Posted on 12/29/2002 3:01:54 AM PST by GOPcapitalist
Still no acknowledgment of the "historical record," I see.
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.
Jefferson, Madison, Story, Taney, and Marshall agreed with me. Rehnquist agrees with you. Five beats one.
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.
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.
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
...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."
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).
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.
"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)
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."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.- Alexander Stephens - The Great Speech, 16 March, 1864
Yep. It all comes down to -your- opinion vs that of the Chief Justice.
Walt
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.
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?
Try reading the case for once. The part on suspending habeas corpus is the point on which the final question of the ruling turns.
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.
Try here under popularity appeals.
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