Tuesday, March 14, 2017

"Silent enim legēs inter arma" - Cicero

A Union Forged in Extra-Constitutionality?
"Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
- Antonin Scalia

And can such a Union be trusted to respect any "Constitutional" limit?

60 comments:

FreeThinke said...

How Scalia must have DESPISED Abraham Lincoln!

Thersites said...

Abosolute power corrupts absolutely.

Jersey McJones said...

Well, that's an interesting quote. From the Hamdi decision. What he was saying was that the AUMF was NOT a declaration of war and therefor inter arma silent leges, regardless of it's merit, was moot anyway because we were NOT CONSTITUTIONALLY at war anyway. Besides, he says we have "a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it," and as such if congress had declared war, then Hamdi would at least be a different argument, even if Scalia still dissented in that particular case for other reasons as well.

I don't know how Scalia felt about Lincoln, FT, but Scalia's Originalism doesn't line up very well with Lincoln's more nuanced, and certainly more realist interpretation. Lincoln was very bright. Scalia was smart, but no Lincoln. The irony of "Originalism" can be seen in both the long life and yet such simple wording of the Constitution. It is not a list of everything that is legal or not. It is not just a restraint on government. It is a system designed to work for the people, not the other way around.

JMJ

FreeThinke said...

It take shock you to learn, Jersey, that I regard Lincoln as one of THE greatest VILLAIN in our short history. He was a USURPER, a TYRANT and a MASS MURDERER of EPIC PROPORTIONS. He disregarded the Constitution, succeeded in forcing HIS will on the country, and led us into THE bloodiest, most destructive conflict we ever have had to endure.

And contrary to machinations of modern mythmakers and pseudo-hagiograohers, he did NOT do it "to free the slaves." in fact he openly DESPISED Negroes, and would have done everything possible to DEPORT them to LIBERIA if he had not been assassinated by that manic John Wilkes Booth.

We're STILL trying ti receiver from the hideous depredations Lincoln wrought upon our nation and ALL her people. There was NOTHNG righteous or glorious abut The War Between the States. NOTHING!

Joe Conservative said...

Did you observe the photograph, Jersey? It's of the first woman ever executed in the United States, Mary Surratt, a US citizen condemned to death by a military court (not a jury of her peers). Years later, her "more guilty" son obtained the latter, and was pronounced "not guilty".

Joe Conservative said...

And thanks for the context on Scalia's quote. His use of "Many think..." at the outset leads me to believe that he is NOT one of the many.

Gert said...

All this slander: Lincoln was a True Saint! ;-)

-FJ said...

...if Kings be your standard. ;)

FreeThinke said...

Not KINGS, FJ., DICTATORS would be the more appropriate term.

FreeThinke said...

I have yet to meet a dyed-in-the-wool leftist who is not a born DICTATOR.

Every one of the God-damned bastards is a would-be DESPOT.

And they love to portray themselves as oh-so ENLIGHTENED.

A pox on their accursed lot!

(((Thought Criminal))) said...

I would point out that Abraham Lincoln wasn't even President yet when Ft. Sumter was sieged by traitors.

(((Thought Criminal))) said...
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-FJ said...

You mean when the northern invaders demonstrated the unwillingness to peacefully vacate South Carolina's sovereign territory and honour the nonth and tenth amendements to the Constitution?

(((Thought Criminal))) said...

Doubling down on the absurdity, eh?

(((Thought Criminal))) said...

The Constitution specifically and unambiguously grants to the President the power to summon the militia to stop insurrection because?

Thersites said...

...so when insurrection breaks out in a foreign nation, the US President must put it down? Who knew having bases around the world made up the defacto "world's policeman". I should have read the Constitution more closely.

Thersites said...

You must admire Putin's action in the Crimea. Very "Lincolnesque".

Thersites said...

I always took Seward's "April Fool's Memorandum" as a joke. Little did I know that his iunderstanding of the situation was the "correct" one. We should have attacked Spain and France... under "insurrection" clause of the 13th Amendment.

(((Thought Criminal))) said...

Indeed, you should have. When South Carolina ratified the US Constituion (and the Articles of Confederation before it, for that matter) it knew it was entering into a pepetual union in which federal power and authority subsumes them. You know, the authority that forbids them from entering other confederations, printing their own currency, etc.

(((Thought Criminal))) said...

LOL!

Thersites said...

"Perpetual" was Lincoln's interpretation. Why didn't he simply sue them in the Supreme Court upon State's declaration of secession?

Oh, I know, "Le Etat ce'st Moi!"

Lincoln replied in writing to Seward the same day, although it is not clear whether his brief note was ever actually delivered. What is clear is that Lincoln ignored Seward’s proposal of provoking a European war. He also effectively declined the Secretary of State’s polite offer to take over the management of his administration. If something “must be done,” the president wrote in his reply, I must do it.”

No wonder Obama so admired Lincoln...

(((Thought Criminal))) said...

South Carolina didn't have standing in court to violate the supreme law of the land. That's why they shot first, failed at justification forever.

(((Thought Criminal))) said...

"Your honor, the defendant would like to declare his right to break the law..."

Thersites said...

South Carolina didn't have standing in court to violate the supreme law of the land.

lol! Thanks for acknowledging their right to secede. Else they would have had "standing" in the dispute.

Thersites said...

Lincoln never took the South to Court. Why?

Thersites said...

btw - When is West Virginia going to be returned to Virginia?

(((Thought Criminal))) said...

Refer to the LOL video above.

