Balkinization  

Tuesday, December 10, 2013

Nelson Mandela and the American Constitution

Gerard N. Magliocca

The death of Nelson Mandela raises the age-old question of whether individual leaders or impersonal forces drive history.  Most of the time it's the latter, but there are exceptional circumstances where the man or woman plays a pivotal role.  South Africa is one example.  The relatively peaceful transition of power in 1994 was hardly inevitable, and Mandela's personal qualities made a huge difference.

With that in mind, I cannot help but reflect on how much was lost when Lincoln was assassinated at a crucial juncture of our history.  Not only did America lose his exceptional skills and authority, but he was succeeded by a series of presidents who were not up to the task.  Andrew Johnson is an obvious example, but lately I've come to think that Ulysses S. Grant was almost as bad.  He had a chance to make Reconstruction work, but he squandered that opportunity through corruption and cluelessness.  Ron Chernow, who was written fine biographies of Alexander Hamilton and George Washington, is now working on Grant.  I wonder if he will be able to explain what went wrong.

Comments:

Gerard, I just read your Civil War essay at the NYTimes website. You referenced this essay in a post at Concurring Opinions. I commented favorably and was curious whether Mandela's reconciliation may have been somewhat based on Lincoln's efforts described in the essay.
 

I don't know. It would be interesting to know if Mandela ever read Lincoln's Second Inaugural.
 

There is mixed conclusions among historians about how "bad" Grant actually was, some providing somewhat sympathetic readings of his presidency. Some real attempts, e.g., to fight racist terrorists were in place.

It is hard to know really how much anyone except some uniquely great leader could make Reconstruction "work." It was a gigantic enterprise and even Lincoln had trouble with the "mini" Reconstruction efforts he tried to work out in parts of a few states in the final years of the war. He had major battles with Congress over the matter and would have likely been in a weaker position once the war was over (especially following his idea on making it easier for seceded areas to come back).

The President alone could not handle all the parts here, including needing to address the actions in over ten states, each with major economic and social upheavals to handle. Consider how the 1780s worked out with those we deem in hindsight as greats.

The country as a whole was ready to move on after years of death and heartache in the 1870s, and if the Grant Administration was a well run machine, it probably would have too. It is not like there was no corruption and cluelessness in the Lincoln Administration, the product of Cameron, McClellan and others.

It would be quite interesting to know how Lincoln would have handled things though he would likely have left mid-way anyhow with Grant a likely successor (shades of Whig general candidates).
 

I tend to suspect that Lincoln, like JFK, has such a great rep in part thanks to being killed before he could ruin it. There were some really bad signs, after all.

But, of course, we'll never know.

Extraordinary individuals can effect the course of history. For better, sometimes, for worse, on other occasions. Net, I don't know, maybe we're better off with those impersonal forces. The track record of extraordinary individuals has some pretty impressive downsides. For every Chris Patten who wields dictatorial power for the benefit of the many, there are several Robert Mugabes.

In fact, I can't, off hand, think of any other Chris Pattens.

 

Brett immediately provides negativism with this:

"I tend to suspect that Lincoln, like JFK, has such a great rep in part thanks to being killed before he could ruin it. There were some really bad signs, after all."

What were those "really bad signs" for each of Lincoln and JFK? Brett fails to inform. Brett has shown his colors at this and other blogs that suggest he believes the pre-Civil War Amendments Constitution was just great. As to JFK, he did start to address civil rights issues before his assassination. And LBJ was able to carry them through. Brett has shown his colors at this and other blogs regarding the 1960s Civil Rights Acts. And Brett has shown his true colors at this and other blogs on the changing demographics currently that so anger the already AWM faction of the GOP.

And then Brett diverts to Chris Patten and Robert Mugabee, who seem quite irrelevant to the post.

