost 1/3 of their naval strength to the British. British losses were less than 1% of their forces, and by the end of the war, the American coast was blockaded and the American economy was falling apart.

Had the war continued, things were not going to get better for the Americans. Napoleon abdicated for the first time in 1814, and for good in 1815. Now the British were free of any threat of European war, and could have concentrated the might of their fleet, AND Wellington's army, on the United States.

The New England colonies were moving towards secession by the end of the War of 1812, because the war had been so devastating for them.

With France at peace with England and the English able to concentrate their full European might, built up from the European war with Napoleon, on the USA, the American strategic situation did not look good at all.

The war ended when it needed to for the Americans, before the British had brought their concentrated forces to bear. Remember, in the American Revolution, the British were also at war with France, Spain and Holland. By 1815, the British were at war with nobody but America, and the British had the full strength army and fleet built up from the war with Napoleon.

America needed peace, and Britain wanted it. So peace came.

Still, the Americans - the thinking ones anyway - knew how very close the US had come to disaster in the war.

Vicomte13  posted on  2015-01-21   14:38:53 ET  Reply   Trace   Private Reply  


#25. To: Vicomte13, cranky, redleghunter, GarySpFc, A Pole, Liberator, A K A Stone, TooConservative, Orthodoxa (#24)

I did not intend the focus of this thread to spill over into 1812 but that's the nature of forums. But it's a good thing.

Well, boys and girls, isn't this intersting. We have disagreement about historical events that happened just a mere 200 years ago. Events that happened in our native land, involving native peoples and recorded and reported upon in our native language. Whodathunkit?

It might be instructive, if not fun, to compare the historic accounts of events as contemporaneoulsy was being reported and written about by participants in the events and observers from American, British, Canadian, and, even French sources. I am willing to take bets that we would get significantly different accounts of the same historic event, certainly with respect to the significance of what happen and what that would mean for the future.

Perhaps we need to convene a Council of Saskatoon?

SOSO  posted on  2015-01-21   17:46:35 ET  Reply   Trace   Private Reply  


#26. To: TooConservative, Bill of Rights-Constitution, Vicomte13, cranky, Fibr Dog, misterwhite, All (#11)

Your take away from this thread appears to be quite narrow in vision.

What this account of historic events highlights in spades is the nature of the written Consitution and how it has been used or ignored by the PTB since Washington's first day in office. The so-called current abuses or shredding of the Constitution that many are bemoaning today have historical precedent from the git-go of the Republic. Irrespective of what you think about Obama, he isn't doing anything different than what most of his predecessors have done from the GW on done.

The fact is those who have the keys to the car get to drive it just about how and where they wish. In a real way the Consitution means only what is actually enforced at the time, which is subject to change as the keys are passed down.

And those who have the keys populate SCOTUS. One of the most laugable notions is that SCOTUS is not a political body. It was from day one and continues to be so. It's life cycle is just longer than those that historically have been handed the keys so there is a lag in time between the political leaning of the court and that of the current Executive and Legislative branches, was may been smoothed over by the cycle of chamge in the other branches.

And who gets the keys? As it was in the beginning, is now and (hopefully) ever shall be, whoever gets elected to office. So in a real way what of the Consitution gets enforced at any time in history is determined by who the U.S. electorate gives the keys.

SOSO  posted on  2015-01-21   18:37:11 ET  Reply   Trace   Private Reply  


#27. To: SOSO (#26)

Your take away from this thread appears to be quite narrow in vision.

Less so than yours. And more succinct.

Tooconservative  posted on  2015-01-21   18:54:34 ET  Reply   Trace   Private Reply  


#28. To: Vicomte13 (#24)

The lasting effect was that the US failed to capture Canada

As Americans had failed during the American Revolution.

Even providing an open invitation in the Articles of Confederation didn't get a nibble.

The War of 1812 wasn't about annexing Canada and even if it was, it was never a real possibility.

The New England colonies were moving towards secession by the end of the War of 1812, because the war had been so devastating for them..

Not according to what I've read. New England yankee merchants carried on business as usual with the Brits by the simple expedient of sending their goods through Canada. But all that aside, I still say the War of 1812 worked out quite well for America and Americans at the time realized it full well.

cranky  posted on  2015-01-21   19:00:43 ET  Reply   Trace   Private Reply  


#29. To: TooConservative (#27)

Your take away from this thread appears to be quite narrow in vision.

