Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
And I don't want to upset your purple haze induced stupor, but the section quoted ("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.") has nothing at all to do with the Suspension Clause in the Constitution. Marshall was referring to the Judiciary Act of 1789, which was the act that gave the Court the power to issue the writ. Just a few paragaphs earlier in the decision, Marshall made this prefacing statement, "If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution."
Like Law Prof. Freedman observed,
"In approaching Suspension Clause issues, the Court, like scholars, proceeds on the assumption that the Clause originally protected only federal, not state, prisoners.... The origin of the mistake is that, according to dicta inserted by Chief Justice John Marshall into Ex parte Bollman, Section 14 of the Judiciary Act of 1789 withheld from state prisoners access to the federal writ of habeas corpus to test the legality of their confinements. Since it is implausible that the First Judiciary Act violated the Clause, acceptance of Marshall's reading of the statute has stood as conclusive evidence for the proposition that state prisoners' habeas corpus rights were not originally protected by the Constitution."
Freedman notes, "Marshall's suggestion -- sheer dictum in the case at hand and unsupported by any authority -- that Congress could suspend the writ by doing nothing at all certainly would have come as a shock to all of the debaters over the Suspension Clause." He also refers to other sections of the decision, "[T]he heart of the Ex parte Bollman opinion for present purposes is not its holding, but rather its pronouncement that the proviso in clause of Section 14 (the limitation on granting the writ to those in state custody) 'extends to the whole section,' that is, restricts the exercise of power both by courts and by their individual judges. This statement is arrant dictum -- since the case at hand involved federal, not state, prisoners and, indeed, ones who secured their release after full judicial investigation into the justification for their confinement."
So although Bollman maybe a habeas case, it is not now, nor ever was, a case about what body might suspend the writ. Whatever you believe you have gleaned from Bollman remains, at best "arrant dictum," and at worst, illusionary.
No. I meant exactly what I said. The larger whole of the founders AS WELL AS those at the convention were in full agreement that the clause applied to Congress as evidenced by the fact that not a single one of them suggested anything otherwise. For further evidence of this you may see the list of quotes I provided some time ago which NC reposted here. It contains statements from both constitutional convention delegates and non-delegates who were prominent founders, such as Jefferson.
In any case, the Framers were not unanimous in their views on the Suspension Clause and its placement in the Constitution.
Then cite me one single framer of the constitution or even one single figure from the entire founding era for that matter who believed that the habeas corpus clause applied to somebody other than Congress. Please note that I will treat you silence on this matter as a concession that you do not have anything.
As you have previously noted, Jefferson, a Founding Father but not a Framer, was initially dubious about the need for the "Suspension Clause."
He doubted its need, but, as I said of all the founders and as I reiterate, he did not have any doubt whatsoever that its placement in the constitution applied to Congress (see his autobiography for this).
(2) Hamdi v Rumsfeld and Ex parte Bollman & Swartwout, as I demonstrated in my prior post, were not precedent-setting cases with regard to who might act to suspend the privilege of the writ of habeas corpus.
You demonstrated nothing of the sort. Rather, you made a gratuitous and unfounded claim to the effect that both were items of obiter dictum. As I noted once again, and as you apparently have neglected to address for want of an ability to counter the inescapable, the Bollman passage on Congress' power of the writ is the concept upon which the entire case was settled and the Hamdi passage, which I also quoted, was one of the main issues decided in that case.
(3) That "only Congress may suspend the writ" is not demonstrated by the verbiage of the "Suspension Clause" itself: Article I, Section 9, Clause 2: "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." Had an exclusive congressional power been mandated, the clause may have read, "The privilege of the Writ of Habeas Corpus shall not be suspended by Congress ..." But it doesn't say that, implicitly leaving open other options.
Bullsh*t. Article I, Section 1 already covers its application: "All legislative Powers herein granted," as in those found in Article I, "shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." To have repeated this would have been redundant. As for your claim of implicit openness, such logic is specious. Applying the same approach, one could similarly conclude the same about the next clause after habeas corpus, "No Bill of Attainder or ex post facto Law shall be passed," or the one after it (which is now partially repealed, sad to say), "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken," which would be an absurdity for the obvious reason that the items they contain are all of a legislative nature.
(4) Because the clause finally ended up in Section I, it is a textural interpretation that the power to suspend resides exclusively with the Congress.
