Lincoln's Unconstitutional Suspension of Habeas Corpus - an analysis of an impeachable offense

12/29/2002 | myself

[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.

[GOPcapitalist]

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

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

[GOPcapitalist]

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.

[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.

[Non-Sequitur]

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.

[GOPcapitalist]

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.

[GOPcapitalist]

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

[Non-Sequitur]

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.

[GOPcapitalist]

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."

[4CJ]

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).

[4CJ]

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.

[stainlessbanner]

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)

[stainlessbanner]

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.

[WhiskeyPapa]

"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

[Non-Sequitur]

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.

[Non-Sequitur]

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?

[Maelstrom]

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.

[Maelstrom]

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.

[GOPcapitalist]

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.

[GOPcapitalist]

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.

[GOPcapitalist]

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

Try here under popularity appeals.