While on my way to a separation of church and state rally at the capitol, I happened to pass by the monument on the left. It’s a monument to the Confederate dead. There are many similar monuments throughout Texas.
I paused to read the inscription:
DIED
FOR STATES RIGHTS GUARANTEED UNDER THE CONSTITUTION
THE PEOPLE OF THE SOUTH, ANIMATED BY THE SPIRIT OF 1776, TO PRESERVE THEIR RIGHTS, WITHDREW FROM THE FEDERAL COMPACT IN 1861. THE NORTH RESORTED TO COERCION.
THE SOUTH, AGAINST OVERWHELMING NUMBERS AND RESOURCES,
FOUGHT UNTIL EXHAUSTED.
DURING THE WAR THERE WERE TWENTY TWO HUNDRED AND FIFTY SEVEN ENGAGEMENTS.
IN EIGHTEEN HUNDRED AND EIGHTY TWO OF THESE, AT LEAST ONE REGIMENT TOOK PART.
NUMBER OF MEN ENLISTED:
CONFEDERATE ARMIES 600,000; FEDERAL ARMIES 2,859,132
LOSSES FROM ALL CAUSES:
CONFEDERATE, 437,000; FEDERAL, 485,216
“FOR STATES RIGHTS GUARANTEED UNDER THE CONSTITUTION?” That sentence made me laugh out loud. Is there a state’s right to slavery in the Constitution that I am unaware of?
Whom do they think they’re kidding? Only themselves.
-David Drumm (Nal)
Larry,
I don’t intend to get sucked into a full blown debate, but I will note that Southerners were threatened by any shifting of the balance of power between slave and non-slave states. Adding new, non-slave states without adding new slave states (effectively a containment policy on slavery) would make it easier down the road for a constitutional amendment banning slavery to pass.
James M.,
I always strive for continuity.
The sovereignty of the United States of America is not something that needs to be expanded. It is something that exists in full unless waived. Without specific waiver the sovereignty cannot be questioned by any U.S. Court. I know this sounds absurd, but the absurdity is that it has not been properly addressed.
While supremacy is explicitly identified as binding upon the courts, additional authority has never been explicitly granted to those courts. Under a Constitution where a doctrine separating the powers has been adopted one branch does not exercise authority over the other (or exercise the other branch’s power) without explicit consent.
What’s a judge to do? The answer lies with recognizing that a judge is a referee. His duty is to apply the law. While I agree that the judge must determine if a statute is repugnant to the Constitution, the judges refusal to apply that law only works to protect the rights of the party before him. (No one will disagree that the District Judge’s opinion is not binding precedent. By the same token, I don’t think anyone would disagree with a permanent injunction of the Executive has all the effect of binding precedent. We have all the taste, but none of the claories. :)) How do we make that work? This can be accomplished by temporarily enjoining application of a law deemed unconstitutional in order to permit it to be heard by a court whose decisions are controlling. This facilitates direct appeal to SCOTUS (which provides continuity) without permitting the personal whim of every District Judge from imposing their will on the entire country.
“The issue is not whether slaves or former slaves could be citizens. The issue is whether, as persons, they were governed without consent.
Larry did not maintain that governments derive their power from the consent of the “citizens” but from the consent of the “governed.” The slaves were governed without their consent.”
Who do you think the GOVERNED are??? CITIZENS!!!! Geesh!!
“Larry continually stated that Lincoln “loved” slaver and that he was “pro-slavery.”
There is nothing in Lincoln’s statement that support’s Larry’s thesis. It is completely consistent with the position that Lincoln opposed and detested slavery. It is a statement of war objectives.”
Observer——give me ONE quote—just ONE where Lincoln said his objective was to END slavery. Just one. You wont find one.
“So Lincoln’s statement that he would save the Union by freeing all the slaves is conveniently omitted by scholar Larry.
To repeat, Lincoln said “…if I could save it [the Union] by freeing all the slaves I would do it.”
And he did.”
Really? He did? How? How did the Emancipation Proclaimation free slaves?? FIRST, it was CONSTITUTIONAL to have slaves in 1857—-Ive said this REPEATEDLY. Second, the EP was ONLY valid in the SOUTH————NOT in the Federal territories. Why didnt Lincoln want NORTHERN slaves free??? The South was ALREADY seceding and was NOT acknowledging Lincoln as their President. Why would they think ANYTHING Lincoln said was valid since they were not acknowlding him as President?????? Have an answer???
By the way Observer, I notice the things you IGNORE as well as the things you address, and I noticed that even though I was addressing mespo, you IGNORED this:
Lincoln never dissolved the Union? How did he save it? Did he save it by his successful acts of any/all of the following?:
1. Suspension of Habeas Corpus throughout his entire presidency
2. Had his military imprison tens of thousands of NORTHERN political critics and opponents without due process
3. Censored all telegraph communication
4. Shut down over 300 opposition newspapers
5. Imprisoned dozens of duly elected officials of the state of Maryland
6. Participated in the rigging of Northern elections
7. Waged war without the consent of Congress
8. Illegally created a new state [West Virginia]
9. Deported the most outspoken member of the Democratic opposition, Congressman Clement L. Vallandigham of Ohio
Yes, all this was done to “save the Union” and be the “great emancipator” and be “peaceful”.
