How One Piece of Paper Destroyed Your Right to a Trial

The Nation ^ | 24 July 2014 | Peter Van Buren

[OneWingedShark]

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be…deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted—about one-third of the text is missing—Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury and executioner.

[Salvavida]

the scores of confederate soldiers that starved to death, or otherwise perished from exposure in yankee prisons, the suspension of habeas corpus, and grander, the denial of Southern states redress of grievances. That's just for starters.

Lincoln didn't have any combatant to deal with in Yemen, nor to my knowledge, anyone outside of the US that bore a threat to an American citizen.

[X Fretensis]

I give you one out of three on your response. Yes, Lincoln did, without congressional approval suspend the writ of Habeas Corpus. “Scores of confederate soldiers starved to death in Yankee prisons”. Can you say Andersonville. Neither the United States nor the Confederacy can claim the least bit of moral high ground when it comes to the way prisoners of war were treated, both sides were equally brutal. You mean the Buchanan administration failed to redress Southern grievances. Lincoln did not become President of the United States until March 4 1861. By that date, Georgia, S.Carolina, Florida, Alabama, Mississippi, Louisiana, and Texas had all seceded from the Union. What court actions had these states initiated to redress their grievances? What legislation did their Senators and Representatives introduce into Congress to redress their grievances? For that fact what grievances were so dire that secession was the only answer, not the courts nor the Legislature could redress. IMO, the Democrats in the South panicked when Lincoln was elected. A Republican President, House and Senate were seen as a direct threat to the institution of slavery as it existed in the South.

[Salvavida]

You really think slavery was the reason. Hahahahahaha. Public school. Nice.

[X Fretensis]

States rights is the lamest excuse offered up by the lost cause crowd for civil war.

[eyedigress]

It was commerce and the right of a state to freely engage. DC and the Northern states disagreed with the South.
The Mississippi River was a huge player in the Northern Aggression.

Understand history, not political BS from your “changing history 101” class.

[X Fretensis]

Exactly how was it “commerce”. How did the Buchanan administration interfere with southern commerce. Did they forbid the South the right to sell cotton or tobacco to whom ever they pleased. Did they confiscate southern goods and products. Did the Buchanan administration order southern planters to stop farming cotton, tobacco, indigo or rice. Explain how it was commerce, if you can.

[Salvavida]

As Churchill said: "The American Civil War was the most unpreventable war in history."

And the EP not including the northern slaves and slave owners, is not even mentioned in public school. Wow. Because someone can bear to let the masses know the real reasons are being visited among us once again.

[X Fretensis]

By EP is presume you mean the Emancipation Proclamation.
Of course the EP did not address slaves in Missouri, Kentucky, Maryland, Delaware or the District of Columbia, where the institution was legal. Nor did to apply in areas occupied by the Union Army such as New Orleans or much of Northern Tennessee. The Dred Scott Decision stated that the Federal Government could not interfere with slavery in any state where it was legal, it was a State Right. Lincoln recognized that fact. Since 11 states had seceded from the Union and were in armed rebellion against the United States, Lincoln reasoned that freeing the slaves in only those states in secession was within his authority as the Commander and Chief of the United States armed forces. Slave were used to build fortification, produce food for Confederate armies, work in factories manufacturing weapons and munitions for the Confederate army, driving wagons, and repairing rail roads to transport provisions, equipment, weapons and ammunition to Confederate forces. Slave were being used to support the Confederate war effort against the United States. That is why the EP did not include northern slaves and slave owners. It was aimed at limiting the Confederacies ability to make war. OBTW, the EP was discussed quite extensively in the public schools I went to, but maybe not the ones you went to.

[Salvavida]

You just made the case slavery was not the moral and principle reason for the civil war. Now we got that lie taken care of. Thank you.

Now if you could complete your education and investigate why they seceded. Which by the way, the Founding Fathers provided for.

[X Fretensis]

I never claimed slaver was the cause of the Civil War. Slavery was the issue that drove secession. The Confederate Government started a Civil war by firing on a Federal fort. Exactly which article of the Constitution of the United States provides a method for a state to legally withdraw from the Union. No legal theory, provide the exact language in the Constitution, if you can.

[Salvavida]

Slavery was the issue that drove secession

Uh….no. You lost all credibility. I'm sure you were a promising child at one point.

Don't bother replying, I won't be reading.

[X Fretensis]

If you had any creditability at all you would answer the question. What article of the Constitution of the United States give a state a method of leaving the United States.
You were the one that claimed such a provision was in the Constitution. Put up or shut up. Obviously you have opted for the shut up mode due to a lack of knowledge of the subject you have tried to discuss and the Constitution of the United States. I guess the validity of the old adage that “ignorance is bliss” is substantiated by you.

[OneWingedShark]

What article of the Constitution of the United States give a state a method of leaving the United States.

Arguably Amendments 9 & 10

• Amd 9  — The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amd 10 — The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

#9 says that any enumeration is non-exhaustive and merely not-being listed is not grounds for denial of it. (A good example is travel at will; not enumerated but essential to a life of liberty.)
#10 Says that the powers not [explicitly] delegated to the federal government remain the purview of the States (or the people themselves).

