Posted on 02/17/2010 9:08:09 AM PST by Palter
One of my very least favorite of the most-recent bevy of SCOTUS abominations.
(Sigh).
Why?
"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.... Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful." -- Clarence Thomas
How about Penhallow v. Doane?
Majority of that Court held ( secession was legal )
well said.
Why? I don't think I made that claim. If you want an example, the New Deal is unquestionably a revolution accomplished without force. Progressives and philosophers and academics took over the machinery of government and used it to alter radically the relationship between the state and the individual.
Best explanation on the thread. It's not "legal" (it's "extralegal"), but it doesn't matter anyway.
In this type of discusson people need to be precise in their choice of words, as the founders were in their choice of words in the Constition.
Per John Locck, PERSONS have the right to revolution. That is quite different from GOVERNMENTS having such a right. Governments (state, federal and world) do not have rights. They have powers.
The proper way to phrase the question= is whether Maine (or any government) has the POWER to do what it wants.
And invertebrate too!
Well, no. Not really. First off, Penhallow concerned events before the Constitution was ratified. Before, even, the Articles of Confederation. It concerned events which took place under the Continental Congress. If New Hampshire had wanted to withdraw from that, they certainly could have. But having not withdrawn, they were subject to the courts’ authority.
When, as with the New Deal, a group of individual persons seizes control of the mechanisms of the state, the distinction is irrelevant. FDR and his cronies accomplished a successful revolution and ended up as the government. Beyond that, I don't understand your point.
What is it with some people? If my neighbor wants to leave, I’ll help him load the truck. With some folks, they will shoot him dead, rather than let him go his own way. How fascist/socialist/nanny state can you get...
I suppose it boils down to has the biggest stick.
How do you guys figure these nuckleheads out?
Heh. Indeed, cancerous parasites have no spine.
Let them try..
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
I'm sorry justice Scalia, but you are wrong. If we believe in FREEDOM and LIBERTY, we have the right to form our own type of government. Do YOU beileive that? You may not like that and the US government may try to stop us, but we have that right.
Well they had better shake a leg. With the exception of odinga and his gaggle of czars, most of 'em will be looking for jobs around the end of the year. Barring massive voter fraud(a distinct possibility) Odinga and his merry band of marxists will be shackled like Bent Willie in '94 after suffering huge defeats in congress. Couldn't happen to a nicer bunch of commies.
And now that conservatives, who BTW make up a mojority in this country, have found their voices, holding Pubbies accountable shouldn't be a problem.
Everyone knows that phrase.
It has no bearing on whether they are right or wrong.
Can you see the difference?
If Hitler had won World War II, would that mean his actions were good?
Sorry - I still disagree with your statements
(This was taken from some old notes I made. Sorry that I don’t have the appropriate attributions. )
The United States never declared war, nor was their a peace treaty at the end. This was in keeping with Lincoln’s position that the rebel states did not form a new nation. On April 15, 1861, Lincoln issued a Proclamation that an insurrection existed in the states of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana and Texas(Messages & Papers of the Presidents, vol. V, p3214).
After the Union armies gained control of several southern states, Lincoln instituted a system of provisional military governors, instructing them to establish governments loyal to the Union in order to restore the states to the Union. His plan was declared in 1863 by proclamation. It required at least ten percent of those who had voted in the State in the 1860 election to take an oath of allegiance to the United States. After that, the state could organized its own government and resume its old place as a full and equal partner in the Union.
Before the war’s end, new governments were formed in Arkansas, Louisiana and Tennessee under this plan. The authority for the federal government to provide mechanisms to erect state governments loyal to the Union in disaffected States of the Union was derived from Article IV, Sec. 4 of the Constitution. This section provides that the United States shall guarantee to each state a republican form of government. Further, Congress was able to exercise some control over the loyalties of State representatives and leverage over State governments under Article I, Sec. 5, which provides that each House of Congress shall be the judge of the qualifications of its members. This provison allowed Congress to refuse to seat delegations from former rebel states until the states had met the conditions of the Reconstruction Acts.
