The summary of the materials suggest the amount of fascinating subjects to cover as well as the need to look at it from many angles.

What does "charity to all and malice toward none" mean in the context of a white South that had not accepted the need for regime change and the demise of white supremacy?

This is from the end of Lincoln's second inaugural. The full ending:

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan -- to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations." [April 10th edit]

The same person who led a war that led to hundreds of thousands of dead was not someone to be too cautious here. Note also this earlier portion:

"if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword"

Lincoln was criticized by radicals for what they deemed his "soft" approach and it is interesting to wonder how things would go if he survived. More than one Confederate leader deemed his assassination tragic, at least they said so, and probably rightly so. He was willing to compromise and his assassination probably made it easier to have a harder policy. Ironically, Andrew Johnson in some ways originally was seen as someone who would be harder. President Johnson in fact spent years trying to prosecute Lee and others for treason.

The war ended the idea of secession (as Scalia once noted to someone who wrote him a letter) as a credible philosophy, but it did not end the idea of white supremacy. See, e.g., even Justice Harlan's dissent in Plessy v. Ferguson. Equality was still a limited thing, as it was for Lincoln in his debates with Douglas. Some had a stronger belief in equality; there was a spectrum. One member of this blog wrote a biography of John Bingham, e.g., who was basically a moderate who from my understanding accepted social inequality, including bans on interracial marriage.

Events in 1861 and 1865-7 influenced events, including the need of further amendments. Lincoln probably would have went along. His last speech supported limited black suffrage. But, his survival might very well have led to a different type of 14th Amendment.



 

To me the most interesting phrase in Lincoln's Second Inaugural is this: "let us strive on to finish the work we are in". What did he mean by this? Finish the end of slavery? Finish restoring the Union? I'm inclined to think the former, given the passages leading up to the conclusion. But it seems to me that evaluating how Lincoln would have handled Reconstruction depends a lot on how one interprets that clause.
 

But, of course, as I have argued many times, that is not to reject the wisdom of the Founders

Personally, I think the facts that they owned and raped slaves and invented the Electoral College, and thought a Presidential system was better than a Parliament are reasons enough to question their wisdom.

And Lincoln's Second Inaugural was the font for all of the "let's be nice to the South" hot takes after the Civil War, which resulted in 100 years of extra oppression for black people. That's a nice thing to ignore too.
 

A lot to question, including for continuing some of the same things [down to rape in prisons where involuntary servitude is allowed by the 13A], today too but hey we keep on giving our wisdom.

"Nice" including killing lots of them on the battlefield etc.
 

I'm not sure Trump actually compares badly to a President who suspended the great writ, jailed opposing newspaper editors, and threatened to have a Supreme court justice jailed. Setting aside that whole waging a war that killed 2% of the entire population thing.

I'll grant Lincoln is impressive, but the impression he leaves me with isn't all that positive.
 

It's nice how Brett leaves out the context that there was a Civil War going on to maintain and extend mass human slavery at the time.

Yeah, Lincoln was the bad guy.

This guy is a certified nut.
 

Also, let's remember when W was subverting the 'great writ' recently to indefinitely detain people in the 'war on terror' Bircher Brett didn't say peep.

This is not a serious person.
 

The "waging a war" phrase is lolworthy too. Might as well describe FDR as "waging a war" against Japan.
 

I'm not sure Trump actually compares badly to a President who suspended the great writ, jailed opposing newspaper editors, and threatened to have a Supreme court justice jailed. Setting aside that whole waging a war that killed 2% of the entire population thing.

The Alexander Stephens perspective has arrived. The federal Constitution notes:

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.

It specifically leaves open suspension during the case of rebellion. Congress repeatedly authorized suspension during the war (as did the putative Confederate Congress) for this purpose.

So, we are left with the question of Lincoln having power on his own the first time, when Congress was not in session, there likely an extended time lag to get it back into session, there being an active rebellion & threats in Maryland specifically near the national capital. The clause is unclear there though Sen. Reverdy Johnson (who supported the slavery side in the Dred Scott case & later the defendants in the military commission set up to prosecute the Lincoln assassination & thus can be seen as a sort of libertarian on the issue of federal power) and others provided good arguments supporting Lincoln's move.

The jail of the CJ thing is blather -- nothing came of such things, even if we could find some serious comment on that front.

Yes, the wage war thing is silly. First, it is not like he did it on his own. We had a rebellion. And, when Congress came back into session in due time, it authorized it. The South continuing to fight -- resulting in thousands of more deaths -- long after it had no real chance of winning is also duly noted.

There was limited suppression of freedom of the press though in that era just what that meant was a lot less than it is now. This is seen, e.g., by a law passing in the 1870s, upheld by the Supreme Court without a dissenting vote, banning sending birth control information in the mails. If one cares about original understanding, the ratifiers of the First Amendment also often overlapped with those who supported the Alien and Sedition Acts. Later on, during WWI, the Supreme Court upheld things such as opposing the draft by means of a speech. This is the context of the state of the law at the time.

[Plus, there was lots of open opposition to the war and war policies freely carried expressed including in the media.]

Not sure what sort of mitigation of an active rebellion in a chunk of the country is present in a context of modern day speech law regarding Trump repeatedly threatening freedom of expression (including multiple libel actions, threats of media organizations critical of him, blocking those who wish to see his Twitter account which he uses to announce official acts etc.) entails.
 

I realize btw it is a bit absurd to extensively defend Lincoln in this fashion but when Confederate flags (with the support of the person in the White House) continue to be provided as signs of liberty and heritage (apparently significantly limited to four years of hundreds of years of history, those supporting the Union even in those years notwithstanding), it might be warranted.
 

I'll grant Lincoln is impressive, but the impression he leaves me with isn't all that positive.
# posted by Blogger Brett : 3:54 PM

It's almost like these people are proud to announce that they're racist morons.

 

"The clause is unclear there"

Give me a freaking break here: The clause is in Article 1! Which branch of government was Article 1 about? Oh, right: Congress.

What do you want? "Simon says, this clause applies to Congress"?
 

"It's almost like these people are proud to announce that they're racist morons"

It's almost like I genuinely don't like Presidents who genuinely violate the Constitution and behave in a dictatorial manner.
 

I think the procedural argument about suspension of the writ is a distraction from the substance of the issue. The substance is that Brett's original comment complained that Lincoln jailed newspaper editors. That's exactly what suspension of the writ allows. The writ is the legal method of seeking release because one's Constitutional or legal rights have been violated. Suspending the writ has the effect of suspending Constitutional and other legal rights.

As to the procedure, at common law the writ was an executive function, not legislative. At the time Lincoln suspended the writ, there was no authority determining that the power of suspension rested with Congress. Based on the common law tradition, it was reasonable to treat it as an executive decision.

Congress, of course, disagreed with Lincoln on which branch had the power to suspend. But it then independently suspended the writ and validated Lincoln's action. Thus, Lincoln's suspension was in effect for a short period of time (about 4 months) and was then validated by Congress. The procedural argument had very little practical effect. The only real purpose in citing it seems to be a weak attempt to support a morally repugnant conclusion.
 

Notice how forgiving Bircher Brett is with regards to, say, slave holding and treason re historical figures (how can we judge them, they were just persons of their time and context?) but never misses an opportunity to snipe at Lincoln (who had the context of DC being essentially surrounded by pro-slavery forces as rebellion mounted on all sides). It's telling alright.
 

It's almost like I genuinely don't like Presidents who genuinely violate the Constitution and behave in a dictatorial manner.
# posted by Blogger Brett : 8:21 AM

No, that’s definitely not it. You’re fine with dictatorial power when you think it’s on your side. And there’s really only one reason to be sniping at Lincoln 150 years after he ended slavery.
 

"The clause is unclear there"

Give me a freaking break here: The clause is in Article 1! Which branch of government was Article 1 about? Oh, right: Congress.

I am not aware that Congress as a whole necessarily disagreed with Lincoln. Some members expressly agreed with him; I provided a leading example in regard to the suspension at issue in Ex Parte Merryman. As with the Prize Cases regarding when the war officially started, Congress' express act solidified a disputed point.

Brett clashes with experts then and now -- it's so obvious! It's in Article 1!

Art 1, sec. 10 has a list of things states cannot do. Can the Congress do them all? No. The section is not merely about Congress.

Okay. Surely, Art. 1 is primarily about Congress. Does this settle it? No. The Congress, e.g., has the power to declare war. It is well understood, however, that the executive has the power to use military force in the case of sudden attacks. Such a special situation, especially in an era when the Congress could not readily come back into session, also very well might apply to the Suspension Clause.

I note Mark's technical argument; my reading is that the matter was disputed at the time by relevant experts; not everyone was so clear about things as Brett. I am well open to granting that this generally is a congressional matter (see, e.g., the exceptions clause in Art. III, regarding congressional power in such matters). But, this doesn't answer the question of how the execution should be handled.

I also note the very wording:

"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."

The previous clause specifically cited what "Congress" could not do. The citation makes clear that "it's in Art. 1!" alone does not settle the question. The very wording here is suggestive -- it "shall not be suspended." Not only "by Congress." Again, the very clause before this specifically inserted "Congress."

Likewise, a bill of attainder shall not be "passed." Congress "passes" laws. Who "suspends" habeas? Unclear. Very well might be the executive or courts as necessary. As with sudden attacks, a rebellion that occurs when Congress is out of session is a special case. For those who care, James Madison and others specifically reminded us each matter (legislative/executive/judicial) aren't totally separate matters w/o overlap. As with use of military force, same here.
 

The jailing of the newspaper editors also is a somewhat separate matter, the latter part the likely focus of the concern. Detaining without a hearing people aiding attacks on military troop movements was deemed problematic, but listed separately.

Habeas provides legal protection against wrongful detention. But, lack of such relief does not mean the jailing is authorized.

It is important when judging Lincoln's actions here that we don't merely apply modern day judgments on the reach of freedom of the press. The law at the time authorized much more than today. This would provide context on how Lincoln acted in a "dictatorial matter." As with today, there was dispute on what law did and should (as a matter of policy) protect as well. Congress passed a draft, for instance. Some, including Chief Justice Taney, thought it was unconstitutional.

The Supreme Court during WWI upheld multiple prosecutions involving protest against the war. Not a good thing. But, it was not "dictatorial" for President Wilson and others to prosecute such people. In no way am I saying it is simply fine, but when judging specific things, it is useful to put it in context. And, even in this specific respect, there was more prosecutions and people in prison (including a presidential candidate; Eugene Debs) for longer periods, arising from WWI, not a long conflict involving invasions of a chunk of home territory, than the "dictatorial" Lincoln era.
 

"Brett clashes with experts then and now -- it's so obvious! "

One of the main problems with Birchers is that they think their understandings and readings of things are obvious and that the issues are simple. They're not interested in the prospect of expanding their minds (because a true openness to this means you might not end up where you were ideologically, and being ideologues first and foremost when thinking about an issue they're not interested in that prospect). And this of course leads them into the conspiracy theory paranoia where everyone who doesn't see the 'obvious' and 'simple' truth the way they do is obviously up to something nefarious.
 

I genuinely don't like Presidents who genuinely violate the Constitution and behave in a dictatorial manner.

Says the Trump worshipper. What a joke.
 

Says the guy who thinks Trump is a passably good President, who notably has failed to jail any newspaper editors, retaliate against hostile judges in any manner except verbal, and whose foes all complain, with not a trace of fear, of what a despot he is right to his face.

If you think Trump a dictator, you haven't a clue what the word means.
 

Bircher Brett, who cries despotism so frequently, on the internet under his own name, makes this comment.

This is the least self-aware guy in the world. This is not a serious person.
 

If you think Trump a dictator, you haven't a clue what the word means.
# posted by Blogger Brett : 6:56 PM

If you think Trump compares favorably to Lincoln, then you're a clueless ignorant racist pile of crap.