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What Congress is Doing to Curb the Supreme Court

What Congress Is Doing to Curb the Supreme Court

“Bills to counter recent Supreme Court rulings are starting to make their way through Congress. How much further will Congress go? Everything about the Court – how it operates, terms of judges, scope of rulings – is about to get a thorough review, the first in decades.

US News & World Report – July 12, 1957 – Congress is starting to strike back at the Supreme Court. A score of bills have been introduced to curb the Court’s power and to sidestep the effects of controversial decisions. It is clear that a growing number of Congressmen are convinced that new laws must be passed to overcome the effects of these decisions. Other Congressmen propose to go much further and trim the powers of the Court itself.

Senator Herman Talmadge (Dem.) of Georgia, for example, proposes to amend the code of laws to remove public schools from the jurisdiction of federal courts. Others have offered amendments to the Constitution giving States the exclusive power to regulate schools and all other matters relating to health and morals.

Limits on Tenure? Court decisions during the recent term have produced a rash of bills to make Supreme Court Justices less safe in their lifetime jobs. Senator Russell Long (Dem.) of Louisiana, offered a constitutional amendment to require reconfirmation of a justice by the Senate after 12 years on the bench.  Senators Olin D. Johnston (Dem.) of South Carolina, and James O. Eastland (Dem.) of Mississippi propose amendments to require reconfirmation every 4 years.

Behind all the proposals affecting the appointment of Justices is the objection in Congress that recent decisions have been more political than judicial in purpose and in effect.

To promote full debate, Senator Talmadge also is sponsoring a bill to require the Court to give a full hearing, with oral argument, on any case it decides. His contention is that the Court acted in at least ten cases during the recent term without hearing arguments.

All of these bills, in effect, are telling the Court that it is asserting too much power over Congress, the President and the States.”

New York City Schools – Circa 1957

Policemen in School Corridors?

The US News & World Report, December 6, 1957, pg. 94.

“Juvenile crime in New York public schools no becomes so serious that a grand jury wants to put police inside each school. “Blackboard jungles,” mostly in Negro and Puerto Rican areas, give most difficulty. Crime complaints exceed 2100 this year. Must schools be policed? A top official says, “We do not want Little Rock in New York City.” Yet trouble is mounting.”

NEW YORK CITY – Serious trouble in the public schools of the nation’s largest city broke into the open last week with a recommendation for drastic action.

Delinquency of all kinds had been growing with 1280 arrests made on New York City school grounds thus far this year. These had been for offenses ranging from petty thievery to rape and murder. A special grand jury investigating lawlessness in Brooklyn’s public schools came up on November 25 with this terse recommendation:

“This grand jury recommends that a uniformed New York City policeman be assigned to all schools throughout the city to patrol the corridors, the stairways and the recreation yards as a preventative measure.”

Reaction to the proposal was swift. New York City Superintendent of Schools William Jansen called it “unthinkable.”

Nevertheless, there was agreement that the situation was serious and close to being out of hand. The judge presiding over the grand jury, Samuel Leibowitz stated that “conditions were alarming and that school authorities have been utterly incapable of coping with the situation.”

Most of the “difficult” schools as listed by the city’s Board of Education are situated in predominantly Negro and Puerto Rican neighborhoods. Student achievement levels there are generally below the average for the city and discipline is a major problem. Teachers are reported to be frequently defied by pupils and, in some instances, to be threatened with physical harm by gang members who invade the classrooms.

The at-school crime that finally touched off the grand jury probe occurred in September at Thomas Jefferson High School in Brooklyn. There, a 17-year-old Negro boy hurled a bottle of lye into a classroom, partially blinding one boy and splattering 18 other pupils and the teacher.

Fear of being assigned to a difficult school has hurt teacher recruiting efforts although the extent of the damage cannot be measured. The facts now coming to light about New York’s school problem indicate that troubles here run deep, and serious school problems, it appears, are not confined to the American South.”

 

It Was Not About Slavery

If continued black labor in the South was essential to the economic survival of the region and the ultimate reason for seeking independence, it was equally essential that the economic survival of Northern financial, textile, and manufacturing industry interests. It was not unexpected that after the Confederate States of America was formed in early February 1861 and enacted a modest 10% tariff which would have decimated northern ports, that those northern interests urged war against the South. It was not about slavery.

The following is excerpted from Mark R. Winchell’s posthumous “Confessions of a Copperhead” recently released by Shotwell Publishing. See www.shotwellpublishing.org.

