Poll - Suspending the Writ

Was Lincoln within his rights to suspend the writ of habeas corpus?

  • Yes

    Votes: 35 61.4%
  • No

    Votes: 22 38.6%

  • Total voters
    57
"All LEGISLATIVE powers". Suspension of the writ of habeas corpus, when enacted by the Executive as Lincoln did, is not a legislative procedure.

Right. The Executive has no authority to do so on his own. The Constitution of the United States grants him no such authority. That is the point.

This is clearly a provision of Article I that explicitly does NOT apply to Congress.

I didn't catch where Article I, Section X gives the Executive authority to suspend the Writ.
 
Are we forgetting the axiom that goes something like, "In time of war, the law leaves."? Or Lincoln's lament (paraphrased), "Must I struggle to preserve a small part while losing the whole thing?"

Seems like we are straining at a gnat while swallowing a camel.
 
Right. The Executive has no authority to do so on his own. The Constitution of the United States grants him no such authority. That is the point.

I didn't catch where Article I, Section X gives the Executive authority to suspend the Writ.

The point is that Article I does not deal explicitly and exclusively with powers of Congress. It contains a clause that says the writ of habeas corpus may be suspended, and it provides restrictions on when that may occur (restrictions, by the way, that Congress completely ignored when it passed the Fugitive Slave Law). It does not, however, provide any restriction on WHO may suspend it.
 
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Are we forgetting the axiom that goes something like, "In time of war, the law leaves."? Or Lincoln's lament (paraphrased), "Must I struggle to preserve a small part while losing the whole thing?"

Indeed. It would be "absurd", as Thomas Jefferson noted himself:

"A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."

- Thomas Jefferson, September 20, 1810


Source: http://press-pubs.uchicago.edu/founders/documents/a2_3s8.html
Seems like we are straining at a gnat while swallowing a camel.

The idea that it's unconstitutional is promoted mostly by people who prefer that Lincoln's side would lose, which demonstrates all the more the need for him to do exactly what he did.
 
We have to be careful not to judge looking back with modern-day glasses. All three branches failed to do what today we would expect of them and there were a number of cases where one branch exercised power supposedly only available to another branch. Not that I support all that Lincoln did (or the military, or the courts, or congress); just saying it was a different time with different standards and expectations.
I don't think anyone is actually doing that. I've been scanning newspapers from Kentucky during the time and the same debate continues to pop up and the same arguments are being used. Granted it was a democratic paper that also lambasted abolitionists, but that doesn't detract that the argument is the same.
 
Are we forgetting the axiom that goes something like, "In time of war, the law leaves."?

I think we're also forgetting what the Writ of Habeus Corpus means. It did not, during the Civil War, and does not, this afternoon, impinge upon the ability or authority of the Executive (the president, the governor, the sheriff) from throwing a net over any of us and taking us to jail.

Rather, it requires authorities to put each of us in front of a judge or a grand jury, so that the evidence against us may be considered. That is not an undue burden and it did not then, nor does it today, imperil the Republic.

There were abuses that have been discussed in other threads. Dismissing the issue for myriad reasons is just not responsible, IMO.
 
The idea that it's unconstitutional is promoted mostly by people who prefer that Lincoln's side would lose, which demonstrates all the more the need for him to do exactly what he did.
Again I think this idea is false. Even in Nebraska's territorial papers complaints about the writ pops up. Nebraska, as was the Maysville paper, were clearly pro-Union.
 
I think we're also forgetting what the Writ of Habeus Corpus means. It did not, during the Civil War, and does not, this afternoon, impinge upon the ability or authority of the Executive (the president, the governor, the sheriff) from throwing a net over any of us and taking us to jail.

You're arguing that the writ of habeas corpus should NEVER be suspended. But clearly you're arguing against the Founding Fathers on that one, because they very clearly stipulated that it COULD be suspended under certain circumstances.

Rather, it requires authorities to put each of us in front of a judge or a grand jury, so that the evidence against us may be considered. That is not an undue burden and it did not then, nor does it today, imperil the Republic.

