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To: jmacusa
Rustbucket, do what I did,get a copy of the Constitution and read Article 1 sec.9. It’s all right there.

No, it is not "all right there." You are reading it as though it is in isolation without considering where it is in the Constitution and the historical interpretation of the clause. According to you, Alexander Hamilton, John Jay, Thomas Jefferson, various ratifiers and ratification conventions, and various Supreme Court Justices had it all wrong, but you and Lincoln had it right.

Supreme Court Justice Antonin Scalia put it this way:

"Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "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." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151–152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story §1336, at 208–209"

Are you perhaps an advocate of a "living Constitution" where the interpretation of the Constitution changes to suit political desires?

Taney's Ex Parte Merryman order was a legal order and should have been obeyed by Lincoln until it was possibly overturned on appeal to the full court. I suspect Lincoln would have lost on appeal, so he simply ignored a legal order thereby putting himself above the law.

137 posted on 10/22/2012 8:53:36 AM PDT by rustbucket
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To: rustbucket

No, the Constitution isn’t a ‘’living document’’. What I mean is the way the article is written defines a ‘’privilege’’, not a ‘’right’’. And why did FDR do in WW2 much the same Lincoln did ?


140 posted on 10/22/2012 12:27:00 PM PDT by jmacusa (Political correctness is cultural Marxism. I'm not a Marxist.)
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To: rustbucket; jmacusa
rusty quoting Justice Scalia: "Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood..."

Perhaps so understood today, but in 1861 there was no precedent or previous exercise of Congress's authority to revoke habeas corpus.
So Lincoln's emergency action, during Congress' recess, of revoking habeas corpus on his own authority in April 1861, set a precedent.
On its return, Congress debated Lincoln's emergency action at great length, and finally decided to:

Interesting to note that while Congress authorized suspending habeas corpus, it was the President who revoked that suspension.
Later in 1871, Congress specifically authorized the President to revoke habeas corpus, for a limited time.

Bottom line: During the Civil War, Congress decided to preserve its constitutional authority on habeas corpus, while at the same time allowing the President to take such actions as were obviously necessary.

141 posted on 10/22/2012 1:27:31 PM PDT by BroJoeK (a little historical perspective....)
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