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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: 23344
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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#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  


#51. To: Vicomte13 (#45)

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.

Dred Scott was a manufactured case that never should have been at SCOTUS. The real owner was Congressman Chaffee or his wife, depending on how the law of feme covert worked in Massachusetts regarding the female spouse and ownership of property. Justice Samuel Nelson was assigned and wrote what was supposed to become the opinion of the court. Justice Curtis of Massachusetts wrote his magnum opus in dissent. Chief Justice Taney took over and wrote an opinion for the court that functioned as a rebuttal to Justice Curtis.

The jurisdiction of the Federal courts was invoked on the claim of diversity of state citizenship. Sanford was a citizen of New York. Scott claimed to be a citizen of Missouri. The Missouri high court had already ruled he was not a citizen of Missouri. In fact, Sanford was never the owner. It seems the owner's name was Chaffee of Massachusetts.

There was really only one party to the suit. A "statement of agreed facts" was submitted to the trial court in St. Louis. In it, both sides agreed, as a matter of fact, that:

Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

Problematic is that Dr. Emerson had been a corpse since 1843. This made his direct sale of Scott to Sanford somewhat difficult. It also made the widow Mrs. Emerson's defense in the intervening suit Scott v. Emerson also difficult to explain. Quite simply, Mrs. Emerson was the owner when she married Congressman Calvin Chaffee of Massachusetts in 1850. Very shortly after the Dred Scott decision, the Chaffees sold or gave Scott to Peter Blow in St. Louis, the son of the first owner. It was so fast that the will of the recently deceased Sanford could not have been probated.

Scott v. Sandford, 60 US 393 (1857) was decided March 6, 1857. In May 1857, Massachusetts Congressman Calvin Chaffee executed a quitclaim deed in favor of Taylor Blow in Missouri giving Blow ownership of Dred Scott and family. On May 26, 1857 Taylor Blow emancipated the Scotts.

26 Saint Louis Circuit Court Record 263

Tuesday May 26th 1857

Taylor Blow, who is personally known to the court, comes into open court, and acknowledges the execution by him of a Deed of Emancipation to his slaves, Dred Scott, aged about forty eight years, of full negro blood and color, and Harriet Scott wife of said Dred, aged thirty nine years, also of full negro blood & color, and Eliza Scott a daughter of said Dred & Harriet, aged nineteen years of full negro color, and Lizzy Scott, also a daughter of said Dred & Harriet, aged ten years likewise of full negro blood & color.

The next day, Eliza Irene Sanford Emerson Chaffee, by her attorney, filed a motion to claim all of the wages earned by Scott, held by the Sheriff.

26 Saint Louis Circuit Court Record 267

Wednesday May 27th 1857
Dred Scott.
vs. )
Irene Emerson. )

On motion of defendants attorney it is ordered that the Sheriff of St. Louis County do render his account to the court of the wages that have come to his hands of the earnings of the above named plaintiff and that the said sheriff do pay to the defendant all such wages that now remain in his hands, excepting all commissions and expenses to which the said Sheriff may be legally entitled.

While the case was pending, Scott was in the custody of the sheriff. Such wages as were earned by Scott were kept in the custody of the sheriff. And Mrs. Sanford Emerson Chaffee really moved to collect those wages when Scott was freed.

The problem was not the Dred Scott decision or Chief Justice Taney. The problem was the Constitution. It took an amendment to outlaw slavery and that took three-fourths of the states. That got in the way of admitting lots of new free states if it was going to upset the apple cart.

nolu chan  posted on  2015-01-25   23:47:32 ET  Reply   Trace   Private Reply  


#52. To: nolu chan, vicmonte13 (#51)

I'm not as well informed of this as you folks. I seem to recall years ago someone writing that Dred Scott was an absolute victory for the second amendment. They didn't put it that way, that is paraphrasing.

I suppose all of Dred Scott was struck down.

You guys know anything about that?

A K A Stone  posted on  2015-01-26   0:34:18 ET  Reply   Trace   Private Reply  


#53. To: nolu chan (#49)

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.

The thing about the States that's historically complicated is that most states - except for the original 13 and a few other outliers - really WERE created by the federal government. Most of them were carved out of land that was federal first, acquired by the federal government by purchase or treaty or warfare, and then carved into districts by the federal government under federal rule.

The feds established the boundaries and the rules by which those territories could become states, and then once those terms were met and the states applied, the joined the existing states.

Consider the 5 states carved out of the old Northwest Territories. The Northwest Ordinance was passed under the old Articles of Confederation, it even preceded the federal gov't created by the 1787 Constitution. We might say that the Great Lakes States' existence was ordained by the confederal government.

Nevertheless, that confederal law was binding on the US, and in particular binding on the states that came out of those territories.

Notably, the setting aside of a portion of every section as public land for public education. Universal public education in Michigan, Minnesota, Wisconsin, Indiana and Ohio was ordained by the (con)federal government. The states could not overturn those land grants.

Similarly, those territories and the states that would succeed them were by confederal law to be free states. They never had the choice to be slave states. The territories were declared free.

Things that the original states and other oddball states could decide by pre- existing the federal government were not among the decisions that states carved out of federal territory could make.

So in a very real sense, most of the states were never truly sovereign: they were set up by the federal (or confederal) government on federal land following federal law, and admitted following federal procedures. Virginia, and especially Massachussetts, really were sovereign at a certain point, but Ohio never really was in any sense. It was an empty woods when it became part of the US, its land belong to the US government, which sold it on its own terms and which set up the basic parameters for the territory and the state that followed, including no slavery and public education.

Of course I'm not looking for a fight here. I recognize that the political theory of the setup of America is that sovereign states join the union and retain state sovereignty - to a degree.

I don't disagree with the thought.

I merely note that for about 35 of the states, truth is they were federal property and appendages of the federal government, founded by and established by the federal government, and organized into states under federal tutelage. They passed from being federal vassals into being states with the (limited) sovereignty of states under the Constitution.

I grew up in Michigan. Now, Michigan was first settled by Three Fires people: Potawotamie, Ottawa and Chippewa. These people were kin and relatives, so the territory was not some amalgam thrown together.

It passed largely as a unit, with the Three Tribes as the population, under French rule with conversion to Christianity, and was administered out of three French forts (at Detroit, Michilimackinac, and Sault Ste Marie, and some missions.

It passed as a unit to the British after the Treaty of Paris 1763...and promptly was the subject of a massive Indian rebellion that wiped the British out (except at Fort Detroit) and left the French (and whatever British survivors the French hid) intact. With the end of Pontiac's War the area passed (unconquered, and still mostly Indian, with some French in the three settlements, and a handful of traumatized British survivors) back into British hands. It was part of Quebec and governed (loosely) and covered by the Quebec Act.

It passed as part of the territory south of the Great Lakes into US hands with the 1783 Treaty of Paris, and was organized as the Northwest Territories in 1786 under the Confederal government's Northwest Ordinance.

The federal government moved the borders to and fro in the territories, until finally Ohio was admitted in 1802 (?) beginning the transition process to becoming states. Michigan was admitted as state in 1837, having filled up more slowly than the states to the South.