Have any arguments that aren't vapid and facile?

Thersites said...

lol! You should have "gone to court" in '61 so that your video would hold relevancy.

Silent enim leges inter arma becomes a "perpetual" self-fulfilling prophecy!

Thersites said...

America's 1st attempt at Constitutional "perpetuity" lasted all of eight years...

...as for this one, tempus fugit!

(((Thought Criminal))) said...

South Carolina et. al, settled out of court at Appomattox. Next?

(((Thought Criminal))) said...

Didn't South Carolina participate in the US Presidential election of 1860?

Oh?

(((Thought Criminal))) said...
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(((Thought Criminal))) said...

Is Christopher Dorner ever going to sue the LAPD for violating his "right" to kill people?

(((Thought Criminal))) said...

Ted Kacynkski? Timothy McVeigh?

(((Thought Criminal))) said...

David Koresh? Al Capone? Ed Gein?

(((Thought Criminal))) said...

Charles Manson?

(((Thought Criminal))) said...

John Walker Lindh? Lee Harvey Oswald?

(((Thought Criminal))) said...

Mumia?

(((Thought Criminal))) said...

https://youtu.be/AL8chWFuM-s

(((Thought Criminal))) said...

Why did the CSA seek recognition from Britain and France? Were they sovereign or naaaaaaah?

Checkmate.

Thersites said...

Checkmate indeed. :)

Summa sedes non capit duos

Thersites said...

"Once the status of belligerency is established between two or more states, their relations are determined and governed by the laws of war."

Thersites said...

...unless you're Israel, of course. ;)

(((Thought Criminal))) said...

Gonna make irredentia claims all over the map of Wrong today, huh?

(((Thought Criminal))) said...

Ever read South Carolina's "secession letter?" It's all about slavery and whining about the non-return of escaped slaves.

Kinda makes a fucktrumpet of your farcical self-determination argument, doesn't it?

"I wanna be free to enslave people" lol.

Thersites said...

Why they seceded was as irrelevant as any of Lincoln's arguments for preserving the Union. But it certainly says "something" when your argument of first resort is to redeploy your army, and not engage the courts.

from Wiki
Following declarations of secession by seven Southern states, South Carolina demanded that the U.S. Army abandon its facilities in Charleston Harbor. On 26 December 1860, Major Robert Anderson of the U.S. Army surreptitiously moved his small command from the vulnerable Fort Moultrie on Sullivan's Island to Fort Sumter, a substantial fortress built on an island controlling the entrance of Charleston Harbor.

Yes, the winner got to write the history book. We'll see how it turns out next time. :)

Thersites said...

Lincoln - "Tell South Carolina that they need our permission to secede!"

South Carolina - "AN ORDINANCE to dissolve the union between the State of South Carolina and other States united with her under the compact entitled "The Constitution of the United States of America."

We, the people of the State of South Carolina, in convention assembled, do declare and ordain, and it is hereby declared and ordained, That the ordinance adopted by us in convention on the twenty-third day of May, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and also all acts and parts of acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and other States, under the name of the "United States of America," is hereby dissolved.

Done at Charleston the twentieth day of December, in the year of our Lord one thousand eight hundred and sixty."

(((Thought Criminal))) said...

Thus we're back to the LOL video.

"I'm not the person that swore an oath of office to uphold the Constitution, I'm the individual with the same name acting on his behalf."

(Laughter)

Thersites said...

"I'm not the person, I'm the role I have to play."

Lincoln on mercury tablets... "Free the slaves musta been the little blue tablets talking..."

(((Thought Criminal))) said...

Lincoln must have been quite a leader. The South believed he was a man of his word.

Imagine if Trump were capable of leading more than a circle jerk. California would have seceded by now, lol.

(((Thought Criminal))) said...

Lincoln must have been quite a leader. The South believed he was a man of his word.

Imagine if Trump were capable of leading more than a circle jerk. California would have seceded by now, lol.

Thersites said...

Give the California Republic some time...

Thersites said...

...It takes a while for. Propisition to get ballotted.

Thersites said...

from Wiki :

In the wake of Republican nominee Donald Trump winning the 2016 presidential election, a fringe movement organized by Yes California, referred to as "Calexit" or "Califrexit", arose in a bid to gather the 585,407 signatures necessary to place a secessionist question on the 2018 ballot.[33]

(((Thought Criminal))) said...
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(((Thought Criminal))) said...

South Carolina had it done before Lincoln even got in the White House. Of course, those traitors skipped the democratic process altogether in their rush to fire upon American soldiers...

-FJ said...

...just as Lincoln had all of Maryland's pro-Southern legislators "arrested" so that they couldn't "vote" to secede...

(((Thought Criminal))) said...

At least those Marylanders bothered to try to make a legal case for secession.

Perhaps the Democratic Party should have run a credible candidate against Lincoln rather than let their convention be disrupted by warmongering slavers like the pussilanimous coward Jefferson Davis, who spent a career in the Senate trying to declare wars in Mexico and Cuba trying to annex territory to spread slavery into.

(((Thought Criminal))) said...

At least those Marylanders bothered to try to make a legal case for secession.

Perhaps the Democratic Party should have run a credible candidate against Lincoln rather than let their convention be disrupted by warmongering slavers like the pussilanimous coward Jefferson Davis, who spent a career in the Senate trying to declare wars in Mexico and Cuba trying to annex territory to spread slavery into.

(((Thought Criminal))) said...

Here's some secessionist porn for your spank bank.