It Was Not About Slavery

“If the North was fighting for an imperial vision of American hegemony rather than for the abolition of slavery, what motivated the South? The statement of South Carolina’s anti-flag scholars quotes several Confederate officials, who declared they were fighting to preserve slavery.

It would perhaps be more accurate to say that the Confederacy was formed to assure the economic survival of the American South. (The revolutionist’s declaration of independence from England was motivated by similar economic considerations.)  In 1861, African labor seemed essential to that survival [just as New England’s poverty-wage slavery held mill workers to their employment.]

Of even greater concern, however, was the agricultural tariff passed by the US Congress on behalf of Northern industrial interests. This tariff made it difficult for Southerners to sell cotton and other crops in European markets. An independent South, free of the tariff, would have prospered among the community of nations. If Lincoln was willing to assure the perpetuation of slavery, this former corporation lawyer was not willing to ease the tariff.”

(Confessions of a Copperhead, Culture and Politics in the Modern South, Mark R. Winchell, Shotwell Publishing, 2022, pg. 183)

The Conspiracy Which Brought on War

President-elect Lincoln instructed his party stalwarts to either avoid what would become the Washington Peace Conference chaired by former-President John Tyler, or if in attendance to refuse any peaceful compromise as it would dissolve Republican party unity.

The Conspiracy Which Brought on War

“On February 2, 1861, Hon. Stephen A. Douglas in a letter published in the Memphis Appeal, wrote of the Republican leaders as follows:

‘They are bold, determined men. They are striving to break up the Union under the pretense of serving it. They are struggling to overthrow the Constitution while professing undying attachment to it and a willingness to make any sacrifice to maintain it They are trying to plunge the country into a cruel war as the surest means of destroying the Union upon the plea of enforcing the laws and protecting public property.’

Shortly after Douglas wrote this letter Senator Zachariah Chandler of Michigan wrote a letter to Gov. Austin Blair which proves the guilty conspiracy of the men determined on war. Virginia had solicited a conference of States to see if some plan could not be devised and agreed upon to prevent war and save the Union.

Chandler wrote Blair that he opposed the conference and that no Republican State should send a delegate. He implored the Governor to send stiff-necked delegates or none and added these sinister words: ‘Some of the manufacturing States think that a war would be awful; without a little blood-letting this Union will not be worth a curse.”

(The Conspiracy Which Brought on War, S.A. Cunningham, Confederate Veteran, Vol. XXIV, No. 10, October 1916, pg. 436)

The Triumph of Industrialism

Prior to 1861 the American union was a federation of member States which jealously guarded their own territory and sovereignty to decide upon their own internal affairs. This also included determining whether or not to continue membership in that federation and departing it for another as was done in 1789. Also, by 1861 the North had become a far different region that the American South through industrialization and the relentless immigration of foreigners lacking an understanding of American republicanism.

The Triumph of Industrialism

“The ordeal which beset the United States in 1861 was related to the upheaval on the continent in 1848, and to the spasm which shook England in 1832. In a veiled and confused yet crucial way it, too, was a test of strength between the industrial way of life and the agrarian.

When the Machine first reached this country it took root in the North, and there alone it was able to make even slow headway. The ruling elements in the South were inclined to despise the innovation, for they had black slaves to do their hard labor. In this they were merely repeating history.

The slave owners in ancient Greece had had a similar attitude toward machinery; so had the slave owners in ancient Rome and China and Mexico. These, it must be realized had not lacked the cunning to invent mechanical devices. A Greek mathematician named Hero who lived in the First Century actually built a working steam engine. But did it occur to him to put the contraption to practical use? It did not.  Instead, he installed it in a temple to amaze the worshippers by the way it worked the doors.

That was typical. The clock and the compass, gunpowder and the printing press – these were all invented in relatively ancient times. Yet until relatively modern times they were kept as mere playthings. Ingenious patricians with time on their hands were continually thinking up cunning devices; but never with the idea of applying them to save toil. They themselves did not toil, neither did any of their friends. They had slaves for that. So why bother? And that was precisely the attitude of the white gentry of the South and in their eyes an interest in machinery was vulgar.

