Poll - Suspending the Writ

[kevikens]

Saying that Lincoln was "ignoring the decision of the Supreme Court" may not be accurate. If the writer is referring to the case where the Maryland individual incarcerated in the Spring of 1861 applied for a writ of Habeas Corpus and got one from R.B. Taney, only to have Lincoln refuse it, one needs to keep in mind that Taney was not acting in his capacity as a Supreme Court justice but in his capacity as a circuit judge. Supreme Court justices still rode the circuit in 1861 and this hearing and the granting of the writ was at the federal district court level, not that of the Supreme Court.

 

[Drew]

Congress never condemned Lincoln for it, and ultimately they sanctioned his actions.

Agree completely with the first statement, but it is important to understand that the Suspension Act really did not sanction his action. It authorized suspension of the Writ, while simultaneously placing limits on it. Specifically, providing for third party adjudication by judges or grand juries. The situation was best articulated in the early 20th century by the song, Yes! We Have No Bananas.

 

[Lithuanian]

After Dred Scott decision ignoring Supreme Court was the best policy

 

[huskerblitz]

After Dred Scott decision ignoring Supreme Court was the best policy

No, you legislate the problem.

 

[John Winn]

I definitely believe Lincoln acted within his constitutional rights to suspend the writ in the first instance in which he did so. However, I think he exceeded his authority when he extended the suspension to include areas where there was no rebellious activity. The Supreme Court supported that view in ruling that civilians could not be tried by military courts where the civilian courts were still available.

So, I voted yes but it's yes with a lower case y.

 

[Copperhead-mi]

I definitely believe Lincoln acted within his constitutional rights to suspend the writ in the first instance in which he did so. However, I think he exceeded his authority when he extended the suspension to include areas where there was no rebellious activity. The Supreme Court supported that view in ruling that civilians could not be tried by military courts where the civilian courts were still available.

So, I voted yes but it's yes with a lower case y.

Rebellion was not a prerequisite to suspend the privilege of the Writ. In ex parte Milligan, Justice Davis stated in his majority opinion that "[a]ny person regarded as dangerous to the public safety might be arrested and detained" therefore Lincoln's suspension of the privilege of the Writ was constitutional, however lacking any prior Congressional approval, trial and punishment by a military commission in states where the courts are functioning is unconstitutional.

 

[Drew]

Lincoln's suspension of the privilege of the Writ was constitutional, however lacking any prior Congressional approval, trial and punishment by a military commission in states where the courts are functioning is unconstitutional.

Unconstitutional in any event. There is no constitutional authority granted the executive to suspend the Writ. The Supreme Court and ultimately Congress agreed. Lincoln overstepped his bounds. Period.

 

[Lithuanian]

He had to save USA by all means. Suspention was necessary, without it Maryland might secede and?....

 

[John Winn]

Unconstitutional in any event. There is no constitutional authority granted the executive to suspend the Writ. The Supreme Court and ultimately Congress agreed. Lincoln overstepped his bounds. Period.

Yes, except the president had the power to suppress rebellion and suspension of the writ, given that congress was not in session when Lincoln first suspended it, I feel falls within that power to suppress. Congress later supported Lincoln's suspension of the writ. That said, I think he definitely acted outside his power to suppress rebellion when he later extended the suspension to include pretty much everywhere.

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.

 

[Drew]

the president had the power to suppress rebellion and suspension of the writ, given that congress was not in session when Lincoln first suspended it,

John, the constitution explicitly authorizes Executive action in certain circumstances, when Congress is not in session. Suspension of the Writ is not among them.

Congress later supported Lincoln's suspension of the writ.

Not exactly. The Suspension Act, that Lincoln signed, ensured due process in cases of detention under suspension of the Writ. As I pointed out earlier, Yes! We Have no Bananas is an apt description.

Below is the legislative language, provided at the Federal Judiciary Center website.

Habeas Corpus Act of 1863An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases.

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. . . .

Sec. 2. And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia a list of the names of all persons, citizens of states in which the administration of the laws has continued unimpaired in the said Federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest; . . .

And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; . . . Provided, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the Government of the United States, and to support the Constitution thereof; . . .

[Document Source: March 3, 1863, U.S. Statutes at Large 12 (1863): 755.]