Are you trying to tell me he didnt do ANY of the above???
Also, answer this question that I asked Mespo, because he keeps ignoring it:
“Why would Southerners feel THREATENED when under the Constitution [as a result of Dred Scott] they were constitutionally PERMITTED to have slaves??”
BBB,
It is sovereignty which prevents personal jurisdiction over the United States of America.
You can accidentally waive personal jurisdiction through procedural mistakes. I think courts would be much less likely to find that a an AUSA had accidentally waived sovereign immunity. The two are conceptually different and don’t need to be linked.
BBB,
When discussing the district courts you flip back and forth between scenarios in which a federal question is raised (where you want nationwide continuity) and in which the United States is a defendant (where you are outraged that district courts can enjoin the government). Those two stances seem at odds to me, since the second seems like you want less continuity.
You also want district courts to be unable to decide the constitutionality of laws.
Finally, you bring up sovereign immunity, which is a separate conceptual issue than jurisdiction. When the United States has waived sovereign immunity, it can be sued just like anyone else (including for damages). Individuals in the government who are alleged to have acted illegally can be sued in their individual capacity for prospective relief.
I’m fine with that system. To me the whole idea of sovereign immunity is on somewhat shaky moral ground anyway, but it’s useful from a utilitarian viewpoint. I’m not sure why you want to expand it so radically.
What would a system that is acceptable to you look like? Do cases still get filed in the district courts? What happens when a district court decides a law violates the constitution?
James M.,
I am intimately familiar with personam and locum. It is sovereignty which prevents personal jurisdiction over the United States of America. It is important to first recognize such sovereignty, and then see if it has been waived before you can permit the judge to issue a directive against the sovereign.
When the Supreme Court declares a law unconstitutional it is not necessary for the Court to issue a directive against the United States of America. It is sufficient that the Court’s decision is binding upon all lower courts. A law that is void in the eyes of the Supreme Court need not be repealed in order to lose all force and effect.
Addendum to last line of last post:
you can be sued about the accident in the state in which the accident occurred, but not about an unrelated contract
BBB,
Personal jurisdiction’s purpose is to ensure you don’t have to unfairly litigate cases in foreign courts. (Foreign in this context means courts in other states.) Since the district courts are within the United States, they aren’t foreign.
Just as background, personal jurisdiction comes in two flavors, general and specific. General personal jurisdiction exists where you reside or have extensive contacts with the forum state (e.g. you can sue a company with stores in your city in your local court, even if they aren’t headquartered in your state). Specific personal jurisdiction exists where there are limited contacts with the forum state, but the lawsuit arises out of those contacts (e.g. you get a car accident while passing through a state you don’t do business in — you can be sued about the accident, but not about an unrelated contract).
James M. “Personal jurisdiction against the government in a U.S. district court is not an issue.”
Could you please provide support? It comes across as being dismissive while failing to recognize sovereignty and due process.
When a defendant asserts a protection afforded by the Constitution, does that defendant file a counterclaim against the United States of America?
James M.,
A “federal question” does not make the United States of America a defendant. It merely provides for jurisdiction when the plaintiff is asserting a federal law or the defendant has asserted a right, privilege, or protection afforded under the Constitution, Laws, or Treaties.
The “United States of America” is the sovereign. To infer that the District Court has authority over the entity which creates it is ludicrous. The sovereign has immunity, and only the sovereign, by explicit act, can waive such immunity. The Federal Tort Claims Act is a good example of that waived immunity.
Does it stand the test of logic for the employee to exercise authority over the employer, or other employees, without express limited authority?
One of the mainstays of our legal system is continuity. As “Larry could be right” noted, if a U.S. District Judge, or a panel of Circuit Court Judges, declared a law to be unconstitutional (void), it is only void in their respective jurisdiction. Only by repetition and acceptance (much like slavery –keeping with the theme of the thread) would that be acceptable to anyone who thinks about it. It promotes limited continuity, and adds to confusion. It’s something that should not be tolerated. Only a court whose decisions are controlling upon all other courts should rule a statute to be unconstitutional. The necessity of continuity must be paramount.
When traveling from state to state, we are all aware that laws will vary. Before making the journey, most intelligent people will review applicable state laws concerning a variety of things from firearm possession to transportation of alcohol. However, to investigate whether or not the federal law (the law of the land) has any force or effect (limitations or protections) as you travel through varied Districts is too bizarre to approach.
(For the most part) All District Judges are equal. To permit a District Judge to make a decision that would limit the ability of his or her equal to decide the same question for their self makes absolutely no sense. It elevates the District Judge to a position in which that judge’s opinion is binding on all other District Judges. (not only in that District, but throughout the country).
Let’s look at the recent ruling by Judge Phillips in the DADT case. Other District Judges, and other Circuit Judges have looked at the law and found it to be constitutional. However, when this lone judge (Judge Phillips) looked at the law, she (in her lone personal opinion) found it to be unconstitutional, and expanded her authority over the entire country by permanently enjoining the Executive from enforcing the law. You can’t tell me that doesn’t expand her jurisdiction, for it eliminates the ability of any of her equals from reaching a different conclusion. (This isn’t about whether or not you agree with her decision. It only has to do with the effect of her decision.)
