The Iroquois Confederacy influences the Constitution!
Archive for the ‘Constitution’ Category
Go here to read this: http://www.cbsnews.com/2100-500202_162-2322220.html
Let us explore the expansion of presidential power in the 20th century. Or, perhaps more accurately, let us explore the claims of several 20th century presidents that their power was actually far broader than what had been previously understood.
How did the Vietnam War– especially the quest of LBJ to have the ability to prosecute the war freely as commander in chief– affect the balance of power in regard to the executive branch? How does this fit into historical patterns?
In 1973, in the midst of the unfolding of the Watergate scandal–historian Arthur Schlessinger published a book entitled The Imperial Presidency. Here is a review of that book by another famous American historical writer– Garry Wills– in the New York Times Book Review:
By the time that Nixon became president, this aggregation of presidential power had become noticeable. Besides his beliefs about wartime powers for the president, Nixon, as you know, was also involved in the Watergate scandal. What were Nixon’s beliefs about a president’s power? Go to this website: http://cstl-cla.semo.edu/renka/ui320-75/presidents/nixon/nixon_imperialpres.asp and use the hyperlinks at the top of the page to skip to part IV, which explains the basics of Nixon’s beliefs. (Of course, you can use the entire webpage for review for your tests as well– it’s very well done.)
After Nixon’s resignation, he agreed to a series of interviews in 1977 with David Frost (this story was told in the movie Frost/Nixon). Frost asked Nixon if there were ANY limits on presidential power? Nixon gave a fascinating response, which you need to read about here: http://www.streetlaw.org/en/Page/722/Nixons_Views_on_Presidential_Power_Excerpts_from_a_1977_Interview_with_David_Frost
It is important that you understand these concepts for our later discussion of the Watergate scandal, especially the doctrine of “executive privilege.” In the Watergate scandal, Nixon made the claim that he did not have to turn over the tapes of Oval Office conversations due to this presidential prerogative.
So what were Nixon’s claims regarding executive privilege? http://www.streetlaw.org/en/Page/708/Background_Summary__Questions_
What did the Supreme Court decide? http://www.streetlaw.org/en/Page/719/Summary_of_the_Decision
We live in a post-9/11 world, and our post- 9/11 presidents– both George W. Bush and Barack Obama– have made claims that presidential powers are broader than most people realize. In the wake of 9/11, the executive branch — president and vice president– has claimed an expansion of power to act, and part of the argument is built on war powers–especially under the promotion of Dick Cheney, who began his Washington career as an aide in… the Nixon White House! Here is a timeline of the influence of persons like Donald Rumsfeld and Dick Cheney in the Watergate scandal– and beyond: http://www.historycommons.org/timeline.jsp?nixon_and_watergate_tmln_other=nixon_and_watergate_tmln_rumsfeld__cheney__and_ford_neocons&timeline=nixon_and_watergate_tmln
Be able to discuss with me: was the Lincoln administration and the Union army right in holding John Merryman or Lambdin Milligan (what an unfortunate name!)?
Here is a nice summary from PBS regarding Ex parte Milligan: http://www.pbs.org/wnet/supremecourt/antebellum/landmark_exparte.html
Here is a great discussion of the problem of habeas corpus in wartime in general: http://www.etymonline.com/cw/habeas.htm . This provides the background info to the case of John Merryman and Lambdin Milligan.
Excerpts from the decision of Ex parte Merryman (having to do with the suspension of the writ of habeas corpus by Chief Justice Taney:
“…The case, then, is simply this: A military officer residing in Pennsylvania issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a Justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.
No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there is no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congress….
The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article.
This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department….
But the documents before me show that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ ofhabeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For at the time these proceedings were had against John Merryman, the District Judge of Maryland–the commissioner appointed under the act of Congress–the District Attorney and the Marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time there had never been the slightest resistance or obstruction to the process of any Court or judicial officer of the United States in Maryland, except by the military authority. And if a military officer, or any other person, had reason to believe that the prisoner had committed any offence against the laws of the United States, it was his duty to give information of the fact and the evidence to support it to the District Attorney, and it would then have become the duty of that officer to bring the matter before the District Judge or Commissioner, and if there was sufficient legal evidence to justify his arrest, the Judge or Commissioner would have issued his warrant to the Marshal to arrest him, and, upon the hearing of the party, would have held him to bail, or committed him for trial, according to the character of the offense as it appeared in the testimony, or would have discharged him immediately if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military. And yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the District Attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the District of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if, indeed, he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without having a hearing even before himself, to close custody in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
The Constitution provides, as I have before said, that “no person shall be deprived of life, liberty, or property, without due process of law.” It declares that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” It provides that the party accused shall be entitled to a speedy trial in a court of justice.