Some in Congress took another view that the southern states had been in rebellion by separating from the Union and establishing an independent government and that they should be treated as a conquered territory. Following this line of reasoning, some, such as Charles Sumner, asserted the “state suicide” theory that the south had destroyed its original standing as States and would have to start all over again to seek admission as a State in the Union. As the admission of new States was solely a Congressional power under the Constitution, the President had no authority to “restore” the Union
In July of 1864, Congress passed the Wade-Davis Bill to treat the Southern states as conquered territory under martial law. It provided for the appointment of a military commander for each Confederate state who would be responsible for enrolling white male citizens. Following an oath of allegiance of all enrolees, qualified voters would chose delegates to a State constitutional convention. Provided that it first repudiated secession and abolished slavery, the convention would establish a new State government. In order to attend the convention, delegates had to take an “iron-clad” oath swearing that they had never voluntarily served or supported the Confederacy.
After Congress adjourned, Lincoln offered the Southerners the choice of following the Wade-Davis formula if they wished. None of the states wanted to embrace the formula, so Lincoln awarded the bill a pocket veto.
Meanwhile, from 1861-1865 (both during and after the war,) the South continued to be treated as a conquered territory under martial law. Lands were granted to blacks under General Sherman’s Field Order No. 15, which allowed twenty thousand black families to farm hundreds of thousands of acres of confiscated plantation land on the Georgia and South Carolina coast. Under captured property law, federal treasury agents seized pieces of real estate, including Arlington, General Lee’s home.
There were several plans subsequently advanced for the South. Thaddeus Stevens’ plan for reconstruction called for the confiscation of land belonging to about seventy thousand leading Confederates and redistribution of this land to every black family desiring land. Any remaining land would be sold to pay the war debt, provide military pensions and compensate Southern Unionists for damages incurred in the war.
In March of 1865, Congress passed a bill to establish the “Freedmen’s Bureau” or the “Bureau of Refugees, Freedmen, and Abandoned Lands” under the administration of Secretary Edwin M. Stanton of the War Dept, headed by General Oliver O. Howard and staffed largely by army officers. Remaining in existence between 1865 and 1872, part of the Bureau’s duties was to take over land confiscated or deemed abandoned. After dividing this land into forty-acre plots, the bureau was to rent the plots to freedmen and refugees for three years, after which, the renters could buy the land. In addition, the bureau had the power to set up courts and administer justice under martial law, overriding civil courts.
During 1865, Attorney-General James Speed had hampered efforts of the Freedmen’s Bureau to distribute land to blacks, ordering an end to confiscation procedures in northern Florida, Virginia and elsewhere. In some instances, former Confederates appealed directly to Speed to get their land restored to them. In the fall of 1865, the bureau held about 800,000 acres. By the following spring, more than half of this had been returned to pre-war owners.
When Andrew Johnson assumed the Presidency, he continued the policies of Lincoln, believing that “reunion” was a presidential affair the main objective of which was to “restore” the proper relationship among the States. In 1865, Johnson issued an Amnesty Proclamation, pardoning all Confederates except those with property in excess of $20,0000 and certain Confederate leaders.
In May of 1865, Johnson appointed a provisional governor for North Carolina. The governor was to call a convention of “loyal” citizens to write a State constitution. Among other things, the convention was to define voting and office-holding qualifications. An election would then be held and a new government formed. It was understood that the new government would uphold the abolition of slavery, repudiate the Confederate debt and nullify secession ordinances. Johnson issued similar proclamations for the remaining Southern states.
The resulting southern governments and their resulting Congressional delegates were made up largely of former Confederates. Moreover, Johnson’s proclamation requiring the repudiation of the Confederate debt and the nullification of ordinances of secession were not met in all cases. Georgia and North Carolina hesitated on repudiation of the debt. Southern Carolina repealed its ordinance of secession rather than nullify it and did not repudiate the Confederate debt. Benjamin G. Humphreys, a former and unpardoned Confederate General, was elected as the Governor of Mississippi. (Elected on Oct. 2, 1865, inaugurated on Oct. 16, he received his presidential pardon ten day later.)
In January of 1865, Congress had passed the Thirteenth Amendment to the Constitution abolishing slavery. When presenting the Thirteenth Amendment, Congress had agreed that the full number of States would be counted for ratification purposes, even though many of them remained unrestored. By December of 1865, Secretary of State William H. Seward pronounced the amendment ratified by three-fourths of the States (27 out of 36.) Counted among those States ratifying the amendment were Arkansas, Tennessee, North and South Carolina, Virginia, Louisiana, Alabama and Georgia. These states had established new governments under Johnson’s plan of restoration. Mississippi refused to ratify the thirteenth Amendment on the grounds that it had already abolished slavery.