As there is nothing in the Constitution denying to the states the power to leave they must still retain it. (Such prohibitions are explicitly laid out: prohibition of ex post facto law, prohibition of entering into treaty/alliance/confederation, prohibition against bills of attainder, etc.)

[X Fretensis]

To my knowledge none of the states that seceded in 1861 cited either amendment in their ordnances of secession.
Nor did any of those states try to make a court case based on those amendments.

[OneWingedShark]

Nor did any of those states try to make a court case based on those amendments.

What is really interesting is that none of the confederate officers [or politicians] was charged with Treason.

Why is this?
I posit that it is because the Constitutional definition is as follows:

Art 3, Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Which, when combined with Art 1, Sec 10, Para 3 —

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

— places the north's aggression as treasonous as well as gives the States legal grounds for saying we were defending ourselves from invasion.

Moreover, the Federal Government's claim (that the Confederate states could not secede) means that by that logic the aggression against the Confederate states was indeed Treason. (IOW, the federal argument is self-defeating: in order to be legitimate it has to grant the power to secede, which it does not.) — In short, to take up any CW Treason case was to lose. Period.

[OneWingedShark]

“White Paper” = Indefensible bullshit.

The biggest problem here is that it is setting up precedent.
All the government now has to do to murder you is declare you to be a terrorist; they've already effectively suspended habeus corpus and have shut up the right to trial so it is pretty much dependent on their whim (see standing)… with this particular case they are setting the groundwork for legalizing the killing of citizens directed by the executive without trial or defense.

Remember — when it's precedent against the Constitution the Constitution loses because the Constitution inherently limits governmental power. This means that those government-agents in power would be surrendering power, something experience has shown mankind is disinclined to do.

[X Fretensis]

Not sure what your point is. It belays the fact that the President of the Confederacy directed Confederate forces to open fire on a Federal Fort. Had ships of the Royal Navy fired on Ft. Sumter, war would have been declared. Japanese bombs drop on Pearl Harbor, war is the result. Fire rockets into Israel and you get a war for your efforts. SOP in the real world. Not a single seceded state made an claim of Constitutional authority to secede. Not one chapter, line or verse from the Constitution was cited in the Ordnances of secession to justify their actions. Finding “Constitutional Authority” to explain secession is, in my opinion, an ex post facto attempt to justify the unjustifiable.

[Jim Noble]

From South Carolina's "Declaration of Immediate Causes":

"We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that "Government cannot endure permanently half slave, half free," and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.

This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety."

[OneWingedShark]

Not sure what your point is. It belays the fact that the President of the Confederacy directed Confederate forces to open fire on a Federal Fort.

No, it doesn't belay anything.

belay verb (used with object), belayed, belaying.
1. Nautical. to fasten (a rope) by winding around a pin or short rod inserted in a holder so that both ends of the rod are clear.
2. Mountain Climbing.
a. to secure (a person) by attaching to one end of a rope.
b. to secure (a rope) by attaching to a person or to an object offering stable support.
3.
a. to cease (an action); stop.
b. to ignore (an announcement, order, etc.): Belay that, the meeting will be at 0900 instead of 0800.
verb (used without object), belayed, belaying.
4. to belay a rope: Belay on that cleat over there.
noun
5. Mountain Climbing. a rock, bush, or other object sturdy enough for a running rope to be passed around it to secure a hold.

The word you're looking for is belie (to show to be false, contradict; to misrepresent to act unworthily according to a standard) and it doesn't belie Ft. Sumpter either — the definition of treason uses the plural them which means that the United States referred therein can only be the several states (Legally there are three possibilities) — therefore it is conceivable to not commit Treason even though violently attacking federal troops.

The term "United States" may be used in any one of several senses. [1] It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. [2] It may designate the territory over which the sovereignty of the United States extends, or [3] it may be the collective name of the states which are united by and under the Constitution. [Hooven & Allison Co. vs Evatt, 324 U.S. 652 (1945)]

Had ships of the Royal Navy fired on Ft. Sumter, war would have been declared. Japanese bombs drop on Pearl Harbor, war is the result. Fire rockets into Israel and you get a war for your efforts. SOP in the real world.

Occupation of a fort by a government that the people of the state no longer consider their own?
Again, Treason is levying War against them [the several states] — it matters jack-shit if congress declared war on them definitionally: it would still fulfill the action.

Not a single seceded state made an claim of Constitutional authority to secede. Not one chapter, line or verse from the Constitution was cited in the Ordnances of secession to justify their actions.

So?

Finding “Constitutional Authority” to explain secession is, in my opinion, an ex post facto attempt to justify the unjustifiable.

Just because someone fails to justify some claim does not make it unjustifiable: see Fermat's Last Theorem.
This is why [traditionally] lawyers were held to be good/respectable — John Adams providing an excellent example when he secured acquittal of the British soldiers who were involved in the Boston Massacre (despite the emotion and chaos of the incident the soldiers still had the right to defend themselves).