Posted on 04/14/2015 6:57:32 AM PDT by Paisan
On this date in 1865, Good Friday, Abraham Lincoln was shot at Ford's Theatre in Washington, D.C. The 16th president died the next morning.
Another interesting case of an apologist who rationalizes irrelevancies and ignores duty and law. It wasn't Lee's job to moralize over the terms of George Custis's will - it was to execute it.
That’s not tyranny - that warfare. Don’t do the crime if you can’t do the time.
When federal troops were attacked in Baltimore on April 19, 1861 it could be considered an act of insurrection. Mayor Brown wrote President Lincoln and threatened:
It is my solemn duty to inform you that it is not possible for more soldiers to pass through Baltimore unless they fight their way at every step. I therefore hope and trust and most earnestly request that no more troops be permitted or ordered by the Government to pass through the city. If they should attempt it, the responsibility for the bloodshed will not rest upon me".
Lincoln's reply to Mayor Brown and a Maryland delegation:
“You, gentlemen, come here to me and ask for peace on any terms, and yet have no word of condemnation for those who are making war on us. You express great horror of bloodshed, and yet would not lay a straw in the way of those who are organizing in Virginia and elsewhere to capture this city. The rebels attack Fort Sumter, and your citizens attack troops sent to the defense of the Government, and the lives and property in Washington, and yet you would have me break my oath and surrender the Government without a blow. There is no Washington in that — no Jackson in that — no manhood nor honor in that. I have no desire to invade the South; but I must have troops to defend this Capital. Geographically it lies surrounded by the soil of Maryland; and mathematically the necessity exists that they should come over her territory. Our men are not moles, and can’t dig under the earth; they are not birds, and can’t fly through the air. There is no way but to march across, and that they must do. But in doing this there is no need of collision. Keep your rowdies in Baltimore, and there will be no bloodshed. Go home and tell your people that if they will not attack us, we will not attack them; but if they do attack us, we will return it, and that severely.”
The actions of southern sympathizing Maryland residents directly threatened the United State capitol. I would call that a state of rebellion.
Should have picked our own d* mn cotton.
Coulda, woulda, shoulda.
So the Southern states had the right to leave. And the rest of the states had the right to sit there and watch them take every bit of federal property they could get they hands on without compensation, walk away from obligations like the federal debt or international obligations, and cut off much of the country from access to the sea via the Mississippi. That doesn't seem fair to me. One side's rights are a lot more attractive than the other side's.
The right to demand reparations? To demand punishment for offenses against them? The right to use force in the Defense against or punishment of others who wronged them? Sure.
And the other side has no right to disagree that there were offenses against them or that the compact had been broken or anything in their own defense. Again, seems like one side has a whole lot better rights than the other side. Must suck to be them.
The former. Especially Baltimore.
Apparently it wasn’t about fairness as much as it was about feeeeeeeeeelings.
So then the Confederate states couldn't secede because there were only two branches of government? Tricky of them.
Yes, of course, but as Hamilton and Jay said above, habeas corpus may not be suspended except by Congress. Many other founders, ratifiers, the Supreme Court, a previous president, etc., held the same view, as you no doubt know.
Congress does not have the authority after the fact to approve an unconstitutional action of a president. They indemnified Lincoln for his actions, but what he did was unconstitutional. A couple of years after Chief Justice Taney's valid legal order (Ex Parte Merryman) against Lincoln's suspension of habeas corpus (which Lincoln ignored), Congress authorized Lincoln to suspend habeas corpus in the last years of the war. If Lincoln had the constitutional power to suspend habeas corpus, why did Congress indemnify his 1861 actions and later authorize him to suspend habeas corpus for those last years.
As the Supreme Court later said in Ex Parte Milligan in a unanimous decision delivered by Lincoln's good friend (and executor of his estate, I believe), Justice Davis:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." (Justice Davis, ex parte Milligan, 71 U.S. 2, (1866))
From Taney's Ex Parte Merryman order:
The constitution provides, as I have before said, that 'no person shall be deprived of life, liberty or property, without due process of law.' It declares that 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' It provides that the party accused shall be entitled to a speedy trial in a court of justice.
