Lincoln's Unconstitutional Actions

[L Verge]

(01-05-2018 09:45 AM)RJNorton Wrote:  As I look back upon the nation's history I am sometimes surprised at what the Supreme Court finds constitutional.

For example, during World War I, Congress passed and President Wilson signed the Sedition Act in 1918.

From the Sedition Act:

"SECTION 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, . . . or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct . . . the recruiting or enlistment service of the United States, or . . . shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States . . . or shall willfully display the flag of any foreign enemy, or shall willfully . . . urge, incite, or advocate any curtailment of production . . . or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both...."

In 1919 the Supreme Court upheld the Sedition Act by a vote of 7-2.

Another example came during World War II. On February 19, 1942, President Roosevelt signed Executive Order 9066, which resulted in the forcible internment of 120,000 people of Japanese ancestry. More than two-thirds of those interned under the Executive Order were citizens of the United States. The War Relocation Authority was created to administer the assembly centers, relocation centers, and internment camps, and relocation of Japanese-Americans began in April 1942. Internment camps were scattered all over the interior West, in isolated areas of Arizona, California, Utah, Idaho, Colorado, and Wyoming.

In 1944 the Supreme Court upheld the government by a vote of 6-3.

The Sedition Act of 1918 was an extension of the Espionage Act passed in 1917, as the U.S. entered WWI, and both were designed as wartime measures (I think) to protect our country from radical elements that would undermine our system of government and our efforts to win the war. One of the radicals caught by the Act was Eugene V. Debs. He appealed to the Supreme Court, but they upheld his conviction.

I leave understanding the Constitution to smarter people than I, but there must be a clause somewhere in there that allows seemingly drastic measures to protect our country. I believe that the Espionage Act is still on the books -- and frankly, I would not mind seeing both acts used against some of the forces working against us today. I believe that the protection of our country has taken some severe hits over the past decade or so. Just my opinion, and I was raised in a time when the protection of the majority - not the minority - was of utmost consideration.

[David Lockmiller]

(01-05-2018 09:45 AM)RJNorton Wrote:  As I look back upon the nation's history I am sometimes surprised at what the Supreme Court finds constitutional.

Roger,

I agree. I provide a more recent example:

In 1976, on a five to three ruling of the U.S. Supreme Court in the case of Imbler v. Pachtman, 424 U.S. 409, the majority granted absolute immunity to all state and federal trial court prosecutors from 42 U.S.C. section 1983 civil lawsuits for damages brought by "wrongfully convicted" criminal defendants alleging unconstitutional suppression of exculpatory and witness-impeaching evidence.

The counter argument in support of granting only qualified immunity to government trial court prosecutors for unconstitutional suppression of evidence was written in a dissenting opinion by Justice Byron White and joined by Justice William Brennan and Justice Thurgood Marshall, Jr. (See Imbler at 432-47.)

MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, concurring in the judgment.

I concur in the judgment of the Court and in much of its reasoning. I agree with the Court that the gravamen of the complaint in this case is that the prosecutor knowingly used perjured testimony; and that a prosecutor is absolutely immune from suit for money damages under 42 U.S.C. 1983 for presentation of testimony later determined to have been false, where the presentation of such testimony is alleged to have been unconstitutional solely because the prosecutor did not believe it or should not have believed it to be true. I write, however, because I believe that the Court's opinion may be read as [424 U.S. 409, 433] extending to a prosecutor an immunity broader than that to which he was entitled at common law; broader than is necessary to decide this case; and broader than is necessary to protect the judicial process. Most seriously, I disagree with any implication that absolute immunity for prosecutors extends to suits based on claims of unconstitutional suppression of evidence because I believe such a rule would threaten to injure the judicial process and to interfere with Congress' purpose in enacting 42 U.S.C. 1983, without any support in statutory language or history.

Title 42 U.S.C. 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

As the language itself makes clear, the central purpose of 1983 is to "give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U.S. 167, 172 (1961) (emphasis added). The United States Constitution among other things, places substantial limitations upon state action, and the cause of action provided in 42 U.S.C. 1983 is fundamentally one for "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941). It is manifest then that all state [424 U.S. 409, 434] officials as a class cannot be immune absolutely from damage suits under 42 U.S.C. 1983 and that to extend absolute immunity to any group of state officials is to negate pro tanto the very remedy which it appears Congress sought to create. Scheuer v. Rhodes, 416 U.S. 232, 243 (1974). Thus, as there is no language in 42 U.S.C. 1983 extending any immunity to any state officials, the Court has not extended absolute immunity to such officials in the absence of the most convincing showing that the immunity is necessary.

It is apparent that the injury to a defendant which can be caused by an unconstitutional suppression of exculpatory [and/or witness-impeaching] evidence is substantial, particularly if the evidence is never uncovered. It is virtually impossible to identify any injury to the judicial process resulting from a rule permitting suits for such unconstitutional [424 U.S. 409, 445] conduct, and it is very easy to identify an injury to the process resulting from a rule which does not permit such suits. Where the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be "monstrous to deny recovery." Gregoire v. Biddle, 177 F.2d, at 581.

[AussieMick]

Laurie writes "I leave understanding the Constitution to smarter people than I, but there must be a clause somewhere in there that allows seemingly drastic measures to protect our country."

I'm sure there is, Laurie. I'm no expert but (dont I just love that phrase) most if not all constitutions have a 'get-out' capability. It may be actually stated or it may be within 'implied powers' for use in an emergency. Apparently several views exist that since the Constitution was deliberately written to enable the Executive to act faster than the Legislative Branch then there is an implication that where fast decisions are essential ... well, obviously the Executive (i.e. President) must be able to act effectively in an emergency.

The question of "implied powers" has often come up in Australia. Our system of Federal government was based (to an extent anyway) on the US. It came into effect in 1900 and we have a Senate and House of Reps. The Constitution framers kept it as short as possible. This has resulted in , shall we say, "Judicial activism". This occurs where someone challenges a Government action and the High Court judges look at the Constitution and make a view about what the Constitution "implies". Obviously, many people regard as this undesirable ... especially if it happens often. (Nobody voted for those judges .., just as nobody voted for Supreme Court Judge Taney.)

Ok, to put some of this in context. We're currently in Australia going through some angst because some members of Parliament are now being ruled ineligible to govern. Why? Well the Constitution framers in 1900 chose to state that anybody who owed, or could be eligible to owe, allegiance to a foreign power cannot be in government. If you have dual nationality or can claim nationality or if you have a parent or grandparent who was a foreign national ... you cannot be a Parliamentary representative. Thats what the High Court has decided the Constitution says.

Oh, while I'm at it ... to show I'm not taking a holier than thou attitude on racism and slavery ... I acknowledge that until about mid-1950's Australia had a White Australia policy where , basically, only white Europeans were taken as migrants.