Tag: abraham lincoln

Hocus Pocus, There Goes Habeas Corpus

What if the writ of habeas corpus has been guaranteed to the British since 1215 and to Americans since 1789? What if this encompasses the right of every person who is confined by the government against his or her will to compel the jailer to justify the confinement before a neutral judge?

What if this right is personal and individual and applies to all persons at all times? What if the right can be exercised by anyone who is arrested, whether it be for spitting on the sidewalk or murder? What if this right — to be free from an unjust confinement; to be free from arrest without trial — is one for which the Founders and the Framers fought the American Revolution?

What if habeas corpus is today recognized by all judges in the United States? What if judges actually stop court proceedings when a habeas corpus petition is received in order to hold a hearing and compel the government to lay out the evidence against the accused and justify his or her confinement, lest he or she spend one minute more behind bars than is lawful?

What if British monarchs and their subjects believed that the monarchy was divinely created? What if they actually believed that God the Father chose whomever was the king at a given moment to rule over them? What if they called this the divine right of kings? What if the divine right of kings enabled the monarch to write any law, prosecute any person and impose any punishment he wished for real or fanciful or even imagined crimes?

What if even this divine-right-of-kings nonsense — once universally accepted and now universally rejected — had an exception to it? What if that exception was habeas corpus? What if even the most tyrannical and absolute of monarchs in Britain recognized and respected habeas corpus for their subjects in Britain?

What if British kings failed to recognize habeas corpus for the colonists in America? What if their governments arrested folks here [in America] and then brought them months later to London for trial? What if there was no mechanism for habeas corpus in the colonies to protect one from the wrath of the British government?

What if on the few occasions where habeas corpus was recognized, the colonial judges — who were dependent on the king for their jobs and their salaries — persistently ruled in favor of continued confinement, no matter how flimsy the evidence against the accused or how unlawful the charges?

What if Thomas Jefferson condemned this practice in the Declaration of Independence? What if the failure of colonial judges to recognize here in America the same rights recognized of Englishmen in Britain played a significant role in arousing the colonists to revolution in 1775 and 1776?

What if colonial revulsion at the refusal to recognize habeas corpus was so great that James Madison — who wrote the Constitution — insisted that this right be preserved in the Constitution? What if this was done even before the Bill of Rights was added?

What if Madison recognized that in cases of invasion or rebellion, Congress might want to suspend habeas corpus until the rebellion or invasion subsided? What if Congress — in order to prevent frivolous or politically based suspensions of the right — defined invasion or rebellion as a state of affairs of such calamity that the federal courts are unable to conduct proceedings?

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Demolishing the Lincoln Myth, Yet Again

Extension of slavery in the territories was for Lincoln an entirely different matter, and on this issue he refused all compromise. Here we confront a paradox. If Lincoln thought it more important to preserve the Union than to oppose slavery, why was he unwilling to compromise over slavery in the territories? If he thought slavery’s extension was too high a price to pay to preserve the Union, why was he willing permanently to entrench slavery wherever it already existed? It is hard to detect a moral difference between slavery in the states and the territories.

DiLorenzo readily resolves the paradox. Lincoln opposed extension of slavery, because this would interfere with the prospects of white workers. Lincoln, following his mentor Henry Clay, favored a nationalist economic program of which high tariffs, a national bank, and governmentally financed “internal improvements” were key elements. This program, he thought, would promote not only the interests of the wealthy industrial and financial powers that he always faithfully served but would benefit white labor as well. Blacks, in his opinion, would be better off outside the United States, and throughout his life Lincoln supported schemes for repatriation of blacks to Africa and elsewhere. If blacks left the country, they could not compete with whites, the primary objects of Lincoln’s concern. (Lincoln, by the way, did not see this program as in any way in contradiction to his professed belief that all men are created equal. Blacks, he thought, had human rights but not political rights.)

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