And these great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me; and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers may thus upon any pretext or under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found….”
Full text of Taney’s decision here: http://teachingamericanhistory.org/library/index.asp?document=442 He even brings up Aaron Burr!
Thanks to Yale University’s Avalon Project….
Written in response to the Nullification Crisis of 1837:
As you read, consider these questions: What specific charges does Jackson make against South Carolina? What point does he make regarding the idea of nullification and the failed government under the Articles of Confederation? What previous examples does he use to show the impact of the theory of nullification had it been applied in the past?
Are there any examples of nullification theory still being promoted currently in the state of Missouri?
Whereas a convention, assembled in the State of South Carolina, have passed an ordinance, by which they declare that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and more especially “two acts for the same purposes, passed on the 29th of May, 1828, and on the 14th of July, 1832, are unauthorized by the Constitution of the United States, and violate the true meaning and intent thereof, and are null and void, and no law,” nor binding on the citizens of that State or its officers, and by the said ordinance it is further declared to he unlawful for any of the constituted authorities of the State, or of the United States, to enforce the payment of the duties imposed by the said acts within the same State, and that it is the duty of the legislature to pass such laws as may be necessary to give full effect to the said ordinances:
And whereas, by the said ordinance it is further ordained, that, in no case of law or equity, decided in the courts of said State, wherein shall be drawn in question the validity of the said ordinance, or of the acts of the legislature that may be passed to give it effect, or of the said laws of the United States, no appeal shall be allowed to the Supreme Court of the United States, nor shall any copy of the record be permitted or allowed for that purpose; and that any person attempting to take such appeal, shall be punished as for a contempt of court:
And, finally, the said ordinance declares that the people of South Carolina will maintain the said ordinance at every hazard, and that they will consider the passage of any act by Congress abolishing or closing the ports of the said State, or otherwise obstructing the free ingress or egress of vessels to and from the said ports, or any other act of the Federal Government to coerce the State, shut up her ports, destroy or harass her commerce, or to enforce the said acts otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of the said State will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.
And whereas the said ordinance prescribes to the people of South Carolina a course of conduct in direct violation of their duty as citizens of the United States, contrary to the laws of their country, subversive of its Constitution, and having for its object the instruction of the Union-that Union, which, coeval with our political existence, led our fathers, without any other ties to unite them than those of patriotism and common cause, through the sanguinary struggle to a glorious independence-that sacred Union, hitherto inviolate, which, perfected by our happy Constitution, has brought us, by the favor of Heaven, to a state of prosperity at home, and high consideration abroad, rarely, if ever, equaled in the history of nations; to preserve this bond of our political existence from destruction, to maintain inviolate this state of national honor and prosperity, and to justify the confidence my fellow-citizens have reposed in me, I, Andrew Jackson, President of the United States, have thought proper to issue this my PROCLAMATION, stating my views of the Constitution and laws applicable to the measures adopted by the Convention of South Carolina, and to the reasons they have put forth to sustain them, declaring the course which duty will require me to pursue, and, appealing to the understanding and patriotism of the people, warn them of the consequences that must inevitably result from an observance of the dictates of the Convention.
Strict duty would require of me nothing more than the exercise of those powers with which I am now, or may hereafter be, invested, for preserving the Union, and for the execution of the laws. But the imposing aspect which opposition has assumed in this case, by clothing itself with State authority, and the deep interest which the people of the United States must all feel in preventing a resort to stronger measures, while there is a hope that anything will be yielded to reasoning and remonstrances, perhaps demand, and will certainly justify, a full exposition to South Carolina and the nation of the views I entertain of this important question, as well as a distinct enunciation of the course which my sense of duty will require me to pursue.
The ordinance is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured, but on the strange position that any one State may not only declare an act of Congress void, but prohibit its execution- that they may do this consistently with the Constitution-that the true construction of that instrument permits a State to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true they add, that to justify this abrogation of a law, it must be palpably contrary to the Constitution, but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws. For, as by the theory, there is no appeal, the reasons alleged by the State, good or bad, must prevail. If it should be said that public opinion is a sufficient check against the abuse of this power, it may be asked why it is not deemed a sufficient guard against the passage of an unconstitutional act by Congress. There is, however, a restraint in this last case, which makes the assumed power of a State more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by Congress-one to the judiciary, the other to the people and the States. There is no appeal from the State decision in theory; and the practical illustration shows that the courts are closed against an application to review it, both judges and jurors being sworn to decide in its favor. But reasoning on this subject is superfluous, when our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, “that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” And it may be asserted, without fear of refutation, that no federative government could exist without a similar provision. Look, for a moment, to the consequence. If South Carolina considers the revenue laws unconstitutional, and has a right to prevent their execution in the port of Charleston, there would be a clear constitutional objection to their collection in every other port, and no revenue could be collected anywhere; for all imposts must be equal. It is no answer to repeat that an unconstitutional law is no law, so long as the question of its legality is to be decided by the State itself, for every law operating injuriously upon any local interest will be perhaps thought, and certainly represented, as unconstitutional, and, as has been shown, there is no appeal.