In the North, however, the very opposite held true. Bondage had long since been outlawed in that section in part for climatic and other reasons it had too obviously failed to pay. Having no slave labor, the Northerners had naturally been forced to try to save labor. Since this could be done more easily in industry than agriculture, there had been an equally natural compulsion to favor the factory over the farm. The great boom of the 1850s was almost entirely confined to the North and it equipped that region with so much new machinery that it was able to manufacture six times as much merchandise as the South. As a result, the interests of the North, especially New England, became increasingly wrapped up in the fortunes of industrialism.

But as the collapse of that boom had revealed, those fortunes were increasingly insecure. When the Panic of 1857 finally waned and the Yankee industrialists began to pick themselves up from the dust, there was blood in their eyes.

They felt they had been betrayed. For years the industrialists had been complaining that their foreign rivals had them at a disadvantage and pleaded with Congress to come to their aid. They demanded these things: higher tariff walls to keep out cheap foreign merchandise; lowered immigration standards to admit cheap foreign labor; increase subsidies to shippers carrying Northern merchandise overseas; advance more generous loans to railroad companies; create one currency to replace the various State bank notes; and lastly, change the African slave into a free consumer who would spend his money buying Northern products.

But the Southerners had opposed that program to a man. Moreover, being superior politicians, they had always been able to make Congress vote their way. Now, however, the Northerners had their dander up and forged a political alliance with the radical farmers of the West and elected a cagey frontier lawyer named Abraham Lincoln to the presidency. Whereupon, there was war.

The South decided to secede from the 1789 Union. They decided they would rather have half a continent of their own than a whole one run by damn Yankees. Like agrarians everywhere else, their outlook on life had remained essentially provincial. They believed that a citizen’s first loyalty belonged not so much to his country as to his immediate countryside.

Rather than let the South gain independence, the North was ready to lay it to waste. With the Government furnishing the capital, and patriotism the incentive, they rushed to lay hold of more and more machinery. At the time it was called the “Civil War,” and later this somewhat sinister name was softened to the “War Between the States.” In effect, however, it was the “Second American Revolution.” The first had secured the triumph of republicanism on these shores; the second insured the triumph of industrialism.”

(Something Went Wrong: A Summation of Modern History, Lewis Browne, MacMillan Company, 1942, excerpts pp. 113-116)

The Choice Between War and Peace

Lincoln was without question a sharp Whig attorney who knew the intricacies of Illinois politics. On the national stage he led a conglomeration of former Whigs, anti-Catholic Know Nothings, radical abolitionists, free-soilers, Transcendentalists and tariff protectionists who valued their own interests above all. As stated in the second paragraph below he knew that his political support from this rainbow of varied interests and controlled by Radicals, would fall apart should any compromise to save the Union be embraced. He placed his party above his country.

His predecessor James Buchanan was not a supporter of secession but aware that a president waging war against a State was committing treason – Article III, Section 3 of the US Constitution. His attorney-general confirmed this. A president could not raise an army – only Congress could do this – Lincoln circumvented the Constitution with Republican governors sending him their own State troops until Congress met in July. By that time congressmen were aware that they faced arbitrary arrest for “treason” should they oppose Lincoln’s actions.

The Choice Between War and Peace

 “Lincoln’s cabinet was almost equally divided between Conservatives and Radicals. The Radicals favored an immediate attempt to resupply Fort Sumter even should this precipitate war. These men thought the new Confederacy would crumble upon the first show of force, because a small junta had caused all the trouble, and the Southern people would have no heart in a conspirators’ war.

The Conservatives believed that given peace and adequate time, the Union could be reconstituted. Would it not be better to withdraw the small garrisons from forts to so as to prevent immediate hostilities and secure the Border States to the Union? Seward knew there were no military reasons for keeping Sumter and had no doubt that it would soon be evacuated. On March 7, Lincoln told a caller that if Sumter were abandoned, he would have to leave the White House the same day.

On March 12 1861 Stephen Douglas began a debate designed to force the Radical Republicans either the accept or attack Lincoln’s peace policy as stated in his inauguration speech.

He reviewed at length the legal status of federal authority in the South. As the laws stood, the Executive could not use the army and the navy to enforce the law in the Southern States. What would be involved in the use of force? He had secured estimates from competent military authorities as to the troop requirements in the event of war. At least 285,000 men would be needed to compel submission and it would cost at least $316,000,000 to keep them in the field for a year. How could eighteen States ever pay the cost of subjugating fifteen?

The Republicans sat silent as he talked, smiling contemptuously. When he finished, Henry Wilson of Massachusetts, attacked him as the country’s outstanding alarmist. Douglas lost his temper and taunted the Republican Radicals with desiring the Union dissolved. The Republicans were unyielding, the few Northern Democrats were impotent but the galleries applauded wildly.”