Less so than yours. And more succinct.

Please send me some of what you are smoking.

SOSO  posted on  2015-01-21   19:09:25 ET  Reply   Trace   Private Reply  


#30. To: SOSO, Y'ALL (#26)

What this account of historic events highlights in spades is the nature of the written Consitution and how it has been used or ignored by the PTB since Washington's first day in office. The so-called current abuses or shredding of the Constitution that many are bemoaning today have historical precedent from the git-go of the Republic. Irrespective of what you think about Obama, he isn't doing anything different than what most of his predecessors have done from the GW on done.

Except that he is more openly socialistic than any of his predecessors, imo.

The fact is those who have the keys to the car get to drive it just about how and where they wish. In a real way the Consitution means only what is actually enforced at the time, which is subject to change as the keys are passed down.

Your point is taken, but it remains that the system works, (as per Nixon's downfall), and the Constitution is ignored at the politicians peril.

And those who have the keys populate SCOTUS. One of the most laugable notions is that SCOTUS is not a political body. It was from day one and continues to be so. It's life cycle is just longer than those that historically have been handed the keys so there is a lag in time between the political leaning of the court and that of the current Executive and Legislative branches, was may been smoothed over by the cycle of chamge in the other branches.

Aren't you ignoring the fact that lifetime tenure allows the justice's to ignore their political debts, -- and issue opinions based on constitutional principles ( all to seldom, granted) occasionally?

And who gets the keys? As it was in the beginning, is now and (hopefully) ever shall be, whoever gets elected to office. So in a real way what of the Consitution gets enforced at any time in history is determined by who the U.S. electorate gives the keys.

And even more often, what gets enforced is tempered by political reality.. The checks and balances built into our republican form of govt are working, and only the really foolhardy politico steps very far out of line.

tpaine  posted on  2015-01-21   19:12:36 ET  Reply   Trace   Private Reply  


#31. To: tpaine (#30)

Aren't you ignoring the fact that lifetime tenure allows the justice's to ignore their political debts, -- and issue opinions based on constitutional principles ( all to seldom, granted) occasionally?

Not at all. This is more a reason for one to advance his/her ideology over his/her intellectual integrity - which is a most human thingas you noted.

"The checks and balances built into our republican form of govt are working, and only the really foolhardy politico steps very far out of line."

Yes. Only those committed to a scorched earth policy would wish to precipitate a consitutional crisis or perhaps civil war would push too far.

SOSO  posted on  2015-01-21   19:23:01 ET  Reply   Trace   Private Reply  


#32. To: SOSO (#25)

involving native peoples and recorded and reported upon in our native language. Whodathunkit?

Is that Iroquois or Apache?

"All scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction in righteousness: That the man of God may be perfect, thoroughly furnished unto all good works." (2 Timothy 3:16-17)

redleghunter  posted on  2015-01-21   19:33:27 ET  Reply   Trace   Private Reply  


#33. To: redleghunter (#32)

American and the Queen's English.

SOSO  posted on  2015-01-21   19:38:00 ET  Reply   Trace   Private Reply  


#34. To: SOSO (#33)

I thought "Whodathunkit" was Apache.

"All scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction in righteousness: That the man of God may be perfect, thoroughly furnished unto all good works." (2 Timothy 3:16-17)

redleghunter  posted on  2015-01-21   20:36:35 ET  Reply   Trace   Private Reply  


#35. To: SOSO (#26)

"And who gets the keys? As it was in the beginning, is now and (hopefully) ever shall be, whoever gets elected to office."

The President interprets the U.S. Constitution? Or did you mean Congress interprets the U.S. Constitution?

Wow! Imagine what the first 6 years of the Obama presidency would have looked like. And you think that would be better than the U.S. Supreme Court interpreting it?

misterwhite  posted on  2015-01-22   9:54:02 ET  Reply   Trace   Private Reply  


#36. To: misterwhite (#35)

"And who gets the keys? As it was in the beginning, is now and (hopefully) ever shall be, whoever gets elected to office."

The President interprets the U.S. Constitution? Or did you mean Congress interprets the U.S. Constitution?

