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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: 23370
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 # 66.

#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  


#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   Untrace   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   Untrace   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   Untrace   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   Untrace   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   Untrace   Trace   Private Reply  


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