Distinguishing Bush from Lincoln, Jefferson and FDR

Ilya Somin isomin at gmu.edu
Tue Jul 10 18:05:58 PDT 2007


I would be VERY surprised if no one claimed that it was inconsistent with the Fugitive Slave Act of 1850. The contradiction between the two is quite blatant.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339


----- Original Message -----
From: Marty Lederman <marty.lederman at comcast.net>
Date: Tuesday, July 10, 2007 7:34 pm
Subject: Re: Distinguishing Bush from Lincoln, Jefferson and FDR

> Re: RE: RE: Why impose a course on constitutional law on our 
> students?Sorry if I was unclear -- there were, indeed, plenty of 
> folks who were not happy about the EP, and even some who thought 
> it unlawful on int'l or CONLAW grounds.  But as far as I have been 
> able to tell, none of them alleged that it violated any pre-
> existing statutes.
>  ----- Original Message ----- 
>  From: Jonathan Miller 
>  To: Marty Lederman ; Sanford Levinson ; curtism at bellsouth.net ; 
> isomin at gmu.edu 
>  Cc: CONLAWPROF at lists.ucla.edu 
>  Sent: Tuesday, July 10, 2007 5:31 PM
>  Subject: RE: Distinguishing Bush from Lincoln, Jefferson and FDR
> 
> 
>  Very interesting.  I am not a historian, but I also suspect we 
> need to ask whom would you be asking?  I suspect many Democrats 
> were displeased with the Emancipation Proclamation while many 
> Republicans, while concerned by the growth of Presidential power, 
> were more concerned that it not be used to be too accomodating 
> toward the South -- and Lincoln was shot before those 
> confrontations could trulty mature.
> 
> 
> -------------------------------------------------------------------
> -----------
>  De: Marty Lederman [mailto:marty.lederman at comcast.net]
>  Enviado el: mar 10/07/2007 15:13
>  Para: Jonathan Miller; Sanford Levinson; curtism at bellsouth.net; 
> isomin at gmu.edu  CC: CONLAWPROF at lists.ucla.edu
>  Asunto: Re: Distinguishing Bush from Lincoln, Jefferson and FDR
> 
> 
>  The FSA had effectively been superseded before the EP.  The 
> First Confiscation Act in 1861 did a large part of the trick -- it 
> foreclosed return of a huge number of slaves, i.e., those who had 
> been used in hostile service.  Then on March 13, 1862, Congress 
> enacted an "Additional Article of War" that prohibited Union armed 
> forces from returning fugitive slaves altogether.  And on July 
> 17th of that year, the Second Confiscation Act virtually 
> eliminated what was left of the FSA, leaving only the theoretical 
> possibility that if a slave owner in the confederate states could 
> prove loyalty to the union, a slave could be returned to that 
> owner (something that as far as I know was never done).  I've 
> looked through much of the debates concerning the EP.  Although 
> there was heated disagreement about whether it was within the 
> President's war powers; whether it violated international law; and 
> whether it violated slave owners' constitutional rights -- 
> questions that Lincoln answered yes, no and no, respectively -- as 
> far as I've been able to tell no one so much as suggested that the 
> EP would be contra legem in violation of the FSA or Second 
> Confiscation Act, perhaps because everyone knew that a majority of 
> Congress approved of the EP, and because the EP did not, in 
> effect, liberate any slaves who were not already entitled to 
> freedom under the SCA.  Finally, in June 1864, Congress formally 
> repealed the FSA.
> 
>  My simple point is that Lincoln never claimed any constitutional 
> authority to violate a statute or act contrary to legislative will 
> -- because, as far as I can tell, no one thought he was doing so.
> 
>    ----- Original Message ----- 
>    From: Jonathan Miller 
>    To: Marty Lederman ; Sanford Levinson ; curtism at bellsouth.net 
> ; isomin at gmu.edu 
>    Cc: CONLAWPROF at lists.ucla.edu 
>    Sent: Tuesday, July 10, 2007 3:44 PM
>    Subject: RE: Distinguishing Bush from Lincoln, Jefferson and FDR
