From: Jackson Tn
ORIGINAL: Mike Dubost
I notice that to date, no one has attempted to actually justify Lincoln's actions or positions. I hereby pick up that guantlet.
First, the question of the constitutionality of secession. Lincoln made his case against it based on two facts: 1) the Articles of Confederation were expressly declared to be a perpetual union. 2) Although the constitution contained no such statement, one of the objectives (as stated in the preamble) is "to form a more perfect union". Since a non-perpetual union is less perfect than a perpetual union, the inference is that the constitution is a perpetual union. Speaking for myself, I find this logic convincing enough that I believe secession is and always was unconstitutional. Keep that statement in mind as you read the next paragraph.
Next, the suspension of Habeas Corpus. Lincoln based his case for that on the language of the Constitution. As quoted by him in a letter to Erastus Corning and others (The Portable Abraham Lincoln, edited by Andrew Delbanco, pages 274 to 283), the constitution states "the privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it". IF you, like me, believe that secession is unconstitutional, then the attempt constitutes a rebellion. In the same letter, Lincoln submitted for the consideration of Mr. Corning a case in which General (later President) Jackson refused to honor a writ of Habeas Corpus shortly after the Battle of New Orleans. Apparently, Congress later (30 years later, according to the letter) voted to refund the principle and interest on a fine which Jackson paid for this action. This indicated a belief that the suspension of the writ was acceptable in the then-prevailing circumstances (an invasion by the UK).
Therefore, I consider that there are 3 points of reasonable debate. 1) Is secession unconstitutional? I think so, but will conceed that the constitution is not explicit on the matter. 2) If secession is unconstitutional, who gets to decide that "the public safety may require" the suspension of the writ? 3) where is it OK to suspend the writ?
In Ex Parte Milligan, the Supreme Court accepted that the suspension was constitutional, but stated that in places in which civilian courts were operating, military tribunals could not be used to try civilians. The Supreme Court decision is something I would weigh heavily in considering the suspension, even though I don't worship the court nor consider it to be infalible. Heck, even the Pope is only infalible when speaking "Ex Cathedra", if you are one of my fellow Catholics, and not even then if you aren't.
Anyone else care to take up the debate on these grounds?
Outstanding analysis Mike Dubost. The United States was in imminent and mortal danger in 1861, and action was required. Most people never give much serious thought to the issues surrounding Lincoln's decisions. I hazard the the huge majority of Americans have never heard of Letter to Erastus Corning and Others, much less appreciate the brilliant defense it offers for Lincolns actions.
Is is disturbing the Americans do not know about in the constitution Suspension Clause(Clause 2)located in Article 1, Section 9, which states, without ambiguity:
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."
I have pointed this Constitutional provision out to people before and the reaction is "so what".
As to "2) If secession is unconstitutional, who gets to decide that "the public safety may require" the suspension of the writ?" I believe only the President, as Commander in Chief, can make that decision, if for no other reason that the unwieldy task of getting the members of Congress to take action.
When it comes to the Judiciary, I too understand their fallibility. Of the many unjust decisions made one need only look at Dred Scott. So again, who would we want to suspend habeas corpus? I appreciate Lincoln's argument that the people decided by re-electing him. That may be a simple response, but it I think it the strongest. Oh, and history will be offer judgement too.
< Message edited by parusski -- 1/29/2013 3:45:59 PM >
"I hate newspapermen. They come into camp and pick up their camp rumors and print them as facts. I regard them as spies, which, in truth, they are. If I killed them all there would be news from Hell before breakfast."- W.T. Sherman