These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now 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.
But never the Supreme Court. As Chief Justice Rehnquist noted in 1996: "The provision of the Constitution dealing with habeas corpus is found in Article I, dealing with the legislative power vested in Congress, and provides that the writ of habeas corpus shall not be suspended unless in time of war or rebellion the public safety shall require it. The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln Administration proceeded to arrest and detain persons suspected of disloyal activities."
Rehnquist must have changed his mind by 2004.
...We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See INS v. St. Cyr, ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process." - O'Connor, joined by Kennedy, Bryer, and Rehnquist for the majority in Hamdi v. Rumsfeld (2004)
I don't think that Chief Justice Rehnquist had changed his mind at all. He was making a statement of fact; the question of whether the president can suspend habeas corpus has never been definitively answered. It still hasn't. The statements made in the Hamdi decision were made in dicta since habeas corpus had not been suspended, just denied.
That is a "depends on what the meaning of is is" type of response. Denied, suspended. One or two habeas corpus petitions had been filed for Hamdi, and the Executive Branch denied them. Congress hadn't suspended the right of habeas corpus, so habeas corpus can't be denied to a prisoner even if the Executive supports denying it. The decision said the Executive department could not deny Hamdi the right to be heard in court (i.e., habeas corpus) under the due process aspect of the Fifth Amendment. Taney had also said in his Ex Parte Merriman order that due process was being violated by Lincoln.
Scalia has noted that due process and habeas corpus are related/intertwined:
“To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, … that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.” 1 W. Blackstone, Commentaries on the Laws of England 132–133 (1765) (hereinafter Blackstone).
These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses. See Amdt. 5; Art. I, §9, cl. 2.
There have been long battles back and forth on FreeRepublic about whether Chief Justice John Marshall's following statement from his majority opinion in Ex Parte Bollman and Swartwout was dicta or not:
If at any time, the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws."
Taney cited that quote of Marshall's in Ex Parte Merryman. Lincoln never challenged the Ex Parte Merryman order issued by the Chief Justice, so it remained a valid court order even though Lincoln's troops later arrested another Maryland judge in his courtroom for trying to follow Taney's order and placed yet another judge under house arrest to prevent him from ruling on a habeas corpus case.
If I may and though it is not related to your dicta comment, I'll repost something below that former poster nolu chan once posted. It was on a thread that was later pulled because it eventually became a flame war. Many good history-filled posts have been lost because an entire thread was pulled rather than just suspending the flamers. The following is nulu's lengthy history-filled excerpt from "Prisoner of State" (1863) by Dennis A. Mahony that provides a background about where the authority to suspend the privilege of the writ resides.
OTHER AUTHORITIES AND PROOFS TO SHOW THAT THE RIGHTFUL POWER IS NOT IN THE PRESIDENT TO SUSPEND THE PRIVILEGES OF THE WRIT OF HABEAS CORPUS, OR TO ARREST A CITIZEN OTHERWISE THAN AS THE LAWS PRESCRIBE.
Under ordinary circumstances it would not be necessary to add any weight to the decision of the Chief Justice of the United States in a question between him and Abraham Lincoln involving a principle of constitutional law, but as unfortunately the American public mind is as much if not more affected in these times by the mere acts of will of the President as it is by the judgment of a learned, enlightened and illustrious jurist, I have thought it becoming the object in view to add the weight of historical facts, and the opinions of other eminent jurists, to the decision of Judge Taney.
English authorities, legal and historical, Blackstone and Hallam have been quoted by the Chief Justice in support of his decision. Other British authorities might be cited confirming the same views and doctrines, but I will content myself with stating a fact which is in itself proof incontrovertible that even in Great Britain where the prerogatives of the crown are certainly more extensive in relation to the liberties of the subject than the Constitutional authority of the President is over citizens of the United States, it is not conceded to be the right of the crown to suspend the privilege of the writ of habeas corpus, and during the long period of time intervening between the dethronement and execution of Charles the First and the present day, no British monarch has dared to assume the prerogative of power which has been arrogantly and defiantly seized and exercised by Abraham Lincoln and subordinates under his command. During the period referred to England and Ireland were convulsed on several occasions with insurrections and rebellion; yet it was only when Parliament thought it proper to be done that the privilege of the writ of habeas corpus was suspended. This fact is both significant of the sacred regard entertained both in the public mind of Great Britain for the sanctity of private rights, and of the respect which the British crown is obliged to pay to these constitutionally recognized rights of British subjects.
