Rebellion and Invasion

[Sean Wilson]

It seems to me that one cannot properly say what the phrase "rebellion and invasion" means until one has a proper account for how American constitutions should be read. There are plenty of words and phrases, for example, that do not mean what they literally say (e.g,. commerce clause, necessary and proper, speech, etc.).  I remember an interesting discussion a while back where someone tried to say that the word "army" in Article I meant that the air force was excluded. As a general rule, it seems that when words shed literal meanings, they become: (a) categorical (army = soldiery; speech = "expression"); (b) conventional or parochial ("necessary and proper" meant "reasonable" by the parlance of its day); or (c) horribly, horribly constructive (interstate commerce means "general welfare"). 
 
Here's the point: who is to say that terror networks do not constitute a "rebellion and invasion" today in some meaningful sense of talking? It seems to me that one cannot answer this question without confronting two basic issues. First, is not the form of warfare a construction that suits historical time? War as a behavior is not constant; it evolves. One surely cannot say that a rebellion only occurs if an organized, uniformed regiment presents itself in the Roman style. Second, what facts actually exist, right now, that suggest real dangers on the scale of war are being planed via unconventional and surreptitious means? Perhaps nothing. But it seems to me the factual question is much more important to the issue than the format or style of the behavior of war. Surely the wrong answer is that invasion has to be a picture.   
 
It seems to me that if the right terror conditions actually ever presented themselves, one could quite rationally say that participation in this sort of method of attack disqualified one from the Johnny Cochrane system of trial rights. One should remember that the 4 justice plurality in Milligan believed Congress could suspend in Indiana even though no boots were on the ground.  Keep in mind, however, that my opinion is only theoretical. I surely don't know what the facts truly are, and, like most of you, have come to see these issues as being overblown. But that doesn't mean that the theoretical argument is resolved. Under the right circumstances, one could say "rebellion and invasion."             
 
Regards.
 
Dr. Sean Wilson, Esq. 
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860



----- Original Message ----
From: Paul Finkelman <pfink at albanylaw.edu>
To: RJLipkin at aol.com; rs at robertsheridan.com
Cc: CONLAWPROF at lists.ucla.edu
Sent: Sunday, August 31, 2008 11:54:13 PM
Subject: Re: Lincoln's Suspension of Habeas Corpus

One big difference between the Civil War and subsequent wars is that no other American war has satisfied the command of the Constitution -- that there be a rebellion or invasion.  (unless you consider the seizing of a few islands in the Aleutians in WWII and invasion).  Suspension under the Constitution was only legitimate in War of 1812 and Civil War

Paul Finkelman
President William McKinley Distinguished Professor of Law
    and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York  12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Robert Sheridan <rs at robertsheridan.com> 08/31/08 9:01 PM >>>
Lincoln's own justification for jailing dissident editors and  
political figures, such as Vallandigham, during the war was that if he  
was expected to shoot "soldier boys" who deserted in the face of the  
enemy, as he was (he used every excuse not to), it seemed more than  
reasonable to jail those who incited them to flee in the first place.

I'd regard that as being in the national interest and among the war  
powers, wouldn't you?  After all, if he could free the slaves (the  
ones Down South growing the food for the rebel army, to slow down the  
enemy war machine, much as Sherman burned down Georgia), as an  
exercise of the war power, then why not jail a few miscreant editors?  
Call them 'enemy combatants' of a sort.

After all, this was the 1860s, not the present day with all its post- 
WWI developed First Amendment doctrine.

As the current incumbent has taught, in war, you may have to break a  
little constitutional china...

rs
sfls

Howls over the breakage can be put into the little suggestion box.

Much constitutional law, I suggest, can be explained by how people,  
i.e. principal actors, feel at the time, as distinguished from how  
scholars think later.


On Aug 31, 2008, at 3:29 PM, RJLipkin at aol.com wrote:

>        To clarify my original query, let me say that I didn't mean  
> to imply that the president has constitutional authority to suspend  
> the habeas provision. That, of course, is generally a congressional  
> power. My concern was whether there was empirical evidence that had  
> Lincoln not acted (arguably) unconstitutionally, the nation would  
> have been put in peril.  In other words, my interest was whether the  
> contention that he acted to preserve all the laws but one had a  
> pragmatic justification at that time.
>
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
>
> Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
> Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/
>
>
>
>
>
> It's only a deal if it's where you want to go. Find your travel deal  
> here.
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