Tuesday, April 24, 2018

Can speech justify violence?

One often hears some variant of the phrase "speech never justifies violence".

Is that true?

Morally, for some people, perhaps.  Legally, not at all.

Imagine the following circumstance:
  A man carrying a baseball bat approaches you.  When he is within a few feet of you, you draw a concealed firearm and shoot him dead.

Was your action legally justified?  Unless the man exhibited behavior that demonstrated an imminent threat to use the bat against you, absolutely not.

Now this:
  A man carrying a baseball bat approaches you.  When he is twenty feet away, he says "I'm going to bash your brains out."  When he is within a few feet of you, you draw a concealed firearm and shoot him dead.

Was your action legally justified?  Damn right.

What's the difference?  His speech.

The essential requirements to justify the use of force in defense of self or others are generally considered three:

  • Ability: the physical ability to cause great bodily harm, permanent injury, or death.  A gun, knife, or club certainly qualifies, as would significant disparity of force (the potential attacker being larger, younger, fitter, or a group of people).
  • Opportunity: the opportunity to apply that ability.  A person with a club or knife who is 100 yards away has ability, but not opportunity.  Likewise if there were a 20' fence between the attacker and potential victim.
  • Jeopardy: behavior which a reasonable person would find imminently threatening.  Brandishing a bat (when not playing a game in which the bat is used) might qualify depending upon circumstances.  Repeated stabbing motions with a knife upon approach might qualify.  A verbal threat to use force against you definitely qualifies.
In addition, the potential victim must be innocent and any threat must be imminent.  A statement that "I'm going to get a gun and shoot you" is clearly not an imminent threat, and the requirement to leave and obtain the ability also demonstrates that the threat is not imminent.  The similar "I'm going to shoot you" from a person wearing a gun in a holster or holding one in their hand is clearly imminent.

In the above two scenarios, ability and opportunity are present via the baseball bat and the proximity of the potential attacker.  Only in the second scenario is the imminent threat present.

The only difference in the scenarios is the speech.

Contrived?  Perhaps.  But also a clear exception to the idea that it's never justified to respond to speech with violence.
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Tuesday, August 29, 2017

Documenting the Confederacy, Part 4: Documenting Secession: Florida

We, the people of the State of Florida in Convention assembled, do solemnly ordain, publish and declare: That the State of Florida hereby withdraws herself from the Confederacy of States existing under the name of the United States of America, and from the existing Government of said States: and that all political connection between her and the Government of said States ought to be and the same is hereby totally annulled, and said union of States dissolved: and the State of Florida is hereby declared a Sovereign and Independent Nation: and that all ordinances heretofore adopted in so far as they create or recognize said Union, are rescinded: and all laws or parts of laws in force in this State, in so far as they recognize or assent to said Union be and they are hereby repealed.
Florida Ordinance of Secession, adopted 10 January 1861

Florida's Declaration of Causes remained unpublished, and is undated.  It was authorized on 21 January, 1861 but the committee was discharged on 1 March without the document being accepted.

Unlike the other states, Florida puts States' Rights (actually, their denial of rights of other States) right at the top.  They deny the ability of either individual States or the Union to make their own laws regarding slavery:
…The nullification of these laws by the Legislatures of two thirds of the non slaveholding States important as it is in itself is additionally as is furnishing evidence of an open disregard of constitutional obligation, and of the rights and interests of the slaveholding States and of a deep and inveterate hostility to the people of these States.…
Elements dealing with slavery include:
…It is denied that it is the purpose of the party soon to enter into the possession of the powers of the Federal Government to abolish slavery by any direct legislative act. This has never been charged by any one. But it has been announced by all the leading men and presses of the party that the ultimate accomplishment of this result [...to abolish slavery...] is its settled purpose and great central principle. That no more slave States shall be admitted into the confederacy and that the slaves from their rapid increase (the highest evidence of the humanity of their owners will become value less.
And they jump directly into racism, proclaiming immediately that slaves (i.e. Africans) are idle, vagrants, and criminals, and that considerations of humanity should not be extended to slaves (clearly indicating that they are not humane to their slaves):
...Their natural tendency every where shown where the race has existed to idleness vagrancy and crime increased by an inability to procure subsistence. Can any thing be more impudently false than the pretense that this state of things is to be brought about from considerations of humanity to the slaves.…
And that (OMG!) they might possibly to required to live with and be legally equal to "the african")
...we will not confiscate your property and consign you to a residence and equality with the african but that destiny certainly awaits your children…
Finally, they raise a new issue: that the North isn't paying its fair share.  Ironic, when you consider that, in 2014, Florida received between $4 and $5 from the federal government for every $1 in taxes they send and gets almost exactly 1/3 of its general funding from the federal government.
...It is time that the northern consumer pays his proportion of these duties, but the North as a section receiving back in the increased prices of the rival articles which it manufactures nearly or quite as much as the imposts which it pays thus in effect paying nothing or very little for the support of the government....
Collectively, Florida's arguments against the Union are more expansive than some other traitor states, but slavery, racism, economic opportunism, and opposition to states' rights fit in well with the rest.