It is indeed an undue burden on court systems and law enforcement agencies that were designed to handle the occasional pickpocket or murderer, when they are suddenly flooded with thousands of insurgents.
 
Again I think this idea is false. Even in Nebraska's territorial papers complaints about the writ pops up. Nebraska, as was the Maysville paper, were clearly pro-Union.

I said "mostly". I'm sure there are exceptions. Perhaps the Maysville paper in Nebraska was one of those exceptions. But the fact is that Congress and most Americans in the Northern and Western states supported Lincoln's suspension of the writ, although they may have (quite rightfully, IMO) had some reservations about it.
 
You're arguing that the writ of habeas corpus should NEVER be suspended.

I'm arguing that the Executive has no authority to suspend the Writ without congressional authorization. Period, The End.
 
I said "mostly". I'm sure there are exceptions. Perhaps the Maysville paper in Nebraska was one of those exceptions. But the fact is that Congress and most Americans in the Northern and Western states supported Lincoln's suspension of the writ, although they may have (quite rightfully, IMO) had some reservations about it.
I know you said "mostly" but my contention is it wasn't most. The Maysville paper is from Kentucky and the Nebraska papers. The editor or whoever wrote one of the articles cites even a Wisconsin paper about the suspension. My tendency is to then think that the discussion of the write was more widespread than you assume.
 
But the fact is that Congress and most Americans in the Northern and Western states supported Lincoln's suspension of the writ, although they may have (quite rightfully, IMO) had some reservations about it.

The fact is, Congress never granted authority to the Executive, to suspend the Writ, without the provision of due process to those detained. A representative Democracy responds to those represented. I'm going to assume that Congress did what it did because of reservations expressed by the people.
 
I'm arguing that the Executive has no authority to suspend the Writ without congressional authorization. Period, The End.

Well, that may be YOUR interpretation of the Constitution. But the Constitution does not say that.
 
I know you said "mostly" but my contention is it wasn't most. The Maysville paper is from Kentucky and the Nebraska papers. The editor or whoever wrote one of the articles cites even a Wisconsin paper about the suspension. My tendency is to then think that the discussion of the write was more widespread than you assume.

Can you post some examples of these so we can get an idea exactly who these people were and what they were complaining about?
 
Well, that may be YOUR interpretation of the Constitution. But the Constitution does not say that.

Brass, end the Round Robbin by showing us where the Constitution authorizes the Executive to suspend the Writ?
 
The fact is, Congress never granted authority to the Executive, to suspend the Writ, without the provision of due process to those detained. A representative Democracy responds to those represented. I'm going to assume that Congress did what it did because of reservations expressed by the people.

Congress authorized the President to suspend the writ "whenever, in his judgment, the public safety may require it ... in any case throughout the United States, or any part thereof", even when Congress was in session.
 
Brass, end the Round Robbin by showing us where the Constitution authorizes the Executive to suspend the Writ?

Article I, Section 9, clause 2:

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.
Round Robbin ended. :D
 
This ignores Section 2 of the Suspension Act, which I posted, clearly. The president was given authority to suspend, Provided, those detained were given due process. In other words, no effective authority to suspend the Writ was granted.

That is incorrect. Only civilians who would be tried in State or Federal courts had to be listed and presented within twenty days to Federal judges in the districts they were arrested in. Civilians arrested for military offenses such as spies, bushwackers, or guerrillas, and were subject to military tribunals, were exempt from its requirements.
 
Round Robbin ended. :D

Not that simple, though. Again, Article I, Section I: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Section IX of Article I belongs to the Legislature. :D
 
Not that simple, though. Again, Article I, Section I: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Section IX of Article I belongs to the Legislature. :D

Suspending the writ of habeas corpus is not a legislative power unless it is codified in law, which Lincoln did not do. His actions were entirely at the executive level as commander-in-chief, in which capacity he was entirely within his Constitutional rights and responsibilities.
 
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