High court focuses on Lincoln's powers in war

Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

william42

First Sergeant
Joined
Feb 20, 2005
Messages
1,583
Location
Evansville, Indiana
"These great and fundamental laws ... have been disregarded and suspended ... by a military order, supported by force of arms. Such is the case before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found."
...Chief Justice Roger B. Taney

http://washingtontimes.com/civilwar/20061020-084920-3614r.htm


Terry
 

william42

First Sergeant
Joined
Feb 20, 2005
Messages
1,583
Location
Evansville, Indiana
"To deal with the Copperhead Democrats and other dissenters, Lincoln continued making unauthorized suspensions between 1861 and 1863, and additional federal courts affirmed Taney's ruling. Congress finally enacted the Habeas Corpus Act of 1863, formally suspending the writ for the duration of the war. "

So after "ex parte Merryman" then, Lincoln was actually going directly against Chief Justice Taney's ruling. According to the article he acted under President Andrew Jackson's precedent, who ignored such rulings supposedly because Jackson thought they did not apply to the President (Executive branch).

This is a really touchy subject. I have to agree with Lincoln on his violation of Taney's ruling and suspending the Writ, but I have to admit on the other hand, if I were one of the poor saps thrown in jail and held there with no charges, indefinitely, ...then I would have a very real problem with it. So ...I don't know. I hate to see any suspension of the Writ, but in the case of full-blown Civil War, maybe it is a necessity. I defer to Mr. Lincoln's judgment on this one, in this case only.


Terry
 

ole

Brev. Brig. Gen'l
Retired Moderator
Joined
Feb 20, 2005
Messages
34,394
Location
Near Kankakee
Terry:
Was watching BookTV this weekend (at least, as much as I could get away with) and one segment discussed this very thing -- doing first, asking later. It seems that this sort of thing happened with some frequency, beginning with GW hisself and including the present NSA/Bush thing about "he shoulda asked."

Seems that throughout history, the chief executive acting now and asking later has been quite common. Some rather impressive people agreed that such activity is entirely appropriate. Lemme see, Ken Starr, a man named Rosen, and John Yoo, the author of the book under discussion.

So. I would think you are quite within the realm of reality by siding with Lincoln. He was neither the first nor the last Chief Executive who didn't take the time to ask first. "Emergency" doesn't fit well with "committee."
Ole
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

william42

First Sergeant
Joined
Feb 20, 2005
Messages
1,583
Location
Evansville, Indiana
Yeah I think any sitting president is treading on thin ice if he invokes the suspension of the Writ. It's funny, the article mentions that Taney was fearful that Lincoln would arrest him after Taney ruled against suspending the Writ in the Merryman case. But I wonder if Lincoln ever thought about Taney sending men to arrest Lincoln for breaking the law, actually, because of Lincoln's refusal to release Merryman? Technically you could say that Lincoln was breaking the law, I suppose. (Constitutional law) What a really uncomfortable position to be in for both Taney and Lincoln. And the country for that matter. (Suppose you had a feud with your neighbor, and he went to the police and falsely accused you of seditious language or threatening harm against a member of the govt.) That type of atmosphere would make just about everybody paranoid I would think. You know, civil war is no picnic any way you look at it. What a mess.






Terry
 

ole

Brev. Brig. Gen'l
Retired Moderator
Joined
Feb 20, 2005
Messages
34,394
Location
Near Kankakee
But I wonder if Lincoln ever thought about Taney sending men to arrest Lincoln for breaking the law,
The supreme court has no enforcement authority. It can only interpret and advise.

As an aside, how is "Taney" pronounced? Looks to me like it should be "Tay-nee." They were saying "Taw-nee."
 

william42

First Sergeant
Joined
Feb 20, 2005
Messages
1,583
Location
Evansville, Indiana
I always assumed it was Taney with the long "A", as in "cake", but the gentleman who gave the televised tour of the Abraham Lincoln Presidential Library and Museum, on C-Span, pronounced it with the "A" sounding like the "A" in "raw". So, who knows. (?)


Terry
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

whitworth

2nd Lieutenant
Joined
Jun 18, 2005
Messages
2,513
The U.S. Constitution-Sometimes the forgotten document

I notice when a constitutional argument comes up, few, if any at all, ever cite what the U.S. Constitution says or doesn't say.

Article I. Section 9.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public Safety may require it.

Article II. Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;...

Article I. Section 8.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

--------

Clearly the U. S. government had the right to suspend Habeas Corpus, determine what an insurrection was and to treat an insurrection equal to any invasion. The President had power as commander in chief to call up any number of militia from the states to suppress insurrections and imprison anyone in support of that insurrection.

I believe a number of "historians" do not cite the U. S. Constitution because they do not like what they find.
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!

william42

First Sergeant
Joined
Feb 20, 2005
Messages
1,583
Location
Evansville, Indiana
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public Safety may require it.
Thank you Whitworth. Clearly Mr. Lincoln broke no Constitutional law. I also think it's interesting that the Constitution states that the Writ is a privilege, not a right.



Terry
 

ole

Brev. Brig. Gen'l
Retired Moderator
Joined
Feb 20, 2005
Messages
34,394
Location
Near Kankakee
Terry:
I'd have sworn that you knew about the Constitutional provision for the suspension of habeas corpus. Sorry. Old habit. I figure if I know about it, everybody knows about it. The quarrel, then as now, is one of which branch of government wags the dog. The Executive Branch exercises a perceived power and the Legislative and Judicial jump up and down screeching that it theirs to exercise. Likewise, in turn, all three quibble over whatever branch does something another branch claims as its personal prerogative.

You will note that the articles you cited didn't specify the "who" in the exception. You can certainly sympathize with Lincoln's position on April 14th, 1861. The Congress was not in session and, even with a call to special session, couldn't assemble before July 4th. SCOTUS, back then, was seldom together, the justices being scattered somewhat evenly over the country. So. On that April morning, who decides that there exists a state of rebellion? And does who wait months to confer and get advice? You may well note that Lincoln did nothing to increase the army, which he was not empowered to do, but he did call upon the states for the services of their militias, which he was empowered to do. Had I been in his place, I'd have had the army on it's way to DC as fast as humanly possible and an enlistment program rolling on the 15th. But Lincoln had the Constitution in mind. When he bent it, he did so to protect it. And the bending he did do has put him, in the eyes of some, in the category of "dictator."

Guaranteeing that Maryland did not secede involved most of the bending. But truthfully, can you see an alternative? I especially appreciated his observation that, if strict observance to one clause would help destroy the whole, he was willing to overlook that clause.

Good to go, dude!
Ole
 
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!
Fewer ads. Lots of American Civil War content!
JOIN NOW: REGISTER HERE!
Top