The failure of Reconstruction was followed by the Laissez-Faire/Gilded Ages which lasted until the early 20th century. Whether such failure brought about the latter is not clear, although Jim Crow was firmly established and emphasized with Plessy v. Ferguson in 1896 that prevailed until the 1954 Brown v. B. of Educ. decision.

So perhaps Brett's "rearly bad signs" were in the case of Lincoln what led to the Civil War Amendments and in the case of JFK what led to the Civil Rights Acts of the 1960s, respectfully after each was assassinated.

 

Shag, of course, has been seeing colors that aren't there ever since the 60's. ;)

I think Patten and Mugabee both qualify as historical figures whose personal qualities made a huge difference.
 

Great leaders can only change history by changing the fundamental political economy of a nation or nations.

Mandela did not.

Mandela is an inspirational leader, not a change agent.


 

Wow. Is there anyone with less of a clue than Blankshot Bart?
 

Brett continues to fail to inform us what were those "really bad signs" for each of Lincoln and JFK.
 

Mr. DePalma doesn't see Mandela changing the political economy of South Africa. Let him try to persuade the ever-growing number of black members of their middle and upper classes of his point of view. Clueless indeed.
 

Larry:

What little has changed economically since the end of apartheid was due to the lifting of sanctions and adding blacks to the civil service.

Along with its historic massive racial income and wealth disparity, South Africa now has rampant crime and government corruption.

http://www.bbc.co.uk/news/business-23041513

Mandela's main accomplishment was avoiding a racial civil war by maintaining the economic status quo and declining to take the path of Mugabe and his socialists in neighboring Zimbabwe.

It is going to take some pretty fundamental social and educational changes for the black population to join the whites in anything approaching equality in the South African economy. Our civil rights changes were far easier by comparison.


 

-What were those "really bad signs" for each of Lincoln and JFK?

Shaq, I took Brett to be arguing that Lincoln and JFK were very unpopular with big segments of the population and, had they not been turned into martyrs via assassination they may have had disappointingly unproductive subsequent years in office.
 

-Great leaders can only change history by changing the fundamental political economy of a nation or nations.

This seems quite silly to me. Apartheid underlay an amazingly wide ranging aspects of everyday life in South Africa. Getting rid of it was about as fundamental a change as one sees in history.

As a self-professed libertarian I think you would recognize this if you were aware of what apartheid entailed. The most basic of rights that libertarians value were comprehensively curtailed in the name of keeping the races segregated. Businesses were told they had to offer certain services to certain customers but not others, freedom of movement and association were regularly limited, certain occupations and transactions were forbidden.
 

Mista W, perhaps Brett should speak for himself on what he meant by "really bad signs." Popularity is a variable with all Presidents, assassinated and not. In the case of Lincoln, consider that Andrew Johnson battled Congress. Based on my readings, Lincoln would not have had that problem in getting to the Civil War Amendments. As to JFK, yes there was the Dallas right wing hatred. But that was not true for much of the nation. I suggested in an earlier comment, based upon Brett's "blog history." this:

"So perhaps Brett's 'really bad signs' were in the case of Lincoln what led to the Civil War Amendments and in the case of JFK what led to the Civil Rights Acts of the 1960s, respectfully after each was assassinated."

So let's see what Brett has to say.

"
 

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My really bad signs were:

Executive Order - Arrest and Imprisonment of Irresponsible Newspaper Reporters and Editors

Having opposition politicians arrested.

Having judges who ruled against him arrested.

Suspending Habeus by executive order. (The Constitution being clear on only the legislature having this power.) Not just in war areas, note, but also in areas where the legal system was functioning. Thus protecting the arrests from review by the legal system.

It is my suspicion that Lincoln, who was so fond of exercising dictatorial power during wartime, would not have been content to restore constitutional limits to his power in peace. Thanks to Booth, we'll never know.

But the signs weren't very good.
 

