Posted on 11/13/2004 11:12:00 AM PST by LouAvul
Bates kept a somewhat sporadic diary, and its entries during April 1861 give no indication that he was consulted about or participated in Lincoln's decision to suspend the writ of habeas corpus by the proclamation of April 27. Following Lincoln's justification, in his July 4 speech to Congress, for disregarding Taney's Merryman decision, Bates issued an opinion justifying the President's action. It was not a very good opinion. It essentially argued that each of the three branches of the federal government established by the Constitution was coequal with and independent of the other two. The President was thus not subordinate to the judicial branch, and so the latter could not order him, or his subordinates, to free Merryman. This proposition had been refuted by Chief Justice Marshall's opinion in Marbury v. Madison more than half a century earlier. Bates also described the suspension of habeas corpus as a "political" rather than a "judicial" matter and on that ground as well not subject to judicial intervention. The opinion would persuade only those who were already true believers.
William H. Rehnquist, All the Laws But One, p. 44
CONCLUSIONS: The overwhelming amount of historical evidence clearly contradicts Lincoln's assertion that the Constitution "is silent as to which, or who, is to exercise the power" of suspending habeas corpus. Though legal relativists, loose constructionists, and even some otherwise reliable constitutionalists maintain that Lincoln's action of suspending habeas corpus was without constitutional flaw, the volume of evidence renders such a position insupportable. In addition to the unconstitutional suspension of habeas corpus, there remains the issue of the Merryman ruling. Lincoln's action of ignoring this ruling by failing to either abide by it or appeal it to the Supreme Court constitutes a violation of the United States judiciary branch's authority that remains on his record even if one were to hypothetically permit its unlikely reversal had it been appealed. The sum of these actions by Lincoln amount to clear and material violations of the United States Constitution. It is further not unreasonable to conclude that in other times, similar actions by a president of the United States would have been cause for his impeachment and removal from office.(emphasis mine)
Since Lincoln was not impeached, then your criticism should be to the House, which supported his actions, the very point that you are contending with.
There is more than one problem with your source, Farber.
With Daniel Farber's insight into sovereignty as "an almost metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura," he provides comic relief, as well as a source of wisdom for desperate Blue State Brigadeers. Brigadeers, feel the Force!
FARBER'S WISDOM
In the American context, sovereignty often seems to function as an almost metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura. One hotly debated question, for example, is whether the populations of the various states existed (or still exist) as separate entities acting together as a conglomeration, or rather as a single entity acting through the agency of multiple subgroups. This is reminiscent of medieval disputes about the nature of the Trinity. It is not in any real sense a question of fact or even one of law.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 29
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Ideas about sovereignty may also color the understanding of particular constitutional issues. Thus, while it may not be useful to ask who really had sovereignty in 1776 or 1789, it is potentially useful to ask who was believed to have sovereignty then.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 30
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A contract between the peoples of the separate states might well be termed a compact. The critical question was whether a national social compact arose at some point, binding all Americans together into one people, or whether the only real social compacts were at the state level, with those political societies then forming a second-level compact. The "compact theory" of sovereignty refers to this second-level compact, which is considered to have a less fundamental status than the social compacts establishing each state. If this all seems rather aridly metaphysical, that's because it is.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 32
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Because of its virtually metaphysical nature, it is hard to answer the theoretical question of whether the state peoples wholly retained their separate identity, or whether adoption of the Constitution signified the existence of unified "People of the United States." To the extent that the Framers had any shared understanding on this point, which is itself somewhat dubious, they probably leaned toward the view that ratification signified the emergence of a national People. On the whole, however, the best conclusion seems to be Madison's -- that the United States was unique and could not be considered either a consolidated nation or a compact of sovereign states.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, pp. 82-83
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Still, it would be a mistake to view the Framers as purely nationalistic. During ratification, the most direct discussion of the source of the Constitution's legitimacy was in Federalist 39. Inquiring into the formation of the new Constitution, Madison explained that ratification takes place by the authority of the people -- "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." Madison went on to call ratification a "federal and not a national act," that is, "the act of the people, as forming so many independent States, not as forming one aggregate nation." This passage seems at odds with Lincoln's theory, but leaves open the possibility that ratification resulted in the creation of a unified American people.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 38
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http://www.landmarkcases.org/marbury/jefferson.html
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
We are in total agreement.
Lincoln and Madison held to the same principle.
Ultimate power resides in the people, not the States (per Calhoun)
The People delegate power to the various Governments.
Hence, the right of change any government is the right to revolution taking back that delegated power if it is being abused.
Secession was not the way to remove abuses, either the vote or revolution were the only alternatives.
John Merryman was a FARMER and is listed in such in the Baltimore COUNTY census (the City of Baltimore is not part of Balimore COUNTY) - he was not a judge, lawyer, politician, doctor, banker or any other profession customarily travelling in high society.
