Distinguishing Bush from Lincoln, Jefferson and FDR

[Francisco Forrest Martin]

Prof. Miller wrote: "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."

COMMENT:  Yes, the Constiution did remain obligatory for the inhabitants of the rebel states, but not for non-rebel states (and the U.S.).

Prof. Miller wrote: "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."

COMMENT:  Yes, but again, even those citizens still loyal to the U.S. were still citizens of the rebel states, and the laws of war allowed the U.S. to confiscate their property and to free slaves.

Prof. Miller wrote:  "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 . . . "

COMMENT:  Again, slave holding citizens of rebel states could not appeal to constitutional protections given that their respective states had violated the Constitution and waged war on the U.S.

Prof. Miller continues: ". . . and nothing that would indicate that the U.S: in 1863 had accepted prohibition of slavery as a principle of customary international law."

COMMENT:  The issue of customary international law is not relevant because it was the voluntary and natural law of nations that justified the Emancipation Proclamation.

Prof. Miller continues: "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."

COMMENT:  I don't know whether most Unionists considered the Constitution to be a treaty.  

Francisco Forrest Martin