The history of the Writ of habeas corpus in our own country dates properly for its origin in the Convention which formed the Constitution of the United States.
This Convention met in May, 1787, in Philadelphia. On the 29th of May, Mr. Charles Pinckney, of South Carolina, laid before the House a draft of a plan of a Federal Constitution, the VIth Article of which provided, "The Legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press; nor shall the privilege of the writ of habeas corpus ever be suspended, except in the case of rebellion or invasion."
On the 6th of August the Committee of Detail, consisting of Rutledge, Randolph, Gorham, Ellsworth, and Wilson, reported a draft of a Constitution, but it contained no provision on the subject of the writ of habeas corpus.
On the 20th of August Mr. Pinckney submitted to the House, in order to be referred to the Committee of Detail, the following proposition, among others: "The privileges and benefits of the writ of habeas corpus shall be enjoyed in this Government in the most expeditious and ample manner, and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding ______ months."
On the 28th of the same month, "Mr. Pinckney, urging the propriety of securing the benefit of the habeas corpus in the most ample manner, moved that it should not be suspended but on the most urgent occasions, and then only for a limited time, not exceeding twelve months."
"Mr. Rutledge was for declaring the habeas corpus inviolate. He did not conceive that a suspension could ever be necessary at the same time through all the States."
"Mr. Gouverneur Morris moved that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it."
"Mr. Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with judges in most important cases to keep in gaol, or admit to bail."
"The first part of Mr. Gouverneur Morris's motion, to the word 'unless,' was agreed to nem. con. On the remaining part the vote stood: Aye -- New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland and Virginia -- 7. Nay -- North Carolina, South Carolina, Georgia -- 3." (Elliott's Debates, Vol. V., pp. 131, 376, 445, 484.)
It will be seen from this original draft of the proposition to incorporate the habeas corpus clause in the Constitution that it was manifestly the design to restrain the Federal Legislature from suspending the privileges of the writ except in the prescribed contingency. There was no thought that the Executive would either possess that right by virtue of office or by any implication whatever, and therefore no reference was thought to be necessary to the executive in this connection. Without this qualified restraint proposed by Mr. Pinckney upon the power of the Legislature, it would perhaps be inferred that as Congress would hold nearly the same relation as the law-making power in the United States that Parliament held to Great Britain, Congress, unless restricted by constitutional inhibition, might assume to exercise the same power in the suspension of the writ of habeas corpus, and in passing laws in relation to the religious worship. -- And as there is no restraint upon the British Parliament nor contingency prescribed to it when it may or may not suspend the privilege of the writ of habeas corpus, it was obviously Mr. Pinckney's object to restrain Congress from suspending the privilege of this great writ of right at its own discretion. Hence the restriction on its power to the contingency of rebellion or invasion.
But some sophist might say just as Mr. Lincoln has assumed the right to do, this restriction upon the power of the Legislature only proves the greater power in the President, for the power must be lodged somewhere. According to this theory, which is not merely a theory now-a-days, any power of government withheld from Congress is by implication vested in the President, so, it should be concluded, according to this, that whenever the Constitution says Congress shall not do a thing the President has a right to do the act inhibited; and where Congress is permitted to do an act under certain prescribed contingencies, the President may act in such cases, his own discretion only being the rule and limit of his power.