 

[brass napoleon]

The Suspension Act, that Lincoln signed, ensured due process in cases of detention under suspension of the Writ. As I pointed out earlier, Yes! We Have no Bananas is an apt description.
Below is the legislative language, provided at the Federal Judiciary Center website.

Habeas Corpus Act of 1863An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases.

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. . . .

I don't know what this has to do with bananas, but that sure sounds like support of Lincoln's suspension of the writ to me.

 

[brass napoleon]

Unconstitutional in any event. There is no constitutional authority granted the executive to suspend the Writ.

Constitutional authority is granted to suspend the writ of habeas corpus. It is not explicitly granted or denied to anyone in particular, but it explicitly exists.

The Supreme Court and ultimately Congress agreed.

When, please?

 

[John Winn]

John, the constitution explicitly authorizes Executive action in certain circumstances, when Congress is not in session. Suspension of the Writ is not among them.

You are right, Drew, that suspension of the writ is not explicitly granted in the president's powers to suppress rebellion and therein lay the problem because the exact powers granted the president were not enumerated. Lincoln made an assumption and stretched his authority regarding suspension of the writ because there was no explicit law saying he did not have the right. People like us have debated it since then. My thoughts are largely based on the analysis done by James G. Randall in his 1926 Constitutional Problems Under Lincoln.

Not exactly. The Suspension Act, that Lincoln signed, ensured due process in cases of detention under suspension of the Writ. As I pointed out earlier, Yes! We Have no Bananas is an apt description.

Below is the legislative language, provided at the Federal Judiciary Center website.

Habeas Corpus Act of 1863An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases.

Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. . . .

Not exactly ? See bolded language.

 

[kevikens]

The Constitution is not divine Writ and the Founding fathers were only "demi-gods" so it is not surprising that they may have erred by omission. The right to suspend Habeas Corpus may have been envisioned by the Founding Fathers as a legislative prerogative by placing it in Article Two but they did not explicitly state that. Had anybody brought it up in 1787 as to what would happen if an emergency developed while Congress was not in session that matter would have been cleared up. As it was not addressed, it is ambiguous and therefore susceptible to reasonable interpretation and Lincoln has good reason to believe that the Writ had to be suspended in the interim by the Chief Executive rather than see the Union fall to pieces while secessionists labored unfettered to try to do just that. It seems to me that Lincoln demonstrated, if not wisdom, at least common sense.

 

[brass napoleon]

You are right, Drew, that suspension of the writ is not explicitly granted in the president's powers to suppress rebellion and therein lay the problem because the exact powers granted the president were not enumerated. Lincoln made an assumption and stretched his authority regarding suspension of the writ because there was no explicit law saying he did not have the right...

Indeed. Not to mention that Congress wasn't in session, and if anyone was going to suspend the writ, it was going to have to be the President. Lincoln operated on the conviction that the Founding Fathers wouldn't have been so silly and careless to decree that if an invasion or rebellion occurs while Congress is in session the writ could be suspended, but if it occurs while Congress isn't in session, the country would just have to roll over and die. Certainly insurgents would love such a policy, but it makes no sense for men who are building a country.

 

[John Winn]

One can also argue that if only the legislative has the authority to suspend the writ then they can't give it away to another branch. If that's so, then congress acted unconstitutionally by giving the president such authority. These types of legal messes occurred between the branches in a number of ways and a number of laws and rulings were either contradictory or later ruled invalid.

 

[Copperhead-mi]

One can also argue that if only the legislative has the authority to suspend the writ then they can't give it away to the president. If that's so, then congress acted unconstitutionally by giving the president such authority. These types of legal messes occurred between the branches in a number of ways and a number of laws and rulings were either contradictory or later ruled invalid.

Exactly! Congress can not pass a law that overrides or conflicts with the Constitution and the only way to do so would be through the amendment process. If Article I, Section 9 of the Constitution delineates that only Congress can suspend the Privilege of the Writ then the passage of the 1863 Habeas Corpus Act was unconstitutional.

 

[Drew]

Not exactly ? See bolded language.

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.

 

[Drew]

Constitutional authority is granted to suspend the writ of habeas corpus.

Yes, to the Congress, not the Executive. See 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."

 

[brass napoleon]

Yes, to the Congress, not the Executive. See 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."

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

Note also that Article I includes the following:

Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

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