Yes, just a SCOTUS gets its hand in the game. The question is who has the final word as determined by actions. Sometimes, one, sometimes the other. The Constitution doesn't seem to address that reality.

SOSO  posted on  2015-01-22   12:30:26 ET  Reply   Trace   Private Reply  


#37. To: SOSO (#0)

I was aware that Marbury v. Madison was the definative case that established the power and prestige of the Supreme Court in this country. I was not aware that the case involved getting his family members on the bench and his own mispheasance in office.

If you are not careful you'll learn something new and humbling every day

rlk  posted on  2015-01-22   20:31:58 ET  Reply   Trace   Private Reply  


#38. To: rlk (#37)

If you are not careful you'll learn something new and humbling every day

Some days I try really hard to be very, very careful as the noise from all I don't know is overwhelming.

SOSO  posted on  2015-01-22   20:41:01 ET  Reply   Trace   Private Reply  


#39. To: SOSO (#0) (Edited)

I was aware that Marbury v. Madison was the definative case that established the power and prestige of the Supreme Court in this country. I was not aware that the case involved getting his family members on the bench and his own mispheasance in office.

If you are not careful you'll learn something new and humbling every day...

rlk  posted on  2015-01-22   20:53:18 ET  Reply   Trace   Private Reply  


#40. To: SOSO (#36)

"The question is who has the final word as determined by actions."

Huh? What do you mean, "as determined by actions"?

misterwhite  posted on  2015-01-24   10:20:57 ET  Reply   Trace   Private Reply  


#41. To: cranky, Vicomte13 (#28)

The New England colonies were moving towards secession by the end of the War of 1812, because the war had been so devastating for them..

Not according to what I've read. New England yankee merchants carried on business as usual with the Brits by the simple expedient of sending their goods through Canada. But all that aside, I still say the War of 1812 worked out quite well for America and Americans at the time realized it full well.

New England found the situation so irritating that they met on December 15, 1814 at the Hartford Convention and decided that if the blockade were not lifted, they resolved to invoke nullification, and they would consider secession from the union. They sent an emissary to Washington to deliver the message. The war ended abruptly.

Hostilities ended with the signing of the Treaty of Ghent on December 24, 1814. On January 5, 1815, the Hartford Convention issued a report regarding its sealed and secret proceedings.

The mess helped to kill the Federalist party.

http://avalon.law.yale.edu/19th_century/hartconv.asp

Resolved. - That it be and hereby is recommended to the Legislatures of the several States represented in this Convention to adopt all such measures as may be necessary effectually to protect the citizens of said States from the operation and effects of all acts which have been or may be passed by the Congress of the United States, which shall contain provisions, subjecting the militia or other citizens to forcible drafts, conscriptions, or impressments, not authorized by the Constitution of the United States.

Resolved. - That it be and hereby is recommended to the said Legislatures, to authorize an immediate and earnest application to be made to the Government of the United States, requesting their consent to some arrangement, whereby the said States may, separately or in concert, be empowered to assume upon themselves the defense of their territory against the enemy, and a reasonable portion of the taxes, collected within said States, may be paid into the respective treasuries thereof, and appropriated to the payment of the balance due said States, and to the future defense of the same. The amount so paid into the said treasuries to be credited, and the disbursements made as aforesaid to be charged to the United States.

Resolved. - That it be, and it hereby is, recommended to the Legislatures of the aforesaid States, to pass laws (where it has not already been done) authorizing the Governors or Commanders-in Chief of their militia to make detachments from the same, or to form voluntary corps, as shall be most convenient and conformable to their Constitutions, and to cause the same to be well armed equipped and disciplined, and held in readiness for service; and upon the request of the Governor of either of the other States, to employ the whole of such detachment or corps, as well as the regular forces of the State, or such part thereof as may be required and can be spared consistently with the safety of the State, in assisting the State, making such request to repel any invasion thereof which shall be made or attempted by the public enemy.

Resolved. - That the following amendments of the Constitution of the United States, be recommended to the States as aforesaid, to be proposed by them for adoption by the State Legislatures, and, in such cases as may be deemed expedient, by a Convention chosen by the people of each State.

And it is further recommended, that the said States shall persevere in their efforts to obtain such amendments, until the same shall be effected.

First. - Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers of free persons, including those bound to serve for a term of years, and excluding Indians not taxed, and all other persons.

Second. - No new State shall be admitted into the union by Congress in virtue of the power granted by the Constitution, without the concurrence of two-thirds of both Houses.

Third. - Congress shall not have power to lay any embargo on the ships or vessels of the citizens of the United States, in the ports or harbors thereof, for more than sixty days.

Fourth. - Congress shall not have power, without the concurrence of two-thirds of both Houses, to interdict the commercial intercourse between the United States and any foreign nation or the dependencies thereof.

Forth. - Congress shall not make or declare war, or authorize acts of hostility against any foreign nation, without the concurrence of two-thirds of both Houses, except such acts of hostility be in defense of the territories of the United States when actually invaded.

Sixth. - No person who shall hereafter be naturalized, shall be eligible as a member of the Senate or House of Representatives of the United States, nor capable of holding any civil office under the authority of the United States.

Seventh. - The same person shall not be elected President of the United States a second time; nor shall the President be elected from the same State two terms in succession.

Resolved. - That if the application of these States to the government of the United States, recommended in a foregoing Resolution, should be unsuccessful, and peace should not be concluded and the defense of these States should be neglected, as it has been since the commencement of the war, it will in the opinion of this Convention be expedient for the Legislatures of the several States to appoint Delegates to another Convention, to meet at Boston, in the State of Massachusetts, on the third Thursday of June next with such powers and instructions as the exigency of a crisis so momentous may require.

For general background, see http://warof1812ct.org/?p=1075

The Hartford Convention as the Embodiment of Federalist New England

New London Historical Society

By Dr. Matthew Warshauer
Central Connecticut State University, New Britain, CT

nolu chan  posted on  2015-01-24   23:25:50 ET  Reply   Trace   Private Reply  


#42. To: SOSO (#0)

Abolishing federal judgeships has the effect of firing the judges in those positions, which certainly violates the spirit and perhaps the essence of the lifetime tenure provision (although it’s easy to understand why Jefferson might have felt justified in pursuing such a strategy, considering the way the judgeships had come into existence).

The repeal issue didn’t result in a constitutional court case (more evidence, by the way, that judicial review wasn’t much in the air). But if it had reached the Supreme Court, and if Marshall had struck down the repeal and ordered Jefferson to reinstate the judges and resume paying them, there is every possibility that Jefferson would have ignored the order, with impunity, which would have resulted in exactly the opposite of establishing the power of judicial review or judicial supremacy over constitutional matters.

Abolishing federal judgeships has been done. Leave it to Lincoln. He then created a court with the same jurisdiction and powers and gave it a new name and very select judges. Notably, during the Lincoln administration, the U.S. Supreme Court was packed with a 10th justice, making for five sitting Lincoln appointees. When Andrew Johnson became president, no appointments were allowed until the membership fell to seven which it never did. When Grant became president, it was reset to nine where it remains. The below extract is from Chief Justice John G. Roberts.

http://www.virginialawreview.org/sites/virginialawreview.org/files/375_0.pdf

VIRGINIA LAW REVIEW
VOLUME 92 MAY 2006 NUMBER 3

LECTURE WHAT MAKES THE D.C. CIRCUIT DIFFERENT? A HISTORICAL VIEW

John G. Roberts, Jr.*

Excerpt at 382-383. Article at 375-389.

[Excerpt, footnotes omitted]

III. POLITICAL PRESSURES DURING THE CIVIL WAR

The D.C. Circuit would not be so lucky in its next brush with the political branches. During the Civil War, the three judges on the D.C. Circuit found themselves at loggerheads with the Lincoln administration. The court was led in this struggle by Judge William Merrick, a Democrat who had been appointed by Franklin Pierce and who was deeply suspected by the Lincoln administration of harboring secessionist sympathies. The question facing the court was whether habeas corpus could issue against the Army to secure the release of minors who had enlisted without their parents’ consent. Judge Merrick held in one decision that it could and secured the release of minors from the Army. When he tried again two weeks later to do the same thing in another case, President Lincoln reacted. He ordered the Army not to comply with the judicial process. He further ordered the Comptroller General not to pay the salaries of the three judges, and he sent an armed sentry to stand guard outside Judge Merrick’s house. There is a lot of confusion and debate about exactly what was going on, but Judge Merrick chose to regard himself as confined to his house, and so he wrote a letter to his two colleagues to explain why he could not come to court the next day. Judge Merrick’s colleagues, in solidarity with their imprisoned—perhaps—colleague, issued an order to the Provost Marshal of the District of Columbia to show cause why he should not be held in contempt for these actions against Judge Merrick. One of the judges, Judge Morsel, said, “I intend to do my duty, and vindicate the character of this court as long as I sit here.” He then added, in my view somewhat ambiguously, “I am an old man.” This last statement seemed to detract from the threat, but maybe he was being maudlin in saying it was not going to be very long.

