Free Republic
Browse · Search
General/Chat
Topics · Post Article

Skip to comments.

Lincoln's Unconstitutional Suspension of Habeas Corpus - an analysis of an impeachable offense
12/29/2002 | myself

Posted on 12/29/2002 3:01:54 AM PST by GOPcapitalist

I. The Suspension of Habeas Corpus:
Less than two months after assuming office as President, Abraham Lincoln wrote to General Winfield Scott in a letter unilaterally authorizing him to make arrests in the suspension of the writ of habeas corpus for reason of "public safety" in locations " between the City of Philadelphia and the City of Washington." On May 10, 1861 Lincoln extended this suspension to the state of Florida, again by unilateral proclamation as chief executive. On July 2nd, he again unilaterally extended suspension authority to the military "between the City of New York and the City of Washington." Additional suspensions of the writ were ordered unilaterally by Lincoln through the remainder of the war. The merits of Lincoln's unilateral suspension of habeas corpus have long been debated, but the act itself immediately raises another question of constitutionality. Though Lincoln acted to suspend the writ, nowhere in the United States Constitution does the president have this power and in fact it is given instead to Congress by any plain reading of the document. Lincoln denied this, asserting "Now it is insisted that Congress, and not the Executive, is vested with this power [suspension of habeas corpus]. But the Constitution itself, is silent as to which, or who, is to exercise the power." As any plain reading of the Constitution reveals, this claim is dubious.

Lincoln himself indicated his awareness of the constitutional issue his action raised, and on May 30 wrote to Edward Bates "Will you do the favor to confer with Mr. Johnson and be preparing to present the argument for the suspension of the Habeas Corpus." He presented his argument for unilateral secession to Congress when it arrived back in session on July 4th. The issue has been a point of contention against Lincoln ever since, but also one that his supporters have defended and sought to legitimize. Some have argued that the circumstances of 1861 permitted Lincoln to suspend the writ or that the Constitution is not clear about who may suspend it.

Arguing to this end, Justice William Rehnquist told an Indiana University law school class that  "The question of whether only Congress may suspend it has never been authoritatively answered to this day," giving support to Lincoln's action. This statement invites an historical inquiry of what the Constitution says on the habeas corpus matter as well as a reading of its statements in historical context prior to Lincoln's suspension. A thorough examination of that record quickly establishes a slate of historical authorities identifying the Constitution's habeas corpus clause in a way contradictory to Rehnquist's statement and in conflict with Lincoln's actions. In addition the historical evidence indicates that Lincoln not only violated the U.S. Constitution by suspending habeas corpus, but in doing so his behavior was recklessly negligent of the authority of the other branches in the U.S. government and significantly exceeded his own office's vested powers.

II. The Suspension of Habeas Corpus in the U.S. Constitution:
The immediate source of information pertaining to the Constitution's powers of suspension for habeas corpus appears in the document itself. The clause pertaining to habeas corpus appears in Article I, Section 9, Clause 2 and reads simply:

"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."
Lincoln asserted this authority permitted him to act unilaterally, claiming on July 4 that "the Constitution itself, is silent as to which, or who, is to exercise the power" of suspending the writ. Even the simplest reading of the Constitution reveals immediately that this is simply not so and that the power to exercise this suspension is given to Congress, not the executive. The clause of suspension appears in Section 9 of the first Article, which clearly identifies itself as pertinent to the legislature. This article's opening sentence goes so far as to assert that the powers contained within it, of which the second clause of Section 9 is one, are specifically legislative:
"All legislative Powers herein granted shall be vested in a Congress of the United States"
This assertion provides direct textual proof that Lincoln was in error, as in fact the Constitution was anything but silent as to who possessed the suspension authority. Further textual evidence is found throughout Section 9, which lists several limitations on the power of Congress, such as with habeas corpus (which the clause says may only be suspended under rebellion, invasion, or need for public safety).  Every other clause of the eight in the section directly identifies itself as a clause applying to the power of Congress. Clauses 1 and 8 mention Congress by name. Clauses 3 and 7 specifically mention the making of "law." Clauses 4 and 5 specifically state restraints on the laying of taxes and duties, which is a power granted to Congress. Clause 6 asserts restrictions upon the regulation of commerce between states, a self evident matter of the national legislature in application. In short, the seven other clauses in Section 9 of Article I indisputably pertain to the powers of Congress. It is therefore absurd to believe that the founding fathers would have inserted a power intended for any branch other than Congress in the middle of Section 9.

III. The Suspension of Habeas Corpus and the Constitution's Framing:
Aside from the Constitution itself, perhaps the strongest source of information about its meaning is found in the documents of the founding fathers who drafted and debated the document. James Madison's extensive notes on the debates at the Constitutional Convention in 1787 provide one of the clearest historical records available about the document's drafting. Not surprisingly, Madison's notes detail the habeas corpus clause's introduction and debate before the convention. Keeping with the indications given in the text itself, the debate clearly indicates that the suspension power was given to Congress. The habeas corpus clause first appeared on August 20th in a set of resolutions put forth by Charles Pickney:

"The privileges and benefit 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."
Pickney's original resolution specifically places the suspension power with "the Legislature." Upon its entry as a proposal, this resolution was referred to committee for consideration. Madison's notes indicate that on August 28 Gouverner Morris moved to adopt the habeas corpus clause before the convention as a whole, offering the language that exists in the Constitution today. Affirming the textual reading of the document and in conflict with Lincoln's claims, the Constitutional Convention had placed the power with Congress.

Following the convention in 1787, the Constitution went up for ratification before the states. This initiated a prominent ratification debate involving many of the convention's participants in which the document's proponents and opponents argued its merits with intense detail. The writings that were published during ratification are now known to us as the Federalist Papers and the Anti-Federalist Papers. Robert Yates, a delegate to the convention arguing on the anti-federalist side, listed some of the Constitution's details including habeas corpus in one of his essays. Affirming the opposite of Lincoln's contention, Yates wrote in Anti-Federalist No. 9, "Brutus," that:

In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good.
Anti-Federalist No. 16 "Federal Farmer," also identifies habeas corpus with the legislature. It's author is believed to have been the name used by Richard Henry Lee of Declaration of Independence fame, though there is some doubt to the exact author:
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals."
In fact, readings of the Constitution which identified the habeas corpus suspension power with the Congress without contention appear throughout the ratification debate. Moving from New York to Massachusetts' ratification process, references to the habeas corpus clause identify it similarly. A delegate to the Massachusetts convention, Judge Francis Dana, addressed the clause while arguing for ratification with John Hancock. Dana's speech is partially recorded, in which he also identifies the suspension power with Congress without second thought or contention:
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] 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."
While the Constitutional Convention's records and the ratification debates provide clear evidence that the founding fathers extended the suspension power in question to Congress, perhaps the greatest authority on the matter is with one of the greatest of the founding fathers, Thomas Jefferson. Reflecting on the Constitution's early days in his 1821 autobiography, Jefferson also placed the suspension power for habeas corpus with the Congress. Jefferson wrote:
 "Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body."
The remarkable consistency among the founding fathers on this issue is clear - contrary to Lincoln's later claims, the Constitutional power to suspend habeas corpus in times of rebellion was extended to the Congress and not the President.

