Defeating the Anti-Lincoln Myths

Lincoln PortraitLincoln myth number 1) Suspension of the writ of habeas corpus as Lincoln taking dictatorial or unjust authority (the full story).

A few days ago, I came across a post by Being Classically Liberal infamous admin known as (F) cherry picking Lincoln’s record in classic neo-confederate style solely to perpetuate an ideology over fact. Mind you, I consider BCL one of the best classical liberal pages on facebook, sans F, though I can totally appreciate the diversity of opinions, no matter how crack pot some may be.

Much like liberals, radical libertarian ideologues always start the story in the middle, or elide context altogether to further their ideological goals. Thomas Sowell summed this up best as the “triumph of ideology over facts.” So, here are the facts:

Lincoln’s first day in office was March 5th, 1861. On July 4, 1861 ( a mere four months later), in his message to Congress, Lincoln gives his first full explanation for war and recites Article I, Section 9 which reads in full:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, UNLESS when in cases of Rebellion or Invasion the public safety may require it.”

Plainly written in the Constitution and vociferously debated at the Constitutional Convention was the general consensus that there may in fact be circumstances where the writ had to be suspended in the most extreme cases of war or invasion (so there’s that).

Moreover, in Lincoln’s aforementioned message to Congress, Lincoln asks Congress to validate the specific war powers he took the liberty in using (as Commander-in-chief), and eventually Congress allowed the President to suspend the writ during the period of rebellion. This makes sense insofar as Congress itself, during a rebellion may be unable to convene and the writ would have to be suspended suddenly (Lincoln makes this point in his message as well). Also, context must be considered. He called Congress into session to either ratify the suspension or rescind it. The South had taken up arms against the Government of the United States, they were actively trying to overthrow the government the Constitution gave life to. The same document Lincoln swore an oath to protect. As Lincoln so eloquently states:

“[T]he whole of the laws which I was sworn to [execute] were being resisted…in nearly one-third of the states. Must I have allowed them to finally fail of execution?… Are all the laws but one [the right to habeas corpus] to go unexecuted, and the government itself…go to pieces, lest that one be violated?”

Essentially, Lincoln’s oath is to uphold the Constitution and the South is trying to break the union of which it persists. Lincoln is concluding that all the laws of the Constitution shall not go unenforced due to the ambiguity of who actually has the power to suspend the writ of habeas corpus.

The government itself was in peril and was coming apart at the seams. Rather than engaging southern troops, should Lincoln have arrested them on the battlefield, read them their rights, and afforded them due process? Should all the prisoners of war be privy to a writ of habeas corpus during hostilities? It was unclear the United States would even survive the conflict, at which point the Constitution would matter not at all.

The crux of the actual debate, in which Lincoln also considered as mentioned earlier, is the Constitution does not make clear exactly who has the power to suspend the writ. In Ex Parte Merriman, Chief Justice Robert Taney (a southern sympathizer and the author the majority opinion in Dred Scott, declaring the ownership of another human being constitutional and providing the impetus for the Civil War in the first place), argued that because the clause to suspend the writ is in Article I, Section 9 (the article delineating the powers of Congress) that it alone has the sole power to suspend the writ. He never acknowledged the fact there was an active rebellion/insurrection and the republic itself was at stake. He never considered Lincoln’s arguments in his message to Congress, because he didn’t care, he only cared about his own personal predilections and was determined to read them into the law rather than look at it objectively.

Some historians, such as Richard Nelson Current, believe that the writ of habeas corpus clause was put here by the Committee on Style could find no other place for it (it was initially in Article III, then moved to Article I).

 

– Will Ricciardella

 

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Arguments in Favor of Congressional War Powers

The argument for Congressional War Powers (Congressionalists):

Nothing in the Constitution expressly empowers the president to start an offensive war. The framers explicitly gave the power “to declare war; grant letters of Marque and Reprisal, and make Rules concerning Captures on land and Water” (Article I, Section 8).

The latter clauses refer to lower-level hostilities that do not account for an all out war. The Letters of Marque and Reprisal clause–marque being the French equivalent of reprisal–can be best understood as a single phrase. At the time of the Founding, the people, through Congress, authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. Essentially, only the people and the states through their representation can authorize any military adventure. Period.

