Its seems Neely like me...
In his authoritative
Fate of Liberty: Abraham Lincoln and Civil Liberties (1991), Mark Neely has argued that during the
Civil War these two policies—summary arrests and military justice—were of a piece. Both stemmed from the emergency of having an armed rebellion in the nation’s midst, and they were viewed as two parts of a single policy. Yet today we think of the policies as separate, if related. So this week I’ll consider Lincoln’s more famous action, his suspension of the privilege of the writ of habeas corpus. Next week, I’ll tackle what at the time was considered the more egregious violation, the use of military tribunals to prosecute civilians.
Neely gives you one bacK...
Habeas corpus is the only common-law tradition enshrined in the Constitution, which also explicitly defines when it can be overridden. Article I, Section 9 of the Constitution says, “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.”
Neely gives one back to me...
Taney noted that Article 1 of the Constitution, where habeas corpus is discussed, deals exclusively with congressional powers, meaning that Congress alone can authorize the privilege’s suspension. Although correct, Taney’s argument framed the debate around a legalistic and secondary issue, that of congressional versus presidential power.
(Taney also criticized Merryman’s detention, noting that civilians aren’t subject to military justice—an issue I’ll get to next week.)
Neely gives this...
Where
Democrats marshaled constitutional arguments against Lincoln’s order,
Republicans replied that in an emergency, only the president could act fast enough to protect the public safety.
Lincoln himself took this line in a famous July 4, 1861,
speech to Congress. He also, more memorably, used a pragmatic argument
. “Are all the laws but one to go unexecuted,” he chided his critics, “and the government itself go to pieces, lest that one be violated?”
In the end, "National Security" is used to justify the death of our Constitutional rights and the Consitution... Neely with me?
link:
https://slate.com/news-and-politics/2001/11/lincoln-s-suspension-of-habeas-corpus.html