Distinguishing Bush from Lincoln, Jefferson and FDR

[Jonathan Miller]

 There are a few problems with your argument.  First, if the Constitution did not provide for secession, then it remained in force for inhabitants of the rebel States.  And while perhaps the "property" of rebels may be confiscated under the law of war as it existed at that time, the Emancipation Proclamation included the "property" of Southern loyalists.  Your argument on the right to free an oppressed people does not work in the U.S. Constitutional context of 1863 given the acceptance of slavery by the Constitution and nothing that would indicate that the U.S: in 1863 had accepted prohibition of slavery as a principle of customary international law.  As to the Constitution as a treaty, I strongly doubt that Unionists would have been comfortable with such an approach given their insistance on continuation of the Union. 

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De: conlawprof-bounces at lists.ucla.edu en nombre de Francisco Forrest Martin
Enviado el: mar 10/07/2007 14:44
Para: conlawprof at lists.ucla.edu
CC: CONLAWPROF at lists.ucla.edu
Asunto: RE: Distinguishing Bush from Lincoln, Jefferson and FDR



Professor Miller wrote: "The Emancipation Proclamation would certainly qualify for your first point -- effectively disregarding the Fugitive  Slave Law as well as existing Supreme Court precedent on property rights.  I would argue that what makes the Civil War distinguishable is the nature of the conflict, with national survival clearly at stake."

COMMENT:  I don't think that the Emancipation Proclamation was unconstitutional.  Under the 19th century laws of war, one could seize the property of civilians who were citizens/subjects of the hostile state. Indeed, the voluntary and natural law of nations governing armed conflicts required that oppressed peoples be freed. See Vattel and Lieber Code.  Furthermore, the U.S. was no longer constitutionally bound to comply with the Fugitive Slave Law in regard to the southern states after the southern states attacked federal military installations and violated the Constitution because the law of treaties allows states-parties to a treaty (such as the Constitution) to not observe their treaty obligations (except those reflecting voluntary law of nations norms) when another state-party has materially violated the treaty.  

Francisco Forrest Martin

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