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Wednesday, August 16, 2017

Documenting the Confederacy, Part 3: Documenting Secession: Mississippi

Third flag of the CSA, the "Blood-Stained Banner" made it clear (as the
"Stainless Banner" did not) that it wasn't a white flag request to negotiate.
Only used for a few months in 1865.

AN ORDINANCE to dissolve the union between the State of Mississippi and other States united with her under the compact entitled "The Constitution of the United States of America."
The people of the State of Mississippi, in convention assembled, do ordain and declare, and it is hereby ordained and declared, as follows, to wit:
Section 1. That all the laws and ordinances by which the said State of Mississippi became a member of the Federal Union of the United States of America be, and the same are hereby, repealed, and that all obligations on the part of the said State or the people thereof to observe the same be withdrawn, and that the said State doth hereby resume all the rights, functions, and powers which by any of said laws or ordinances were conveyed to the Government of the said United States, and is absolved from all the obligations, restraints, and duties incurred to the said Federal Union, and shall from henceforth be a free, sovereign, and independent State.
Sec. 2. That so much of the first section of the seventh article of the constitution of this State as requires members of the Legislature and all officers, executive and judicial, to take an oath or affirmation to support the Constitution of the United States be, and the same is hereby, abrogated and annulled.
Sec. 3. That all rights acquired and vested under the Constitution of the United States, or under any act of Congress passed, or treaty made, in pursuance thereof, or under any law of this State, and not incompatible with this ordinance, shall remain in force and have the same effect as if this ordinance had not been passed.
Sec. 4. That the people of the State of Mississippi hereby consent to form a federal union with such of the States as may have seceded or may secede from the Union of the United States of America, upon the basis of the present Constitution of the said United States, except such parts thereof as embrace other portions than such seceding States.
Thus ordained and declared in convention the 9th day of January, in the year of our Lord 1861.
Source: Official Records, Ser. IV, vol. 1, p. 42.
From "Ordinances of Secession" at constitution.org

Mississippi declared its secession from the Union on 9 January 1861.  It's worth noting that Abraham Lincoln had not even been on the ballot in Mississippi, which voted nearly 60% for the Southern Democrat John Breckinridge, 36% for John Bell of the Constitutional Union Party, and Northern Democrat Steven A. Douglas received less than 5% of the vote.  Jefferson Davis, elected to the US Senate from Mississippi, said in his final speech to the Senate:
She [Mississippi] has heard proclaimed the theory that all men are created free and equal, and this made the basis of an attack upon her social institutions; and the sacred Declaration of Independence has been invoked to maintain the position of the equality of the races.
"A Declaration of the Immediate Causes which Induce and Justify the Secession of the State of Mississippi from the Federal Union" begins:
In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course. 
Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world.
and continues:
... by an imperious law of nature, none but the black race can bear exposure to the tropical sun.
It has grown until it denies the right of property in slaves, and refuses protection to that right on the high seas, in the Territories, and wherever the government of the United States had jurisdiction. ... 
It advocates negro equality, socially and politically, and promotes insurrection and incendiarism in our midst. 
Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or
Mississippi leads directly with "it's about slavery!" and follows up with "OMG!  Equality for Negros!" and "It's going to cost of billions of dollars".

Again, Mississippi wanted to deny northern states the right to abolish slavery within their own territory.  That's for anyone who thinks "States' Rights" had anything to do with secession.

Part 2: Documenting Secession: South Carolina
Part 4: Documenting Secession: Florida
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Documenting the Confederacy, Part 2: Documenting Secession: South Carolina

AN ORDINANCE to dissolve the union between the State of South Carolina and other States united with her under the compact entitled "The Constitution of the United States of America."
We, the people of the State of South Carolina, in convention assembled, do declare and ordain, and it is hereby declared and ordained, That the ordinance adopted by us in convention on the twenty-third day of May, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and also all acts and parts of acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and other States, under the name of the "United States of America," is hereby dissolved.
Done at Charleston the twentieth day of December, in the year of our Lord one thousand eight hundred and sixty.
Source: Official Records, Ser. IV, vol. 1, p. 1.
From "Ordinances of Secession" at constitution.org 

According to Wikipedia, "An official secession convention met in South Carolina following the November 1860 election of Abraham Lincoln".  The convention issued the above "ordinance of secession" on 20 December, 1860, and ordered seven members to draft a separate statement, which was adopted by the convention on Christmas Eve as "The Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union" (hereinafter "The Declaration").
...an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. ... The State of New Jersey, at an early day, passed a law in conformity with her constitutional obligation; but the current of anti-slavery feeling has led her more recently to enact laws which render inoperative the remedies provided by her own law and by the laws of Congress. In the State of New York even the right of transit for a slave has been denied by her tribunals; (emphasis mine)
Regardless of questions of Constitutionality, South Carolina's Declaration makes it quite clear that slavery is the reason for their secession.