> 
> 
>    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.
> 
>    Jonathan Miller
> 
> 
> -------------------------------------------------------------------
> ---------
>    De: conlawprof-bounces at lists.ucla.edu en nombre de Marty Lederman
>    Enviado el: mar 10/07/2007 11:08
>    Para: Sanford Levinson; curtism at bellsouth.net; isomin at gmu.edu
>    CC: CONLAWPROF at lists.ucla.edu
>    Asunto: Distinguishing Bush from Lincoln, Jefferson and FDR
> 
> 
>    It's a bit off-topic for the thread, but just so as to clarify 
> Sandy's reference to me:
> 
>    Lincoln and Roosevelt certainly did at times take fairly 
> unorthodox views of the law in order to achieve what they thought 
> necessary (and Jefferson ignored his own best judgment of the 
> constitutionality of the Louisiana Purchase in favor of the 
> dominant view).  The two things that strike as as very different 
> about the Bush Administration are:
> 
>    (i) the assertion of a strong, at times unbounded, power to 
> disregard statutory and treaty-based limits on Commander-in-Chief 
> authority (along with other unorthodox and uncompromising 
> assertions of Article II prerogatives) -- I'd greatly appreciate 
> any examples of FRD or Lincoln professing any Commander-in-Chief 
> or "foreign affairs" or "emergency" power to disregard statutes 
> and treaties, apart from Roosevelt's bluster about the Price 
> Control Act; and 
> 
>    (ii) more often than not, adopting unorthodox legal views in 
> secret, all the while continuing to profess standard-issue legal 
> fidelity in public (e.g., "We never torture."), such that none of 
> the ordinary checks and balances can operate (whereas Lincoln and 
> FDR announced and defended their unorthodox views in broad 
> daylight, and conceded that Congress and/or the courts would be 
> the ultimate arbiters).  
> 
>    One still might think that Lincoln's and FDR's deviations from 
> "best" understandings of the law are less defensible than Bush's, 
> for whatever reason (e.g., the stakes of the questions; the 
> plausibility of the legal conclusions) -- my point is simply that 
> what's happening in this Administration is distinguishable in 
> important respects.
>      ----- Original Message ----- 
>      From: Sanford Levinson 
>      To: curtism at bellsouth.net ; isomin at gmu.edu 
>      Cc: CONLAWPROF at lists.ucla.edu 
>      Sent: Tuesday, July 10, 2007 11:47 AM
>      Subject: Re: RE: RE: Why impose a course on constitutional 
> law on our students?
> 
> 
>      As everyone on this list knows (perhaps all too well), I 
> loathe and despise the Bush Administration.  That being said, a 
> major purpose of my constitutional law course, which begins with 
> the Philadelphians ruthless disregard of both their limited 
> congressional mandate and, more importantly, Article XIII, is to 
> address the central reality that many of our "greatest leaders," 
> i.e., the ones we build monuments to, played fast and loose with 
> what might have been thought to be the "best" understandings of 
> the law.  So any attack on Bush must take Jefferson, Lincoln, and 
> Roosevelt (for starters) into account.  Marty Ledewrman has argued 
> very well that these presidents can be distinguished on other than 
> straight political grounds, but the real point is that one can't 
> have the conversation at all without immersion in the relevant 
> history for which most Supreme Court opinions are irrelevant or 
> simply inadequate.  So what do we omit in order to address the 
> dead presidents?  My own answer, of course, is Marbury (among 
> others).  Or do we try to discuss the issues posed by the Bush 
> Administration ahistorically (or, what is much the same thing, by 
> perfunctory reference to a Federalist Paper or two)?
> 
>      Sandy 
> 
> 
> 
> -------------------------------------------------------------------
> -------
> 
> 
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