ftD - Again, notice the "Big Lie" technique. nolu coward knows full well "Ex parte Merryman was not a decision of the entire Supreme Court, but rather, one from Taney, issued all on his own. Still, he attempts to cloud the issue.
Taney was a friend and neighbor of John Merryman, and should have recused himself from the proceedings. Even then, once Taney learned that the privilege of the writ of habeas corpus had been suspended, he should have realized that he no longer had any jurisdiction.
Both Harry Jaffa, in A New Birth of Freedom, and Daniel Farber, in Lincoln's Constitution make the case for the correctness and constitutionality of Lincoln's emergency suspension.
Lincoln was a lawyer, well-versed in constitutional issues. He also believed in the Jeffersonian/Jacksonian idea that each branch of the government has an obligation to interpret the intent of the Constitution. Had Lincoln violated the Constitution with the suspension of the writ, Congress certainly could have impeached, or even condemned his actions. Instead, they approved.
Source?
Even then, once Taney learned that the privilege of the writ of habeas corpus had been suspended, he should have realized that he no longer had any jurisdiction.
BZZZT! Wrong. The judiciary is not required to abide by an illegal act purporting to remove its jurisdiction. As Taney correctly noted, the governing law in the case was the Judicial Act of 1789, from which the court's habeas corpus jurisdiction derives and ONLY by the repeal, alteration, or suspension of which can that authority be removed (Ex Parte Bollman and Swartwout, 1807).
Both Harry Jaffa, in A New Birth of Freedom, and Daniel Farber, in Lincoln's Constitution make the case for the correctness and constitutionality of Lincoln's emergency suspension.
Jaffa has no legal credentials and by all accounts has his degree in english literature. Farber's work on the subject, as has been shown on this and other threads, may be characterized as sloppy, partisan, and severely marred by factual and logical errors.
That didn't bother you when the subject was Texas vs. White and Salmon P. Chase was sitting up there writing opinions about the legality of matters in which he himself had been a principal actor, to-wit, the United States's conquest of the South.
Just how many federal judges does it take for you to recognize contempt of court?
And why do you keep addressing nolu chan and "nolu coward"? I know why you're taking cheap shots at him -- he's beating you like a drum with his documentary material. (Is that why you insist that we should quote only "authoritative" [LOL!] Left-wing historians and Lincoln-idolizing biographers?) But I'm just morbidly curious about what you think you're accomplishing by using him like that.
[capitan_kerryfugio the LIAR] ftD - Again, notice the "Big Lie" technique. nolu coward knows full well "Ex parte Merryman was not a decision of the entire Supreme Court, but rather, one from Taney, issued all on his own. Still, he attempts to cloud the issue.
Once again, capitan_kerryfugio must LIE.
Did the Merryman opinion issue from the Supreme Court? YES.
Was Taney acting in his capacity as Chief Justice of the Supreme Court? YES
Did Taney announce from the bench that he was acting in his capacity as Chief Justice of the Supreme Court? YES
Did Taney announce that he was NOT sitting as a member of the Circuit Court? YES
Does the caption of the case say it was issued by the Chief Justice of the Supreme Court? YES
Is Merryman an in-chambers opinion of the Chief Justice of the Supreme Court? YES
Did I say it was a decision of the ENTIRE Supreme Court? NO - capitan_kerryfugio LIED.
The Lincoln administration could have appealed, but it had no case to argue. So, Lincoln chose to rape the Constitution instead, thus beginning his career as a serial rapist.
Is Harry Jaffa a philospher? YES
Is Harry Jaffa an attorney? NO
[capitan_kerryfugio] Lincoln was a lawyer, well-versed in constitutional issues.
Lincoln was a lawyer but NOT well-versed in Constitutional issues.
[capitan_kerryfugio] Taney was a friend and neighbor of John Merryman
capitan_kerryfugio has yet to provide one shred of evidence for this repeated sourceless assertion.
[capitan kerryfugio] Both Harry Jaffa, in A New Birth of Freedom, and Daniel Farber, in Lincoln's Constitution make the case for the correctness and constitutionality of Lincoln's emergency suspension.
Farber wrote, "Arguably, a valid suspension of the writ does eliminate the court's very power to proceed. ... a plausible argument can be made that during a [nc - valid, let us not slickly edit the word out] suspension, the executive not only has a valid defense that the habeas court should accept, but he is entitled to ignore any order to appear or to produce or release the prisoner ... the strongest argument against the jurisdictional view of suspension isthat in practice it would leave the executive as the sole judge of whether the writ was validly suspended ... allowing the president to ignore an adverse ruling about the validity of the suspension is undoubtedly dangerous ... if this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necessity defense that he did in fact offer."
[cr] Farber provides a perspective contrary to the mind-numbing pro-southern arguments you like to barf up from time to time.
He certainly does provide a DIFFERENT perspective. Here is capitan_kerryfugio's "EXPERT" on display.
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 Brigadeers.
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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