Brett shows his colors with this:

"It is my suspicion that Lincoln, who was so fond of exercising dictatorial power during wartime, would not have been content to restore constitutional limits to his power in peace. Thanks to Booth, we'll never know."

especially with that last sentence, his homage to Booth.

Perhaps Brett has actually read, studied the many , many books written on Lincoln. It is my suspicion that if Brett has done so, he has looked only for the chaff, ignoring the bounties of wheat. But of course Brett's side lost and the once Republican Party of Lincoln now has its AWM faction that includes Brett. Perhaps Brett even believes that the Civil War Amendments that came about after Booth's act were beyond constitutional limits but not beyond what Lincoln would have sought but for Booth.

Now that we have Brett's take on "really bad signs" for Lincoln, can we expect his take on "really bad signs" for JFK?
 

Actually, Shag, I'd say that, if anybody is showing their colors, it's you. You're not troubled by a President usurping powers clearly delegated to a different branch of government, having opposition newspapers and politicians arrested, or even going after judges who dare to rule against him?

I guess we should take this as an indiciation of how far Obama could go without raising Shag's ire. Some people are free, some are just looking for the right person to put shackles on them.
 

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The two ACA posts cover material Volokh Conspiracy has covered as well, if somewhat differently (Prof. Adler, e.g., is on the other side regarding one of them).

I don't like the lack of comments, but also find the font (especially for one) pretty small.


 

Brett criticizes certain of Lincoln's actions during the early portions of the Civil War and offers this:

"Some people are free, some are just looking for the right person to put shackles on them."

Yes, at the time of the Civil War some people were indeed free, including free to put shackles on others in the slave states that seceded from the Union. So is it Brett's critique of Lincoln that Lincoln took steps to unshackle those others, thus infringing on the rights of those that shackled?

Perhaps Brett, as an active member of the GOP's AWM faction, feels that he is currently being shackled metaphorically by the changing demographics that bore fruit with Lincoln's unshackling during the Civil War via the Emancipation Proclamation, followed by the Civil War Amendments and more recently by the Civil Rights Acts of the 1960s.

As to Presidents usurping power, that has been accomplished by both Republican and Democratic Presidents over many, many decades, with the assistance of Congress and the Court. I don't walk in lockstep with President Obama with his continuance of some of what had been started and thrived during the eight (8) years of Bush/Cheney, including the role of NSA, the CIA and drones.
 

The font looks bigger now.
 

Mr. W:

There is a difference between eliminating a legal obstacle to change like apartheid and actual change.

Apartheid was eliminated nearly a generation ago and things have not appreciably changed for your average black South African. Indeed, the crime and corruption are substantially worse.
 

Bart

Not appreciably changed?

Blacks in South Africa can now travel without pass cards. They can buy property and live wherever whites could (and vice versa). They can attend universities they once could not, they can vote where once they could not. They can run for offices they once could not. And the list goes on. These are basic freedoms of association, movement, contract etc., that were once comprehensively restricted in ways that are not so now.

I do not think it is hyperbole to say that the change wrought there for S. Africans is greater than the change wrought by the American Revolution for the American colonist within the same time frame.
 

Joe's "font" comment reminds me that for a geezer with aging eyesight issues this Blog is favored by me not only for content but for presentation. I do visit other legal blogs but few of them are as readily readable font-wise as this, especially with this Blog's narrow columns. Some very interesting legal blogs have smaller fonts PLUS wide columns that make readability a problem for me. For example, Dorf on Law is a quite interesting blog. I find it difficult reading its physically wide posts. In fact, I often link to comments to display the post in a more narrow version; even with that, the font plus the width of the post (even though somewhat narrowed) is difficult reading compared to this Blog for me. And magnifying a post at Dorf on Law is not that simple, requiring various adjustments. Maybe this is only a geezer problem. But the font here is a fount, especially in conjunction with narrow columns.
 

Mr. W:

There is a fundamental difference between "can" and "do."

There is no comparison between American independence from the Crown and the end of apartheid.