(The Eve of Conflict: Stephen A. Douglas and the Needless War, George Fort Milton, Houghton, Mifflin Company, 1934, pp. 548-551)

Scourging Republicans from the Temple of Freedom

Scourging Republicans from the Temple of Freedom

As the Democratic party split into North and South factions in early 1860, it paved the way for the new, sectional Republican party — comprised of former Whigs, abolitionists, transcendentalists, and anti-Catholic Know-Nothings — to triumph in November with a 39% plurality. Aware of the extreme danger Republicans posed to the Union, rational Southern men traveled northward to alert their Democratic brethren.

One voice was William L. Yancey, born at Warren County, Georgia but educated at Williams College in northwestern Massachusetts, where he likely absorbed that State’s tradition of threatening secession from the 1789 union should that State’s equality in the federation be threatened. He relocated to Elmore County, Alabama in 1837 and eventually represented his district in the United States House of Representatives.

Aware of the extreme danger to the Union should the Democratic party fragment in 1860, he joined “Southern men of all parties who came north in an effort to arouse the masses to the danger of the situation.” He was then prevailed upon to make an extended campaign from Memphis to Boston, speaking to many audiences.

In a speech at Nashville on August 14, 1860 and published in the Nashville Union and American shortly afterward:

“Yancey denied that he was a disunionist per se; but declared that in the event of a Republican victory, “I hope to God there will be some man or set of men, whom Providence will rear in our midst . . . that there will be some great Washington [to] arise who will be able to scourge them from the temple of freedom, even if he is called a traitor – an agitator, or a rebel during the glorious process.”

(Source: The Secession Movement: 1860-1861, Dwight L. Dumond, The MacMillan
Company, 1931, pg. 110)

 

Paving the Way for Final Catastrophe

John Brown’s deadly insurrection at Harper’s Ferry in 1859 destroyed the South’s belief that conservative gentlemen ruled the North and understood the slavery they had been saddled with. After all, New England merchants and their ships had profited greatly from the many Africans brought to these shores, who raised the raw cotton spun in New England mills. The Brown raid changed all that – DeBow’s Review wrote that the North “has sanctioned and applauded theft, murder, treason”; a Baltimore editorial asked how the South could any longer afford” to live under a government, a majority of whose subjects or citizens regard John Brown as a martyr and a Christian hero?” Not mentioned below among those fleeing to Canada was Frederick Douglass, who was to join Brown as a “liaison officer” to the slaves expected to join his band.

Notably, Brown was sentenced to hang for committing treason against Virginia, one of “them” (States) identified in Article III, Section 3 of the United States Constitution.

Paving the Way for Final Catastrophe

“Although more than 400 miles lay between Harper’s Ferry, Virginia and Boston, Massachusetts, John Brown’s raid made that distance seem much shorter. A number of prominent Boston men had been associated with John Brown over the past three or four years, and now it looked as though they were implicated in a criminal conspiracy. It was well known that industrialists such as Amos A. Lawrence, William Appleton and Edward Atkinson had sent both money and guns to “Captain” Brown during his military exploits in Kansas. George Luther Stearns, a wealthy Boston businessman, had made unlimited funds available to Brown and was later found to be one of the “Secret Six” who had conspired to assist Brown in his new undertaking.

Dr. Samuel Gridley Howe, prominent physician and reformer, had become one of Brown’s closest associates in the East; preachers such as Unitarian Thomas Wentworth Higginson and the Transcendentalist Theodore Parker had also become ardent Brown supporters; Wendell Phillips, the “golden trumpet” for Garrison’s abolition movement, spoke out on his behalf; and young Franklin B. Sanborn, a Concord schoolteacher just recently out of Harvard, was a disciple of the Old Man from Kansas.

Suddenly Senator Jefferson Davis, the Mississippi statesman who had been wined and dined in Boston only a year earlier, became nemesis in the North, avenger of the South.

Some of Brown’s supporters remained steadfast in supporting their hero during the Senate’s investigations. Theodore Parker was still in Europe, but wrote back his approval of what Brown [had] done; Thomas Wentworth Higginson dared the Southern senators to call him to the witness stand. But many more feared losing their good names, their businesses, and quite possibly their freedom. Franklin Sanborn, Dr. Samuel Gridley Howe, George Luther Stearns, and several other Boston residents suddenly decided it was time to pay a visit to Canada “for reasons of health.”