Absurd as this theory is to common sense, it is nevertheless made the rule of action by Mr. Lincoln in his administration of the Federal Government. Legislative powers denied by the Constitution to the Legislative Department are assumed by him as if it were a matter of course that what the Constitution withheld from Congress it vested in the President. Still more absurd is Mr. Lincoln's assumption that the power not vested in him as President belongs to him by virtue of his being Commander-in-Chief of the Army and Navy, a position which he holds only by virtue of his being the President, an ex-officio position which derives no power or authority from any other source than the Constitution of the United States and through no other means than that of the Presidency. But as Mr. Lincoln is more used to illustrations than he is to arguments to guide or influence his actions, he might better appreciate the force of an attempt to hold himself up by the seat of his breeches, an experiment it is suggested to him to make, than of any argument, however conclusive in reason or law which might be made for him from common sense, historical facts and judicial authority to prove to him the absurdity of the pretensions he makes to a right of Betting aside the Constitution, and existing nevertheless as President of the United States. He forgets that the act of his which destroys the Constitution puts him out of existence as Chief Magistrate of this Republic, and that if he continues in power after his destruction of the Constitution and his subversion of the government, he does so only as an usurper. But let us continue our historical proofs. I quote from Bullitt's compilation of such facts.
In the Massachusetts Convention, called to determine whether the Constitution should be ratified or not, the habeas corpus clause being under consideration on the 26th of January, 1788, "Dr. Taylor asked why this darling privilege was not expressed in the same manner as in the Constitution of Massachusetts? ...... He remarked on the difference of expression, and asked why the time was not limited?
"Judge Dana said: The answer in part to the honorable gentleman must be that the same men did not make both Constitutions; that he did not see the necessity or great benefit of limiting the time, supposing it had been as in our Constitution, 'not exceeding twelve months;' yet, as our Legislature can, so might Congress continue the suspension of the writ from year to year. The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety; and whenever these shall cease to exist, the suspension of the writ must necessarily cease also. He thought the citizen had a better security for his privilege of the writ of habeas corpus under the Federal than under the State Constitution for our Legislature may suspend the writ as often as they judge, 'the most urgent and pressing occasions' call for it.
"Judge Sumner said, that this was a restriction on 'Congress, that the writ of habeas corpus should not be suspended, except in cases of rebellion or invasion. The learned Judge then explained the nature of the writ. ...... The privilege, he said, is essential to freedom, and, therefore, the power to suspend it is restricted. On the other hand the State, he said, might be involved in danger; the worst enemy may lay plans to destroy us, and so artfully as to prevent any evidence against him, and might ruin the country, without the power to suspend the writ was thus given. Congress have only power to suspend the privilege to persons committed by their authority. A person committed under the authority of the States will still have a right to the writ' " (2d Elliott's Debates, 108.)
In the act of ratification by the Convention of New York is this remarkable clause, among others, explanatory of their understanding of the Constitution: "That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof, if unlawful; and that such inquiry and removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus. *
"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution,.... we, the said delegates, in the name and on behalf of the people of the State of New York, do by these presents assent to and ratify the said Constitution." (Supplement to the Journal of the Federal Convention, published in Boston in 1819, pp. 428 and 431.)
The Convention of Rhode Island also ratified the Constitution with certain explanatory declarations; among them is the following:
"VII. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised." (Idem, p. 455.)
In the debate in the Virginia Convention, Mr. Patrick Henry, in speaking of the 9th section, used this language:
"The design of the negative expressions in this section is to prescribe limits beyond which the powers of Congress shall not go....... The first prohibition is, that the privilege of the writ of ha-beas corpus shall not be suspended, but when, in case of rebellion or invasion, the public safety may require it. It results clearly that, if it had not said so, they could suspend it in all cases whatsoever.... (Elliot's Deb., Vol. III, p. 461.) See also remarks of Gov. Randolph, quoted ante, p. 9.
These were the declarations in four Conventions called for the ratification of the Constitution; and in that of New York, it will be observed, that it is expressly set forth, in their act of ratification, that the power of suspension is in Congress.
The first occasion for the consideration of the question of the suspension of the writ of habeas corpus after the Federal Government went into operation, arose in consequence of Burr's conspiracy. -- Mr. Jefferson was then President, and it is well known was not a personal friend of Burr. It ought to be presumed that Mr. Jefferson knew as much as Mr. Lincoln does of the intention, objects and designs of the framers of the Constitution, and whether he, as President, was invested by the Constitution or otherwise with, the power assumed by Mr. Lincoln. Mr. Jefferson not only recognized Congress as the depositary of this power, but requested that body to exercise it so that he might be better able to suppress the impending insurrection. The Senate passed the bill, "An act to suspend the privilege of the writ of habeas corpus for a limited time in certain cases." The vote on the passage of this bill in the Senate appears to have been unanimous. In the House the bill was rejected, so jealous was this body of the rights of the American people. --
The following extracts from the debates on the question, as collated by Mr. Bullitt in his Review of Binney's pamphlet on the suspension of the writ of habeas corpus, will show that there was no question then as to where the power was vested to suspend tin privilege of this act.
Mr. Burwell said, "If that be the case, upon what ground shall we suspend the writ of habeas corpus? ..... Nothing but the most imperious necessity would excuse us (i. e. Congress,) in confiding to the Executive, or any person under him, the power of seizing and confining a citizen, upon bare suspicion, for three months, without responsibility for the abuse of such unlimited discretion." ...
Mr. Elliott said, "We can suspend the writ of habeas corpus only in a case of extreme emergency. ...... But we shall be told that the Constitution has contemplated cases of this kind, and, in reference to them, invested us with unlimited discretion. When any gentleman shall advance such a position, we shall meet him upon that ground, and put the point at issue."
Mr. Eppes said, "By this bill we are called on to exercise one of the most important powers vested in Congress by the Constitution of the United States....... The words of the Constitution are, '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.' The wording of this clause of the Constitution deserves peculiar attention. It is not in every case of invasion, nor in every case of rebellion, that the exercise of this power by Congress can be justified under the words of the Constitution. ...... The Constitution, however, having vested this power in Congress, and a branch of the Legislature having thought its exercise necessary, it remains for us to inquire, whether the present situation of our country authorizes, on our part, a resort to this extraordinary measure."
Mr. Varnum said, " I consider the country, in a degree, in a state of insecurity; and if so, the power is vested in Congress, under the Constitution, to suspend the writ of habeas corpus ......
Mr. Smilie said, "A suspension of the privilege of the writ of habeas corpus is, in all respects, equivalent to repealing that essential part of the Constitution which secures that principle which has been called the palladium of 'personal liberty.' If we recur to England, we shall find that the writ of habeas corpus in that country has been frequently suspended. But under what circumstances?. ...... We have taken from the statute of this country (England) this most valuable part of our Constitution. The Convention who framed that instrument, believing that there might be cases when it would be necessary to vest a discretionary power in the Executive, have constituted the Legislature the judges of this necessity; and the only question to be determined now is, does this necessity exist?" (3d vol. Benton's Deb., 504-514.) On the 17th of February, 1807, the House of Representatives proceeded to consider the motion of Mr. Broom, to wit: "Resolved, that it is expedient to make further provision by law for securing the privilege of the writ of habeas corpus to persons in custody, under or by color of the authority of the United States."
Mr. Broom said, "This privilege of the writ of habeas corpus has been deemed so important that by the ninth section of the first Article of the Constitution it is declared that it shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.' Such is the value of this privilege that even the highest legislative body of the union -- the legitimate representatives of the nation -- are not intrusted with the guardianship of it, or suffered to lay their hands upon it, unless when, in cases of extreme danger, the public safety shall make it necessary. This constitutional provision was intended only as a check upon the power of Congress in abridging the privilege, but was never intended to prevent them from intrenching it around with sound and wholesome laws; on the contrary, it was expected that Congress were prohibited from impairing at their pleasure this privilege, -- that they would regard it as of high importance, and, by coercive laws, insure its operation."
Mr. Bidwell said, "The Constitution, by restricting the Legislature from suspending it, except when, in cases of rebellion or invasion, the public safety may require a suspension, had recognized it as a writ of right, and our statutes had authorized certain courts and magistrates to grant it."
