Taney ruled against Lincoln's suspension of habeus corpus.
Taney was certainly in favor of using judical power to circumvent the legislative branch. The Dred Scott decision showed that.
Don't you think it strange that with all the people detained under President Lincoln's suspension of Habeas Corpus, that no single case came before the whole court?
If i did, it has not made the splash in CSA glorification that Ex Parte Merryman did.
In any case, the current Chief Justice has opined that the question of whether the president may or may not suspend habeas corpus has never been definitively answered to this very day.
The consensus among legitimate historians is that President Lincoln bent the rules, but he never broke them. And habeas corpus is not an issue that threatens his reputation.
Walt
Justice Joseph Story would disagree, as would Chief Justice John Marshall in Ex parte Bollman and Swartwout, and he is joined by Justice Roger Taney in ex parte Merryman. Perhaps the learned Chief Justice Rehnquist never read ex parte Milligan?
"If the sentence respecting the habeas corpus be, as I contend, a limitation, and not a grant of power, we must look into other parts of the Constitution to find the grant; and if we find none making it to the President, it follows that the power is in the legislative or the judicial department. That it lies with the judiciary will hardly be contended. That department has no other function than to judge. It cannot refuse or delay justice."
"But if the clause in question were deemed a grant of power, the question would then be, to whom is the grant made? The following considerations would show that it was made to Congress:
First. The debates in the convention which framed the Constitution seem, at least, to suppose that the power was given to Congress, and to Congress alone.
Second. The debates in the various State conventions which ratified the Constitution do most certainly proceed upon that supposition.
Third. The place in which the provision is left indicates, if it does not absolutely decide, that it relates only to the powers of Congress. It is not in the second article, which treats of the executive department. It is not in the third, which treats of the judicial department. It is in the first article, which treats of the legislative department. There is not another subdivision in all the seven subdivisions of the ninth section which does not relate to Congress in part, at least, and most of them relate to Congress alone.
Fourth. The constitutional law of the mother country had been long settled, that the power of suspending the privilege of the writ, or, as it was sometimes called, suspending the writ itself, belonged only to Parliament. With this principle firmly seated in the minds of lawyers, it seems incredible that so vast a change as conferring the grant upon the executive should have been so loosely and carelessly expressed.
Fifth. The prevailing sentiment of the time when the Constitution was framed, was a dislike and dread of executive authority. It is hardly to be believed, that so vast and dangerous a power would have been conferred upon the President, without providing some safeguards against its abuse.
Sixth. Every judicial opinion, and every commentary on the Constitution, up to the period of the Rebellion, treated the power as belonging to Congress, and to that department only.
Justice Davis, ex parte Milligan, 71 U.S. 2; 18 L. Ed. 281; 1866 U.S. Lexis 861; 4 Wall. 2.
Nope. Nothing definative. < /sarcasm >
"What is called the war power of the President, if indeed there by any such thing, is nothing more than the power of commanding the armies and fleets which Congress causes to be raised. To command them is to direct their operations."
"These various provisions of the first article would show, if there were any doubt upon the construction of the second, that the powers of the President do not include the power to raise or support an army, or to provide or maintain a navy, or to call forth the militia, to repel an invasion, or to suppress an insurrection, or execute the laws, or even to govern such portions of the militia as are called into the service of the United States, or to make law for any of the forts, magazines, arsenals, or dock-yards. If the President could not, even in flagrant war, except as authorized by Congress, call forth the militia of Indiana to repel an invasion of that State, or, when called, govern them, it is absurd to say that he could nevertheless, under the same circumstances, govern the whole State and every person in it by martial rule. The jealousy of the executive power prevailed with our forefathers. They carried it so far that, in providing for the protection of a State against domestic violence, they required, as a condition, that the legislature of the State should ask for it if possible to be convened."
"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; 18 L. Ed. 281; 1866 U.S. Lexis 861; 4 Wall. 2
I would take the word of numerous justices of the Supreme Court over that of some "legitimate" historians.
No. Not at all. Remember, Habeas Corpus is the writ that gets people in front of the court. By suspending Habeas Corpus, Lincoln made sure no cases would reach the court. What's really surprising is that even one case made it to court.