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.
Chief Justice William Rehnquist, All the Laws But One, pg 35, quoting the New York Times of 29 May 1861.
"BZZZT! Wrong. The judiciary is not required to abide by an illegal act purporting to remove its jurisdiction."
The privilege of the writ of habeas corpus had been constitutionally suspended for the purposes outlined in the Suspension Clause. Once Taney had been apprised of its suspension, his ability to issue the writ was terminated. (Farber, Lincoln's Constitution)
"Jaffa has no legal credentials and by all accounts has his degree in english literature."
You continually mis-state the case and have been unable to prove otherwise. You were given Prof. Jaffa's e-mail to verify your claims, and yet you apparently have not engaged the Professor on the subject. Prof. Jaffa is a recognized authority on the subject and has been for more that 40 years.
However, please state your credentials in the legal field, or the legal authorities you reference.
AND they can be detected without a "normative aura detector."
SOURCE: Harry V. Jaffa, New Birth of Freedom, p. 363
It is an axiomatic premise of all written law, as explained by Aristotle, that if circumstances arise in which the letter of the law negates the intention of the lawgiver, then the intention must be preferred to the letter.
Harry should jump into his wayback machine and more to ancient Greece. The law is what it says, not what someone (presumably Jaffa) thinks the lawgiver intended it to say.
SOURCE: Antonin Scalia, A Matter of Interpretation, pp. 19-20.
In reality, however, if one accepts the principle that the object of judicial interpretation is to determine the intent of the legislature, being bound by genuine but unexpressed legislative intent rather than the law is only the theoretical threat. The practical threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field. When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean -- which is precisely how judges decide things under the common law. As Dean Landis of Harvard Law School (a believer in the search for legislative intent) put it in a 1930 article:[T]he gravest sins are perpetrated in the name of the intent of the legislature. Judges are rarely willing to admit their role as actual lawgivers, and such admissions as are wrung from their unwilling lips lie in the field of common and not statute law. To condone in these instances the practice of talking in terms of the intent of the legislature, as if the legislature had attributed a particular meaning to certain words, when it is apparent that the intent is that of the judge, is to condone atavistic practices too reminiscent of the medicine man.[Scalia's italics]