In Federalist No. 69 Hamilton writes that the president’s war powers are inferior to that of the British king, “It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulation of fleets and armies; all which, by the constitution would appertain to the legislature.”

In the Madison’s Convention notes, him and Elbridge Gerry “moved to insert “make” war, leaving to the executive the power to REPEL sudden attacks.”

It doesn’t say anything about starting an offensive war.

Moreover, in his notes, Madison records Mr. Gerry’s rebuttal to Pierce Butler’s assertion that war making powers should be vested in the executive’s hands alone. Gerry states that he “never expected to hear in a republic a motion to empower the executive alone to declare war.”

George Mason was against “giving the power of war to the executive, because not safely to be trusted with it, or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war, but for facilitating peace. He preferred “declare” to “make.”

Admittedly, the notes on this debate are sparse to say the least.

Next will be the arguments of the Presidentialist camp. Also extremely interesting.

 

– Will Ricciardella

 

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Arguments in Favor of Presidential War Powers

Arguments for presidential war powers (Presidentialists), in no particular order:

1. The President in Article II, Section 1, Clause 1 retains sole authority over the executive branch and gives broad powers with respect to foreign relations, including war, unless otherwise specified (powers granted to Congress in Article I).

2. Context and the time of ratification must be considered. Congress seldom met at our founding and the future of the nation and it’s survival was tenuous at best. As Madison writes in his notes, Charles Pinckney “opposed the vesting [of] this power in the legislature. Its proceedings were too slow. It would meet but once a year. The House of Representatives would be too numerous for such deliberations…”

Essentially, why disperse war making powers amongst a body that seldom meets and as cumbersome as Congress. The decision for war would be dispersed among the many members of Congress, posing a great risk from foreign invasion for the newly formed and vulnerable nation.

3. The Constitution distinguishes between “declaring” war and “engaging” in (Article I, Section 10, Clause 3) or “levying” war (Article III, Section 3, Clause 1). Why would the framers who were so careful with their words, distinguish between the different terms? If only Congress can initiate a war, it would superfluous to add this.

4. They (the Framers) changed the term “make war” to “declare war.” This would insinuate that the declaration of war is a statutory arrangement changing the legal status of allied nations and resident aliens.

5. John Adams (Quasi-war, 1798), Thomas Jefferson (First Barbary War, 1802), and James Madison himself (Second Barbary War 1815) engaged in military hostilities without an explicit declaration of war. Instead an authorization of force was used, clearly creating a distinction between ‘authorization’ and a ‘declaration.’

6. The U.S. has only declared war five times in it’s history: The War of 1812, The Mexican-American War of 1846, the Spanish-American War of 1898, World War I and World War II. The latter four merely declared the existence of an already existing war. Moreover, those declarations were accompanied by authorizations of the use of force making a clear distinction between the two.

7. The Commander-in-Chief clause vests the power of commanding the military to the executive and the executive alone giving him/her “war making” powers as distinguishable from legal declaration for statutory purposes.

8. The founders were well aware of the long British practice of undeclared wars. Meaning that the last minute change from “make” to “declare” is quite significant.

9. Congress has the ultimate check to the President’s war making power, that is the power of the purse. It would behoove every president that wishes to make war to first consult congress seeking a declaration or an aforementioned authorization before deploying the military (Bush sought out authorization before engaging in hostilities in the Middle East). If the people find a war unnecessary, protracted or appalling, Congress need only to pass a bill defunding said war (This is exactly what ended the War in Vietnam.)

There are more arguments that distinguish declarations from making actual war contained in Grotius’ “The Law of War and Peace” (1646) that served as an influence on the Framers and shaped their idea of legal war powers.

When all is said and done however, Congress has virtually the last say in almost everything the federal government does through the power of the purse. It seems many abdicate this duty from Congress by consistently blaming the executive of engaging in “illegal wars” rather than pressuring Congress to end them.