It’s one thing for a judge to properly assert a duty under the Supremacy Clause, but quite another to acquire personal jurisdiction over the sovereign. I would have no problem with Congress authorizing the District Court to “temporarily enjoin” the Executive from enforcing a law in which the application of such would clearly violate someone’s rights (in the instant case), but going further undoubtedly makes that judges opinion controlling over judges that are her equals.
Two tylenol, two “observer” postings.
Feeling much better…
Usually, the term “consent of the governed” means that the governed persons have a right to participate in the selection of their representatives in that government.
The American colonists had no voice whatsoever in the selection of the public official who governed them in 1776. The King was a hereditary monarch. Parliament had a House of Lords made up of hereditary peers. The House of Commons was elected solely in Great Britain, from wealthy constituents. Most cabinet officials were Lords.
To this day, American citizens in the territories are governed without their consent because they have no voice in the selection of the representatives who pass laws that govern them.
Now let us compare the situation of the colonists in 1776 to that of the southern slavemasters in 1860. They had complete representation in their state governments. In the federal government, they were overrepresented in the House because 3/5ths of slaves were counted in apportionment even though they could not vote. In the Senate, each slave state had equal representation without regard to population. Many Presidents had been from the south and had been slaveowners, and some of the northern Presidents, like Buchanan and Pierce, had supported the south. The Supreme Court was headed by Taney, a pro-slavery southerner, and had a majority of southern justices.
So all of the slavemasters were governed with their consent under the meaning of the term because they had participated in the selection of all their representatives. They just happened to disagree with the election of a northern Republican. Their secession had nothing to do with consent of the governed.
It had everything to do with slavery.
Regarding “LarryLogic”, ‘Observer’ concluded: “Mind bending logic like that can give one a headache.”
Where’s the Tylenol…
LarryLogic:
Fred says he detests radical islamist religious monarchy and communist dictatorship.
Fred says, however, that he has no intention of interfering with them where they exist in Saudi Arabia and Communist China, and, if sworn in as President, will not interfere with them because under the Constitution he has no lawful right to do so.
Larry says Fred loves radical islamist religious monarchy and communist dictatorship and is pro-monarchy and pro-dictatorship.
Mind bending logic like that can give one a headache.
Correction:
Who said, “Sometimes silence is the best response.”
Worth the repetition.
Who said, “Sometimes silence is the bet response.”
Larry:
are you still fighting the civil war and want a different outcome? It seems to me you are arguing a point rather than trying to re-fight the war. I assume you accept the outcome?
Please let me know if that is right.
I hope I don’t have to change to Larry might be wrong. 🙂
Larry said: “Here’s a quote you missed from Lincoln:
“My paramount objective in this struggle is to save the Union, and it is not either to save or destroy slavery.”
Larry continually stated that Lincoln “loved” slaver and that he was “pro-slavery.”
There is nothing in Lincoln’s statement that support’s Larry’s thesis. It is completely consistent with the position that Lincoln opposed and detested slavery. It is a statement of war objectives.
Besides, Larry cropped the statement to take it out of context:
“My paramount objective in this struggle is to save the Union, and it is not either to save or destroy slavery. If I could save the Union without freeing any slaves, I would do it, if I could save it by freeing all the slaves I would do it.”
So Lincoln’s statement that he would save the Union by freeing all the slaves is conveniently omitted by scholar Larry.
To repeat, Lincoln said “…if I could save it [the Union] by freeing all the slaves I would do it.”
And he did.
larry might be right,
If Larry is trying to promote the idea of smaller government then perhaps his goal would be better served by a discussion of WWII and FDR.
Whether or not the Civil War was fought over the issue of slavery or states rights is mute because both were soundly thrashed and the Confederacy was defeated, thoroughly. Some lies are more believable than truth but today we live in the United States of America not the The Confederate States of America and no amount of denial or revisionist history changes that fact.
What might have been will never be … acceptance leads to sanity.
Larry quoted Observer:
“He [Lincoln] stated in his first Inaugural that he would not interfere with slavery where it existed in the south because he had just sworn to uphold the Constitution”
Larry’s response:
“That’s a lie. Lincoln’s EXACT quote reads: ‘I have no purpose, directly or indirectly, to interfere with the institution of slavery IN THE STATES WHERE IT EXISTS. I believe I have no lawful right to do so, and I have no inclination to do so.’”
It is not a lie.
It is an exact and precise summary of what Lincoln actually stated in his Inaugural.
Observer’s summary said that Lincoln “stated in his first Inaugural that he would not interfere with slavery where it existed in the south.” Observer wrote this because Lincoln said “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists.”
Observer said that Lincoln did this “because he had just sworn to uphold the Constitution.” Observer based this summary on Lincoln’s words “I believe I have no lawful right to do so, and I have no inclination to do so.”
Larry should be a little more careful.
Larry posted at 1AM, 3AM, and 4AM, so maybe he was a little sleepy when he posted this particular item.
Get a little rest, Larry.