Gee Wally, that's too easy in this case:
"In any event, if prior congressional authorization was needed, it probably did exist.
Either it did or it didn't. Justice Taney ruled it didn't exist. Farber is 0 for 1.
In the special secession called by Lincoln, Congress ratified all of his orders relating to the militia or armed forces.
Ex post fact legislation is unconstitutional. Even so, a majority sided with the legislature. Farber is 1 for 2.
Since Lincoln?s suspension directive took the form of an authorization to General Scott, this may well have ratified at least past suspension in cases like Merryman.
Nope. Justice Taney ruled Lincoln's suspension unconstituional. Farber is 1 for 3.
But, even before the special session, Lincoln already probably had whatever congressional authorization he needed, at least for the initial emergency suspension in Merryman.
Wrong again. Justice Taney ruled otherwise. Farber is 1 for 4.
This source of authority was the militia act. This theory was adopted in Ex parte Field, where the federal circuit held that the statutes empowering Lincoln to call out the militia also implicitly authorized him to declare martial law and hence to suspend habeas.
Wrong again. ex parte Field had nothing to do with the suspension of the writ. Field cited the following, '[u]nder the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ.' Farber is 1 for 5.
Interestingly in Luther v. Borden, Justice Taney also wrote,
'No one, we believe, has ever doubted the proposition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure.'
Taney is not your boy any more. Not -only- did he write his son in 1856 lamenting that the Union would not be dissolved, but he also flipped 180 degrees from what he said in Borden from what he wrote in Merryman.
LOL. The cases addresed separate and distinct issues. Luther was not a habeas corpus case, Merryman was.
I don't know what President Lincoln's thought process was, but he may have thought after the Merryman opinion came down that he could just ignore the old fool.
Lincoln swore to God his oath to defend the Constitution which contains Article III and the Supremacy clause. The dictator President is not supreme. Lincoln was the fool.
I am having a good enough time watching you attack me rather than address the record.
Attack you? ROTFL! Only in your mind. But don't despair, paranoia is treatable.
Taney ruled it -did- exist.
"In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitimacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.”
...Luther was later strongly reaffirmed in Justice Holmes’s opinion in Moyer v. Peabody. In response to a violent miner’s strike, the governor had declared the affected county to be in a state of insurrection and called out the national guard. He arrested the union’s president and held him for several months without trial. Justice Holmes saw no constitutional difficulty. “Of course,” Holmes said, the “plaintiff’s position is that he had been deprived of his liberty without due process of law.” But due process depends on the circumstances. Under federal law, the governor was authorized to call out the national guard in response to invasion or insurrection.”That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace.”
-- Lincoln’s Constitution” pp 148-49 by Daniel Farber
Why would you tell a big fib like that?
I hadn't thought of it, but Dr. Farber (and the Courts) did. How could the president be empowered to kill rebels (as the Court ruled unanimously he could in the Prize Cases) and he not be able to arrest and detain them?
You are the one batting "0 forever."
Walt
LOL. The cases addresed separate and distinct issues. Luther was not a habeas corpus case, Merryman was.
So what?
In Borden, Taney wrote:
“[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.”
Are you saying that the presdent can order the military to shoot people, but not arrest them?
Taney flipped his position 180 degrees, once he saw he help accomplish in 1861 what he lameneted was not happening in 1856. He wanted a dissolution of the Union, and Merryman was the agent of that desire.
"Recently I read the chapters on Dred Scott in the official History of the Supreme Court.
The history examined a letter from Taney to his son-in-law in the summer of 1856. Taney expected Fremont or Fillmore to be elected. But (according to the History's interpretation) he thought this would be a disaster for the South, _because_ secession would not follow. In Taney's own words:
"But how can the Southern states divide [from the Union], with any hope of success, when in almost every one of them there is a strong and powerful party, acting in concert with the Know-Nothings, and willing to hold power from the North, if they may be enabled thereby to obtain the honors and offices of the general government and domineer in their own states."--- From the ACW moderated newsgroup
Taney is no longer on the field because of his traitorous sentiments>
And consider this:
“Finally, there was Lincoln’s great judicial adversary, Chief Justice Taney. Although not a bad man by any means, Taney was arrogant and rigid. His Merryman opinion was deliberately written to weaken the president as much as possible. It was not just that he ruled against the Lincoln on the habeas issue, but he went out of his way to undermine any claim of emergency power of any kind. Taney even seemed oblivious to the existence of the emergency itself, as if the unrest in Maryland were merely a routine law enforcement problem. He failed to realize the relevance of his own experiences with Andrew Jackson or of his own opinion in Luther v. Borden, both of which should have given him a clearer view of presidential authority. To top it all off, he failed to give government a genuine opportunity to be heard, mocked Lincoln for failing to observe his oath of office, and widely publicized his opinion in order to undermine the administration.
A judge with a little less self-righteousness and a little more humility might have ruled against Lincoln, but he would not have overreached so badly. It was much the same arrogance that lead Taney to think he could settle the slavery issue single handedly with his Dred Scott decision intact.
It was Lincoln’s character – his ability, judgment, courage, and humanity – that brought the Union through the war with the Constitution intact. It was as much dumb luck as anything else that placed Lincoln in the White House in this critical time. To expect another Lincoln would be foolish. Nor should the legal system be designed on the assumption that all leaders will have his qualities. Even the wisest rulers must be restrained by law. But no matter how many checks and balances and protections we build into the system, we must keep in mind Hamilton’s admonition. “Sir, when you have divided and nicely balanced the departments of government; when you have strongly connected the virtue of your rulers with their interest; when, in short you have rendered your system as perfect as human forms can be – you must place confidence; you must give power.” In the end, all power can be abused, so we must take the risk of putting confidence in those who exercise power. This as much true of generals and justices as it is of presidents. We had best take care that, like Lincoln, they are worthy of our trust.”
--Lincoln’s Constitution” p. 200 by Daniel Farber
Either it did or it didn't.
You surely know that the courts do not issue advisory opinions. The court cannot act until a case is brought before it. The point is that President Lincoln had plenty of leeway to -act-. It was -then- for the courts to decide the validity of that act.
Walt
Ex post fact legislation is unconstitutional.
Then how could one ever cite precedent?
President Lincoln went through a mine field of military, legal and political problems and he rightly is regarded as a great president and great man.
Walt