Again, you are simply incorrect. The ONLY way one could ever reach that conclusion is to willfully ignore Article I, Section 1, which states in the plainest of English that the powers in Article I are to be given to Congress. You seem overly enthusiastic to pursue that route of willful ignorance, thus raising the question of your judicial philosophy which, based upon your approach found here, seems not unlike the loose constructionism espoused by the late Jacobin Justice Brennan or, nowadays, Justice Ginsburg.
Clause 6 in Section 9 applies to both the Congress and the President.
Clause 6 reads "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another." That is a restriction upon legislative jurisdiction. That the executive may enforce, espouse, and enact policies to that end is as incidental to the clause as is his role in the budget process - that is to say, though it is substantial, NOBODY denies that the constitution gives the specific power of the budget to Congress.
In fact, the writing of Regulations has been traditionally an Executive Branch function.
That tradition is a ceded power to the bureaucracy and almost always walks along a thin line of constitutionality. Nevertheless, nobody doubts that in a showdown between the bureaucracy and Congress over a regulatory matter that Congress' will reigns supreme.
Furthermore, Section 10, Clause 1, in Article I, has nothing to do with Congress
Not so. The purpose of that clause is to protect the exclusive jurisdiction of Congress in certain powers granted to it in Section 8.
And of course, the presidential power of the "veto" is also found in Article I.
Technically speaking, the power itself is not found anywhere in the Constitution. The power itself is implicit upon the procedures set forth for Congress to adopt a bill into law. Far from granting by name a presidential power to veto, Article I states only that (a) a presidential signature is required for a bill of CONGRESS to become law and (b) the process of events that will happen in CONGRESS if a signature is not given.
That again, it not "necessarily so."
Oh but it is. We know that ONLY way for the president to suspend habeas corpus constitutionally is to ask Congress to do it (a fact that has been overwhelmingly affirmed by virtually every court case ever heard on the matter including two by SCOTUS, not to mention all of the early constitutional scholars). So long as this remains true (and to date you have presented no credible evidence as to why it is not), it is indeed necessarily so that he would have to call a special session of congress in order to obtain the suspension he desired.
If Congress is not in session, and war is made upon the country, the President is "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name."
Hollow puffery. To accept that is to accept the notion that the system of checks and balances should be shunned by the inconveniences it may create from time to time. As Hamdi v. Rumsfeld noted, "while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge." The document itself being the contract upon which our government derives its legitimacy, to shun such a fundamental principle in favor of permitting a single branch to exert its unchecked will against the others is nothing short of a revolutionary breech.
The whole of this statement is a non sequitur. Freedman notes, "Marshall's statement that courts created by written law could only exercise the powers explicitly granted by such laws was simply an ipse dixit conveniently brought forth for the occasion." The empowerment of the Courts by legislation, and the courts' abiltiy to issue the writ, had nothing to do with the "Suspension Clause" in Section 9, but rather, from the establishment of the courts clause in Art III, Section 1. It can be reasonably argued that a court's power to issue the writ is found in the common law. It needs no further constitutional or legislative mandate.
Indeed it is, as are the passages from both cases and the definition of the term "therefore" for you. As my previous post demonstrated, you have failed to substantiate your charge of obiter dictum and by all appearances seem not to grasp the concept itself. Reaching in your @ss for a fancy sounding word, looking up its definition, then arbitrarily asserting that definition's application to any and all court rulings you personally do not like simply does not suffice for a valid argument.
And I don't want to upset your purple haze induced stupor, but the section quoted ("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.") has nothing at all to do with the Suspension Clause in the Constitution. Marshall was referring to the Judiciary Act of 1789, which was the act that gave the Court the power to issue the writ.
I'm uncertain, capitan, where you obtained your alleged copy of the Bollman decision but you might want to inform its publisher as it contains several glaring omissions. In reality Marshall's statement referred to BOTH the suspension clause AND the Judicial Act of 1789, which he noted was made under the authority of the suspension clause. From the decision itself:
It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it." Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.
Just a few paragaphs earlier in the decision, Marshall made this prefacing statement, "If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution."
Indeed, which was a major point of the decision. As you may see above, Marshall turned directly to the constitution's suspension clause to make that determination.
Like Law Prof. Freedman observed,
Back to your crank revisionist law prof of choice, I see.