In any event, President Lincoln did not back down. He sent Army officials to the court to announce that he had suspended the writ of habeas corpus in the District of Columbia. The court questioned whether Lincoln had the authority to do that retrospectively, as they put it, but they concluded that in the face of military authority there was nothing more that they could do, and that they would consider the case closed and accept no further filings in it.

President Lincoln and the Republican Congress did not consider the case closed. They abolished the court and terminated the judgeships, creating in the place of the abolished court a new court called the Supreme Court of the District of Columbia. It looked a lot like the old court, except for the fact that it now had four vacancies to which President Lincoln appointed, and the Senate confirmed, four new appointees—a former Republican Congressman from New York; a Republican Congressman from Delaware; an Ohio delegate to the Republican convention that nominated Lincoln; and Andrew Wylie. Wylie was reputed to be the only person in Alexandria who had voted for Lincoln.

The new court had those wonderful new judges, but the same jurisdiction and authority of the court it "replaced."

nolu chan  posted on  2015-01-25   0:06:28 ET  Reply   Trace   Private Reply  


#43. To: nolu chan (#42)

Lincoln did what he thought he needed to do to win the war. And he achieved his objective.

By contrast, the South refused to compromise on any of their principles in order to win the war. So they lost.

Vicomte13  posted on  2015-01-25   8:42:02 ET  Reply   Trace   Private Reply  


#44. To: Vicomte13 (#43)

Lincoln did what he thought he needed to do to win the war.

Even when it involved serial rape of the Constitution he was sworn to uphold.

Lincoln did not save the union created by the Constitution, but revolutionized it and created a new one. The government we had was lost for all. Whether one approves of his new order depends on whether one prefers the former sovereign states (the political communities of people organized as states) and weak federal government, or one prefers the destruction of state sovereignty and a massive, consolidated national government. I guess one could say that Hamilton and the Federalists prevailed.

nolu chan  posted on  2015-01-25   19:27:06 ET  Reply   Trace   Private Reply  


#45. To: nolu chan (#44)

Whether one approves of his new order depends on whether one prefers the former sovereign states (the political communities of people organized as states) and weak federal government, or one prefers the destruction of state sovereignty and a massive, consolidated national government. I guess one could say that Hamilton and the Federalists prevailed.

I look at it differently.

I myself generally prefer the former view: political communities of people organized as sovereign states. However, the fly in the ointment is that I do not hold the system of political organization, or the law itself, to be the highest order thing. No, there's a fundamental reasonableness and goodness that has to trump all of that.

And that's a problem when you come to America. We had sovereign states and a Constitution that was pretty reasonable...except that a quarter of the population were in chains, literally, without rights, and without any prospect of achieving them.

To my mind, that is so bad that it renders the nation itself illegitimate. Any nation that does THAT, for THAT long and THAT persistently, needs to be wiped from the face of the earth.

Now, it is completely true that Lincoln did not fight the war to free the slaves and end slavery. There was only the tiniest fraction of people who wanted something as radical as that, at the outset of the war.

But once again, I don't care about people's motives, or their politics: I care about the result. The South rebelled and was strong. To defeat it and "preserve the Union" - the cause that LINCOLN was on about (but that I don't myself care about either way) - ended up in a series of events that freed the slaves and kept them free.

And that is the only acceptable result as far as I am concerned. If that could have been achieved - in the same or a shorter time frame - without war, then that would have been great. But it could not have been achieved in that short a time frame without war, and I see no reason why millions of people should have to be in chains waiting on their masters to finally develop to the point to set them free. No, I think it is far better to murder their masters, by the hundreds of thousands, and destroy everything, including the original Constitution and the whole form of government, rather than to let that evil last even a decade more.