IV. The Suspension of Habeas Corpus as Viewed by Early Constitutional Scholars:
The early 19th century produced two prominent legal commentaries on the United States Constitution by scholars. The first, published in 1826, was William Rawle's A View of the Constitution of the United States of America. Rawle was a distinguished legal advisor and friend of Benjamin Franklin who had also been offered the job of Attorney General by George Washington, though he declined. Rawle's commentary spoke on the issue of suspending habeas corpus in Chapter 10:

"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"
The second prominent legal commentary was offered in the 1833 publication Joseph Story's Commentaries on the Constitution of the United States. Story, a Justice on the United States Supreme Court, was considered one of the most important legal minds of his day. In Book 3, Chapter XXXII, § 1336 Justice Story wrote:
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."
Though he disagreed with Rawles on other issues, the two clearly agreed on who had the power to suspend habeas corpus, and that was Congress.

V. The Court Rules on the Suspension of Habeas Corpus:
In addition to the overwhelming historical evidence against Lincoln's interpretation and actions regarding habeas corpus, the standing precedent of the United States Supreme Court also holds that Congress has the power to suspend the writ. A precedent on the matter was handed down in 1807 by Chief Justice John Marshall. In the case of Ex Parte Bollman and Swartwout Marshall affirmed what had been known without contention by the founding fathers - that the suspension power was given to Congress. His decision read:

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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."
It is accordingly of little surprise that this precedent was cited in 1861 when Lincoln's suspension of habeas corpus was challenged in court. In May 1861 federal authorities acting under Lincoln's order arrested John Merryman without charges and imprisoned him in Fort McHenry near Baltimore. Merryman petitioned for a writ of habeas corpus from the judiciary and

his case went before the U.S. Circuit Court in Maryland. Chief Justice Roger Taney of the U.S. Supreme Court, who was serving his circuit capacity in the court, received the case and issued a writ ordering General Cadwalader, the imprisoner, to produce the body of Merryman before his court with a statement of charges for the arrest. Cadwalader refused the writ, informing Taney that Lincoln had suspended habeas corpus. Taney then dispatched a U.S. Marshall ordering him to appear before the court on the matter, to whom entry was refused upon the attempt at delivery. Taney accordingly issued a ruling for the case Ex Parte Merryman in which he affirmed Marshall's precedent and struck down Lincoln's order to suspend habeas corpus as unconstitutional. His ruling declared:

"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law."
The court's ruling was delivered to Lincoln, informing him of the unconstitutionality of his action as ruled by the Circuit Court. Legally, this left Lincoln with the option of either abiding by the decision or appealing it to the United States Supreme Court. Lincoln did neither, and simply ignored the judiciary's ruling against him. The action violated the constitutional judiciary system which, according to the landmark Marbury v. Madison ruling of 1803, governed Lincoln's actions. John Marshall had ruled in Marbury that "The judicial power of the United States is extended to all cases arising under the constitution."

In addition, Taney implicated Lincoln for extending the his suspension of habeas corpus into the hands of a military authority. This action violated the constitutional system of the judiciary and, as Taney implied, resembled a central grievance against King George III cited in the Declaration of Independence:

"HE has affected to render the Military independent of and superior to the Civil Power"
VI. Arguments for  Lincoln's Suspension of Habeas Corpus Analyzed:
As noted, Lincoln outlined his arguments for a unilateral executive suspension of habeas corpus in his July 4, 1861 address to Congress. The central contention of his speech, that the Constitution does not say who may suspend habeas corpus, is without merit as has been shown. Additional supporting arguments were offered by Lincoln and others at the time, but they are similarly flawed.

ARGUMENT 1: Lincoln offers as an argument that "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."

Lincoln's argument here is flawed, as the Constitution extends the power to call Congress back into session, which Lincoln could have done in 1861. Instead he chose not to and Congress remained out of session from early March to the beginning of July. Therefore it was Lincoln who failed in to exercise this constitutional power that prevented Congress from being able to consider the suspension. Meanwhile, as has been shown, the framers indisputably intended the decision to be in Congress' hands.

ARGUMENT 2: Supporters of Lincoln's action offered as an argument that Gen. Andrew Jackson had suspended habeas corpus after the Battle of New Orleans during the War of 1812 and was later commended for the act by Congress.

This argument is flawed as well. The existence of an anecdotal case in which an improper authority suspended habeas corpus without consequence does not render the rule void for all other cases. That congress approved of a suspension by an improper authority after the fact does not make it constitutional either because the Constitution prohibits legislation after the occurrence of an act that alters the legal consequences of that act. Article I, Section 9, Clause 3 states that "No...ex post facto Law shall be passed."

ARGUMENT 3: Supporters of Lincoln's action note that Congress passed measures supporting the suspension of habeas corpus after they came back into session in July 1861.

Again this argument does not absolve Lincoln of his action as it functions in an ex post facto manner.

CONCLUSIONS:
The overwhelming amount of historical evidence clearly contradicts Lincoln's assertion that the Constitution "is silent as to which, or who, is to exercise the power" of suspending habeas corpus. Though legal relativists, loose constructionists, and even some otherwise reliable constitutionalists maintain that Lincoln's action of suspending habeas corpus was without constitutional flaw, the volume of evidence renders such a position insupportable. In addition to the unconstitutional suspension of habeas corpus, there remains the issue of the Merryman ruling. Lincoln's action of ignoring this ruling by failing to either abide by it or appeal it to the Supreme Court constitutes a violation of the United States judiciary branch's authority that remains on his record even if one were to hypothetically permit its unlikely reversal had it been appealed. The sum of these actions by Lincoln amount to clear and material violations of the United States Constitution. It is further not unreasonable to conclude that in other times, similar actions by a president of the United States would have been cause for his impeachment and removal from office.