"In approaching Suspension Clause issues, the Court, like scholars, proceeds on the assumption that the Clause originally protected only federal, not state, prisoners....
That seems to be this Freedman fellow's beef with the entire case, and considering that his argument runs counter to 200 years of academic acceptance of Bollman, it's safe to say that his is a fringe argument. Freedman may not personally like it, but what Marshall was noting of that clause at the time is no different than what the early supreme court held on similar matters, the most famous being Barron v. Baltimore.
The origin of the mistake is that, according to dicta inserted by Chief Justice John Marshall into Ex parte Bollman, Section 14 of the Judiciary Act of 1789 withheld from state prisoners access to the federal writ of habeas corpus to test the legality of their confinements.
...and thus we come to discover how you happened upon this Freedman fellow. Seeking an authority to appeal your knowingly unsubstantiated claim of obiter dictum, you did a google search for Bollman and the term "dicta." That search naturally produced Freedman's garbage where the term dicta appears in the same text as Bollman, albeit on a wholly unrelated and irrelevant part of the case (specifically, the part that is Freedman's beef with the case). Though that does not pass the smell test for obvious reasons, seeing the two words, dicta and Bollman, within the same article was good enough for you so you've been dropping Freedman all over this subject ever since.
And how do I know all this you might be asking? Very simple. Non-Sequitur did the exact same thing while making the exact same absurd argument you are today about a year prior. You seem to have happened upon his egg, be it knowingly or inadvertantly, and now share the distinction with him of having it smeared all over your face.
Section 4 of proposed Article XI, when debated in convention, was disapproved by the delgations from North Carolina, South Carolina, and Georgia.
If you will go back and review what I wrote ("the Framers were not unanimous in their views on the Suspension Clause"), and the construction you put on it ("... believed that the habeas corpus clause applied to somebody other than Congress"), are two differnent things.
Quote it instead.
Well then, explain Art I, Sec 10, Clause 1. How is a constitutional prohibition on a state a "power of congress" Some of the item listed there are already specifcally prohibited to Congress in Article I section 9. Did the Framers repeat themselves???? Or possibly, did the Framers place conveniently "park" some odd clauses?
Your construction of the "Suspension Clause" remains a textural interpretation.
This remains only your opinion. And that is why papers and books have been written on the subject from both perspectives.
USSC - The President is "bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name."
GOPc - Hollow puffery. To accept that is to accept the notion that the system of checks and balances should be shunned by the inconveniences it may create from time to time.
I find it hilarious that you can be so insistent that Marshall's dicta be taken at face value, and yet, when presented with a statement of the court, on point, you so cavalierly dismiss it!
...yet another term of art from antiquity that you neither understand nor recognize. To be a non-sequitur there would have to be a logical leap in the statement, yet if one breaks it down it is evident that no such leap exists. Each item derives directly from the previous
Habeas Corpus clause --> Judicial Act of 1789 --> Supreme Court issues writs of habeas corpus.
Freedman notes, "Marshall's statement that courts created by written law could only exercise the powers explicitly granted by such laws was simply an ipse dixit conveniently brought forth for the occasion."
Quod gratis asseritur, gratis negatur. Your going to have to do better than appealing to the alleged authority of a fringe crank scholar who has an obscure personal beef with John Marshall that leads him to arbitrarily label anything he doesn't like as "politically motivated" or "convenient." In reality the only thing "convenient" going on around here is Freedman's arbitrary dismissals of passages by Marshall that he doesn't like on the basis that he doesn't like them. No wonder you like this guy, capitan!
The empowerment of the Courts by legislation, and the courts' abiltiy to issue the writ, had nothing to do with the "Suspension Clause" in Section 9, but rather, from the establishment of the courts clause in Art III, Section 1.
So you have gratuitously claimed. Unfortunately for that claim the case itself still says otherwise:
It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.
Pay close attention to that last sentence. "Under the impression of this obligation," the obliged matter being Article I, Section 9, Clause 3, "they give," that being Congress giving by way of the Judicial Act of 1789, "to all the courts, the power of awarding writs of habeas corpus." No amount of loose constructionist spin, contortions from a fringe crackpot lawyer, or arbitrary and convenient declarations of "obiter dictum" will ever make that passage go away.
