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To: ravinson
If Lincoln ever read Elliot's Debates, or Farrand's records, the state debates or the Anti-Federalist Papers, it is without a doubt that he would have found the following:

"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."
Brutus, Anti-Federalist Papers,  No. 24 (Brutus' No. IX), "Objections to a Standing Army (part 1)", 17 January 1788

"The legislature of the United States shall pass no law on the subject of religion; nor touching or abridging the liberty of the press: nor shall the privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion."
Elliot's Debates, Vol. V, p.131.

"The privileges and benefits of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner, and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding months."
Elliot's Debates, Vol. I, p.249.

"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus."
Elliot's Debates, Vol. I, p.328"But the insertion of the negative restrictions has given cause of triumph, it seems, to gentlemen. They suppose that it demonstrates that Congress are to have powers by implication. I will meet them on that ground. I persuade myself that every exception here mentioned is an exception, not from general powers, but from the particular powers therein vested. To what power in the general government is the exception made respecting the importation of negroes? Not from a general power, but from a particular power expressly enumerated. This is an exception from the power given them of regulating commerce. He asks, Where is the power to which the prohibition of suspending the habeas corpus is an exception? I contend that, by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus. This is therefore an exception to that power."
Gov. Randolph, 17 Jun 1788, Elliot's Debates, Vol. III, p. 464.

"There are express restrictions, which are in the shape of a bill of rights; but they bear the name of the 9th section. The design of the negative expressions in this section is to prescribe limits beyond which the powers of Congress shall not go. These are the sole hounds intended by the American government. Whereabouts do we stand with respect to a bill of rights? Examine it, and compare it to the idea manifested by the Virginian bill of rights, or that of the other states. The restraints in this congressional bill of rights are so feeble and few, that it would have been infinitely better to have said nothing about it. The fair implication is, that they can do every thing they are not forbidden to do. What will be the result if Congress, in the course of their legislation, should do a thing not restrained by this 9th section? It will fall as an incidental power to Congress, not being prohibited expressly in the Constitution. The first prohibition is, that the privilege of the writ of habeas corpus shall not be suspended but when, in case of rebellion or invasion, the public safety may require it. It results clearly that, if it had not said so, they could suspend it in all cases whatsoever. It reverses the position of the friends of this Constitution, that every thing is retained which is not given up; for, instead of this, every thing is given up which is not expressly reserved. It does not speak affirmatively, and say that it shall be suspended in those cases; but that it shall not be suspended but in certain cases; going on a supposition that every thing which is not negatived shall remain with Congress. If the power remains with the people, how can Congress supply the want of an affirmative grant?"
Patrick Henry, 17 Jun 1788, Elliot's Debates, Vol. III, p. 461.

"All laws regulating commerce shall require the assent of two thirds of the members present in each house. The United States shall not grant any title of nobility. The legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press; nor shall the privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion."
Elliot's Debates, Vol. I, p.131.

"That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers , or as inserted merely for greater caution."
Elliot's Debates, Vol. I, p.327

As far as that goes, every single quote I find ascribes the power to suspend the writ of habeas corpus to Congress, and as a legislative power.  Never an executive power.  Even in the signatory duties or veto powers previously mentioned in Article I, thay are in response to a legislative act, never as a substitute for their actions.

106 posted on 05/02/2002 12:31:22 PM PDT by 4CJ
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To: 4ConservativeJustices
... every single quote I find ascribes the power to suspend the writ of habeas corpus to Congress, and as a legislative power. Never an executive power.

Of course, none of your quotes specify any intention to deny the President the power to suspend habeas corpus during a rebellion. Nor does Art. II contain any such restriction.

Again, my point is not that Lincoln's suspension of habeas corpus would or should have been upheld had it come before the U.S. Supreme Court. My only point is that he had a plausible good faith argument that under the unusual and dangerous exigencies of April 1861 (i.e. the Capitol itself being imminently threatened by Confederates and their operatives who essentially had the place surrounded), he could properly and Constitutionally suspend habeas corpus.

Congress has the power (and arguably the duty) to impeach any President who commits a high crime or misdemeanor. Certainly the violation of his oath to "preserve, protect, and defend the Constitution" would constitute a high crime. Ultimately that is what prevents a President from using the military he commands to become a de facto dictator.

Anyone who claims that Lincoln egregiously overstepped his Constitutional authority is condemning the Congressmen who allowed him to get away with it. Lincoln didn't lock the doors of Congress or otherwise prevent them from instituting impeachment proceedings against him, so he wasn't acting as a dictator. Certainly he stretched his Presidential powers as far as he could to preserve the Union, but that is to be expected in a time of crisis, and every American President has done likewise, some far more aggressively (eg. FDR's "internment" of 70,000 American citizens -- many women and children -- during WWII based merely on their ethnicity).

The Constitution is far from perfect and is horrendously ambiguous. I wish the people who waste so much of their time criticizing Lincoln's actions would spend more time helping to come up with some Constitutional improvements that would more perfectly preserve ordered liberty. By focusing their criticism on a single government official for eroding our liberties, they lend credence to the "if we could only elect better people" pipe dream. To quote Thomas Jefferson:

"The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, their citizens against oppression under pretense of it; and if these ends are not attained, it is of importance to inquire by what means, more effectual, they may be secured."

The Confederates certainly didn't create a more perfect union, because their primary intent was to preserve their ability to perpetuate the oppression of 3,000,000 negroes and their progeny. By suppressing the Confederate rebellion, Lincoln made it clear that a slaveholderocracy was a dead end road. That may have not been Lincoln's primary intent in doing what he did, but he accomplished that end with the able assistance of millions of Americans who were dedicated both to preserving the Union and radically improving it by effecting the abolition of slavery.

108 posted on 05/02/2002 11:46:02 PM PDT by ravinson
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