Conservatives throughout Boston were appalled by the aftereffects from John Brown’s raid. Mournfully, Edward Everett warned his friend Robert C. Winthrop that this event would surely pave the way for “final catastrophe.” The most influential figure in the Emigrant Aid Society, Amos A. Lawrence, still would not join the Republican party. Lawrence feared that the Republican party, with its openly sectional appeal, would further alienate the South and endanger the Union.”

(Civil War Boston: Home Front and Battlefield, Thomas O’Connor, Northeastern University Press, 1997, pp. 38-40)

Republicans, Sectionalism and War

Michigan Senator Lewis Cass was born in New Hampshire in 1782 and quite possibly had seen President George Washington as a young man. A lifelong Democrat and devoted Northwestern man who watched the latter territory develop, he longed to see the sectional troubles developing in the 1850’s resolved with faithful compromise. The nascent Republican party was not to be compromised with, and after electing its first president with a small plurality in 1860, plunged the country into a war it never recovered from.

Passing in 1866, he lived long enough to witness Washington’s republic perish in the flames of sectional warfare.

Republicans, Sectionalism and War

During the deliberations of the Compromise of 1850, Lewis Cass believed slavery to be a misfortune to the South, but only “the passage of ages” could bring about emancipation without the destruction of both races.

On the date July 6, 1854, the Whigs and Free-Soilers, or the “Free Democracy” of Michigan, met and formed a new party. The name Republican was adopted with old party trammels soon cast aside and all bent to the task of forming a party upon the cornerstone of unionism and freedom. This new party was opposed to State sovereignty as well as constitutional interpretations which were contrary to their views, and gave their strength to this party which advocated nationalism.

Though claiming to be a party of Americans for America, its absorption of the fiercely anti-Catholic Know-Nothings meant that only Protestants were to be tolerated.

It was a source of regret to Cass that a party with a “sectional” aim should find support in the country. For above all else he loved the Union, hoping against hope that harmony would be restored. But Michigan, so long faithful to him gave Fremont a popular plurality and elected a Republican legislature with an overwhelming majority.

“You remember, young man,” Lewis Cass said to James A. Garfield in 1861, “that the Constitution did not take effect until nine States had ratified it. My native State [of New Hampshire] was the ninth. So I saw the Constitution born, and I fear I may see it die.”

Though only nine of thirteen States ratified the third Constitution in June, 1788, the others remained fully independent States. And logically, should conventions of any of the thirteen (or subsequent States admitted) revoke or rescind their ratifications to resume their full-independent status and pursue another political arrangement, any lover of freedom and liberty would applaud this.

Lewis Cass, Andrew C. McLaughlin, Houghton Mifflin Company, 1891, pp. 301-324)

Civil, Human and Natural Rights

1964 Presidential candidate Goldwater was the last Old Right conservative to emerge after the marginalization of Robert A. Taft by the leftist Rockefeller wing of the Republican party, who cheered on political-waif Eisenhower as their candidate. Ike’s contribution after eight years as president was to appoint Earl Warren Chief Justice as a political payoff, and warning Americans of the military-industrial complex he helped create.

Civil, Human and Natural Rights

“[The authority of individual States] are easy enough to define. The Tenth Amendment does it succinctly: “The powers not delegated to the United States [government] by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people.”

Civil rights should be no harder. In fact, however, thanks to extravagant and shameless misuse by people who ought to know better – it is one of the most badly understood concepts in modern political usage.

“Civil rights” is frequently used synonymously with “human rights” – or with “natural rights.” As often as not, it is simply a name for describing an activity that somebody deems politically or socially desirable. A sociologist writes a paper proposing to abolish some inequity, or a politician makes a speech about it – and behold, a new “civil right” is born! The Supreme Court has displayed the same creative powers.

A civil right is a right that is asserted and is therefore protected by some valid law . . . but unless a right is incorporated in the law, it is not a valid civil right and is not enforceable by the instruments of the civil law.

There may be some rights – “natural” or “human”, or otherwise, that should also be civil rights. But if we desire to give such rights the protection of the law, our recourse is to a legislature or to the amendment procedures of the US Constitution. We must not look to politicians, or sociologists – or to the courts – to correct the deficiency.”

(The Conscience of a Conservative, Barry Goldwater, Victor Publishing Company, 1960, excerpt pp. 32-33)

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