TOPICS: History
KEYWORDS: civilwar; dixielist; habeascorpus; lincoln
Navigation: use the links below to view more comments.
first 1-5051-62 next last

1 posted on 12/29/2002 3:01:55 AM PST by GOPcapitalist
[ Post Reply | Private Reply | View Replies]

To: billbears; stainlessbanner; Twodees; shuckmaster; 4ConservativeJustices; wardaddy; PeaRidge; ...
Here's my latest article. Enjoy it peacefully before the Wlat brigade shows up, cause something tells me that they aren't gonna be very happy that their idol has been exposed by historical facts again.
2 posted on 12/29/2002 3:05:01 AM PST by GOPcapitalist
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
GOPcap, this is an excellent article. BTTT.
3 posted on 12/29/2002 3:44:18 AM PST by lentulusgracchus
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
Most citizens have no idea just how much power the POTUS has. You saw a small indication during the previous administration with the use of Exec. Orders. Begalla was on the mark with his, "Stroke of the Pen, Law of the Land"' remark. In the hands of the wrong person that power can be deadly! CUIDADO!
4 posted on 12/29/2002 12:30:04 PM PST by Don Corleone
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist; catfish1957; THUNDER ROAD; Beach_Babe; TexConfederate1861; TomServo; LibKill; ...

Aw, Shucks!


5 posted on 12/29/2002 4:30:06 PM PST by shuckmaster
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
Good post.

And timely.

I look for a redux some time in the next couple of years.

6 posted on 12/29/2002 8:46:10 PM PST by one2many
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
Great Article....

We have got to meet sometime....Aren't you from the Houston, TX area?


7 posted on 12/30/2002 5:43:37 AM PST by TexConfederate1861
[ Post Reply | Private Reply | To 2 | View Replies]

To: GOPcapitalist
Wow, GOPcap! Fascinating article. And yeah...we should all don our flamesuits fast ;)
8 posted on 12/30/2002 9:41:31 AM PST by TonyRo76
[ Post Reply | Private Reply | To 2 | View Replies]

To: GOPcapitalist
Great post!! Thanks a bunch!! I'm surprized The LINCOLN defenders are not here already!

9 posted on 12/30/2002 10:04:28 AM PST by SCDogPapa
[ Post Reply | Private Reply | To 2 | View Replies]

To: SCDogPapa
"The success of the Maryland policy became a political byword and was celebrated, beyond the borders of Maryland, throughout the war, Thus in 1863, a Loyal Publication Society pamphlet on the War Power of the President explained the necessity of military arrests rather than reliance on the courts by pointing to that familiar example:

When the traitors of the loyal state of Maryland were concocting their grand scheme to hurl the organized power of that state against the government, probably not a handful of them was known to be guilty of any act for which he could ever have been arrested by civil process. And whatever their offenses against the laws might have been, and whatever the fidelity of the courts in that jurisdictlon, the process of civil law would have been far too slow to prevent the consummation of the gigantic treason which would have added another state to the rebellion.... Courts could not have suppressed this unholy work, but the summary imprisonment of those few men saved the state of Maryland to the Union cause.

Republicans would later enjoy substantial bipartisan agreement on the necessity of the early arrests in Maryland.
William K. Seward thought they worked, too. When an old associate of Seward came to Washington to plead for the release of a political prisoner from Kentucky held in Fort Lafayette, the secretary of state readily admitted that no charges were on file against the prisoner. When asked whether he intended to keep citizens imprisoned against whom no charge had been made, Seward apparently answered: "I don't care a d—n whether they are guilty or Innocent. I saved Maryland by similar arrests, and so I mean to hold Kentucky."

The earliest days of the Lincoln administration taught the president and his cabinet lessons they never forgot. In fact, these days left fiercely indelible marks on them. This was especially true of Seward. in 1864, when the artist Francis B. Carpenter unveiled his huge historical canvas commemorating the first reading of the Emancipation Proclamation to the cabinet, the secretary of state scoffed at It. He told the artist, at a party given at Gideon Welles's residence, that he had been wrong to choose emancipation as "the great feature of the Administration."

Seward told him [Welles recalled] to go back to the firing on Sumter, or to a much more exciting one than even that, the Sunday following the Baltimore massacre, when the Cabinet assembled or gathered in the Navy Department and, with the vast responsibility that was thrown upon them, met the emergency and its awful consequences, put in force the war power of the government, and issued papers and did acts that might have brought them all to the scaffold.

The first suspension of the writ of habeas corpus occurred the very week after that fateful Sunday cabinet meeting. Gideon Welles, the secretary of the navy, did not care for Seward, but he remembered those days just as the secretary of state did:

Few, comparatively, know or can appreciate the actual condition of things and state of feeling of the members of the Administration In those days. Nearly sixty years of peace had unfitted us for any war, but the most terrible of all wars, a civil one, was upon us, and it had to be met. Congress had adjourned without making any provision for the storm, though aware that it was at hand and soon to burst upon the country. A new administration, scarely acquainted with each other, and differing essentially in the past, was compelled to act, promptly and decisively.

And act they did."

-- "Abraham Lincoln and Civil Liberty" by Mark Neely.

Walt


10 posted on 12/30/2002 1:36:13 PM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 9 | View Replies]

To: GOPcapitalist
Though Lincoln acted to suspend the writ, nowhere in the United States Constitution does the president have this power ...

And nowhere is it denied the president; the Constitution is silent on presidential power to suspend the Writ.

And no case ever came before the Supreme Court to test the issue during the ACW.

Walt

11 posted on 12/30/2002 1:38:18 PM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
A thorough examination of that record quickly establishes a slate of historical authorities identifying the Constitution's habeas corpus clause in a way contradictory to Rehnquist's statement and in conflict with Lincoln's actions.

That is your opinion. You are welcome to it.

Of course, it won't do much to establish your objectivity.

Walt

12 posted on 12/30/2002 1:39:56 PM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
Did I miss it, or do you ignore totally Andrew Jackson's suspension of the Writ in New Orleans?

"After the battle of New Orleans, and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge had arrived, Gen. Jackson still maintained martial or military law. Now, that it could be said the war was over, the clamor against martial law,, which had existed from the first, grew more furious. Among other things, a Mr. Louiallier published a denunciatory newspaper article. Gen. Jackson arrested him.

A lawyer by the name of Morel procured the United States Judge Hall to issue a writ of hebeus corpus to release Loualier. Gen. Jackson arreted both the lawyer and the judge. A Mr. Holander ventured to say of some part of the mater that "it was a dirty trick." Gen. Jackson arrested him. When the officer undertook to serve the writ Gen. Jackson took it from him, and sent him away with a copy. Holding the judge in custody for a few days, the general sent him beyond the limits of his encampment, and set him at liberty with an order to remain till the ratification of peace should regularly be announced, or until the British should have left the coast.