Mr. G. W. Campbell said, "This provision evidently relates to Congress, and was intended to prevent that body from suspending by law the Writ of habeas corpus, except in the cases stated, and has no relation whatever to the act of an individual in refusing to obey the writ, -- such refusal or disobedience would not certainly suspend the privilege of that Writ, and must be considered in the same point of view as the. violation of any other public law made to protect the liberty of the citizen."
Mr. Holland said, "But, sir, so far as respects the habeas corpus, the suspension of it applies to the Legislature, and not to persons. The Constitution says, it shall not be suspended but in case of rebellion, or when the public safety requires it. This prohibition manifestly applies to the Legislature, and not to persons in their individual capacity."
Mr. J. Randolph said, "The Writ of habeas corpus is the only Writ sanctioned by the Constitution. It is guarded from every approach, except by the two Houses of Congress." (3d vol. Benton's Debates, pp. 520-540.)
In 1842, in the debate on the bill to idemnify Gen. Jackson for the fine imposed on him by Judge Hall, at New Orleans, Mr. Bayard said, "Congress may indeed suspend the privilege of the Writ of ha¬beas corpus, but cannot declare martial law to be the law of the United States, or any part of them...... The Constitution says, Congress shall have power to declare war, to raise armies, to provide a navy, to provide arms and munitions of war, and to make rules for the government of the land and naval forces. On these limited and specific powers it has been inferred that Congress may declare martial law. To avoid this very conclusion there is an express provision in the very next section, among the restrictions on the powers of Congress, declaring that the remedy of the Writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion All Congress can do, even in cases of rebellion or invasion, is to suspend the privilege of the Writ of habeas corpus; and that can be done by Congress only -- not by an officer of the Government -- without its authority." (Vol. XIV Benton's Debates, pp. 627.)
On January 14, 1843, the same subject was discussed in the House of Representatives.
Mr. Hunt said (after quoting the ninth section of the first Article of the Constitution, which provides that 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), "Who was to be the judge of that necessity? Was it the President of the United States, or any subordinate officer in command? No; it was the Legislature of the country that was the judge, and the only judge of that necessity. He supported the position by citing the practice of Mr. Jefferson, who, in 1807, as President of the United States, applied to Congress for a temporary suspension of the writ of habeas corpus for three months; which, however, was refused by the House of Representatives, where the bill was defeated, which had passed the Senate for that purpose."
In the House of Representatives, in the debate on the bill to indemnify General Jackson, January 2, 1844, Mr. Barnard said, " The Constitution gave Congress authority to pass laws for the regulation of the army and navy of the United States, and under that, Congress have passed laws for the government of the army and navy and the militia. That code was applicable to the officers and soldiers, and to the militia, when in service; but it was not applicable to any other human being. Congress itself could not proclaim martial law. It might suspend the habeas corpus act, but it could not suspend the Constitution. A proclamation of martial law by the Congress of the United States would, of itself, be a violation of the Constitution." (Vol. XIV. Benton's Debates, p. 657.)
In an opinion delivered by Mr. Attorney-General Cushing, upon the subject of martial law, and the suspension of the habeas corpus, in February, 1857, growing out of a proclamation of martial law by the Governor of Washington Territory, in order to suspend the habeas corpus, this language is used : "The opinion is expressed by commentators on the Constitution, that the right to suspend the writ of habeas corpus, and also that of judging when the exigency has arisen, belongs exclusively to Congress.
It may be assumed, as a general doctrine of constitutional jurisprudence in all the United States, that the power to suspend laws, whether those granting the writ of habeas corpus, or any other, is vested exclusively in the Legislature of the particular State." (Opinions of Attorneys-General, Vol. VIII, p. 365.)
So much for historical proofs embracing also the opinions of the statesmen, patriots and jurists of the better days of the Republic.
Judge Taney having already quoted the opinion of his illustrious predecessor, Chief Justice Marshal, I shall not repeat the opinion of that eminent jurist as given in the case, ex-parte Bollman and Swartwout, but refer the reader to it as quoted by Judge Taney. I will only add one quotation from Judge Story, who in his commentaries on the Constitution, says: Sec. 1336, "Hitherto, no suspension of the writ has been authorized by Congress since the establishment of the Constitution. It would seem, as the power is given to Congress to suspend the writ of habeas corpus in case of rebellion or invasion, that the right to judge whether the exigency had arisen, must exclusively belong to that body."
