Cases in Constitutional Law #5: The death of federalism
Law ·Saturday September 18, 2010 @ 21:25 EDT (link)
It has been almost nine months since the last part in this series, covering the cases in Chapter 2, The Legislative Branch. My views may have become more voluntaryist since then (if possible), I don't generally disagree with any of my previous conclusions in the series (1 2 3 4). But going forward you will find two types of argument: one in the context of the Constitution as a binding document and state (general sense) power as legitimate, and another following the pure voluntaryist rationality of Spooner's "No Treason: The Constitution of No Authority". While the second frame is fact, and moral, the first is the one we are, by main force, required to live in, so some examination of it seemed profitable to me at the time; but see below.
We resume with Chapter 3, The Executive Branch.
[✓] Ex Parte Milligan (1866): (Ex parte, Latin, from one party.) Milligan, a civilian, was arrested in the "military district" of Indiana by order of district commander General Hovey, and was tried in October 1864 by a military commission, found guilty of initiating insurrection and of various treasonous and disloyal practices, and was sentenced to death on May 19, 1865. On May 10, he sued for a writ of habeas corpus due to the unconstitutional character of the proceedings against him and claiming right of trial by jury. The supreme court (correctly) found that the president and congress did not have power to set up military tribunals except in an actual war zone where civil courts were not functioning; sadly, some of the justices thought that such tribunals could be set up by congress, albeit not by the president alone. From the majority opinion written by Justice Davis:
The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a theory leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.
This starts well, although of course it and any opinions of the court must argue within the frame of the Constitution as mentioned above, and it makes the common error of assuming the Constitution binds the people, who have made no contract to adhere to it, when it only binds the state, which has made such agreement: politicians and soldiers swear to uphold it. (Thus it can give no power over individuals, even, as the justice claimed, to preserve the existence of the state, but it does restrict the violence of the state, which is an immoral dominion in any case.) Note also the final hat-tip to "might makes right" in the matter of secession, a principle that the supreme court would generally not uphold except in this area where their very existence requires that they operate with blinders on. It is also sad to see the unlimited powers they ascribe to a commander of a military district so long as actual opposition is present—certainly the principles of the Revolution where the rights of free men to choose their own leaders are dashed (again, disregarding the error of majorities imposing their will on the rest for the present frame)—and the only sop thrown our way is that, "Martial law cannot arise from a threatened invasion" (emphasis mine) and "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." In a free society, it can never exist at all; but even its use in the War for Southern Independence was to assault the principle of federalism upon which the myth of the United States was built.
[✗] In re Neagle (1890): (In re, Latin, in the matter of, i.e., without adverse parties.) Supreme court justice Field, after deciding a matter against a Mrs. Terry, represented by her husband, was threatened with death by Mr. Terry should he return to California. Deputy marshal Neagle was detailed as a bodyguard for the judge. Terry tried to kill the judge in a railroad restaurant, but was shot by Neagle when he pulled out his knife (knife to a gunfight; really?) Local authorities arrested Neagle for murder, but he was released from their custody upon receipt of a writ of habeas corpus from the federal circuit court. The appointment of the Marshall was not through an act of congress but an executive order under authority of the president (i.e., through a federal department). The myth used to allow the release from state custody was that the marshal was acting in pursuance of the "law of the united states". The decision itself admitted that such would be taken into consideration in the murder case. This decision goes to increase the power of a national rather than federal government and gives federal actors unjustified immunity from the states that created them.
[✓] Youngstown Sheet & Tube Company v. Sawyer (1952): …
This will be the end of this series. I have tried to re-engage with reading and writing about these cases, but with little success, and in a flash of clarity the reason came to me today (December 23) while I was wrapping some of my wife's Christmas gifts: the cases aren't important to me any more. My priorities, my viewpoints, have changed, and while the Constitution was a good start (as originally conceived, not as presently ignored), as a voluntaryist, examining the historical cases is still of some interest to me, as is the study of any history, but eventually it is just the rearrangement of deck chairs on the Titanic. The Constitution is a document that creates the federal government as an agent of the several states; it is ultimately an apparatus of state, i.e., initiation of force against peaceful people, and as such the study of its failures and the encroachments of the state—or the occasional bone that the ruling apparatus throws in liberty's direction—is unhelpful to one concerned with freedom, although I reserve the right to make some limited and selective future commentary on cases if I feel I can gain from the examination. For further reading I would highly recommend all of Andrew Napolitano's books, which do an excellent job of examining the erosion of American liberties through abuse of the Constitution, as well as Mark Levin's book Men in Black. Some cases went well; some poorly; but in all they were decisions enforced by violence, and deep consideration to write in-depth commentary is unprofitable when compared to advocacy of freedom in pure form.