A day or two elapsed, the ratification of a treaty of peace was regularly announced and the judge and the others were fully liberated. A few days more and the judge called Gen. Jackson into court and fined him $1,000. The general paid the fine, and there the matter rested for nearly thirty years, when Congress refunded principal and interest. The late Senator Douglas then in the House of Representatives, took a leading part in the debates, in which the constitutional question was much discussed. I am not prepared to say whom the journals would show to have voted for the measure.

It may be remarked: First, that we had the same Constitution then as now; secondly, that we then had a case of invasion, and now a case of rebellion; and thirdly, that the permanent right of of the people to Public Discussion, the liberty of speech and the Press, the trial by jury, the law of evidence, and the Habeus Corpus, suffered no detriment whatever by that conduct of Gen. Jackson, or its subsequent approval by the American Congress."

A. Lincoln, 1863

How did you happen to miss this part of the history of habeas corpus?

Walt

13 posted on 12/30/2002 1:46:06 PM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
Given the choice between the opinion of the Chief Justice of the United States Supreme Court and opinion of GOPcapitalist on what is Constitutional and what is not, I'm afraid that I have to go with Chief Justice Rehnquist.
14 posted on 12/30/2002 1:46:48 PM PST by Non-Sequitur
[ Post Reply | Private Reply | To 1 | View Replies]

To: Non-Sequitur
Given the choice between the opinion of the Chief Justice of the United States Supreme Court and opinion of GOPcapitalist on what is Constitutional and what is not, I'm afraid that I have to go with Chief Justice Rehnquist.

All this comes down to is GOPcap's opinion 140 years after the fact.

Walt

15 posted on 12/30/2002 1:48:14 PM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 14 | View Replies]

To: Non-Sequitur
Given the choice between the opinion of the Chief Justice of the United States Supreme Court and opinion of GOPcapitalist on what is Constitutional and what is not, I'm afraid that I have to go with Chief Justice Rehnquist.

Yawn. You really should learn the central role that intrinsic evaluation plays in judging the merits of an argument. It will help you avoid fallacious non-responses in the future.

16 posted on 12/30/2002 2:01:25 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 14 | View Replies]

To: WhiskeyPapa
Did I miss it, or do you ignore totally Andrew Jackson's suspension of the Writ in New Orleans?

As is usually the case, you missed it. It is designated as Argument 2 in section VI.

17 posted on 12/30/2002 2:02:49 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 13 | View Replies]

To: WhiskeyPapa
Republicans would later enjoy substantial bipartisan agreement on the necessity of the early arrests in Maryland.

A law granting ex post facto consent to the circumstances of a previous act is unconstitutional per Article I, Section 9.

William K. Seward thought they worked, too

Again you completely miss the issue. The debate is not over the effectiveness or efficiency of the suspension, but rather its constitutionality. Like it or not, the overwhelming bulk of historical evidence makes it certain that Lincoln's suspension was unconstitutional.

18 posted on 12/30/2002 2:05:47 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 10 | View Replies]

To: GOPcapitalist
Yawn. You really should learn the central role that intrinsic evaluation plays in judging the merits of an argument.

One key point in judging the merits of an arguement is judging the qualifications of the person arguing. Chief Justice Rehnquist has degrees from Stanford and Harvard, as well as 31 years experience on the Supreme Court. You are an unknown. On the one hand the Chief Justice says that the constitutionality of the issue has not yet been definitively decided. On the other hand you claim he's full of it. Let's see...who to believe...Chief Justice or bag of wind...sorry, I still have to go with Chief Justice Rehnquist on this one.

19 posted on 12/30/2002 2:08:56 PM PST by Non-Sequitur
[ Post Reply | Private Reply | To 16 | View Replies]

To: WhiskeyPapa
And nowhere is it denied the president

Considering that Article I, Section 1 states the suspension clause to be with the legislature, the logic of consistency within the document of the Constitution entails that it cannot also be with the president. If I have the only apple orchard and give an apple to you but not to Non-Sequitur, Non-Sequitur finds himself without an apple and no ammount of wishing he had that apple will give him one so long as I do not extend it to him. Theoretically he could attempt to steal it from you though, and that is what Lincoln did to congress.

And no case ever came before the Supreme Court to test the issue during the ACW.

Only because Lincoln failed in his constitutional duty to appeal the case dealing with the issue, Ex Parte Merryman. The Declaration of Independence makes the grievous nature of his refusal to appeal it very clear: "HE has affected to render the Military independent of and superior to the Civil Power"

20 posted on 12/30/2002 2:12:11 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 11 | View Replies]

To: WhiskeyPapa
All this comes down to is GOPcap's opinion 140 years after the fact.

Still no acknowledgment of the "historical record," I see.

21 posted on 12/30/2002 2:13:37 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 15 | View Replies]

To: Non-Sequitur
One key point in judging the merits of an arguement is judging the qualifications of the person arguing.

Only in the weakest sense. Unaided appeal to authority is known as one of the sloppiest forms of argumentation available.

And in that case, one could easily note that Rehnquist's credentials as a long serving Supreme Court are at least matched by Roger Taney and Joseph Story, who both held opposite of him on habeas corpus. And Rehnquist's credentials, however great they may be, are in fact weaker on constitutional issues than John Marshall and Thomas Jefferson, who represent the foremost of history's foremost figures on the constitution. Both Jefferson and Marshall held differently than Rehnquist. So where does that leave us? Five beats one, I guess.

You are an unknown.

Which only solidifies my point - you know virtually nothing of me beyond FR. You know nothing of my education, degrees, publication, professional credentials, or much of anything else. That fact in itself brings your argument trouble, as a full half of the equation required for you to make the judgment is missing from it. Try again.

22 posted on 12/30/2002 2:26:44 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 19 | View Replies]

To: GOPcapitalist
My apologies. I neglected to name Madison in that group, the fifth of the five experts.

Jefferson, Madison, Story, Taney, and Marshall agreed with me. Rehnquist agrees with you. Five beats one.

23 posted on 12/30/2002 2:29:37 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 22 | View Replies]

To: GOPcapitalist
And in that case, one could easily note that Rehnquist's credentials as a long serving Supreme Court are at least matched by Roger Taney and Joseph Story...

Perhaps, but Rehquist doesn't have anything close to the Dred Scott decision casting any doubts on his judicial judgement.

You know nothing of my education, degrees, publication, professional credentials, or much of anything else.

True, while on the other hand Chief Justice Rehnquist's qualifications and experience are well known. Given the known verses the unknown I'll have to go along with the known.