That's why I quote from a legal professional discussing the point. Something you don't often do. I am aware of your "interpretations." Thank you.
Have you been taking ad hominem attack lessons from the "cavalry" you called to the recuse?
I already explained it, to which in usual fashion you have neglected a response. Everything in that clause augments and protects a power of Congress in Article 8 from being infringed upon or a prohibited activity from being claimed by somebody else. Besides, Section 1 refers to _powers_ granted in the article. The declaration of war is a _power_. The suspension of habeas corpus is a _power_. The assessment of tariff revenues is a _power_. But the prohibition of states from minting money in order to prevent infringement upon the power of Congress to do so is not, itself only augmenting the said corollary power.
I've already quoted it to you about a dozen times including the other thread and NC provided it here. The fact that you have yet to catch on or seemingly to even read the quote yet makes subsequent postings of it a wasted effort. Nevertheless, I will oblige you one more time:
"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." - Jefferson, autobiography, 1821
Indeed, and both of them personally believed that the writ should not be suspended, finding the suspension clause undesirable. But neither of them had any doubt that the constitution as adopted (meaning whether they liked that clause or not) gave the clause to Congress, nor did anybody else in that era.
Did the Ouija Board help you with that one, or did you "divine" it all on your own? The Levy article I quoted earlier contain addition information regarding Marshall's dicta in Bollman. As a matter of fact, just about every article I have read about Bollman makes mention of Marshall's dicta. Didn't non sequitur educate you about obiter dicta (courtesy ping) in the late, great, deleted thread?
Let's examine what I stated then.
1. Is Freedman a revisionist? Well, he wrote a book attempting to trash a widely celebrated decision from a widely celebrated Chief Justice that has been almost universally accepted for the last 200 years. I'd say that makes him the very definition of a revisionist.
2. Is Freedman a crank? Well, his books/articles are loaded with snide pot shots against Marshall and his favorite means of discounting one of Marshall's arguments is to assign it with unsubstantiated discrediting motives. I'd say that makes him the very definition of a crank as well.
In short, I stand by my earlier remark. Freedman is a crank revisionist.
Nice chronolgy. You "forgot" mention when the House adjourned. The Senate is only half of congress.
Though you may dwell in a Farberville full of metaphysical California Miss Cleo's, I do not. Rather, I simply observed the development of your argument along the path you followed. That you ended up where you did was easily anticipated and easily recognized once it happened because your type always ends up there.
The Levy article I quoted earlier contain addition information regarding Marshall's dicta in Bollman.
You mean the same one you tried to pass off as "proof" that Bollman, a case about a habeas corpus petition, was not about habeas corpus? Here's a newsflash for you capitan. Virtually every case ever written has items of dicta somewhere within its text. But they also have holdings and premises on which those holdings are decided. The simple fact that you saw the words "Bollman" and "dicta" appear in the same article does not even remotely begin to approach substantiating your claim that a specific passage you personally do not like is a piece of obiter dictum. Your "dicta" sources so far have all commented on unrelated passages - a fact that you cannot seem to recognize because you're still on a sugar high from seeing the two words together in the same passage.
As a matter of fact, just about every article I have read about Bollman makes mention of Marshall's dicta.
Gee, ya think? And I bet it has something to do with the fact that EVERY supreme court case of any substantial length has dicta somewhere in it. It is once again obvious that you have yet to grasp that amazingly simple concept.
Of course, in the capitan_refugio/non-sequitur school of law, all it takes to find obiter dictum is to do a google search for a case name and the word "dicta." If it pulls up a hit then you get free license to go through the case and slap the obiter dictum label on any passage of it that you don't like.
As I similarly instructed another poster, "the suspension of the powers vested by this act" refers to the Judiciary Act of 1789, not the "Suspension Clause" in the Constitution.
Harold M. Hyman, in an article about Ex parte Milligan, begins with, "In 1861, Chief Justice Roger B. Taney contrived a possibility of executive-judicial, civil-military clashes (Ex parte Merryman); in 1863 the Supreme Court averted similar confrontations (Ex parte Vallandigham; Prize Cases).
A judge's motivations are important. Especially when his opinion purports to establish precedent. Taney's "bad behavior" should never be mistaken for sound legal reasoning. As as has been demonstrated, Taney's in chambers opinion was not a decision of the Supreme Court - Taney engineered it all on his own.
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