 

– Will Ricciardella

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Climate Change and Scientific Fact

climate changeAlthough I have studied science quite rigorously, libertarians and liberals (mostly libs) often claim that I need to read more science due to my skepticism of man-made climate change. Very often I will hear them say things like “man-made climate change is scientific fact!” which in my opinion is a clear indicator that the accuser has actually studied very little science, but rather have read articles about science that they probably don’t even understand. Allow me to explain why.

In physics, an experiment must produce results with a confidence level of 5 (read five sigma) in order to be considered strong evidence.   This means, the experimenter can be 99.9999% certain that they have found what they are looking for. To give an example to illustrate this phenomenon let’s consider a simple experiment of flipping coins. If we flipped 10 fair coins, we would expect to see 5 heads and 5 tails. However, if we actually do the experiment we will not get 5 heads and 5 tails every time. We might see 6 heads and 4 tails the first time, 8 heads and 2 tails the second time, 5 heads and 5 tails the fourth etc. However, over many experiments we will expect the average of heads and tails in each experiment to level out at around 5.

Now, let’s replace one of the fair coins with a 2 headed coin. This means that our expected number of heads will increase to 5.5 per experiment and tails will decrease to 4.5 per experiment. Similar to the fair-sided experiment, we will get results as 6 heads 4 tails, 3 heads and 7 tails etc. However, over time we expect to see this average to settle at 5.5 heads and 4.5 tails. One way to measure how accurate our estimate is to calculate what is called the standard deviation (sigma). As we repeat this experiment over and over our standard deviation will decrease. Once we find an average of 5.5 heads with a standard deviation of 0.1, we can be 99.9999% sure we have a coin with two heads.

As I was writing this piece I became curious as to how many times I would have to perform this experiment to get to a confidence level of 5; so I wrote a computer algorithm to simulate it. So far I have not been able to attain this level no matter how many times I run it. At 50,000 simulations I had an average of 5.49406 with a standard deviation of 1.42 so I gave up (if 50,000 is only 1.42 I would have to allow it to preform hundreds of thousands/millions of simulations to achieve the 5 confidence level and it will take my old mac a long time to perform that many simulations).

This is the statistical measure used by physicists at the LHC. Luckily for them there are billions of collisions each time they collide particles so they can gather ample data to reach the 5 confidence level. However, even when they were 99.9999% confident they had found the Higgs some physicists only claimed they were “fairly certain” they had found it. This is standard practice in physics. Even at 99.9999% confidence they do not claim it to be scientific fact.

This is why when someone tells me man-made climate change is “scientific fact” followed by telling me I need to read more science I usually stop the discussion. However, if their argument is that there is “strong evidence” in favor of climate change, I will gladly consider their opinion.

I would like to point out two more things. First is that I have not argued in favor of man-made climate change nor have I argued against it. I have read good papers for it and good papers against it. The purpose of this was merely to point out that calling it “scientific fact” is absurd. Second is that because someone has not studied climate change does not mean they have not studied science. One could be an expert on string theory, epidemiology, numerical optimization or various other branches of science and not give the slightest thought about climate change. Thus, telling someone to read more science because they are not interested in climate change is equally absurd.

 

– JW

 

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Raining on the Parade

I hate to be a Debbie downer here, but, lest we forget when the GOP had control of the Congress and the White House under the Bush Administration.

The GOP had control of Congress for 6 years and managed to grow government with their profligate spending at a rate unseen before in American history, only to be barely eclipsed by the administration we have now. Let’s not forget the big government statism of No Child Left Behind, Medicare part D and TARP (Yes, tarp was passed in 2008, but still).

The reason Republicans lost so badly in the 2006 midterms is the very same reason the Democrats lost in this midterm election: the blatant and obvious failure of big government statism.

Let us also not forget the GOP party leadership and their continued rebuke of the Tea Party and their bad-mouthing of libertarians and conservatives. Yes, I’m thrilled the Republicans took back Congress from the Dems, mainly because neither would be able to pass much legislation for the next two years. The problem with this is the President’s penchant to rule by fiat and the GOP’s penchant to cower like toddlers against the usurpations of our lawless President (remember the backlash by the GOP of Ted Cruz’s and Rand Paul’s filibuster?). I have zero faith in Boehner and McConnell, who have proven to be only concerned with their own power–that comes at our expense–rather than reducing it, and giving back to the people.

As conservatives/libertarians we have even more of an obligation now to hold the GOP’s feet to the fire and force them to decrease the size of government, first and foremost the REPEAL of Obamacare. I hear a lot of rhetoric from GOP congressmen-elects of a “bipartisan” approach to healthcare, what I do not hear is a “free market” approach to healthcare. WHY?!

Grow a spine GOP, or we’ll throw you out again.

–A common rebuttal to this would be that many of the elected are “conservatives.” Need I remind you that Kelly Ayotte ran as a conservative. Ron Johnson ran as a conservative and believe it or not, every time he’s ran for office, John McCain runs as a conservative (LOL). Calling yourself something, is vastly different than actually voting like one.

 

– Will Ricciardella

 

 

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Macroeconomics and the Broken Window

My macroeconomics professor is convinced that a war or an earthquake will boost GDP.

This may be true of the numbers temporarily. But the numbers don’t take into account the wealth that is destroyed. It’s incredibly myopic not to see this (Broken Window Fallacy) He advocates government spending as a means to boost GDP, but, what he doesn’t understand is that government must first take or borrow from the private sector in order to purchase or do anything. When I brought this to his attention, he literally scoffed at me, and was amazed I’d even bring it up. He must have thought of me as one of those “conservative economists” or “right-wing” economists he’s trashes during some lectures.

Government is a taker, not a producer. It creates no wealth, it can only hinder wealth creation. He is a firm believer that government stabilizes the economy. In fact, the FED does the exact opposite, it’s been proven many times.

He’ll also never miss an opportunity to bash private business, like when he blamed the 2008 crash on banks, not once mentioning the CRA, HUD or Fannie and Freddie.

Basically, my macroeconomics teacher doesn’t know where wealth comes from. And I’m paying for this!

The best part is, he’s smug, egotistic and thinks he’s brilliant.

End rant

 

– Will Ricciardella

 

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An Economic Analysis of Litigation

I asked our twitter followers if there was anything in specific they would like me or my brother to write about and someone asked us to contemplate the question – “Does fear of litigation force doctors to overcompensate?”

The immediate thought I had was “it has to force them to overcompensate”.  Here is why:

If we consider this through a decision theoretic approach, it is easy to see why doctors are likely to overcompensate. Decision theory is similar to game theory, except, instead of considering multiple individuals making decisions against each other, we consider a single individual making decisions against “states of the world.” The possible states of the world we must consider are: x = not overcompensating and correct diagnosis, y = overcompensating and correct diagnosis, z = not overcompensating and wrong diagnosis, w = overcompensating and wrong diagnosis.

Now, consider what “states of the world” are most favorable. Obviously it is either x and y, and to the doctor the difference between them is negligible even if to the patient they are not. This leaves z and w as the two least favorable situations, and of them, w is more favorable to the doctor while z is more favorable to the patient ( z >w for the patient because lower medical bills, w>z for the doctor because “they covered all their bases” and is less likely to lead to litigation). From this we can see the rational decision for the doctor is to overcompensate because it maximizes his expected “payoff”.  (payoff being keeping his job, not getting sued etc.) The payoff is greater because the payoff of x=the payoff of y, but the payoff of w > payoff of z.

What effect does this have on society is the next question. Well for one, it increases costs to the patient. In the state of Illinois women had to buy psychiatric coverage, unlimited overnight stays in the hospital, OBGYN coverage, unlimited mammograms and a plethora of other things. The reason why they had to purchase these features is because doctors have to “cover their bases.”  This obviously increases health insurance costs. It seems absurd that a woman who is sane, or not trying to have a baby, shouldn’t be allowed to buy basic coverage. This is at least part of the reason why so many people could not afford health insurance. This of course leads to all sorts of other costs to society, such as medicare/medicaid, and libs pushing and passing the Affordable Care Act.

This is how I think of this problem, and I hope it helps everyone understand the situation more clearly.

– JW

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