24 posted on 12/30/2002 2:42:35 PM PST by Non-Sequitur
[ Post Reply | Private Reply | To 22 | View Replies]

To: Non-Sequitur
Perhaps, but Rehquist doesn't have anything close to the Dred Scott decision casting any doubts on his judicial judgement.

Neither do Jefferson, Madison, Story, or Marshall, and they all differed from Rehnquist on habeas corpus. Even with Taney, the Scott decision was of no relevance to the Merryman case. Considered on its own merits Merryman is a legally sound case. Try reading it if you doubt me - Taney cites common law, Story, and Marshall to prove that the Constitution intended the suspension power to be legislative.

Since you seem intent on playing these games of authority though, I'll simply reiterate that my authorities are stronger than yours. No matter how you look at it, five is more than one.

25 posted on 12/30/2002 2:52:06 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 24 | View Replies]

To: Non-Sequitur; WhiskeyPapa
Let's look at it this way. After reading it all, you tell me who has the stronger evidence.

Here's what I've got:

"All legislative Powers herein granted shall be vested in a Congress of the United States...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." - U.S. Constitution, Article I

"The privileges and benefit 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." - Madison's Record of Debates from the Constitutional Convention, Pickney's proposal to draft a habeas corpus clause

"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, constitutional convention delegate, Anti-Federalist No. 9 "Brutus"

"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Anti-Federalist No. 16 "Federal Farmer"

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] 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." - Francis Dana, delegate to the Massachusetts ratification convention, 1789

"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821

"Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawle, A View of the Constitution of the United States of America, 1826

"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, Commentaries on the Constitution of the United States, 1833

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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." - Chief Justice John Marshall, Ex Parte Bollman & Swartwout, 1807

"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." - Chief Justice Roger Taney, Ex Parte Merryman, 1861

By comparison, here's what you've got:

"The question of whether only Congress may suspend it has never been authoritatively answered to this day" - Chief Justice William Rehnquist, speech to Indiana University Law School students, 1999

26 posted on 12/30/2002 3:07:45 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 24 | View Replies]

To: GOPcapitalist
What you are offering is the opinion of five men on who may suspend habeas corpus. Why not add your opinion and make it an even six? Hell, I'll even add my opinion and say that Lincoln's act was probably unconstituional. Add all seven opinions together and you come up with squat because none of us on our own have the power to decide what is constitutional and what is not. Only the Supreme Court has the power to decide that and only if a majority of the justices agree. The fact still remains that the matter of whether or not the president can suspend habeas corpus has never been considered by the entire court and therefore the Constitutionality of Lincoln's action has never been definitively decided. You can quote Bollman and Swarthout until the cows come home but the suspension of habeas corpus was not part of the case before the court and Chief Justice Marshall's comments on that comprise an obiter dictum and are not binding authority.
27 posted on 12/30/2002 3:10:04 PM PST by Non-Sequitur
[ Post Reply | Private Reply | To 25 | View Replies]

To: Non-Sequitur
What you are offering is the opinion of five men on who may suspend habeas corpus.

...as opposed to your offering of one man who says its possible for the president to suspend habeas corpus. And don't complain about it - YOU made this into a silly game of comparing authorities. I am simply noting that my authorities are stronger than your lone authority.

Add all seven opinions together and you come up with squat because none of us on our own have the power to decide what is constitutional and what is not. Only the Supreme Court has the power to decide that and only if a majority of the justices agree.

Fair enough, in which case the Supreme Court DID exactly that in 1807. The statement of John Marshall that I cite comes out of his majority ruling of Ex Parte Bollman and Swartwout. It's the standing precedent on which Taney based his ruling in Merryman and to this date has not been overturned.

The fact still remains that the matter of whether or not the president can suspend habeas corpus has never been considered by the entire court

BZZZT! WRONG! The Court ruled on it in Ex Parte Bollman and Swartwout.

You can quote Bollman and Swarthout until the cows come home but the suspension of habeas corpus was not part of the case before the court and Chief Justice Marshall's comments on that comprise an obiter dictum and are not binding authority.

Not so. The Bollman case made a decision on the court's power to grant a writ of habeas corpus and where that power derived from. Marshall's comments that I cited earlier were the point on which the final question of the ruling was answered. The section I quoted reads in full:

"But this point also is decided in Hamilton's case and in Burford's case. 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. The motion, therefore, must be granted."

28 posted on 12/30/2002 3:31:14 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 27 | View Replies]

To: GOPcapitalist; shuckmaster
The Supreme Court had long before issued an opion re: vested powers:
The same expression, "shall be vested," occurs in other parts of the constitution, in defining the powers of the other co-ordinate branches of the government. The first article declares that "all legislative powers herein granted shall be vested in a congress of the United States." Will it be contended that the legislative power is not absolutely vested? that the words merely refer to some future act, and mean only that the legislative power may hereafter be vested? The second article declares that "the executive power shall be vested in a president of the United States of America." Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent, that such a construction, in either case, would be utterly inadmissible.
Justice Jay, Martin v. Hunter's Lessee, 1 Wheat. 304 (1816).

29 posted on 12/30/2002 7:49:00 PM PST by 4CJ
[ Post Reply | Private Reply | To 28 | View Replies]

To: GOPcapitalist
On 26 Jan 1807, VA Rep. John W. Eppes opined,
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 words of the Constitution confine the exercise of this power exclusively to cases of rebellion or invasion, where the public safety requires it. In carrying into effect most of the important powers of Congress, something is left for the exercise of its discretion. We raise armies when, in our opinion, armies are necessary. We may call forth the militia to suppress insurrection or repel invasion, when we consider this measure necessary. But we can only suspend the privilege of the habeas corpus, "when, in cases of rebellion or invasion, the public safety requires it." Well, indeed, may this caution have been used as to the exercise of this important power. It is in a free country the most tremendous power which can be placed in the hands of a legislative body. It suspends, at once, the chartered rights of the community, and places even those who pass the act under military despotism. 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.

30 posted on 12/30/2002 8:19:37 PM PST by 4CJ
[ Post Reply | Private Reply | To 28 | View Replies]

To: GOPcapitalist
Add this Justice's name to your list, GOPC.

"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)

31 posted on 12/30/2002 9:29:24 PM PST by stainlessbanner
[ Post Reply | Private Reply | To 23 | View Replies]

To: GOPcapitalist
Great article, GOPC - well thought out and thoroughly researched. My compliments to the author for another informative piece.

The speech from A. Stephens as the CSA contemplated suspending the habeas corpus for a spell:

" the right of personal security against illegal arrests, was wrested from the Crown by the Parliament, and established by Magna Charta, the bill of rights, the abolition of the star chamber, and the grant of the writ of habeas corpus, which is the means of redress against violations of law, and other wrongs against rights secured and acknowledged."