To me, the nice instrument that was the American Constitution before the Civil War was not worth preserving if that meant tolerating slavery for another decade, or five, or ten. And that is what was on offer, given Dredd Scott. The South and the Democrats win, and States Rights be preserved...and that meant slavery continue. Or the North could win won swiftly, and that would have meant slavery continued. Neither of those outcomes would have been acceptable by my lights.

The South was never going to give up the institution of slavery easily or peacefully. It was central to their idea of States rights. And the North would have let it go on had the South quickly been brought back into the fold.

By my lights, the war happened pretty much as it had to, for slavery to truly be uprooted. It went on long enough that attitudes hardened and Lincoln had to cast around for something to keep the Europeans out. And the destruction was sufficient that the slaveowners really did lose almost everything, which is an important aspect of justice as well.

Do I approve of the post-Civil War order of the American Union. Eh. It would have been better if the pre-war structure had found the intestinal fortitude to abolish slavery and keep itself intact. But that didn't happen (and wasn't going to). The result: slavery wiped out and the wealth piled up by slavery destroyed - that was a good result. So that's what I chalk up as a win. The before/after form of government? Well, before it was so bad that it permitted slavery to expand throughout the Old Southwest. And afterwards it was the sort of bad we have today. Structure wise, I'd say it was bad before and bad after.

But the country was a better place for having fought the war, so that's what I key on...to the consternation of many who do not think that the suffering of slaves is sufficient cause to destroy a country.

Vicomte13  posted on  2015-01-25   20:46:20 ET  Reply   Trace   Private Reply  


#46. To: Vicomte13 (#45)

And that's a problem when you come to America. We had sovereign states and a Constitution that was pretty reasonable...except that a quarter of the population were in chains, literally, without rights, and without any prospect of achieving them.

That is absolutely untrue. The issue of slavery was very much an open issue in the original Consitution, arguably actviely challenged. All the Founding Founders understood that issue was not resolved for all times, much less than the next 10 years or so. Most realized that it would probably take an internal war to resolve the issue or alternatively the dissoultion of the Republic. So the prospect of hope was very real and very alive.

The original Constitution was a comprise. Those against slavery held their nose and ratified it knwoing that the pressure was on, those for slavery understood that their battle was far from over.

SOSO  posted on  2015-01-25   20:54:27 ET  Reply   Trace   Private Reply  


#47. To: SOSO (#46)

That is absolutely untrue. The issue of slavery was very much an open issue in the original Consitution, arguably actviely challenged. All the Founding Founders understood that issue was not resolved for all times, much less than the next 10 years or so. Most realized that it would probably take an internal war to resolve the issue or alternatively the dissoultion of the Republic. So the prospect of hope was very real and very alive.

The original Constitution was a comprise. Those against slavery held their nose and ratified it knwoing that the pressure was on, those for slavery understood that their battle was far from over.

They discussed it, and came out wrong. And they maintained the wrong for nearly a hundred years.

Fortunately, the Civil War destroyed that America and brought slavery to a much more swift end that the Americans were ever going to get to through debate.

The war was good, because it ended slavery swiftly and brutally.

Vicomte13  posted on  2015-01-25   21:23:54 ET  Reply   Trace   Private Reply  


#48. To: Vicomte13 (#47)

They discussed it, and came out wrong. And they maintained the wrong for nearly a hundred years.

More like 70 years. And that was much longer than most of the FF thought would be the case. In the end they got it right. However there is a legitimate argument that the South had the Consitutional right to secede and that Lincoln was legally wrong to go to war over it. That argument continues to be waged today. It is far from clear cut. In the end it was might that made right.

"The war was good, because it ended slavery swiftly and brutally."

Slavery in the U.S. at that time was on the ropes and would have died a natural death. A good argument can be made that (1) a very costly war could have been avoided, and, (2) had it died that natural death the U.S. would not have had such a long period (about 100 years) of active segregation in both the South and North. But that is speculation. It's been 150 years such the Civil War and race relations are still very problematical for the country.

SOSO  posted on  2015-01-25   21:37:27 ET  Reply   Trace   Private Reply  


#49. To: Vicomte13 (#45)

I myself generally prefer the former view: political communities of people organized as sovereign states.

