What actions did Lincoln take to deal with dissent
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Did Lincoln Violate the Constitution?:
A Review of Daniel Farber's Lincoln's Constitution
By RODGER D. CITRON
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Friday, July 18, 2003
For students of constitutional law and history, Abraham Lincoln is perhaps our most compelling president - for he wrestled, and forces united states to wrestle, with some of the nigh fundamental, and momentous questions of ramble police force. In his slender book Lincoln'south Constitution, Daniel Farber, a law professor at the University of California, Berkeley, and the Academy of Minnesota, takes on these very questions. Did the Southern States, similar the Founding Fathers, have the right to secede? Farber says no, though he likewise contends that the case for secession was not frivolous. Did Lincoln violate the Constitution when, in his efforts to preserve the Union, he suspended habeas corpus, and in taking certain actions without Congressional say-so? Farber argues that nearly all of Lincoln's actions were permissible under the Constitution. Moreover, when he did infringe the Constitution, his trespasses were, at least, not egregious. In Lincoln's Constitution, Farber offers a curtailed synthesis of the pertinent history, extended give-and-take of Lincoln's reasons for his deportment, and elegant analysis of the relevant issues. For these reasons lonely, the book is worth reading. Only Farber also goes further, to accost the potential contemporary relevance of some of the bug that Lincoln face. Thus, he gracefully integrates into his word recent cases raising similar questions concerning civil liberties, federalism, and separation of powers. Especially with civil liberties bug repeatedly arising, now that the war on terrorism is in progress, information technology may be instructive to expect back at the constitutional questions Lincoln confronted and so long ago. The Unpersuasive Case For Secession - and the "Compact Theory" In evaluating the case for secession, Farber traces the contend over state sovereignty back to the Framers' era. Although the Framers did not take a "clear consensus" most "the status of u.s. before the Constitution," the author shows that it even so is clear that they sought to heighten federal power, and in fact curtailed state autonomy. In his opinion for the majority, Justice Stevens contended that since the Constitution limited state sovereignty, states could non interfere with the "direct link" that representation in Congress provided "between the National Government and the people of the Usa." In dissent, Justice Thomas - joined by Justices Rehnquist, Scalia, and O'Connor -insisted that, on the contrary, the term limits amendment was a permissible practise of power reserved to united states of america. After all, "the people of each State retained their separate political identities" under the Constitution, and thus they could cull to regulate the terms for which their Congresspersons served. Farber parallels the dissenters' statement with the example for secession presented by Jefferson Davis in the Civil State of war - noting that both embrace the "compact theory" of states' rights. This theory holds that the Union was a treaty-similar meaty amidst the states that joined it - one that any land could get out, in the same way that a nation might withdraw from a multinational treaty. Farber himself takes strong issue with the "compact theory." He points out that the Constitution replaced "a government of multilateral negotiation with the democratic rule of police force." In the new authorities, federal legislation was "'the supreme police force of the land[,]'" and the new system featured "nationwide democratic institutions and authoritative dispute resolution by the federal courts." Given these features, Farber contends, the Constitution must be seen every bit far more than a treaty among usa. Farber likewise makes a more specific instance against the legality of secession, citing the structure of the Constitution and arguments made past James Madison in the Federalist Papers. He concludes, based on these sources, that one time bound past the Constitution, individual states did not relish the unilateral right to withdraw from the Matrimony. Appropriately, on the legal merits (as well as on the battlefield), Farber makes articulate that the correct party prevailed on the secession consequence in the Civil War. The Case For the Constitutionality of Lincoln'due south Acquit Of The War Due to the unprecedented nature of the crisis caused by the Ceremonious War, Lincoln was compelled to practice executive authority in a remarkably broad mode. Inevitably, his actions led to clashes with other branches of government over the assertion of his authority. Farber reviews a number of deportment taken past Lincoln in response to the military crisis - such equally "calling up the militia, deploying the military, and imposing a blockade." In each case, he concludes that Lincoln either acted in accordance with his authority nether Article II of the Constitution, or presently (albeit subsequently) obtained authorization from Congress after interim - rendering his ramble infringement comparatively slight. Farber does acknowledges that, on occasion, the actions of Lincoln or the armed services were excessive. Equally examples, he cites measures to suppress free voice communication - and in detail, a case in which a gentleman opposed to the Civil War was convicted and sentenced to decease for what may have been no more than associating with another private who wanted to take armed action confronting the Union. After the war, in Ex Parte Milligan, the Supreme Court granted the admirer'due south habeas corpus petition. Learning From Lincoln: How to Wage War And Still Respect the Constitution Lincoln's Constitution concludes with a brief discussion of the current relevance of the constitutional questions surrounding Lincoln's Presidency. Farber believes that Lincoln's bear of the war demonstrates the demand for a strong federal regime in wartime. But he also contends that it is strong testify that we need non circumvent the rule of law, or ignore constitutional protections, in dealing with such a crunch. During our greatest constitutional crisis, Farber demonstrates, the nation was extremely fortunate to have Lincoln equally its leader. He recognized the significance of the challenge posed by secession; acted decisively in responding to information technology; and however maintained a sense of perspective about the proper institutional office of the presidency. In the midst of the war on terrorism, at least 1 disputed issue in the Civil War - how to balance individuals' constitutional rights against governmental claims of national security - remains quite germane. Regardless of one'southward political amalgamation, it is undisputed that Lincoln gear up the bar rather high for his successors.
Source: https://supreme.findlaw.com/legal-commentary/did-lincoln-violate-the-constitution.html
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