- Alexander Stephens - The Great Speech, 16 March, 1864

Apparently the Southerners could understand their copy of the Constitution just fine. They knew only Congress could suspend the habeas corpus, and a good number of them thought that was a bad idea.
32 posted on 12/30/2002 10:38:35 PM PST by stainlessbanner
[ Post Reply | Private Reply | To 1 | View Replies]

To: GOPcapitalist
"The question of whether only Congress may suspend it has never been authoritatively answered to this day" - Chief Justice William Rehnquist, speech to Indiana University Law School students, 1999

Yep. It all comes down to -your- opinion vs that of the Chief Justice.

Walt

33 posted on 12/31/2002 2:55:35 AM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 26 | View Replies]

To: GOPcapitalist
The Court ruled on it in Ex Parte Bollman and Swartwout.

You are, of course, completely wrong on that. The matter of who can suspend habeas corpus has not been decided since Justice Marshall's statement on the matter was issued in dictum. Your premise is wrong and the title of your vanity post is a lie.

34 posted on 12/31/2002 3:39:45 AM PST by Non-Sequitur
[ Post Reply | Private Reply | To 28 | View Replies]

To: stainlessbanner
Apparently the Southerners could understand their copy of the Constitution just fine. They knew only Congress could suspend the habeas corpus, and a good number of them thought that was a bad idea.

They might as well accept it. What recourse did they have if they disagreed and what control was there on the government that did suspend it? In Ex Parte Milligan the U.S. Supreme Court pointed out that the suspension of habeas corpus did not convey absolute power to the government. The power was limited and could not be invoked at the expense of existing judicial system if that system was operating freely and openly. The Davis regime was under no such control. Without a supreme court to offer any sort of check to his power and with an administration that had no respect for the courts to begin with then there was no limit to what Davis could do under the authority given him by the confederate congress and who he could do it to. Maybe that's why people such as Stephens and Toombs thought it was such a bad idea?

35 posted on 12/31/2002 6:55:12 AM PST by Non-Sequitur
[ Post Reply | Private Reply | To 32 | View Replies]

To: GOPcapitalist
Do you have one of these handy links for the "everybody does it" fallacious non-response?

It's the most popular by far and I sense it about to...no...no...there's something about Jackson now.
36 posted on 12/31/2002 8:57:56 AM PST by Maelstrom
[ Post Reply | Private Reply | To 16 | View Replies]

To: GOPcapitalist
You know they'll nitpick with the very weakest of arguments until they have the last word.

It's the authoritarian way.

Upon having the last word they'll proclaim victory despite the utter inability to address the merits of the case independently of any appeal to authority.
37 posted on 12/31/2002 9:05:11 AM PST by Maelstrom
[ Post Reply | Private Reply | To 26 | View Replies]

To: Non-Sequitur
The matter of who can suspend habeas corpus has not been decided since Justice Marshall's statement on the matter was issued in dictum.

Try reading the case for once. The part on suspending habeas corpus is the point on which the final question of the ruling turns.

38 posted on 12/31/2002 12:53:51 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 34 | View Replies]

To: WhiskeyPapa
Yep. It all comes down to -your- opinion vs that of the Chief Justice.

Not in the least, Walt. Unless Bill Rehnquist is a freeper posting here, his opinion only appears in appeals to it by somebody else...such as you. Hence the argument is between my evidence and your evidence. As it stands right now your evidence ammounts to one quote by Bill Rehnquist plus a lot of mindless idiocy of your own. By contrast, I've got quotes by three supreme court justices including in a ruling, statements by several of the founding fathers including Jefferson, and the record of debates at the Constitutional Convention itself. It is obvious who has the stronger case, Walt, and it ain't you.

39 posted on 12/31/2002 12:59:26 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 33 | View Replies]

To: Maelstrom
Do you have one of these handy links for the "everybody does it" fallacious non-response?

Try here under popularity appeals.

40 posted on 12/31/2002 1:03:58 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 36 | View Replies]

To: GOPcapitalist
Try reading the case for once. The part on suspending habeas corpus is the point on which the final question of the ruling turns.

I have read it. The issue on what the court was ruling was in the fourth or fifth paragraph:

"The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court."

That was what the court was deciding. Habeas Corpus had never been suspended by Congress or the President so the court was not ruling on who could legally suspend it. Chief Justice Marshall's comments were issued in dictum. Since it was an opinion of the Chief Justice unrelated to the issue before the court, it had no binding authority in law.

41 posted on 12/31/2002 1:47:25 PM PST by Non-Sequitur
[ Post Reply | Private Reply | To 38 | View Replies]

To: Non-Sequitur
I have read it. The issue on what the court was ruling was in the fourth or fifth paragraph: "The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court."

Yeah, and that statute's compatability with the Constitution comes from its relation to the legislative involvement in habeas corpus. Now look at HOW that question was answered. It is at the end of the ruling:

"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. The motion, therefore, must be granted."

In other words, the court's ability to award the writ derives from acts of the legislature, which in turn are governed in consistency by Constitution's suspension clause of Article I, Section 9. That the suspension clause pertains to the legislature is the point on which the case turns. It is therefore NOT the incedental dictum you purport it to be.

Habeas Corpus had never been suspended by Congress or the President so the court was not ruling on who could legally suspend it.

An act of suspension need not occur for the court to determine that the suspension clause applies to the legislature. This may be done alternatively when that clause is used as grounds to determine the legislature's constitutional jurisdiction in habeas corpus matters, which is exactly what Bollman did.

Chief Justice Marshall's comments were issued in dictum.

The opinion itself indicates otherwise as it was on those very comments that the ruling was made, hence their conclusion with "The motion, therefore, must be granted"

Your claim that the suspension clause statement, the same statement upon which the case itself was decided, was "dictum" is nothing more than a result of fraudulent motives, an absence of education, or a combination of both on your part.

42 posted on 12/31/2002 2:08:41 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 41 | View Replies]

To: GOPcapitalist
An act of suspension need not occur for the court to determine that the suspension clause applies to the legislature.

Yes it does. The Supreme Court can only rule on issues which appear before it, which means that it is ruling on the Constitutionality of some act which has been committed. It cannot issue a ruling on something which has not happened. That would be issuing an advisory ruling and the Court is Constitutionally prohibited from doint that. Habeas Corpus had not been suspended, the court cannot rule on the Constitutionality of who suspended it.