If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania, the embargo and non-intercourse law in the Eastern States, the carriage tax in Virginia, were all deemed unconstitutional, and were more unequal in their operation than any of the laws now complained of; but, fortunately, none of those States discovered that they had the right now claimed by South Carolina. The war into which we were forced, to support the dignity of the nation and the rights of our citizens, might have ended in defeat and disgrace instead of victory and honor, if the States, who supposed it a ruinous and unconstitutional measure, had thought they possessed the right of nullifying the act by which it was declared, and denying supplies for its prosecution. Hardly and unequally as those measures bore upon several members of the Union, to the legislatures of none did this efficient and peaceable remedy, as it is called, suggest itself. The discovery of this important feature in our Constitution was reserved to the present day. To the statesmen of South Carolina belongs the invention, and upon the citizens of that State will, unfortunately, fall the evils of reducing it to practice.
If the doctrine of a State veto upon the laws of the Union carries with it internal evidence of its impracticable absurdity, our constitutional history will also afford abundant proof that it would have been repudiated with indignation had it been proposed to form a feature in our Government.
In our colonial state, although dependent on another power, we very early considered ourselves as connected by common interest with each other. Leagues were formed for common defense, and before the Declaration of Independence, we were known in our aggregate character as the United Colonies of America. That decisive and important step was taken jointly. We declared ourselves a nation by a joint, not by several acts; and when the terms of our confederation were reduced to form, it was in that of a solemn league of several States, by which they agreed that they would, collectively, form one nation, for the purpose of conducting some certain domestic concerns, and all foreign relations. In the instrument forming that Union, is found an article which declares that “every State shall abide by the determinations of Congress on all questions which by that Confederation should be submitted to them.”
Under the Confederation, then, no State could legally annul a decision of the Congress, or refuse to submit to its execution, but no provision was made to enforce these decisions. Congress made requisitions, but they were not complied with. The Government could not operate on individuals. They had no judiciary, no means of collecting revenue.
But the defects of the Confederation need not be detailed. Under its operation we could scarcely be called a nation. We had neither prosperity at home nor consideration abroad. This state of things could not be endured, and our present happy Constitution was formed, but formed in vain, if this fatal doctrine prevails. It was formed for important objects that are announced in the preamble made in the name and by the authority of the people of the United States, whose delegates framed, and whose conventions approved it.
The most important among these objects, that which is placed first in rank, on which all the others rest, is “to form a more perfect Union.” Now, is it possible that, even if there were no express provision giving supremacy to the Constitution and laws of the United States over those of the States, it can be conceived that an Instrument made for the purpose of “forming; a more perfect Union” than that of the confederation, could be so constructed by the assembled wisdom of our country as to substitute for that confederation a form of government, dependent for its existence on the local interest, the party spirit of a State, or of a prevailing faction in a State? Every man, of plain, unsophisticated understanding, who hears the question, will give such an answer as will preserve the Union. Metaphysical subtlety, in pursuit of an impracticable theory, could alone have devised one that is calculated to destroy it.
I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.
The full text can be found here: http://avalon.law.yale.edu/19th_century/jack01.asp
…which for some reason your textbook omits.
Read the excerpts from this .pdf that was handed out in class and answer:
Questions to discuss in class:
How does Hayne justify his stance on nullification historically?
Which sentence best explains the controversy between states’ rights and federalists?
What does “usurpation” mean?
How does his final point reference Revolutionary-era language?
How does Hayne basically view the Constitution? How is he mentioned in your textbook in Chapter 13?
Why does Webster emphasize the word “Union” so much in his speech? What is the word Union synonymous with, in his usage?
According to Webster, our Union performs what specific functions in paragraph 3?
What quote does Webster use to characterize the beliefs of the nullifiers?
What prescient belief does Webster have about the consequences if nullification is allowed to flourish?
Why is this argument between the two men significant?
Here is the background to the Bill of Rights: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html
Read the whole thing, including the rights that Madison included which were rejected!
Here is an interesting site– the Bill of Rights Institution: http://billofrightsinstitute.org