On December 4, 1865, the Thirty-ninth Congress was called to order. To represent them in Congress, Southerners had elected Alexander H. Stephens, who had been vice-president of the Confederacy, along with six former members of the Confederate cabinet and nine ex-generals and colonels of the Confederate army. They also sent fifty-eight former members of the Confederate legislative body. President Johnson believed that the States had been restored and that the Constitution required that the duly elected delegates be seated. Congress refused to seat any of them, citing the constitutional provision that “each House shall be the Judge of the Election, Returns, and Qualifications of its own Members.”
Shortly after, the Senate adopted Thad Stevens’ motion to establish a Joint Committee on Reconstruction composed of nine representatives and six senators. Southern representatives were to be refused admission to Congress until that body decided that the southern States were actually back in the Union.
In February of 1866, President Johnson vetoed a bill extending the existence of the “Freedmen’s Bureau.” The bureau was to remain under the War Department, which Johnson felt was an unconstitutional extension of military power in peacetime, particularly when civil courts were functioning. Johnson pointed out that the Southern States were not represented in Congress and questioned the constitutional validity of any bill applying to their section of the nation.
Johnson also vetoed The Civil Rights Bill of 1866, although his veto was overridden by Congress in June of 1866. The bill established for the first time the status of “citizen of the United States,” (formerly citizenship had been within a given State,) and provided that the federal government could intervene within a State to ensure the citizens “of every race and color,” save Indians not taxed, were given the same legal rights as all other people.
Congress agreed to the same basis for inclusion of all States in ratification of the Fourteenth Amendment as had been agreed to with the Thirteenth. (With the exception that the admission of Nebraska in 1867, before full ratification was achieved, made the total count of States at 37.) When Tennessee ratified the amendment in July, 1866, Congress readmitted the State to the Union. Ten remaining southern states turned it down, partly on the basis that the state, and not the federal government should be the judge of determining local voter and office-holding qualifications.
Some in Congress favored returning the stubborn southern states to (civil) territorial status. As territories, these states would be subject to direct congressional control with congressional power to set aside their legislation. Some, such as Thad Stevens and Charles Sumner, favored complete disfranchisement of former Confederates with land redistributions.
Congress responded by attaching an amendment as a rider to the Reconstruction Act passed in March of 1867 - that no State should be restored to the Union and entitled to congressional representation without ratifying the Fourteenth Amendment. The Reconstruction Act, itself, declared current Southern state governments illegal and divided the South into military districts, granting army commanders responsibility for protecting the rights of blacks and Southern Unionists.
Under the Army Act of 1867, Congress prevented the President as Commander-In-Chief from issuing orders directly to these commanders in the field by requiring him to send orders through the general of the army, Ulysses S. Grant.
Johnson vetoed these Acts (and the subsequent supplemental Reconstruction Act) and Congress overrode the vetoes. On March 23, 1867 Congress passed the supplemental Reconstruction Act. This legislation directed federal military commanders to set up a voter registration procedure and get a convention for writing a State constitution underway.
Subsequently, the South was divided into five military districts. President Johnson selected five commanders and instructed these appointees not to interfere with the Southern governments, but to act through them and cooperate with them. They were also to accept any oath of loyalty to the United States at face value.
A second supplementary Act passed by Congress took full control of the military in the South. The existing state governments were declared “not legal.” Commanders were directed to remove any civil officer who failed to comply with the Reconstruction Acts. Inquiries into the validity of loyalty oaths were determined to be proper. Registration boards were granted broad powers to determine voter qualifications. Congress overstepped its constitutional authority by encroaching on judicial powers by further directing that the Reconstruction Acts were to “be construed liberally.”
By 1868, six additional southern States had ratified the Fourteenth Amendment and were re-admitted to the Union: Louisiana; Arkansas; Alabama; North and South Carolina; and Florida and representatives were seated in Congress in July of 1868. Other Southern States were slower to satisfy congressional requirements and Georgia, Virginia, Mississippi and Texas were not re-admitted to the Union until 1870.
After re-admission in 1868, Georgia expelled black members of the State Legislature who had been elected during the prior year and seated former Confederates under the claim that although blacks had the right to vote, they did not enjoy an unlimited right to hold office. Congress withdrew admission and placed the state under military rule once again. The blacks were reinstated and Georgia was re-admitted for the second time in 1870.