The Michiganders, heavily French and Canadian (including former American Tories) in origin, and with blood ties to the Indians, did not join in President Jackson's enthusiasm for deporting Indians to Oklahoma, so while the Cherokee were being death marched west, the Michigan territorial government was, in its transition to statehood, making all of the Indians full voting citizens of the state. Therefore, the Three Fires peoples remained in their ancestral grounds, and are significant portions of the population in certain areas.

Certainly the desires of the state as a sovereign affected things like that - the rest of the Indians in territories east of the Mississippi were mostly deported to Oklahoma. Still, Michigan pretty much passed from French tutelage to American tutelage to statehood, and never was an independent sovereignty as such other than as indian tribal lands...and even then it was like the Iroquois: a confederation of three related tribes that covered the territory.

I guess within the theory, Michiganders formed a state, were sovereign, and decided to join the Union, but really, a substantial number of people in the brand new state of Michigan were not citizens of the US before Michigan became a state, because they were "Indians not taxed", and slotted for deportation. It was only the fact of statehood that transformed that significant element of the population into citizens of something (the state), and therefore suddenly part of America.

History is really messy when the facts on the ground are compared to the political theory.

Did all these new Michiganders WANT to be US citizens? Probably not. They probably didn't CARE. But they sure as hell didn't want to be DEPORTED, so having their French cousins (mostly mixed blood also) make them full state citizens protected them...and caused federal forts to be built to watch the Indians who could not now be deported, and thereby brought in federal money and patronage to the hinterland areas by way of the federal military expenditures and provisioning.

(Later, these Michigan Indians would set up the first tribal casinos in America, getting there so quickly because the state and locals supported it...which usually is not the case in most states. Vicissitudes of history again.)

Vicomte13  posted on  2015-01-26   14:06:38 ET  Reply   Trace   Private Reply  


#54. To: A K A Stone (#52)

I'm not as well informed of this as you folks. I seem to recall years ago someone writing that Dred Scott was an absolute victory for the second amendment. They didn't put it that way, that is paraphrasing.

I suppose all of Dred Scott was struck down.

You guys know anything about that?

The Dred Scott decision was never judicially overturned, if that is what you are asking.

The post-war amendments eliminated slavery and bestowed citizenship to the freed former slaves. The Scott opinion was not ruled to be in error as to the law, rather the law was changed subsequent to the opinion.

With a finding that Scott was not a citizen of Missouri, the claim of federal jurisdiction based on diversity of state citizenship of the parties failed.

The Opinion of the Court in Scott found that Dred Scott was not a citizen of Missouri, the case had been improperly brought, that SCOTUS did not have jurisdiction to hear the case, and that the Circuit Court had not had jurisdiction to hear the case, and remanded the case to the Circuit Court to render a decision not inconsistent with that opinion, i.e., to dismiss the case for want of jurisdiction.

Repeat: the court action was to dismiss the case for want of jurisdiction.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court, and as the questions in controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case and direct a re-argument on some of the points in order that we might have an opportunity of giving to the whole subject a more deliberate

Page 60 U. S. 400

consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion.

There are two leading questions presented by the record:

1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And

2. If it had jurisdiction, is the judgment it has given erroneous or not?

[...]

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the

Page 60 U. S. 454

State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had, in open violation of law, entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri in the sense in which that word is used in the Constitution, and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction.

nolu chan  posted on  2015-01-26   14:29:48 ET  Reply   Trace   Private Reply  


#55. To: nolu chan (#50)

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.

This is good legal theory and argumentation.

I will accept it for what it effectively states: the Union's war on the Confederacy was illegal under the Constitution.

My own view is that I don't care if it was illegal or unconstitutional. The original Constitution and political arrangement of the states was unacceptable, because it left a quarter of the population as slaves. There was no legal way to swiftly end that.

The only way to end it was by illegal war that ripped it up by the roots and, in the process, de facto changed the power structures such that a revised Constitution could be imposed (by force, really, but technically through some ginned-up process) that would not tolerate slavery.

That's what happened, and I support it. The war was illegal, the Constitution was violated, the South had the right to secede, and keep slavery, under the law and under the Constitution. So therefore the law had to be broken, the Constitution violated, and the rights of slaveowners crushed out, because ending slavery is far more important on an absolute scale than any nation's sovereignty or rule of law.

There is no right to own other people. If your laws, constitution and state say there is, then your laws, constitution and state have no real legitimacy in my eyes, and in my eyes other people have the right to invade you and replace your laws and state in order to end that.

Nor do I really care that the Union didn't start the war fighting against slavery.

The way I see it, the great Confederate victories early in the war were acts of Divine Providence that ensured the war would linger long enough to exhaust and bloody both sides, and result in the abolition of slavery in the end.

The right and necessary result were arrived at. They couldn't be arrived at quickly by respecting the law, the Constitution or the "rights" of slaveowners to own slaves. So the comparative importance of things has to be viewed.

In my view of those values, abolishing slavery was far more important than preserving the Constitution as it existed, the rule of law as it existed, or individual rights as they existed before the war.

The Americans were not going to quickly arrive at a solution.

Had the Americans just remained British, all of those things that offended them would have been resolved in time. But the Americans decided not to wait for decades and decades for maybe things to get better. The lot of slaves was far worse than what the American Founders had to contend with from the British, and so the crying need to end slavery swiftly outweighed other things like rule of law or national sovereignty or individual property rights.

Alas, the Americans of the time did not think that way, so a million of them had to die to achieve the correct result.

With 20/20 hindsight, one would HOPE that men like Washington and Jefferson and Madison would have insisted on the abolition of slavery outright, as part of the Revolution. But people don't get 20/20 hindsight when they're making decisions.

Vicomte13  posted on  2015-01-26   14:31:35 ET  Reply   Trace   Private Reply  


#56. To: nolu chan (#51)

The problem was not the Dred Scott decision or Chief Justice Taney. The problem was the Constitution. It took an amendment to outlaw slavery and that took three-fourths of the states.

And it took a war and a million American dead to get to the amendment.

Vicomte13  posted on  2015-01-26   14:33:20 ET  Reply   Trace   Private Reply  


#57. To: nolu chan, vicmonte13 (#54)

Were blacks to be considered citizens — with all the rights a citizen should expect — the Court enumerated what those right would include:

“It would give to persons of the Negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” (P. 417) [emphasis added]

I was actually talking about that. That decision says that slaves if recognized could "keep and carry arm wherever they want."

That would mean that others who were not slaves enjoyed the right to "keep and carry arm wherever they want".

That is what I was getting at above.

A K A Stone  posted on  2015-01-26   19:24:30 ET  Reply   Trace   Private Reply  


#58. To: A K A Stone (#57)

More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police

Page 60 U. S. 417

regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

Taney was reciting the rights of citizenship. It is not a holding of the court, some precedent setting decision. It is just an observation, dictum, but he did note the right to keep and carry arms wherever one went. That can reasonably run up against some limit, as free speech does regarding shouting "fire" in a crowded theater.

nolu chan  posted on  2015-01-26   20:25:18 ET  Reply   Trace   Private Reply  


#59. To: Vicomte13 (#53)

Of course I'm not looking for a fight here.

Please no. I am just looking for an intellectual exchange with someone who has exhibited some real knowledge in this historical area.

The thing about the States that's historically complicated is that most states - except for the original 13 and a few other outliers - really WERE created by the federal government. Most of them were carved out of land that was federal first, acquired by the federal government by purchase or treaty or warfare, and then carved into districts by the federal government under federal rule.