To the understanding and judgment of the reader, these facts, historical proofs, decisions of illustrious judges, and opinions of eminent jurists are committed in contrast with the act of will of Abraham Lincoln; and unless the interested motive of the partisan has usurped the place in the American mind which was once occupied by patriotism, it will not be in vain for our country's well being that history, common sense and the judgment of our most illustrious ancestors have been cited to prove how utterly absurd are the pretensions to power of Abraham Lincoln, how unwarrantable has been his assumptions of right to set aside the Constitution, to subvert the government, and to deprive individual citizens of their rights of person; and how dangerous to liberty it is to permit these assumptions of power to pass unrebuked, and to be exercised unrestrained.
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* No proof can be more conclusive than this is as to the understanding and intention of the framers of the Constitution. This action of the Convention is in itself a complete corroboration of the argument under consideration. No ingenuity can mystify it. No controversial skill can weaken or destroy its force.
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SOURCE: Dennis A. Mahony, Prisoner of State, (1863), pp. 75-88.
Again Rusty, your scholarship is peerless - even though you use nolo as a resource ;’)
I don’t think anyone rejects the extra-constitutional aspect of Lincoln’s actions - I surely do not. I do recognize that my acceptance of his suspension of habeas corpus actions as being justifiable and necessary to the defense of our nation isn’t as widely accepted. Even the fact that SCOTUS backed him up isn’t sufficient to satisfy that minority. I suppose that not even the fact that the confederate congress gave explicit power to davis - and that davis repeatedly used it - doesn’t cut any ice with that crowd.
I guess that there’s no satisfying some folks....
It isn't open to interpretation at all. Habeas corpus was denied on the grounds that habeas corpus didn't apply since Hamdi was an enemy combatant, not that habeas corpus had been suspended.
Congress hadn't suspended the right of habeas corpus, so habeas corpus can't be denied to a prisoner even if the Executive supports denying it. The decision said the Executive department could not deny Hamdi the right to be heard in court (i.e., habeas corpus) under the due process aspect of the Fifth Amendment.
Nobody had suspended habeas corpus, and Constitutionally there were no grounds to, so the question of who can suspend it was not an issue before the court.
Taney had also said in his Ex Parte Merriman order that due process was being violated by Lincoln.
Yes he did. But the entire Supreme Court did not.
There have been long battles back and forth on FreeRepublic about whether Chief Justice John Marshall's following statement from his majority opinion in Ex Parte Bollman and Swartwout was dicta or not...
The answer to that should be easy. If the issue commented on is not a matter before the court at that time then the comments are made in dicta. Since habeas corpus had not been suspended it was not a matter for the court to rule on. The matter was whether the Supreme Court could issue a writ of habeas corpus.
From Hamdi's lawyer's opening statement:
ORAL ARGUMENT OF FRANK W. DUNHAM, JR. ON BEHALF OF PEITIONERS
MR. DUNHAM: Mr. Chief Justice, and may it please the Court:
Petitioner Hamdi is a citizen who has been held over two years in the United States with no opportunity to be heard as to the facts on which his detention is based. Mr. Hamdi makes two claims. First, the Fourth Circuit wrongly prevented Hamdi in this habeas proceeding from being heard as to the facts of the case on grounds that allowing him to be heard would interfere with executive power.
Second, that the Fourth Circuit erred in finding even on the one-sided record that's before this Court that his detention is authorized by law. The historical core of habeas corpus is to challenge extrajudicial executive detention. It cannot be a violation of the separation of powers for an Article III court to perform its judicial function of inquiry into long-term, indefinite detention of a citizen in a habeas corpus proceeding.
Quoting from INS v. St. Cyr, at its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention and it is in that context that its protections have been strongest.
Now look at the excerpt from the Supreme Court decision:
"it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process."
Denied habeas corpus. It was not suspended.
Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process."
But since habeas corpus had not been suspended then the comments were made in dicta.
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