John Merryman inherited the main property in 1847. That, however does not preclude John Merryman from also having a residence in Baltimore. In fact, just a few minutes of searching showed that Baltimore was crawling with Merrymans. They were a very prominent family in the area.
Merryman inherited the farm from his uncle - Nicholas Bosley. Here there are a lot of Smiths locally, but none are members of any aristocracy. In contrast, there is one family with a unique last name, worth several hundred million dollars. I guess they are not members of any aristocray by your definition? But could you provide the address of this alleged home in Baltimore City?
Just a little more searching shows another connection. A number of members of the Merryman family were married or buried at old St. Pauls in Baltimore (John the traitor was not one of these - he is planted in Sherwood).
But how does that PROVE that John Merryman was a member of the "Maryland aristocracy"?
John Merryman was at one time a leader in the State Agricultural Society, located in the City of Baltimore
Can you provide the address, and when Taney attended these meetings?
Polly want a cracker?
There is NO Roger Taney, R. Taney, R. B. Taney in the 1850 Baltimore CITY census (or in Baltimore COUNTY for that matter). There are NO Taneys in the Baltimore City 1860 census.
There is ONE Merryman in the 1850 Baltimore CITY census, and it's not John. There are only 3 Merrymans in the 1860 Baltimore CITY census, none of them John. There are numerous Merrymans in the Baltimore COUNTY censuses.
John Merryman would be less than HALF Taney's age in 1861.
Really!? Where is the clause allowing ANY part to be suspended or tossed aside in times of war? Per 9-0 vote in ex parte Milligan:
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.
So impeachment is revolution? Delegation means that powers are transferred to an agent for a time - and the agent is always subordinate to the superior which delegated the powers in the first place.
The people of America know what they have relinquished for certain purposes. They also know that they retain every thing else, and have a right to resume what they have given up, if it be perverted from its intended object.
George Nicholas, Virginia Ratifying convention 10 Jun 1788That resolution declares that the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people, and at their will.
James Madison, Virginia Ratifying convention 24 Jun 1788
free dixie,sw
No. The Times editorialized that they were friends and neighbors without providing any evidence to that end. The Times lied much like you are lying right now.
Merryman lived in Cockeysville. Taney lived in Washington and, when in Baltimore, stayed at his daughter's house downtown. The closest they ever lived to each others houses was some 20 miles. Therefore they were not neighbors
You do when that statement is demonstrably false. Merryman lived in Cockeysville and Taney lived in Washington. Therefore they were not neighbors.
Yeah cause Taney, being from Maryland, was SPECIFICALLY ASSIGNED to the circuit court in Baltimore by the president as was traditionally done with justices and their home state circuits.
Was Merryman a "personal friend of Taney"? You have provided nothing to refute the claim
I do not need to as you have provided nothing to substantiate the claim, which rests entirely upon an unspecific and now discredited newspaper editorial. The burden is always on the accuser and thus far you have failed to meet that burden.
and I have provided a list of reasons to believe that such was quite likely the case.
Your "list of reasons" is downright comical. You want us to believe that Merryman and Taney were neighbors and friends because dead people with the same last names as theirs are buried at the same cemetary! Answer me this, capitan. Do you know the names of all the people who are buried around your deceased relatives in a cemetary? Do you run around in social circles with their descendants and call those descendants your "neighbor" since their Great Aunt Thelma is buried 30 feet from yours?
You took exception to the Time's statement - prove it wrong.
Already did. The Times claimed that Taney and Merryman were neighbors, yet Taney lived in Washington and Merryman lived in the rural Baltimore County town of Cockeysville some 20 miles away from the city. As far as I know Taney never lived anywhere near Cockeysville, therefore they could not have been neighbors.
Were Merryman and Taney neighbor's? You have taken the tact to suggest they must have lived near one another at the time of the trial.
No. They didn't live next to each other before the trial either. The 1850 census has Merryman living at the exact same place - Cockeysville - as he did in 1860. In 1840 Merryman was still a child presumably living with his parents, also on Cockeysville. Since at no time in Merryman's life before (or after) the trial did Taney live anywhere near Cockeysville, they simply were not neighbors.
Just as Taney and Merryman can be considered citizens of the same state, they could as easily have been neighbors.
...yet you have produced no evidence even remotely substantiating that they were whereas all known evidence says they lived more than 20 miles away.
There is nothing to preclude Merryman from having owned a home in the city of Baltimore.
Yet you've shown absolutely no evidence that he did, much less that it was on Franklin Street.
Munch away, Tu Quoque Boy.
Another classic #3non-sequitur if there ever was one. You're still assuming that impeachment is the only means of congressional disapproval and seem impervious to anything that suggests otherwise. As I noted previously, your position is not derived from reason. Thus it is impervious to reason and I see no purpose in continuing a discussion of it any further.
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