Great minds think alikeNew Article to read.
Lincoln's Suspension of the Writ of Habeas Corpus
Selective quoting. IMHO the only way to show Lincoln was wrong is to show that there is no legal controversy that he was wrong. Someone might squeeze by with a preponderance of the evidence. A personal interpretation AKA personal opinion of what the Constitution says is simply a personal opinion without evidence.
Several days later, Taney issued his opinion. Only Congress, he said, could suspend the writ of habeas corpus. He observed that the limitation on suspension of the writ appeared in Article I of the Constitution, dealing with legislative powers, not in Article II, which established executive power. He explored the history of the writ of habeas corpus under English law, showing that the House of Commons had limited and then abolished the royal power to suspend the writ, leaving suspension in legislative hands. The Constitution, he said, embodied this English tradition. Article II, he asserted, gave the president very limited powers that were weakened further by the Bill of Rights. Finally, he cited eminent authority, noting that Chief Justice John Marshall, Thomas Jefferson, and Joseph Story, a luminary as both judge and scholar, had all acknowledged that the power to suspend was a congressional power.Lincoln ignored Taney, and that was the end of the federal judiciary's involvement with the suspension of habeas corpus. Neither the Supreme Court nor the lower federal courts dealt with the issue again. The action now passed to the president and Congress.If the courts are not going to adjudicate it, then it is a political question, not a legal one. The legality or illegality is essentially something that cannot be determined by historians.
On July 4, Lincoln delivered a message to the special session of Congress. He referred to his suspensions of the writ, quoted the suspension clause, and justified the suspensions on the ground that "we have a case of rebellion, and the public safety does require" suspension of the writ. He then went on: "Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that, in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented ... by the rebellion. No more extended argument is now offered, as an opinion ... will probably be presented by the Attorney General. Whether there shall be any legislation upon the subject, and if any, what, is submitted entirely to the better judgment of Congress."The promised opinion of Attorney General Edward Bates came the next day. The opinion was devoted primarily to the president's power to make arrests without warrant, rather than to the suspension of habeas corpus. Bates argued that the president is authorized to suspend the writ because he is charged with preservation of the public safety, but he then concluded with his personal opinion that the power of suspension flows from the president's power to make warrantless arrests.It is logical that in the event of war some action has to be taken. Someone has to take it. If Congress is not in secession, the only political actor left is the president, the commander of the armed forces of the United States. If Lincoln was wrong, then the other political actor Congress would take action to remedy it. Sans such action, Lincoln's actions are Consitutitional.
The article has more interesting information deserving of its own thread. ,
I also see your post #235
And this view point is endorsed or affirmed by what Supreme Court decision or Circuit Court of Appeals or what Congressional Act?"it is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power."
Great minds think alike
And this view point is endorsed or affirmed by what Supreme Court decision or Circuit Court of Appeals or what Congressional Act?
As US Attorney General Bates stated the US Constitution did not in Article 1 Section 9 Clause 2 proscribe the President from suspending habeus corpus. Neither has mentioned countless times did Congress proscribe the Presidents power to do so or the full panel of the US Supreme Court or a US Court of appeals. The US Supreme Court is composed of nine judges not one. We don't have a direct ruling to support your assertion.And what, exactly, is the constitutional text from Article II, section 2, that endorses or affirms the warped and grotesque idea that the president has the authority to suspend habeas corpus?
As US Attorney General Bates stated the US Constitution did not in Article 1 Section 9 Clause 2 proscribe the President from suspending habeus corpus. Neither has mentioned countless times did Congress proscribe the Presidents power to do so or the full panel of the US Supreme Court or a US Court of appeals. The US Supreme Court is composed of nine judges not one. We don't have a direct ruling to support your assertion.
Again the Congress did not have a problem with President Lincoln's suspension of habeus corpus early in the war. In 1863 Congress restricted but in no war prohibited the President from suspending habeus corpus nor has the current Congress.Said Bates:
"If by the phrase the suspension of the privilege of the writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it."
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