I would disagree as a matter of semantics. The federal government did all you said to territories, but the states, the groups of people who had formed political communities, were admitted as states. In political terms, the state is a political community of people, not a geographical place.

Lincoln's position, echoed elsewhere, was that the union created the states, all of them. I find the claim preposterous that a union of anything created its own members. How was it a union before it had any members? A union of what?

Under the Constitution, there was an original eleven. North Carolina held out until about six months after Washington was inaugurated. Rhode Island held out for a year and its governor corresponded to the U.S. government asking that they not be treated completely as foreigners.

Consider the 5 states carved out of the old Northwest Territories. The Northwest Ordinance was passed under the old Articles of Confederation, it even preceded the federal gov't created by the 1787 Constitution. We might say that the Great Lakes States' existence was ordained by the confederal government.

The Northwest Territories were ceded to the federal government by the Virginia Act of Cession of 1783 and the Deed of Cession from Virginia of 1784 with the condition that the territory be formed into states and that "the States so formed shall be distinct Republican States, and admitted members of the Federal Union, having the same rights of sovereignty, freedom, and independence as the other States...."

We might say that the Great Lakes' existence was ordained by the Virginia Act of Cession as a condition of said cession.

Nevertheless, that confederal law was binding on the US, and in particular binding on the states that came out of those territories.

Notably, the setting aside of a portion of every section as public land for public education. Universal public education in Michigan, Minnesota, Wisconsin, Indiana and Ohio was ordained by the (con)federal government. The states could not overturn those land grants.

Similarly, those territories and the states that would succeed them were by confederal law to be free states. They never had the choice to be slave states. The territories were declared free.

Things that the original states and other oddball states could decide by pre- existing the federal government were not among the decisions that states carved out of federal territory could make.

So in a very real sense, most of the states were never truly sovereign: they were set up by the federal (or confederal) government on federal land following federal law, and admitted following federal procedures. Virginia, and especially Massachussetts, really were sovereign at a certain point, but Ohio never really was in any sense. It was an empty woods when it became part of the US, its land belong to the US government, which sold it on its own terms and which set up the basic parameters for the territory and the state that followed, including no slavery and public education.

Of course I'm not looking for a fight here. I recognize that the political theory of the setup of America is that sovereign states join the union and retain state sovereignty - to a degree.

I don't disagree with the thought.

I merely note that for about 35 of the states, truth is they were federal property and appendages of the federal government, founded by and established by the federal government, and organized into states under federal tutelage. They passed from being federal vassals into being states with the (limited) sovereignty of states under the Constitution.

I would note first, my disagreement with the entire notion of limited sovereignty. A sovereign is a political entity that knows no superior. Being a little bit sovereign is akin to being a little bit pregnant. A distortion of our founding and framing has led to the notion of divided sovereignty between the Federal and the State governments. I believe that the people are the only sovereigns, and that the Federal and State governments operate under delegated powers. The people did not delegate sovereignty, but power. The people remained sovereign and can, at their choosing, act to take back powers from the State or Federal governments.

The law that was binding on the territories became less so when they became states.

The Kansas-Nebraska Act of 1854 effectively repealed the Missouri Compromise Act of 1820. In Scott, the Missouri Compromise act of 1820 prohibiting owning slaves in certain areas was declared unconstitutional and void. This was never judicially overturned. The post-war amendments changed U.S. law so that the point was moot.

60 U.S. 452

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.

Also, as noted by Don E. Fehrenbacher in The Dred Scott Case, at page 85, "[i]n 1803, the governor and judges of Indiana Territory (comprising the whole of the Northwest except Ohio) established an indenture system tat differed little from chattel slavery except for certain legal technicalities. Sourced to Francis S. Philbrice, ed., The Laws of Indiana Territory, 1801-1809 (Springfield, Ill., 1930), 42-43; Dunn, Indiana, 314-16.

http://www.eiu.edu/past_tracker/esrace.php

Indenture of Judith, Pope County, 1818 / Typed Transcription

One can read the Indenture document from the year Illinois was admitted as a state. It held one Judith in indenture for 99 years in accordance with the law of the territory, specifically "until the twenty sixth day of January one thousand nine hundred and seventeen."

99-year indentured servitude was slavery by another name. The Illinois state constitution of 1818, created for admittance as a state, provided at Article VI:

SEC. 3. Each and every person who has been bound to service by contract or indenture in virtue of the laws of Illinois Territory heretofore existing, and in conformity to the provisions of the same, without fraud or collusion, shall be held to a specific performance of their contracts or indentures; and such negroes and mulattoes as have been registered in conformity with the aforesaid laws shall serve out the time appointed by said laws: Provided, however, That the children hereafter born of such person, negroes, or mulattoes, shall become free, the males at the age of twenty-one years, the females at the age of eighteen years. Each and every child born of indentured parents shall be entered with the clerk of the county in which they reside, by their owners, within six months after the birth of said child.

Illinois Servitude and Emancipation Records (1722–1863) [Illinois State Archives]

In Phoebe v. Jay, the Supreme Court of Illinois held that the Ordinance of 1787 was abrogated by the Illinois constitution of 1808 as approved by the U.S. congress.

Phoebe v. Jay.

Breese R., 207, Supreme Court of the State of Illinois, December Term 1828

Error to Randolph.

1. The ordinance of July 18, 1787, prohibited slavery in the territory north and west of the river Ohio.

2. That ordinance was valid, and while it remained in force no system of slavery could exist In the northwestern territory.

3. The act of the Territorial legislature of Indiana, approved September 17, 1807, which provided for the migration, registration, and service for a specified period, of persons of color, is invalid.

4. A state of slavery cannot exist under a contract in a free territory, where the person to be enslaved has no volition, but is compelled either to sign a contract or return to a state of bondage in the slave State from whence he migrated with, and where he was held in bondage by his master.

5. After a Territory forms a constitution, and is admitted into the Union as a sovereign State, her absolute powers of sovereignty then attach, and she has competent power to establish, regulate, protect, abolish, or recognize slavery, as her people may in their discretion determine.

6. The ordinance of 1787 could only be abrogated by common consent.

7. The formation of a State constitution by Illinois, and her admission into the Union by Act of Congress, is an abrogation of the ordinance by "common consent."

8. The constitution of Illinois having recognized the validity of the indentures of slaves, made in pursuance of the Indiana Act of 1807, a state of slavery is legally existing in Illinois, notwithstanding the ordinance of 1787.

9. An indentured slave is a chattel under the constitution and laws of Illinois, passes to the heirs and personal representatives of his or her master, and may be sold as personal property under an execution against the master, or his heirs or personal representatives.

10. A plea that the plaintiff was an indentured servant under the Act of Indiana of 1807, as recognized by the Illinois constitution, need not show a strict compliance with the provisions of the law; this is proper by way of replication, and the onus probandi is upon the plaintiff.

11. An administrator has no power to compel an indentured slave to attend to the ordinary business of the administrator—the latter has simply a right to the custody of the slave until he or she can be sold.

12. Distinction between a constitution and an ordinary legislative act. The constitution can make a void act valid, but no number of legislative repetitions can make an originally void act obligatory.

13. A demurrer opens the entire record, and will be sustained against the party who committed the first fault ir pleading, though his adversary's pleading is defective.

It passed largely as a unit, with the Three Tribes as the population, under French rule with conversion to Christianity, and was administered out of three French forts (at Detroit, Michilimackinac, and Sault Ste Marie, and some missions.

I hope never to be called upon to pronounce Michilimackinac. I suspect it may phonetically end in naw.

I guess within the theory, Michiganders formed a state, were sovereign, and decided to join the Union....

No. As a territory, nobody was sovereign. Sovereignty came with statehood.

I guess within the theory, Michiganders formed a state, were sovereign, and decided to join the Union, but really, a substantial number of people in the brand new state of Michigan were not citizens of the US before Michigan became a state, because they were "Indians not taxed", and slotted for deportation. It was only the fact of statehood that transformed that significant element of the population into citizens of something (the state), and therefore suddenly part of America.

This is interesting. Indians not taxed, living on reservations, did not become citizens of the United States upon statehood. Indians could leave tribal citizenship and be U.S. citizens. Did you ever hear of tribal passports? I had an Indian mention them years ago and discovered they really did exist.

http://www.news.harvard.edu/gazette/2002/03.07/20-tribal.html

HARVARD GAZETTE ARCHIVES

Finalists for American Indian awards announced

The first-ever American Indian tribally operated eagle sanctuary that helps meet a pueblo's religious and ceremonial needs, an internationally recognized Native American lacrosse team whose members travel abroad using passports issued by their Indian nation, and a tribal wellness program that prevents and combats diabetes are among the 16 finalists in the University's American Indian tribal governance awards program for the year 2002.

Did all these new Michiganders WANT to be US citizens? Probably not. They probably didn't CARE.

I would presume not, but not all the colonists wanted to stop being British. They had to choose.

History is really messy when the facts on the ground are compared to the political theory.

It's said that history is the fable agreed upon. The motives of politics on the ground may be the opposite of what is publicly professed. The law can be what a court says it is. SCOTUS once ruled that, for tax purposes, tomatoes are vegetables. I just like to rummage through old books and documents.

nolu chan  posted on  2015-01-26   20:29:48 ET  Reply   Trace   Private Reply  


#60. To: Vicomte13 (#55)

The only way to end it was by illegal war that ripped it up by the roots and, in the process, de facto changed the power structures such that a revised Constitution could be imposed (by force, really, but technically through some ginned-up process) that would not tolerate slavery.

There was a way it could (perhaps) have been done lawfully, had there been the will to do it. The Free States could have seceded and fought a lawful war against the Slave States. As it was, several border states were retained by the North only by force. Had they announced, at the beginning, that there would be a war to free the slaves, I doubt Lincoln could have raised an army to do it with.

The historical documents make pretty clear that Lincoln intentionally kept the Congress out of session until July 4th, 1861 so that the fact of an all out war would be a fait accompli upon their return. SECNAV Gideon Welles record of the last cabinet meeting with Lincoln seems to make clear Lincoln's intent to have all the states returned to normal status while the Congress was out of session.

There is no right to own other people. If your laws, constitution and state say there is, then your laws, constitution and state have no real legitimacy in my eyes, and in my eyes other people have the right to invade you and replace your laws and state in order to end that.

I view a flaw in the premise that other people were invading to change the laws. There were not two sets of laws. The people who invaded did so to change their own laws, freely agreed to, and then to enforce their new laws on others, rather than let them go in peace. Indeed, if their morals were pure, they would have marched on Delaware. Several of the Union states were slave states. It even took a while to stop the slave trade in D.C. down the street from the White House, the District being under the control of the Congress. All they had to do was do it.

In my view of those values, abolishing slavery was far more important than preserving the Constitution as it existed, the rule of law as it existed, or individual rights as they existed before the war.

I can readily accept that someone can espouse your stated position. It is honest.

I object, vigorously, when some strive to say that all Lincoln did was legal and constitutional. It effectively led to precedents that infect the current system with claims of an omnipotent unitary executive, answerable to no one, empowered to order the execution of an American citizen without trial or any due process, and other bad things.

I believe slavery would have died here, as elsewhere, due to economic reasons.

Had the Americans just remained British, all of those things that offended them would have been resolved in time.

How so? Britain created the slave colony of Sierra Leone and exported its unwanted population. In any case, few British slaves were in the British isles. America was a different problem. There were millions of slaves and they could not be exported, not even by Lincoln's proposed "voluntary deportation." Not even Mitt Romney could sell that term. While there was a minority abolition movement in the North, the majority did not want to welcome millions of black freedmen. They did not want slaves, but they did not want Blacks either. They sort of wanted them to disappear. Surprisingly, few seem to notice that at the end of the war, there was no mass migration North.

nolu chan  posted on  2015-01-26   20:33:01 ET  Reply   Trace   Private Reply  


#61. To: nolu chan (#59)

I would note first, my disagreement with the entire notion of limited sovereignty. A sovereign is a political entity that knows no superior.

If sovereignty is so defined, then none of the states has been sovereign since they enacted the Constitution, given its Supremacy Clause, as well as its clause that imposes "a republican form of government" upon each state.

If sovereigns have no superior, then by acceding to the US Constitution the states surrendered their sovereignty and became dependencies with enumerated rights, but not sovereigns.

Vicomte13  posted on  2015-01-27   7:00:50 ET  Reply   Trace   Private Reply  


#62. To: nolu chan (#59)

This is interesting. Indians not taxed, living on reservations, did not become citizens of the United States upon statehood. Indians could leave tribal citizenship and be U.S. citizens.

Michigan's approach was unprecedented, and wasn't followed by other states either. The unique situation of Michigan is that it was a northern woodland settled by the French (New Orleans was settled by the French, but its circumstances were completely different), and French settlement had meant conversion to Catholicism and a great deal of metissage between the tribes and the fur traders and soldiers. The English remained separate and aloof where they settled, and consequently, at war. The Spanish conquered cities and converted them. The French didn't conquer - they converted and traded, and intermarried with the Indians to the point that the Indian populations and the French whites were cousins sharing an economy.

Because Michigan sits in the worst weather zone in the continental US, and also because the Great Lakes make a peninsula out of it, with bogs and rivers and heavy forests on the southern approach, it was largely bypassed by American settlement for decades. The great wave of migrations swept westward past it, down the Ohio/Mississippi/Missouri River systems, out onto grassy plains that are easy to farm, and where the weather is milder.

Michigan sat up there like a sort of Baja Canada, the "region of perpetual snows", cold, forbidding, with lots of Indians still in it to boot. And the local populations in the main points of settlement were still French or French- Indian, and clannish.

Bref: there were better lands to settle, with better weather and fewer Indians, easier to get to, and with ocean access (down the rivers). Michigan was a cold, wet, French-Canadian cul-de-sac. That's why the Indians weren't pushed out.

And it was settled by French, not English, so the cousinage with the Indians was pretty extensive, and of long duration (Sault Sainte Marie was founded in 1660 - the French were in Michigan in the same era that New England, New York and the Carolinas were being seriously settled by the English).

The 1830s was a time when the Indians east of the Mississippi were all being shipped out West. This was Andrew Jackson's policy, and everywhere that still had Indians approved of it. Whites didn't like living with Indians. Michigan was the exception because it was French and the Indians and the French were mixed and the cousinage was thick. Also, the state was mostly woods, and trapping and fishing were still pretty much all there was to do in the areas that had the large Indian population, so the economic base was still the back- and-forth trade. Also, the Indians were Catholic, and the Church was protective of its members.

For all of those reasons, the Michiganders "conspired" to keep the Indians there, in place. And the mechanism to do that was to make them all citizens. The Indians were living in the woods, but so were the Whites, and everybody understood the game that was being played. The Indians didn't want to be deported, the Whites didn't want them deported, so they were made citizens. The "reservations" formally exist, but you wouldn't know they were reservations until the age of the Indian casino (which, true to form, began in Michigan). Mount Pleasant, Michigan, is a good sized city. You wouldn't know it's an Indian Reservation, but it is.

Now, later settlement by other Americans diluted both the Indian and French presence, and resulted in greater estrangement between Indians and state government, but the state citizenship of the Indians had been established long before, and was not changed.

In the casino age, reservations sort of stood up as formal entities where before they had been lines on the map, specifically to delineate reservation lines.

Also, the state used the reservation game to eucher the corruption of Detroit. Windsor, Ontario had a casino on the waterfront. Why lose all that business? But Detroit, mired in corruption, wouldn't have casinos it couldn't control (corruptly - such is the nature of Detroit).

The answer was that the state of Michigan took a parcel of land in downtown Detroit on which a state office building had sat. They deeded it to the Chippewa, and upheld the Chippewa claim to that parcel of land based on the ancient treaties. And thus an Indian Reservation was stood up in the middle of Detroit, by the connivance of the State of Michigan and the tribes. And in that one-building reservation, the Chippewa put up a casino, right next to Greektown, which was the only really decent tourist place left in Detroit. The casino revitalized Greektown, Greektown provided the stream of clientele, Detroit got its casino (against the will of the city government).

Back in the 1830s, the Michigan government played off the citizen thing to keep the Indians there, but also played off the Jackson government paranoia about Indians to make sure that some federal forts with all that patronage were placed in the Michigan territories.

Michiganders - Indians included - have always played the sovereignty game along with the Indians to extract benefits from governments, be they federal or recalcitrant municipal.

Tip O'Neill used to say that all politics are local, and the tale of the tribes in Michigan, and how the Indians and the locals really manipulated the sovereignty differentials to achieve desired results, is an example of it. The whole of American tribal law was established back in the day on the assumption that the Indians were the strange enemy in possession of the land who had to be neutralized and bought off. But when the Indians and the locals are blood cousins, and connive at exploiting the logic of the law, you end up with citizens AND federal forts (and reservations and stipends that boost the local economy), and you end up with casinos all over the state, and single-building reservations in the middle of major cities, and big Indian pow-wows every year in which all of the Indians are walking around in military uniform because they all seem to be veterans.

America is a wild ride when you get down into the weeds.

Vicomte13  posted on  2015-01-27   7:28:54 ET  Reply   Trace   Private Reply  


#63. To: nolu chan (#60)

I view a flaw in the premise that other people were invading to change the laws. There were not two sets of laws. The people who invaded did so to change their own laws, freely agreed to, and then to enforce their new laws on others, rather than let them go in peace. Indeed, if their morals were pure, they would have marched on Delaware. Several of the Union states were slave states.

I know very well that the purpose of the Union at the outset of the war was not to abolish slavery. My premise is not that the war was fought to end slavery, not at the beginning anyway. That only became part of the conscious purpose at the end.

But I take a providential view of the whole thing. The war HAPPENED because slavery was evil, and this evil poison could not peacefully continue in a country "so conceived and so dedicated". The actors were not conscious of it - although all did know that slavery was the cause of the war (not in the sense that the Union was fighting to end it, but because the Southern and Northern regions had developed vastly differently because of slavery in the one and not in the other, with all that had wrought). The South certainly seceded to protect slavery and entrench it. THAT much is clear from their declarations of secession, the Confederate Constitution, and the things stated by high confederate officials. The Southerners, for their part, were INCENSED at Northern sympathy for abolitionists and rebels like John Brown.

The North didn't start the fight to end slavery, but the urge to specifically preserve it was very strong in the South, and is deeply enmeshed in all of their important documents. The SOUTH, certainly, was fighting to preserve their "way of life", and front and center in that way of life was the formal, regulated, institutionalized slavery.

With all of the bloodshed of the war and the early Southern victories, Northern attitudes hardened into hatred of their own, and the South itself became hated. And what was the defining aspect of the South? Slavery. So while suppressing that was not the purpose for the Union marching troops South initially, the logic of tearing up that institution became part of the war logic by 1863 and 1864, certainly. And afterwards.

Of course there were always Northern radicals for whom everything was about slavery all along. These people were the 1850s equivalent of Right-to-Lifers today: people of very clear moral eyesight, who saw the most hideous evil being perpetrated by the country, and who would not rest (or be quiet) as long as that evil remained. Uncle Tom's Cabin was not written by a woman who cared about Constitutional niceties: she wanted slavery abolished. John Brown didn't care about the rule of law, he wanted slavery gone NOW, and was going to arm the slaves to do it.

I'm with Stowe and Brown on this: slavery was an evil so monstrous that it delegitimized the existence of the United States, it delegitimized the regular operation of the rule of law, and the Constitution. As long as that institution remained, America needed to be destroyed. I think the same thing about abortion. When you are murdering 2 million innocents per year, your country has no legitimate right to exist. It exists because of brute force and the will of evil people, like the Soviet Union, or Communist China, nothing more.

Given this distinctively Jacobin mindset, when I look at the Civil War, I don't care that the rule of law was violated. The country was evil, the law itself was evil: they NEEDED to be violated, as much as possible, to end slavery.

You wrote that slavery could have been ended legally by a complicated secession of the North, and invasion. I actually think it is a very good thing that the Rule of Law itself, and the Constitution, were trampled into the muck by illegal, violent actions that essentially imposed dictatorship and ripped out slavery by the roots, with mass death and destruction to all. I view this as preferable because it got the job done QUICKLY, and because it establishes that some things - like not enslaving a quarter of the population - are more important than the rule of law, more important than the Constitution, more important than property rights, more important than the regular functioning of the government, more important than ties of brotherhood, and more important than the human lives of the people holding the slaves.

I rather prefer the way God dealt with Pharaoh. There was no negotiation: it was "You will do this, or I will destroy everything you have and kill your children." Pharaoh didn't, so God did all of that, including killing the children. There was a way to peacefully get the Jews out of Egypt, but God chose to repay 400 years of slavery with utter destruction and bloodshed across Egypt.

Likewise, I agree with Lincoln's sentiments in the second inaugural address: God willed that every drop of blood drawn by the lash would be repaid by another, drawn by the sword, and that all of the wealth piled up by nearly two centuries of unrequited toil by slaves was sunk. And in that one can indeed perceive the justice of God at work. The judgments of the Lord or true, and righteous altogether.

America sowed the wind with slavery, and reaped the whirlwind of Civil War, a Civil War in which her Constitution was torn apart, the rule of law was trashed, the property of the slaveowners was destroyed (or liberated), and a million people died - as the recompense for the evils done by America.

I do not believe that there was any political solution possible, and I think Civil War as it happened was preferable to waiting 20, or 30, or 40 years for evil Americans to - MAYBE - work it out for themselves. No, open Hell and torture the Americans, and force them to rip up their sacred Constitution and their precious Rule of Law, in order to firmly establish that God's rule of law trumps THEIR petty little evil rules.

The Civil War worked out right. Part of that required the Southerners to be victorious for awhile, so that the Union became more desperate, and harder of heart against their Southern brothers, so that by the end there was no mercy, and no fig leaf left. Southern society required slavery. By the end of the war, the utter destruction of Southern society was required.

Of course, segregation eventually replaced slavery, and it took massive increases in federal power once AGAIN to overwhelm that evil.

So, when I look at the loss of the sovereignty of the states, I see the primary cause as having been, in the first instance, the evil of Americans to insist on the right to enslave other people, and in the second, the petty evil of Americans determined, if they could not enslave them, to at least hold them down.

In both cases, the evil was so rotten that it was ripped up by tearing down state sovereignty. In the first case, the Constitution itself didn't really survive. What came out of the Civil War was something different.

I don't like the concentration of power in the federal government that came out of this all. But if the choice is between the centralized state, and tolerating slavery and segregation - and that IS what the choice was - then I will accept the centralized state as vastly preferable.

Ideally, people wouldn't be so evil and we could have local government, sovereign states and limited federal government. But people WERE very evil, and it took federal power to end those things (whether that was the original purpose or not). The Almighty has his own purposes.

I look at the issue of abortion through the same eyes.

Vicomte13  posted on  2015-01-27   8:01:44 ET  Reply   Trace   Private Reply  


#64. To: Vicomte13 (#61)

If sovereignty is so defined, then none of the states has been sovereign since they enacted the Constitution, given its Supremacy Clause, as well as its clause that imposes "a republican form of government" upon each state.

If sovereigns have no superior, then by acceding to the US Constitution the states surrendered their sovereignty and became dependencies with enumerated rights, but not sovereigns.

In terms of sovereignties, the states are the political communities formed by various groups of people, as opposed to a geographical place or government.

The people did not surrender the slightest scintilla of their sovereignty by acceding to the Constitution. Nor did the Constitution impose anything upon the people. It was a compact, originally among eleven states, where the people, as states, agreed not to exercise certain powers of sovereignty. The same may be said for the Articles of Confederation, a self-described perpetual union. The people, at their pleasure met and abrogated the Articles and that union. Eleven states departed that union and started a new union with George Washington as the first president of that union.

Rather than an imposition, the people, organized as states, voluntarily undertook a new and different set of responsibilities and limitations as part of being members of the new union.

The Constitution set up governments of limited delegated powers. The Constitution set up the Federal government and specified its powers and limitations. Originally, the bill of rights only pertained to the Federal government, and not to State governments. Since the 14th Amendment, various elements of the bill of rights have been "incorporated" by the Supreme Court to apply to the States.

The Constitution explicitly states that

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Whatever powers the people did not give to the Federal government, the Federal government did not have, by direction of some sovereign superior to the Federal government.

The powers of the State governments were similarly limited by some sovereign power superior to the State governments.

It was the people, acting in their sovereign capacity, who created the Constitution and the constitutional union.

The Articles provied:

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

[...]

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

[...]

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In the face of that clear, perpetual agreement, the people abrogated it and adopted the Constitution in clear and unmistakable violation of the terms of the Articles. The Constitution was deemed to be effective upon the agreement of nine (9) states. There were actually eleven agreed states when George Washington was inaugurated and North Carolina and Rhode Island were sort of abandoned, as their legislatures had not confirmed the Constitution.

Some sovereignty greater than the Articles of Confederation and the confederate government must have acted, or the entire process would appear to be criminal.

acceding to the US Constitution

I agree with this word usage but would just note that the use of the word accede is an extremely contentious issue surrounding the civil war and secession legal debates. Notably, that applies to the legal status in 1860-61, and that does not consider changes wrought by the war and post war legal changes. In the preface to his book, Albert T. Bledsoe noted:

It is not the design of this book to open the subject of secession. The subjugation of the Southern States, and their acceptance of the terms dictated by the North, may, if the reader please, be considered as having shifted the Federal Government from the basis of compact to that of conquest; and thereby extinguished every claim to the right of secession for the future.

Bledsoe's book, Is Davis a Traitor?, was later retitled The War Between the States or Was Secession a Constitutional Right Previous to the War of 1861-65?. A Virginian, Bledsoe went to Britain during the war to work on a legal brief for the CSA. He noted the counter argument of Daniel Webster:

DID THE STATES "ACCEDE" TO THE CONSTITUTION?

He finds an example of this adroit use of language in the first resolution of Mr. Calhoun. "The first resolution," says he, "declares that the people of the several States 'acceded' to the Constitution." As "the natural converse of accession is secession, so Mr. Webster supposes that Calhoun has adroitly, and "not without a well-considered purpose," shaped his premises to a foregone conclusion. "When it is stated," says he, "that the people of the States acceded to the union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact."

But "this term accede, asserts Mr. Webster, "is wholly out of place.... There is more importance than may, at first sight, appear in the introduction of this new word by the honorable mover of the resolutions.... The People of the United States," he continues, "used no such form of expression in establishing the present Government...." It is "unconstitutional language."

Bledsoe went on the provide quote after quote of Founders and Framers applying the words accede and accession. Indeed, he quoted Webster applying those words repeatedly.

Chief Justice John Jay, one of the authors of the Federalist Papers, in Chisholm v. State of Georgia, 2 U.S. 419, 470-72 (1793) wrote:

The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain, the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war and in the warmth of mutual confidence, they made a Confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it, and then the people, in their collective and national capacity, established the present Constitution. It is remarkable

2 U. S. 471

that, in establishing it, the people exercised their own rights, and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becoming dignity, "We the people of the United States, do ordain and establish this Constitution." Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc.

If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge whether all the prerogatives which are allowed to the latter are so essential to the former. There is reason to suspect that some of the difficulties which embarrass the present question arise from inattention to differences which subsist between them.

It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority, and from his grace and grant derives all franchises, immunities and privileges; it is easy to perceive that such a sovereign could not be amenable to a court of justice, or subjected to judicial controul and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African

2 U. S. 472

slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.

From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here, it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our Governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities, and preeminences; our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.

Jay definitely speaks of a compact.

Going back to Bledsoe, he wrote:

IS THE CONSTITUTION A COMPACT?

THE QUESTION STATED

It is conceded, both by Webster1 and Story, that if the Constitution is a compact to which the States are the parties, then the States have a right to secede from the Union at pleasure. Thus says Webster: "If a league between sovereign powers have no limitation as to the time of duration, and contain nothing making it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If in the opinion of either party, it be violated, such party may say he will no longer fulfill its obligations on his part, but will consider the whole league or compact at an end, although it might be one of its stipulations that it shoulde be perpetual." In like manner Mr. Justice Story says: "The obvious deductions which may be, and indeed, have been drawn from considering the Constitution a compact tetween States, are that it operates as a mere treaty or convention between them, and has an obligatory force no longer than suits its pleasure or its consent continues,"2 etc. Thus the great controversy is narrowed down to a single question—Is the Constitution a compact between the States? If so, then the right of secession is conceded, even by its most powerful and determined opponents; by the great jurist, as well as by "the great expounder" of the North.

1 Daniel Webster

2 "Commentaries on the Constitution," vol iii, p. 287, first published in 1833.

While Federalist Jay speaks of the people establishing the Constitution in their national capacity, and therein acting as sovereigns of the whole country, I believe this was a Federalist dream that was denied by the vote of the convention.

The people of the United States have never acted in any national capacity or had a consolidated vote on anything. In enacting the Constitution, each State gave one vote of approval (or disapproval, or no vote), and nine such votes of ratification were required to establish the Constitution, and then it was only established between those eleven states that had ratified.

The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.

If the people had acted in a consolidated, national manner, it would have been impossible to have eleven states in, and two states out. It would have been impossible to have a new union between only those states that had ratified.

In exercising their sovereignty, the people acted as political communities called states. Only as States was there any ratification of the Constitution. We have never had a national vote for President or anything else. For President, we vote in 50 states under 50 different sets of election laws. As President Gore knows, the majority of the national popular vote does not count for much.

At the Virginia Convention, Patrick Henry attacked the Constitution as forming a consolidated government. James Madison responded.

http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28ed0037%29%29:

A Century of Lawmaking for a New Nation
U.S. Congressional Documents and Debates, 1774 - 1875
Elliot's Debates, Volume 3, pp. 22
Patrick Henry, Wednesday, June 4, 1788

And here I would make this inquiry of those worthy characters who composed a part of the late federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated government, instead of a confederation. That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.

http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28ed0039%29%29:

Elliot's Debates, Volume 3, pp. 94-95 James Madison in response to Patrick Henry, Friday, June 6, 1788

In some respects it is a government of a federal nature; in others, it is of a consolidated nature. Even if we attend to the manner in which the Constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this government is not completely consolidated, nor is it entirely federal. Who are parties to it? The people—but not the people as composing one great body; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it. Were it such a government as is suggested, it would be now binding on the people of this state, without having had the privilege of deliberating upon it. But, sir, no state is bound by it, as it is, without its own consent. Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made in it, the same idea is, in some degree, attended to. By the new system, a majority of the states cannot introduce amendments; nor are all the states required for that purpose; three fourths of them must concur in alterations; in this there is a departure from the federal idea. The members to the national House of Representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the Senate, its members are elected by the states in their equal and political capacity. But had the government been completely consolidated,

Page 95

the Senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.

nolu chan  posted on  2015-01-27   23:42:42 ET  Reply   Trace   Private Reply  


#65. To: Vicomte13 (#62)

Because Michigan sits in the worst weather zone in the continental US, and also because the Great Lakes make a peninsula out of it, with bogs and rivers and heavy forests on the southern approach, it was largely bypassed by American settlement for decades.

I'm a native New Yorker and have never been to Michigan, but I was at Great Lakes, Illinois in the winter. It was the worst weather zone I have encountered in the world. It hit 25 below without a wind chill. A big ice storm hit and the crap didn't melt for about two months. About the only thing I recall is it was cold. Thanks for the Michigan history.

My years in Newfoundland and the northern tip of Scotland were like days at the beach in comparison. If it's 1 p.m. in New York, what time is it in Newfoundland? Why, it's 2:30 p.m., of course. Somehow, that just ain't right.

nolu chan  posted on  2015-01-27   23:44:13 ET  Reply   Trace   Private Reply  


#66. To: Vicomte13 (#63)

But I take a providential view of the whole thing. The war HAPPENED because slavery was evil, and this evil poison could not peacefully continue in a country "so conceived and so dedicated".

I take a more cynical view. Wars are started by politicians and really about power and money. After the Alien and Sedition acts, the Federalists quickly lost power and were extinguished. They essentially rebranded as the not too successful Whigs. In 1854, they rebranded as the Republicans. It was a political party. They needed an issue and a candidate. Slavery was a convenient wedge issue. Lincoln was a convenient candidate that nobody knew too much about, candidates did not campaign, and there was no internet back then. Only the radical Republicans gave a damn about slavery, before or after the war, and they were a minority, vocal but a minority.

Lincoln was reviled by the abolitionists. There are no glowing tomes written about Lincoln by black authors. There is the 2000 book, Forced Into Glory: Abraham Lincoln's White Dream, by Lerone Bennett, Jr., longtime editor of Ebony magazine, which left the Lincoln lobby apoplectic. He took much of the mythology and just skewered it. Bennett wrote, at page 300-01:

It was at this precise moment that a new phenomenon in world history, the antislavery Abraham Lincoln, made his debut, coming, as usual, late to the struggle and talking, as usual, on both sides of the issue. Lincoln was a down-on-his-luck Illinois politician who had blown his one big political chance in Congress and who was widely believed to be in the rigor mortis stage of a once promising political career. For five years, ever since he left Congress in disfavor, he had been sniffing aroujd the edges of the arena, trying to find or manufacture an issue that would get him back in the game. By 1853, it was clear to him, Donald W. Riddle says, that there was only one issue that could help him recoup is political fortunes. That issue was the antislavery issue, which was churing up constituencies all over the country. The only problem was that Lincoln had never been identified with that issue. No matter. Riddle and others, including the author, believe that Lincoln deliberately used the antislavery issue to get back into the game and to salvage his personal career. "Never before [the Kansas-Nebraska Act] had Lincoln run for offfice on the slavery issue," Riddle says, "but never afterward would he run on any other." [footnotes omitted]

And there was Frederick Douglass in 1876.

Oration in Memory of Abraham Lincoln

Frederick Douglass
April 14, 1876
Delivered at the Unveiling of The Freedmen’s Monument in Memory of Abraham Lincoln
Lincoln Park, Washington, D.C.

Friends and Fellow-Citizens:

[...]

He was preeminently the white man’s President, entirely devoted to the welfare of white men. He was ready and willing at any time during the first years of his administration to deny, postpone, and sacrifice the rights of humanity in the colored people to promote the welfare of the white people of this country. In all his education and feeling he was an American of the Americans. He came into the Presidential chair upon one principle alone, namely, opposition to the extension of slavery. His arguments in furtherance of this policy had their motive and mainspring in his patriotic devotion to the interests of his own race. To protect, defend, and perpetuate slavery in the states where it existed Abraham Lincoln was not less ready than any other President to draw the sword of the nation. He was ready to execute all the supposed guarantees of the United States Constitution in favor of the slave system anywhere inside the slave states. He was willing to pursue, recapture, and send back the fugitive slave to his master, and to suppress a slave rising for liberty, though his guilty master were already in arms against the Government. The race to which we belong were not the special objects of his consideration. Knowing this, I concede to you, my white fellow-citizens, a pre-eminence in this worship at once full and supreme. First, midst, and last, you and yours were the objects of his deepest affection and his most earnest solicitude. You are the children of Abraham Lincoln. We are at best only his step-children; children by adoption, children by forces of circumstances and necessity.

One may notice that Blacks are overwhelmingly Democrats. Once the war was over the welfare of the freedmen ceased to be a big concern for the GOPe. When the contested election of 1876 came along, so did a quid pro quo, the Compromise of 1877, the electoral votes of SC, FL, and LA, and four more years, and in return, the end of reconstruction. The troops were pulled out, White Republicans left, Southern Democrats rose to power again, and Black Republicans were left out in the cold.

nolu chan  posted on  2015-01-27   23:48:07 ET  Reply   Trace   Private Reply  


#67. To: Vicomte13, A K A Stone (#63)

As long as that institution remained, America needed to be destroyed. I think the same thing about abortion. When you are murdering 2 million innocents per year, your country has no legitimate right to exist. It exists because of brute force and the will of evil people, like the Soviet Union, or Communist China, nothing more.

But whose God? What law? Strict fundamentalist? Progressive Episcopal? Roman Catholic? Jewish?

No, open Hell and torture the Americans, and force them to rip up their sacred Constitution and their precious Rule of Law, in order to firmly establish that God's rule of law trumps THEIR petty little evil rules.

There is nothing sacred about the Constitution. It was written by men.

Who would you have torture the Americans, and how would you choose which American to torture? Maybe Sharia law would work – obey or be beaten. Perhaps we could bring back the Inquisition, but I think I would prefer to just tinker a bit with the petty little evil rules of men.

I don't like the concentration of power in the federal government that came out of this all. But if the choice is between the centralized state, and tolerating slavery and segregation - and that IS what the choice was - then I will accept the centralized state as vastly preferable.

Of course, the concentration of power in the federal government enabled the assumption of jurisdiction and the federal power displayed by the U.S. Supreme Court in Roe v. Wade, which made prohibition of abortion unlawful in all 50 states. Personally, I think that would be better left to the States or to the people.

The Constitution did not establish any Federal crime of murder or infanticide. In those states that felt so inclined, abortion was a state crime... until the Federal government said they couldn't do that. That is pursuant to an emanation from a penumbra somewhere, not quite certain, in the Constitution.

Giving the central government unlimited to do good ultimately means it has unlimited power to do whatever the hell it pleases.

Regarding the issue of having a war about abortion, there is a series of four books by Neal Shusterman themed on that issue. The first in the series, Unwind sets the stage with this preface:

The Bill of Life

The Second Civil War, also known as "The Heartland War," was a long and bloody conflict fought oveer a single issue.

To end the war, a set of constitutional amendments known as "The Bill of Life" was passed.

It satisfied both the Pro-life and the Pro-choice armies.

The Bill of Life states that human life may not be touched from the moment of conception until a child reaches the age of thirteen.

However, between the ages of thirteen and eighteen, a parent may choose to retroactively "abort" a child...

... on the condition that the child's life doesn't "technically" end.

The process by which a child is both terminated and yet kept alive is called "unwinding."

Unwinding is now a common, and accepted practice in society.

Unwind on Amazon.

In America after the Second Civil War, the Pro-Choice and Pro-Life armies came to an agreement: The Bill of Life states that human life may not be touched from the moment of conception until a child reaches the age of thirteen. Between the ages of thirteen and eighteen, however, a parent may choose to retroactively get rid of a child through a process called "unwinding." Unwinding ensures that the child's life doesn’t “technically” end by transplanting all the organs in the child's body to various recipients. Now a common and accepted practice in society, troublesome or unwanted teens are able to easily be unwound.

With breathtaking suspense, this book follows three teens who all become runaway Unwinds: Connor, a rebel whose parents have ordered his unwinding; Risa, a ward of the state who is to be unwound due to cost-cutting; and Lev, his parents' tenth child whose unwinding has been planned since birth as a religious tithing. As their paths intersect and lives hang in the balance, Shusterman examines serious moral issues in a way that will keep readers turning the pages to see if Connor, Risa, and Lev avoid meeting their untimely ends.

In this future world, all difficulties with organ transplants have been overcome. The life of the unwound child does not end, it continues on in the divided state.

And then there was the Storking Initiative, leave an unwanted baby at someone's door and legally it is theirs, not optional.

Sounds crazy, right?

http://www.cnn.com/2008/US/11/14/nebraska.safe.haven/

Nebraska fears rush to drop off kids before haven law change

By Ed Lavandera
CNN
updated 11:38 a.m. EST, Fri November 14, 2008

OMAHA, Nebraska (CNN) -- Nebraska officials said they're concerned about an apparent rush by parents to drop their teenage children off at hospitals before lawmakers change the state's troubled "safe haven" law.

The latest cases came the day before the state Legislature kicked off a special session to add an age limit to the law.

On Thursday, a boy, 14, and his 17-year-old sister were dropped off at an Omaha hospital; the girl ran away from the hospital, officials said. A 5-year-old boy was left by his mother at a different hospital, officials said.

The day before, a father flew in from Miami, Florida, to leave his teenage son at a hospital, officials said.

"Please don't bring your teenager to Nebraska," Gov. Dave Heineman said. "Think of what you are saying. You are saying you no longer support them. You no longer love them." Video Watch as lawmakers convene to change law »

Nebraska's safe haven law was intended to allow parents to hand over an infant anonymously to a hospital without being prosecuted. Of the 34 children who have been dropped off at hospitals, officials said, not one has been an infant.

All but six have been older than 10, according to a Nebraska Department of Health and Human Services analysis.

[...]

The safe haven law was meant to protect infants, but there is no age limit under the current law. Five of the abandoned children were brought to Nebraska from out of state. Parents have traveled into Nebraska from Michigan, Indiana, Iowa, Florida and Georgia.

[snip]

Unwind is teen or young adult fiction, so no sex or cussing.

nolu chan  posted on  2015-01-27   23:49:41 ET  Reply   Trace   Private Reply  


#68. To: nolu chan (#65)

My years in Newfoundland and the northern tip of Scotland were like days at the beach in comparison.

The ocean and its warm currents really modify the weather. Consider: Paris and Quebec City are at the same latitude. Winter in Paris is as dark as it is Quebec, and occasionally you can see the Northern Lights in Paris too, just like you can in Quebec.

Beyond that, though, the analogy ends. Paris in winter is damp and rainy, with occasional snow. Quebec is frigid and buried under mountains of it all winter. The ocean on the leeward shore makes all the difference.

Michigan is on the leeward shore of Lake Michigan from Chicago. Chicago, on the windward shore, is really, really windy and quite cold. Lake Michigan moderates the cold and lets there be fruit tree orchards all the way up to Michigan's little finger, about 300 miles north of Chicago by latitude.

The payback for the warmer (or rather, "warmer") temperature on the leeward shore is the Lake Effect. Those cold, dry prairie winds sweep across the lake and pick up moisture. Then they hit the Michigan shoreline and they dump that moisture as mountains of snow. Huge piles of it. 100, 150 inches per year, year after year. Same thing happens on the Lake Superior shore. Massive snowfalls. Buffalo is a biggish city so it gets reported. Nobody cares about barely populated forests and getting buried in snow. And Michigan's a lot north of Buffalo, so the snow comes with the cold.

Move about 20 miles off the shoreline, and the snow is less heavy, but the drier air has that Canadian cold coming right down from Hudson's Bay, which acts as a sort of channel to drive it south like an arrow.

The state record cold is 51 below Fahrenheit, -91 with the windchill. Which pretty much sucks any way you dice it. Cold is nice. THAT cold isn't.

Vicomte13  posted on  2015-01-28   13:18:57 ET  Reply   Trace   Private Reply  



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