"The motion, therefore, must be granted"

Yeah, it was. Bollman and Swarthout had petitioned the court to issue a writ of habeas corpus and it was granted. What else could it have done? How could it grant any motion on the question of the suspension of habeas corpus when there had been no such suspension?

Your claim that the suspension clause statement, the same statement upon which the case itself was decided, was "dictum" is nothing more than a result of fraudulent motives, an absence of education, or a combination of both on your part.

Based on your asinine arguements in your vanity post, I question whether you have any understanding of how the Supreme Court works in the first place. How can the court rule on something that did not happen?

43 posted on 12/31/2002 2:25:12 PM PST by Non-Sequitur
[ Post Reply | Private Reply | To 42 | View Replies]

To: Non-Sequitur
Yes it does.

No. It does not. If the court recognizes the suspension clause as legislative in order to establish the legislative authority over habeas corpus in a particular case, it has effectively ruled on that clause even though no suspension occured.

The Supreme Court can only rule on issues which appear before it

The issue of whether the legislature had jurisdiction over habeas corpus to extend the issuing of writs within the court system came before the court. The court ruled on the grounds that the suspension clause was legislative.

which means that it is ruling on the Constitutionality of some act which has been committed.

The act of establishing a judiciary system with the writ power had been committed by way of authority seated in the suspension clause, and that was the case. Hence the court could and did rule on the suspension clause.

Habeas Corpus had not been suspended, the court cannot rule on the Constitutionality of who suspended it.

Again, you are missing the issue. The question settled in Bollman was not who suspended habeas corpus. It was who had habeas corpus jurisdiction under the Constitution, and in finding that jurisdiction the court ruled that the suspension clause applied to the legislature. In simplified terms, they stated that the court can issue writs because the judiciary was set up to issue writs, and the legislature who set up that judiciary to issue writs did so under the constitutional authority implicit to the suspension clause. Since the suspension clause directed that the legislature could take away habeas corpus in times of emergency, the court reasoned, the jurisdiction of issuing writs of habeas corpus could accordingly be extended by the legislature, which had vested that writ power in the courts.

Yeah, it was. Bollman and Swarthout had petitioned the court to issue a writ of habeas corpus and it was granted. What else could it have done?

Theoretically although erroniously, it could have found that the legislature did not have the power to set up the judiciary with jurisdiction over the writ of habeas corpus. In that case, the power of the court to issue a writ would have been unconstitutional and the motion would have been denied. But that did not happen because of the court's ruling, which rested on the suspension clause being a legislative power.

Based on your asinine arguements in your vanity post

Call it all the names you like. You and I both know who has the stronger case though. I question whether you have any understanding of how the Supreme Court works in the first place.

Question what you may. Without reason to support your question though it carries little weight.

How can the court rule on something that did not happen?

You're missing the issue again, and perhaps intentionally so. The court didn't rule on something that had not happened. They ruled on how an existing clause in the Constitution vested power in the legislature, which in turn was grounds for the legislature's involvement in that same area.

44 posted on 12/31/2002 11:56:49 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 43 | View Replies]

To: GOPcapitalist
The issue of whether the legislature had jurisdiction over habeas corpus to extend the issuing of writs within the court system came before the court. The court ruled on the grounds that the suspension clause was legislative.

Nonsense. Habeas corpus had not been suspended, not by the President, not by Congress, not by anybody. How could an issue which had not happened appear before the court?

The question settled in Bollman was not who suspended habeas corpus. It was who had habeas corpus jurisdiction under the Constitution, and in finding that jurisdiction the court ruled that the suspension clause applied to the legislature.

Again, nonsense. The Supreme Court cannot rule on the legality or illegality of something that hasn't happened. The question settled in Bollman was whether the Supreme Court could issue a writ of habeas corpus. That was what was decided, not who could suspend it.

Theoretically although erroniously, it could have found that the legislature did not have the power to set up the judiciary with jurisdiction over the writ of habeas corpus. In that case, the power of the court to issue a writ would have been unconstitutional and the motion would have been denied. But that did not happen because of the court's ruling, which rested on the suspension clause being a legislative power.

Utter nonsense yet again. Habeas corpus had not been suspended. Marshall's comments on who may suspend it were a complete dictum and were not binding in any way.

You and I both know who has the stronger case though.

If you mean you have provided evidence supporting your belief that only Congress may suspend habeas corpus then I agree with that. I have always said that had Lincoln appealed the Ex Parte Merryman decision to the full Supreme Court then the court would most likely have ruled against him. If you mean that you have made the case that the court has ruled that only Congress can suspend habeas corpus, then I disagree completely. Chief Justice Rehnquist is right and you are wrong.

You're missing the issue again, and perhaps intentionally so. The court didn't rule on something that had not happened. They ruled on how an existing clause in the Constitution vested power in the legislature, which in turn was grounds for the legislature's involvement in that same area.

And you are missing, intentionally or otherwise, the fact that the Supreme Court cannot issue a ruling on something that has not happened. I would suggest that any first year law student has a grasp of this simple fact which keeps escaping you. The question of who may suspend habeas corpus was not an issue in the case before the Court so your claim that Bollman and Swarthout somehow support your agenda is a complete canard. Chief Justice Rehnquist has recognized this, any competent lawyer would recognize this, yet you cling to your interpretation no matter how wrong it is. Do so if you wish, but the title of your ego post is wrong.

45 posted on 01/01/2003 4:29:38 AM PST by Non-Sequitur
[ Post Reply | Private Reply | To 44 | View Replies]

To: GOPcapitalist
Hence the argument is between my evidence and your evidence.

The argument is between your intepretation and that of the Chief Justice of the United States.

Walt

46 posted on 01/01/2003 6:26:57 AM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 39 | View Replies]

To: WhiskeyPapa

"And nowhere is it denied the president; the Constitution is silent on presidential power to suspend the Writ."

Actually Walt, you're quite wrong. The Constitution specifically delegates that power to the "legislature". But here is more proof for your edification -

'In question was the second clause of Article 1, Section 9, of the United States Constitution, which provides, "The priveledge of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it".

This provision corrresponds to the clauses in the Petition of Right, 3 Charles 1, Chapter 1 (1628), limiting the discretion of the King to suspend the writ of habeas corpus, and on this basis it might be construed to limit the discretion of the President. Lincoln so read it, and, since in his judgement there was a rebellion underway and the public safety required it, he thought he had the power on his own to suspend the writ.