Following readmission, many Southern States shortly returned to “conservative Democratic” control, others remained under “radical Republican rule” of Unionists and abolitionists for years thereafter. The return to the primacy of the Democratic party in the South is called the “redemption.” The dates of redemption were: 1869 - Tennessee and Virginia; 1870 - North Carolina; 1872 - Georgia; 1873 - Texas; 1874 - Arkansas and Alabama; 1876 - Mississippi; 1877 - Florida, South Carolina and Louisiana.
On June 13, 1865, President Johnson proclaimed the insurrection in Tennessee at an end, (Messages and Papers of the Presidents, V, p3515.)On Apr. 2, 1866, Pres. Johnson proclaimed the insurrection ended in all the former Confederate States except Texas. This was his recognition of the legitimacy of the governments formed under his Reconstruction proclamation, (Mess. & Pap. V, p3627.) On August 20, 1866, Pres. Johnson proclaimed that Texas had complied with the conditions of his Reconstruction proclamation and declared the insurrection in Texas at an end, (Mess. & Pap. V, p3632.)
Texas was not brought into the Union by treaty. There was an attempt to do this in 1844, but the U.S. Senate refused to ratify the treaty. Texas was annexed by a Joint Resolution of Congress in 1845.
Neither the failed annexation treaty nor the Resolution of Annexation reserved any right for Texas to secede. In fact, the treaty would have made Texas a mere territory, but the Joint Resolution gave immediate statehood. In addition, the Resolution provided that Texas might divide itself into as many as five states, if it so desired. In 1845, Texas did not avail itself of this provision of the Resolution, and it is not clear whether the provision would still be operable after that time.
(The government subsequently paid his heirs $150,000 for the property.)
There were several plans subsequently advanced for the South. Thaddeus Stevens’ plan for reconstruction called for the confiscation of land belonging to about seventy thousand leading Confederates and redistribution of this land to every black family desiring land. Any remaining land would be sold to pay the war debt, provide military pensions and compensate Southern Unionists for damages incurred in the war.
In March of 1865, Congress passed a bill to establish the “Freedmen’s Bureau” or the “Bureau of Refugees, Freedmen, and Abandoned Lands” under the administration of Secretary Edwin M. Stanton of the War Dept, headed by General Oliver O. Howard and staffed largely by army officers. Remaining in existence between 1865 and 1872, part of the Bureau’s duties was to take over land confiscated or deemed abandoned. After dividing this land into forty-acre plots, the bureau was to rent the plots to freedmen and refugees for three years, after which, the renters could buy the land. In addition, the bureau had the power to set up courts and administer justice under martial law, overriding civil courts.
During 1865, Attorney-General James Speed had hampered efforts of the Freedmen’s Bureau to distribute land to blacks, ordering an end to confiscation procedures in northern Florida, Virginia and elsewhere. In some instances, former Confederates appealed directly to Speed to get their land restored to them. In the fall of 1865, the bureau held about 800,000 acres. By the following spring, more than half of this had been returned to pre-war owners.
When Andrew Johnson assumed the Presidency, he continued the policies of Lincoln, believing that “reunion” was a presidential affair the main objective of which was to “restore” the proper relationship among the States. In 1865, Johnson issued an Amnesty Proclamation, pardoning all Confederates except those with property in excess of $20,0000 and certain Confederate leaders.
In May of 1865, Johnson appointed a provisional governor for North Carolina. The governor was to call a convention of “loyal” citizens to write a State constitution. Among other things, the convention was to define voting and office-holding qualifications. An election would then be held and a new government formed. It was understood that the new government would uphold the abolition of slavery, repudiate the Confederate debt and nullify secession ordinances. Johnson issued similar proclamations for the remaining Southern states.
The resulting southern governments and their resulting Congressional delegates were made up largely of former Confederates. Moreover, Johnson’s proclamation requiring the repudiation of the Confederate debt and the nullification of ordinances of secession were not met in all cases. Georgia and North Carolina hesitated on repudiation of the debt. Southern Carolina repealed its ordinance of secession rather than nullify it and did not repudiate the Confederate debt. Benjamin G. Humphreys, a former and unpardoned Confederate General, was elected as the Governor of Mississippi. (Elected on Oct. 2, 1865, inaugurated on Oct. 16, he received his presidential pardon ten day later.)
In January of 1865, Congress had passed the Thirteenth Amendment to the Constitution abolishing slavery. When presenting the Thirteenth Amendment, Congress had agreed that the full number of States would be counted for ratification purposes, even though many of them remained unrestored. By December of 1865, Secretary of State William H. Seward pronounced the amendment ratified by three-fourths of the States (27 out of 36.) Counted among those States ratifying the amendment were Arkansas, Tennessee, North and South Carolina, Virginia, Louisiana, Alabama and Georgia. These states had established new governments under Johnson’s plan of restoration. Mississippi refused to ratify the thirteenth Amendment on the grounds that it had already abolished slavery.
On December 4, 1865, the Thirty-ninth Congress was called to order. To represent them in Congress, Southerners had elected Alexander H. Stephens, who had been vice-president of the Confederacy, along with six former members of the Confederate cabinet and nine ex-generals and colonels of the Confederate army. They also sent fifty-eight former members of the Confederate legislative body. President Johnson believed that the States had been restored and that the Constitution required that the duly elected delegates be seated. Congress refused to seat any of them, citing the constitutional provision that “each House shall be the Judge of the Election, Returns, and Qualifications of its own Members.”
Shortly after, the Senate adopted Thad Stevens’ motion to establish a Joint Committee on Reconstruction composed of nine representatives and six senators. Southern representatives were to be refused admission to Congress until that body decided that the southern States were actually back in the Union.
In February of 1866, President Johnson vetoed a bill extending the existence of the “Freedmen’s Bureau.” The bureau was to remain under the War Department, which Johnson felt was an unconstitutional extension of military power in peacetime, particularly when civil courts were functioning. Johnson pointed out that the Southern States were not represented in Congress and questioned the constitutional validity of any bill applying to their section of the nation.
Johnson also vetoed The Civil Rights Bill of 1866, although his veto was overridden by Congress in June of 1866. The bill established for the first time the status of “citizen of the United States,” (formerly citizenship had been within a given State,) and provided that the federal government could intervene within a State to ensure the citizens “of every race and color,” save Indians not taxed, were given the same legal rights as all other people.
Congress agreed to the same basis for inclusion of all States in ratification of the Fourteenth Amendment as had been agreed to with the Thirteenth. (With the exception that the admission of Nebraska in 1867, before full ratification was achieved, made the total count of States at 37.) When Tennessee ratified the amendment in July, 1866, Congress readmitted the State to the Union. Ten remaining southern states turned it down, partly on the basis that the state, and not the federal government should be the judge of determining local voter and office-holding qualifications.
Some in Congress favored returning the stubborn southern states to (civil) territorial status. As territories, these states would be subject to direct congressional control with congressional power to set aside their legislation. Some, such as Thad Stevens and Charles Sumner, favored complete disfranchisement of former Confederates with land redistributions.
Congress responded by attaching an amendment as a rider to the Reconstruction Act passed in March of 1867 - that no State should be restored to the Union and entitled to congressional representation without ratifying the Fourteenth Amendment. The Reconstruction Act, itself, declared current Southern state governments illegal and divided the South into military districts, granting army commanders responsibility for protecting the rights of blacks and Southern Unionists.
Under the Army Act of 1867, Congress prevented the President as Commander-In-Chief from issuing orders directly to these commanders in the field by requiring him to send orders through the general of the army, Ulysses S. Grant.
Johnson vetoed these Acts (and the subsequent supplemental Reconstruction Act) and Congress overrode the vetoes. On March 23, 1867 Congress passed the supplemental Reconstruction Act. This legislation directed federal military commanders to set up a voter registration procedure and get a convention for writing a State constitution underway.
Subsequently, the South was divided into five military districts. President Johnson selected five commanders and instructed these appointees not to interfere with the Southern governments, but to act through them and cooperate with them. They were also to accept any oath of loyalty to the United States at face value.
A second supplementary Act passed by Congress took full control of the military in the South. The existing state governments were declared “not legal.” Commanders were directed to remove any civil officer who failed to comply with the Reconstruction Acts. Inquiries into the validity of loyalty oaths were determined to be proper. Registration boards were granted broad powers to determine voter qualifications. Congress overstepped its constitutional authority by encroaching on judicial powers by further directing that the Reconstruction Acts were to “be construed liberally.”
By 1868, six additional southern States had ratified the Fourteenth Amendment and were re-admitted to the Union: Louisiana; Arkansas; Alabama; North and South Carolina; and Florida and representatives were seated in Congress in July of 1868. Other Southern States were slower to satisfy congressional requirements and Georgia, Virginia, Mississippi and Texas were not re-admitted to the Union until 1870.
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