Part 1: The Confederate States of America and Treason
Part 3: Documenting Secession: Mississippi
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Tuesday, August 15, 2017

Documenting the Confederacy, Part 1: The Confederate States of America and Treason

Second flag of the CSA, the "Stainless Banner", incorporating the
battle flag of Lee's Army of Northern Virginia on a field of white
to represent "the heaven-ordained supremacy of the white man
over the inferior or colored race"

The states of the Confederacy (the "CSA") declared their secession from the United States (the "Union") in a collection of documents which are called the Ordinances of Secession.  Several of the CSA also issued "Declarations of Causes" which provide supplementary information.

For those who haven't kept track, the eleven states of the CSA were: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, Tennessee, and North Carolina.  They formed a self-proclaimed nation in 1861 after the election of Republican Abraham Lincoln and fought the Union until 1865, when they were defeated.  The last four states listed (Virginia, Arkansas, Tennessee, and North Carolina) did not declare their secession until after the attack of Fort Sumter by the other seven secessionist states.

No foreign government ever officially recognized the CSA as an independent country.  According to US precedent (notably SCOTUS Texas v. White), unilateral secession is an impossibility because the Constitution creates an "indestructible" union: the Articles of Confederation call the Union "perpetual" and the US Constitution created a "more perfect union".
[Salmon P.] Chase, [Chief Justice], ruled in favor of Texas on the ground that the Confederate state government in Texas had no legal existence on the basis that the secession of Texas from the United States was illegal. The critical finding underpinning the ruling that Texas could not secede from the United States was that, following its admission to the United States in 1845, Texas had become part of "an indestructible Union, composed of indestructible states." In practical terms, this meant that Texas has never seceded from the United States. (Pavkovic & Radan, 2007, p 222)
 Precedent leaves open the possibility of successful rebellion (as the CSA did not achieve) or an Act of Congress permitting secession.

Legalistically speaking, so far as the United States and the rest of the world is concerned, the CSA never existed as an independent nation.  Had they succeeded, they would have.  Because the CSA never legally existed, the taking up of arms against the Union met the definition of treason in 18 US Code 2381:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason...
During the war, President Lincoln had issued a number of pardons for treason and rebellion.  President Johnson chose not to have wholesale trials of 3/4 million soldiers who served in the Confederate Army.  Instead, he issued a series of general pardons, with a large number of exceptions. In a final act on Christmas Day, 1868, President Johnson declared:
unconditionally, and without reservation, ... a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws ...
Meaning that that vast bulk of Confederate participants in the Civil War were granted a pardon for Treason.

Why is that significant?  One word: Burdick.  OK, three words: Burdick v. US.

Burdick is a 1915 SCOTUS decision that clearly establishes an individual is allowed to reject a pardon.  As a result, the state cannot compel testimony covered by the 5th Amendment by offering a pardon -- the defendant must accept the pardon.  In accepting a pardon, however, one confesses guilt of the crime pardoned:
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it.
Thus, any member of the Confederacy (in particular any member of the Confederate Army or Navy) who accepted their pardon and was not tried for treason confessed to the crime of treason against the Union.

One specific person of note, however, attempted to confess and was denied for 110 years, then accepted retroactively.  General Robert E. Lee, specifically covered by exception to the general pardon because he resigned his commission in the US Army to serve in the Confederate Army, and because his rank was above that of Colonel in the Confederate Army, made application to President Johnson on 13 June 1865:
Being excluded from the provisions of amnesty & pardon contained in the proclamation of the 29th Ulto; I hereby apply for the benefits, & full restoration of all rights & privileges extended to those included in its terms. I graduated at the Mil. Academy at West Point in June 1829. Resigned from the U.S. Army April '61. Was a General in the Confederate Army, & included in the surrender of the Army of N. Va. 9 April '65.
Lee signed an Amnesty Oath on 2 October 1865, complying fully with Johnson's general pardon proclamation.  But Lee was never pardoned while alive, and President Ford signed a joint congressional resolution making the pardon effective 13 June 1965.

And thus, 110 years after the end of the Civil War and 105 years after his death, General Robert E. Lee confessed to treason against the United States.

Part 0: Introduction
Part 2: Documenting Secession: South Carolina

(Edit 2017.08.16: removed double quotation marks; fixed white background; replaced "Articles" of Secession with "Ordinances" of Secession; added 's' to Article(s) of Confederation)
(Edit 2017.08.17: corrected 1968 to 1868 as year of Johnson's final pardon; corrected 'effecting' to 'effective')
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