As do I. What I take offense to is Lincoln apologists who rewrite history to say that the states were never sovereign and the union created the states. Sort of, if Lincoln said it, it must be true. Lincoln equated states and counties.

Disclaimer: I am not saying you said any such thing. I am just raising a point of discussion.

President Lincoln's message of July 4, 1861 to the Special Session of Congress.

What is the particular sacredness of a State? I speak not of that position which is given to a State in and by the Constitution of the United States, for that all of us agree to—we abide by; but that position assumed, that a State can carry with it out of the Union that which it holds in sacredness by virtue of its connection with the Union. I am speaking of that assumed right of a State, as a primary principle, that the Constitution should rule all that is less than itself, and ruin all that is bigger than itself. But, I ask, wherein does consist that right? If a State, in one instance, and a county in another, should be equal in extent of territory, and equal in the number of people, wherein is that State any better than the county?

- - -

President Lincoln's message of July 4, 1861 to the Special Session of Congress.

The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States.

- - -

Or as another politician phrased it:

What is a federated state?

By a federated state we understand a league of sovereign states which band together of their own free will, on the strength of their sovereignty; ceding to the totality that share of their particular sovereign rights which makes possible and guarantees the existence of the common federation.

In practice this theoretical formulation does not apply entirely to any of the federated states existing on earth today. Least of all to the American Union, where, as far as the overwhelming part of the individual states are concerned, there can be no question of any original sovereignty, but, on the contrary, many of them were sketched into the total area of the Union in the course of time, so to speak. Hence in the individual states of the American Union we have mostly to do with smaller and larger territories, formed for technical, administrative reasons, and, often marked out with a ruler, states which previously had not and could not have possessed any state sovereignty of their own. For it was not these states that had formed the Union, on the contrary it was the Union which formed a great part of such so-called states. The very extensive special rights granted, or rather assigned, to the individual territories are not only in keeping with the whole character of this federation of states, but above all with the size of its area, its spatial dimensions which approach the scope of a continent. And so, as far as the states of the American Union are concerned, we cannot speak of their state sovereignty, but only of their constitutionally established and guaranteed rights, or better, perhaps, privileges.

Or, as Ronald Reagan put it:

President Ronald Reagan, First Inaugural Address, Tuesday, January 20, 1981

All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.

nolu chan  posted on  2015-01-25   23:40:33 ET  Reply   Trace   Private Reply  


#50. To: Vicomte13 (#45)

Now, it is completely true that Lincoln did not fight the war to free the slaves and end slavery.

[...]

Or the North could win won swiftly, and that would have meant slavery continued.

I agree with the first point. I have used the second point as proof of the first. Had the North routed the South on the first day and claimed absolute victory and unconditional surrender, there would have been no legal means to declare the slaves to be free. Even after the war, the 13th Amendment was adopted to address that point. If instant, total victory could not obtain a purported goal, the goal at the time must have been something else. What it was can be debated, but abolition was not it.

The South rebelled and was strong.

To defeat it and "preserve the Union" - the cause that LINCOLN was on about (but that I don't myself care about either way) - ended up in a series of events that freed the slaves and kept them free.

The South seceded. A case can be made that the war was fought over revenue collection. Certainly, Lincoln's proclamations at the start of the war followed the form for a civil disturbance and not for an invasion or insurrection. He addressed "combinations of persons" and not states and told them to disperse.

Problematic was Art. 4, Sec 4.,

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

No state requested an army to put down domestic violence. No state was invaded.

The Militia Act of 1795 provided, in relevant part,

SEC. 2. That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.

SEC. 3. That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abode, within a limited time.

SEC. 4. That the militia employed in the service of the United States shall be subject to the same rules and articles of war as the troops of the United States: and that no officer, non-commissioned officer, or private, of the militia, shall be compelled to serve more than three months after his arrival at the place of rendezvous, in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which he belongs.

It was obstructing the laws of the United States by combinations of persons beyond the powers of the marshals of the courts. Of course, there were no U.S. courts, judges, or marshals in the CSA. They had all quit. The unenforceable laws were the tax collection laws for imports.

nolu chan  posted on  2015-01-25   23:45:18 ET  Reply   Trace   Private Reply  



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