But Lincoln was wrong. A number of important prerogatives of the King -- e.g., coining money, fixing the standard of weights and measures, declaring war, and raising armies -- had been transferred to Congress, and the same was true for the suspension of the writ of habeas corpus, as is plain from the debates of the Philadelphia Convention. And the clause on suspending the writ was understood from the beginning as a limitation on the power of Congress, -- not the power of the President. So obvious to this reading of the founding fathers of the United States that, on January 22, 1807, President Thomas Jefferson sent a message to Congress, asking for a suspension of the writ of habeas corpus for three months with respect to the persons charged on oath with treason and certain related crimes, and although there was a seemingly dangerous rebellion underway, Congress denied the request.'

It is obvious from the framing of the second clause of Article 1, Section 9 of the United States Constitution that the suspension of the Writ of Habeas Corpus was concieved to be the prerogative of Congress Most particularly, the clause was introduced as an express restriction upon legislative power, and in that shape adopted with immaterial changes: - it so appears in 5 Elliot's Debates 445-446, 484, 536, 561, - Tansill Documents 571-572, 627, 707, - 2 Ferrand's Records 340-342, 438, 576, 596, 656 (Madison's Notes, August 20 and 28, September 10, 12, and 17, 1787).

But the most damning evidence comes from the Chief Justice Roger B. Taney's own judgement against Lincoln's unconstitutional act when he stated "If the authority which the constitution has confided in the judiciary department and the judicial officers may thus, upon any pretext or under any circumstances, be usurped by military power at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds his life, his liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found." Very true were these words, but Merrymen remained in confinement, and thousands of others like him were imprisoned on the mere suspicion of disloyalty measured, not by legal principles, but partisan ideology.

'Taney sent his writ, his order for Merryman's release, and his opinion to the President, requesting of him to take care that the laws be faithfully executed, but Lincoln placed the papers in his desk, and went on fighting the war against the South, which the power brokers and financiers backing his party had demanded. The evidence is convincing that Lincoln went a step further, and personally ordered the arrest of the Chief Justice. The arrest was never carried out, because it was deemed politically too risky.' - 'A Constitutional History of Secession'- John Remington Graham

In 1863 Congress finally authorized the executive authority for suspension of the writ, however, in 1861 no such authority lawfully (i.e. constitutionally) existed for the President of the United States. Lincoln clearly was a tyrant.

47 posted on 01/01/2003 3:46:30 PM PST by Colt .45
[ Post Reply | Private Reply | To 11 | View Replies]

To: WhiskeyPapa
The argument is between your intepretation and that of the Chief Justice of the United States.

Unless Bill Rehnquist is secretly a freeper and he's posting his interpretation here, that is simply not so. Instead, you are citing him as an authority to counter the evidence I have cited. And as I have previously noted, I think we both know who has the stronger evidence.

48 posted on 01/01/2003 11:37:26 PM PST by GOPcapitalist
[ Post Reply | Private Reply | To 46 | View Replies]

To: Non-Sequitur
Nonsense.

No, not nonsense. It's right there in the final question of the case.

Habeas corpus had not been suspended, not by the President, not by Congress, not by anybody.

Straw man. I have not suggested that to begin with.

How could an issue which had not happened appear before the court?

It didn't, but that does not mean that a case involving legislative power over habeas corpus did not come before the court. In fact, such a case did in Bollman, and on the grounds that Article I, Section 9, Clause 2 applied to the legislature, the Bollman ruling found that the legislative act placing the writ-issuing jurisdiction in the court was constitutional.

Again, nonsense.

Again, not so. It's right there in the final statements of the case. Try reading it for once.

The Supreme Court cannot rule on the legality or illegality of something that hasn't happened.

Straw man. That is not what the case was about. The case was about the legislature's authority to designate the judicial system with the writ power. In order to determine that ability's constitutionality, the court had to find what in the Constitution let the legislature do what it did. In answer to that question, the court cited the legislative involvement in setting up the judiciary combined with its own jurisdiction over the writ. The location of that jurisdiction is in the suspension clause. The question settled in Bollman was whether the Supreme Court could issue a writ of habeas corpus.

That, and whether or not the legislature had the constitutional grounds to designate the court as the instrument where the writ was to be issued. In determining those grounds the court used the suspension clause:

"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. The motion, therefore, must be granted."

Pay close attention to the last two sentences in particular. The ruling is saying in the plainest of terms that the constitutional power designating the judiciary as issuer of the writ comes from the fact that the Constitutional jurisdiction to do so is in the legislature. Under that jurisdiction, the legislature had expressed its will by designating the court as the issuer of the writ. Therefore it was constitutional for the court to issue the writ, which permitted the motion to be granted to Bollman and Swartwout.

In simpler terms, the court observed that Article I, Section 9, Clause 2 was legislative. Because it was legislative, legislation pertaining to its subject and conducted within its bounds was constitutional.

Utter nonsense yet again.

No, not really. Just a hypothetical that could have happened in error, though it did not.

Habeas corpus had not been suspended.

Straw man.

Marshall's comments on who may suspend it were a complete dictum and were not binding in any way.

Not so, in as far as they say who the clause pertains to. That is so because the issue of who the clause pertains to determines whether or not the legislature acted constitutionally when it set up a judiciary system with the writ.

If you mean that you have made the case that the court has ruled that only Congress can suspend habeas corpus

Again you mistake me with that implication. I mean to say that the court has ruled that Article I, Section 9, Clause 2 applies to the legislature - it provides the legislature's ability to designate the court with the writ. Since that clause is also the only way to suspend habeas corpus, determining its legislative nature necessarily sets up a logical situation that cannot be carried through with any other conclusion than that the legislature alone can suspend the writ.

If that is confusing you, think of it this way:

Let's say that A represents the notion that legislature to designate the writ to the judiciary through Article I, Section 9, Clause 2.

At the same time, B represents the notion that Article I, Section 9, Clause 2 is a constitutional power of the legislature.

In Bollman the court ruled that A was constitutional because B was true.

Now, let's introduce C, the fact that the Constitution permits the suspension of habeas corpus only through Article I, Section 9, Clause 2.

As a matter of the obvious, if B is true, C may only be done by the legislature.

In Bollman the court ruled A because B was true. Since B was found true in Bollman, the case by necessity means that C may only be done by the legislature. Anything else simply does not work.

49 posted on 01/02/2003 12:53:52 AM PST by GOPcapitalist
[ Post Reply | Private Reply | To 45 | View Replies]

To: Colt .45
Actually Walt, you're quite wrong. The Constitution specifically delegates that power [to suspend the Writ] to the "legislature".

And says nothing about the president's power regarding the Writ.

You don't need to convince me; you need to convince the Chief Justice.


50 posted on 01/02/2003 2:30:43 AM PST by WhiskeyPapa
[ Post Reply | Private Reply | To 47 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-62 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
General/Chat
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson