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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: 23362
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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Begin Trace Mode for Comment # 62.

#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   Untrace   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   Untrace   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   Untrace   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   Untrace   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   Untrace   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   Untrace   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   Untrace   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   Untrace   Trace   Private Reply  


Replies to Comment # 62.

#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   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 62.

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