The American liberal, limited government political economy was formed during colonial times and enabled by distance from English political power. The American Revolution was about preserving what Americans had already created.

Blacks were never part of the political economy the South African whites had created for themselves. Once apartheid was repealed, the South African blacks still had to implement substantial social and cultural changes to join that political economy and have largely failed.

This is no small thing.

A western-style liberal political economy has yet to successfully transfer to Africa outside of white South Africa and what used to be white Rhodesia.

In former Rhodesia, Mugabe eliminated both white rule and the western-style liberal political economy. The result was not a black African renaissance born of freedom from the white colonial oppressors, but rather a wretched failed state.

In South Africa, Mandela eliminated white rule, but did leave alone the western-style liberal political economy the whites made for themselves. Despite the elimination of apartheid and the creation of a black government, blacks have not successfully joined that western-style liberal political economy in a substantial way.
 

There is a fundamental difference between "can" and "do."

# posted by Blogger Bart DePalma : 2:12 PM


It's not nearly as big a difference as there is between "can" and "can't", you imbecile.
 

While impolite I think BB's reply says most of what needs to be say in response to Bart. It is indeed very odd to see a self-professed libertarian play down the removal of infringements of the significant negative rights of freedom of movement, trade, contract and association that Mandela's S. Africa accomplished to focus on the (certainly lamentable) remaining income disparities. It seems positively leftist, or dare I say Marxist ;)
 

Bart

How different would the lives of someone living in 1801 Toronto have been, in terms of 'political economy,' from their American cousins in a comparably sized Northern American city at the same time? I am willing to bet the difference was not that great, and if you were to include matters of certain fundamental rights I bet the difference is dwarfed by the difference in same for S. Africa from 1993 to today
 

Mr. W:

Let's try this another way...

I have not argued and would not argue that any abridgment of liberty beyond preventing people from harming one another is a good thing. HOWEVER, the freedom to do something does not mean that people will do it.

Liberty is freedom from government coercion. This is a negative function.

The people creating or changing a political economy requires a myriad of affirmative acts.
 

I think Lincoln's negatives are there for all to see, but are so outweighed by the positive of winning the Civil War and ending slavery that the case for him is unarguable overall.

Having said that, I think it's silly to think he wouldn't have botched reconstruction. Reconstruction was impossible, because this was a racist nation. (Lincoln was a racist himself, despite his great achievements that redounded to the benefit of blacks.) There was no set of circumstances that wasn't going to result in exactly what happened-- disproportionate Southern power, massive oppression of poor people and blacks, lynchings, and Jim Crow.

And Grant, FWIW, was actually a heck of a lot better than Lincoln on those issues.
 

And Bart's comments in this thread strike me as just standard racist "blacks can't govern themselves" tropes.

South Africa has problems to be sure, but if it were really as he portrayed it they couldn't have hosted the World Cup with all of those foreign visitors 3 years ago. And there'd be mass immigration flows out of the country.

South Africa is immensely better off under black rule. And that's before you factor in the gross immorality of apartheid. This is an issue the right got wrong at the time and some segments of it continue to get wrong today, and they get it wrong because they don't think black people are really equal to them.
 

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I have studied the era some and am not as sure as a previous comment that Grant was "a heck of a lot better than Lincoln on those issues," including the part about the poor. They also were dealing with pretty different situations.

I also wouldn't use "botch." Agree that it was doomed to failure on some level -- society was not ready for true equality. The best you could hope for there was somewhat better success of what was done. Realistically, "work" here would be a limited thing.

The OP to me doesn't give Grant enough credit, though he can be blamed some for how he administrated things. Still, even there, the situation after the war, as the "gilded age" began was likely to be something like that.

We need to be realistic about such things and give credit where credit is due.
 

" that the case for him is unarguable overall."

Right, my point simply being that it's much easier for the case for him to be good overall, because he died before he reached the hard part. Winning the war didn't require much more than a willingness to kill a terrifying number of people to get your way, and Lincoln had that. With the North's industrial advantage, I don't see the South winning any plausible Civil war.

Winning the peace was always going to be the difficult part, and we're free to imagine him doing well there, just because he died before he could screw up.

Suppose he hadn't died, what would we now remember him for? The forced expatriation of blacks to Liberia? Continued press censorship and jailing of opposition politicians? We'll never know, because he died.
 

Lincoln was easily re-elelected in 1864 to a second term cut short by Booth. In comparison, JFK was assassinated before he could run for re-election. There was voter approval of Lincoln with his re-election whereas JFK did not have that opportunity. Myths can and do develop over the years. But what we do know is that Lincoln's Emancipation and winning the Civil War ended slavery and contributed to the Civil War Amendments. And JFK did start with civil rights efforts that continued with LBJ and the enactment of the Civil Rights Acts of the 1960s. These accomplishments are not myths. Who knows what would have happened if Lincoln and JFK had not been assassinated? Consider that Reagan lived through two full terms despite an assassination effort. Look at the myths that have developed about Reagan. How much was lost - and at what costs - with the Iran/Contra scandal that was exposed near the end of Reagan's second term, costs that continue to this date in the Middle East? But the Reagan myths cover over that scandal.

Brett's continuing critique of Lincoln:

"Winning the peace was always going to be the difficult part, and we're free to imagine him doing well there, just because he died before he could screw up."

should be examined by looking at one of Brett's favorite Presidents George W. Bush who did not die before he actually did screw up. We'll never know if Lincoln would have screwed up if he lived but we do know that George W. did.


 

"The forced expatriation of blacks to Liberia?"

Lincoln voiced some support (like his hero Henry Clay) of colonizations, but it never went anywhere. I know of one tiny botched effort made during the war. It was not "forced" either. After the war, it would have even less possible.

"Winning the war didn't require much more than a willingness to kill a terrifying number of people to get your way"

That's why it took so long. It was basically simply a matter of killing a lot of people. And, various use of strategy and policy since others also killed lots of people and did not "get your way."

"press censorship and jailing of opposition politicians"

We might have remembered him for the 13A, perhaps? Or the 14A and 15A (his last speech alluded to support of limited black suffrage, which would only grow in time)? Helping enforce the civil rights acts instead of opposing them like Andrew Johnson?

Limited press censorship occurred during wars and it was only limited -- lots of criticism still was in place. Even less was likely to occur after the war. Though the 1A was not as strictly enforced then as it was now anyhow.

Many of the arrests (like the one that led to a major battle with Taney) was against those directly involved in treasonous acts. He did not merely arrest "opposition politicians." Even Clement Vallandigham wasn't based on his own actions; he opposed it but was loathe to override his general.

I guess some will remember what they choose to remember.
 

And Bart's comments in this thread strike me as just standard racist "blacks can't govern themselves" tropes.
# posted by Blogger Dilan : 9:28 PM


I'm sure it's just a coincidence that everything he posts sounds like racist tropes...
 

"Many of the arrests (like the one that led to a major battle with Taney) was against those directly involved in treasonous acts."

You ARE aware, aren't you, that the point of suspending habeus is so that you no longer have to prove charges true in order to imprison people. So, make that "accused of treasonous acts".

Not that many of the 'treasonous acts' would actually qualify as "treason" in a legal sense. But then, Lincoln seems not to have been any more concerned with the constitutional definition of treason, than he was with the Constitution's delegation of the power to suspend the writ of habeus to Congress, not himself.
 

You ARE aware, aren't you, that the point of suspending habeus is so that you no longer have to prove charges true in order to imprison people. So, make that "accused of treasonous acts".

The 'point' is to (temporarily) avoid certain procedures (such as local treasonous populations denying true bills) deemed in emergency situations as problematic. Thus, the Constitution itself leaves open the power to suspend. Hindsight has shown the people were committing treasonous acts.

I am "aware" of this. Yes.

Not that many of the 'treasonous acts' would actually qualify as "treason" in a legal sense.

Not only were many clearly treasonous, obviously that is just the easiest cases, since any number of lawbreaking can be covered here, including things like interfering with the troops marching to defend the capital.

But then, Lincoln seems not to have been any more concerned with the constitutional definition of treason

I have no actual evidence of this & again, that isn't the only thing he was trying to deal with anyway.

than he was with the Constitution's delegation of the power to suspend the writ of habeus to Congress, not himself.

The Constitution doesn't actually clearly "delegate" the power to Congress. There is a passage that limits its suspension, but it is a general one. Especially in the time when Congress was out of session for months on end, it is far from clear that it would not give the President the power to do so until the legislature came back. Here, with the very capital threatened and Congress not likely to be able to be back for weeks at least.

And, once Congress did return, Lincoln showed "concern" and not only made sure to make a legal case, but obtain clear authority once Congress had the wherewithal to provide it.
 

As to the President's power to suspend habeas, Reverdy Johnson (D-Maryland) who argued for the winning side in the Dred Scott case and was a leading voice against the use of military commissions to try the Lincoln assassination conspirators was but one voice supportive of Lincoln's legal argument. There were strong voices on both sides.
 

"The Constitution doesn't actually clearly "delegate" the power to Congress. There is a passage that limits its suspension, but it is a general one. Especially in the time when Congress was out of session for months on end, it is far from clear that it would not give the President the power to do so until the legislature came back."

Yes. The other argument was that at common law, habeas corpus was a writ issued on behalf of *the king* (remember, the judiciary wasn't separate from the Executive in England). Thus, orders of suspension of the writ came from the king, not Parliament. That later changed, as Parliament drew more power to itself, but the basic idea of habeas as an *executive* order had a long tradition.
 

"The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it."

Yes, the wording might reflect that tradition too, it being applied differently under our own system. The text is general and seems to provide a limit to each branch. Like the Takings Clause, it is but supposition to use it to determine the source of the power being limited.
 

Dilan said... "And Bart's comments in this thread strike me as just standard racist "blacks can't govern themselves" tropes."

:::sigh:::

I was waiting for the inevitable play of the race card.

Culture determines political economy and race does nor determine culture.

African Americans have no problem participating in our political economy.

Africans have had a problem adopting a similar political economy.
 

Culture determines political economy and race does nor determine culture.

# posted by Blogger Bart DePalma : 3:01 PM


The culture of being poor and black?
 

The Constitution doesn't actually clearly "delegate" the power to Congress. There is a passage that limits its suspension, but it is a general one. Especially in the time when Congress was out of session for months on end, it is far from clear that it would not give the President the power to do so until the legislature came back.

This is totally wrong, and indeed, is un-American. The President is not the king, and he doesn't get to imprison people without trial.

Seriously, I don't think people who believe that the President can lock up anyone he or she wants to even belong in public discourse. If you like dictators, go live somewhere else.
 

Bart, racist arguments do not suddenly become non-racist by recasting them as "cultural".
 

Dilan, I didn't say that the president "can lock up anyone he or she wants" -- I provided the text of the provision that provides a limited authority to suspend habeas corpus. Mark Field apparently understood. Sorry you decided just to toss in cant.
 

Dilan:

Neither do cultural arguments become racial just because the cultural group in question happens to be mostly black.

There are some horribly obvious problems in the world, which liberalism is attempting to make impossible to discuss, by insisting that any attempt to talk about them is proof you're a racist. But that doesn't make them go away, it just makes them insoluble.
 

Those who read Gerard's Civil War essay at te NYTimes website should read Richard Striner's "The Radicalism of Lincoln's 10% Plan" essay at the same website. Striner's essay expands upon Gerard's (without referencing it).
 

Brett's:

"There are some horribly obvious problems in the world, which liberalism is attempting to make impossible to discuss, by insisting that any attempt to talk about them is proof you're a racist."

fails to address his favored AWM faction of the Republican Party that ignores the history of slavery, ignores the history of Jim Crow, claiming a colorblind America, claiming that the rights of AWM are being infringed as the demographics democratically change. Brett brushes away the end of slavery with Lincoln's Emancipation Proclamation that led to the Civil War Amendments after the assassination of Lincoln by Booth (to whom Brett pays homage). Rather Brett dwells upon habeas corpus suspension temporarily during wartime affecting the "rights" of a few (whites?) in contrast to the decades of slavery involving hundreds of thousands, eventually millions. No proportionality for Brett apparently. And it was not that long ago - Bush/Cheney - that habeas corpus was suspended during wartime. Did Brett dwell upon Bush/Cheney for doing so? I think not.
 

I think there's a slight difference, in that the Military Commissions Act of 2006 was actually enacted by Congress, while Lincoln asserted the power to suspend habeus by himself.

Both were wrongs, the act by Lincoln was an unconstitutional wrong by the President, while the Military Commissions act was a constitutional wrong committed by Congress.
 

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Dilan:

How precisely is it a "racist argument" to note the fact that blacks in America (and Europe for that matter) have no problem participating fully in a relatively limited government, free market political economy while black Africans have never adopted a similar political economy and then arguing that the reason is culture?

I would recommend that you read Thomas Sowell's Race and Culture.

 

Rather than read Thomas Sowell, I recommend a read of Bill Moyers' essay "The Great American Class War - Plutocracy Versus Democracy" at TomDispatch:

http://www.tomdispatch.com/post/175783/tomgram%3A_bill_moyers%2C_covering_class_war/#more

Sowell early on learned "so well" where the money was and surrendered his heritage for Heritage. Keep in mind that our TYRANNYSAURUS REX also supports his mentor Tom-Tom Tancredo who may be running for Governor in the Mile High State (of mind, augmented by recreational Ganja after the first of the year).
 

The point is the obvious reading of the habeas clause is not "Congress can only do this in narrow circumstances, but Lincoln could imprison anyone he wanted to without Congressional authorization". Seriously, this is basic. In that episode, Lincoln was a tyrant and did something clearly illegal.
 

Brett:

Very few racial generalizations are justified, and a lot of innocent minorities have been screwed over by such thinking. That's reason enough to avoid racial generalization, even dressed up as culture.
 

1. It's not true.

2. If it were true, it's the fault of white colonialists.

3. If it were true, the success of post Apartheid South Africa proves Sowell is full of crap (as usual).

4. It's still racist to think blacks in a particular region who weren't exposed to those great white thinkers can't govern themselves.
 

The point is the obvious reading of the habeas clause is not "Congress can only do this in narrow circumstances, but Lincoln could imprison anyone he wanted to without Congressional authorization"

Yes, so obvious that I didn't make it. The actual dispute is that in the limited context cited that he could imprison certain people for a limited time in the face of a rebellion that threatened public safety.

Seriously, this is basic. In that episode, Lincoln was a tyrant and did something clearly illegal.

Seriously, your overblown rhetoric is a bit pathetic. The learned judgment then and now is that he at least put up a reasonable argument and might have been correct. Reverdy Johnson, e.g., who AGAIN was not some executive power whore strongly agreed with him. He was not alone.

[A discussion over earlier this year on this subject at Volokh Conspiracy led to a suggestion that I read "The Body of John Merryman" by Brian McGinty and it doe provide a summary of the basics.]

 

Those in power will always find somebody in the legal community willing to say they put up a reasonable argument, no matter how unreasonably they act. That's what the legal community are, after all: The courtiers of a naked Emperor.
 

Here's a paraphrased-counterpoint of Brett's latest

"Those [not] in power will always find somebody in the legal community willing to say they put up a reasonable argument, no matter how unreasonably they act. That's what the legal community are, after all: The courtiers of a naked [anarcho-libertarian]."

Politics is a two-way street especially with the changing demographics that Brett's AWM faction of the GOP fear and that makes for their anger.

 

Yes, so obvious that I didn't make it. The actual dispute is that in the limited context cited that he could imprison certain people for a limited time in the face of a rebellion that threatened public safety.

Joe, the Fifth Amendment bars dictatorial tyrants from imprisoning people without trial, a truly un-American practice that is incompatible with democracy. Seriously, if you LIKE presidents who have the power to do this, get out of my country and go live somewhere where this power is explicit.

Your advocacy of this is offensive. I hope Obama declares an emergency and locks YOU up without trial, and then uses your own arguments to keep you in Florence, Colorado or Guantanamo Bay. And then you can think about whether, just maybe, the reason the Suspension Clause is in the Constitution is because the default assumption is that NOBODY HAS THE RIGHT TO DO THIS, not that the President can do it without a vote of Congress but if Congress does it the power is limited.

Your position is stupid, not well thought out, and just plain excuse making for a very big dictatorial move by Lincoln. And it's a position you would NEVER take from behind the Veil of Ignorance-- in other words, if there were a chance that the President might lock up YOU because you dissented from a war, you'd never say "sure the President has that power".

The learned judgment then and now is that he at least put up a reasonable argument and might have been correct.

BS. That's the judgment of Lincoln toadies.

In fact Lincoln HIMSELF said it was illegal. Ever hear of "all of the laws but one"?

Your "historical judgment" is just proof that people with an ideological axe to grind can torture a text to say anything they want to. The text is clear-- this is a limited, Congressional power. And the purpose is clear-- because we don't want single dictatorial people arrogating the power to decide that Joe goes to prison.

But I hope you do, without trial, and rot there. You can write a book about how the order that put you there was a lawful exercise of presidential power.
 

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"hope Obama declares an emergency and locks YOU up without trial"

Are you five? You sound like the sort of troll you rail against here and various places.

The all laws but one was a last resort argument. And, the rule of necessity was defended -- he argued his basic duty made it appropriate. That is, not ultimately "illegal" or "tyranny." But, he didn't think he needed that. He said:

It was not believed that any law was violated. The provision of the Constitution that "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," is equivalent to a provision -- is a provision -- that such privilege may be suspended when in cases of rebellion or invasion the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now, it is insisted that Congress and not the Executive is vested with this power. But the Constitution itself is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.

Unlike an actual tyrant, after doing what he did as rebels acted against troops marching to defend the capital, he called Congress into session, submitted his argument to them & asked for express authorization.

One more time -- the Constitution expressly provides the right to suspend habeas in limited cases. This was done various times. The people who wrote the Constitution realized "tyranny" does not include limited suspension in times of rebellion. Due process still exists, so even there, there are limits, putting aside by the text is is a limited exception.

The "toadies" included those who were critical of a range of things Lincoln did. This included someone who railed against use of military commissions to prosecute those involved in murdering him and was a member of the opposite party plus was a senator of the very area first most seriously affected!

And, per Brett, the debate and support of both sides was not just in the "legal community" but in general. But, obviously, the argument has to be seen on the merits. It is just that serious people, who don't tell me I should rot in jail, not just John Yoo types, realize Lincoln was not a tyrant here.

Mark Field seems to be one. If I go, can he come too? I need someone to play cards with.

http://eweb.furman.edu/~benson/docs/lincoln.htm
 

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The country as a whole was ready to move on after years of death and heartache in the 1870s, and if the Grant Administration was a well run machine, it probably would have too. It is not like there was no corruption and cluelessness in the Lincoln Administration, the product of Cameron, McClellan and others. Buy Fifa 14 Ultimate Team Coins
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