Been surfing the web again? Good, shows initiative.
All The Founders Constitution does, as near as I can tell from the on-line version, is post the Marshall decision under the heading Article 1, Section 9, Clause 2. And I'll agree, as I've said all along, that the Chief Justice clearly states his belief that only the legislature can suspend habeas corpus. There it is, clear as day. No doubt at all about that.
But that wasn't my question. I have not doubted that the Chief Justice said that. I have questioned all along your claim that the remarks were not made in dictum and that they constitute a decision on the constitutionality of Lincoln's actions, and you claim that you are right and Chief Justice Rehnquist is wrong. In fact, the reverse is true. Who may suspend habeas corpus has never been definitively answered. The Chief Justice is right and you are wrong.
I'll post a couple of links for you. The first is the definition of Obiter Dictum since you don't seem to understand what it is. The second is a series of links which refer to the Chief Justice's comments and clearly identify them as being made in dictum:
Law vs.Order, or Habeas vs. Hobbs
Case law, footnote 1695
Treason and the Constitution
Finally, here is a great article by Eric Freedman called Just Because John Marshall Said It Doesn't Make It So . You need Adobe Acrobat for it and while Mr. Freedman isn't writing on the suspension of habeas corpus he does not that the Chief Justices remarks were made in dictum.
I'll conclude by repeating that I personally don't believe that President Lincoln's action on habeas corpus were Constitutional. I agree with Chief Justice Marshall and I believe that had the matter been taken to the full court then the Supreme Court would have ruled against him. But my opinon and your opinion and even Chief Justice Marshall's opinion in Bollman do not constitute a definitive decision on whether Lincoln's actions were legal.
Omigod! Whoop! -- There it is! "No controlling legal authority!!!!
N-S, you are a scream! I couldn't have backed into that one if I'd tried!
That is because it is the first major case dealing with that article. Do a law journal index search for the Bollman case and "suspension clause" if you doubt me.
I have questioned all along your claim that the remarks were not made in dictum and that they constitute a decision on the constitutionality of Lincoln's actions
You in part mistake my claims, which I have tried at length to clarify to you. The Bollman decision ruled that clause 2 applied to the legislature as grounds for the court's ability to issue the motions to Bollmand and Swartwout. That is not dictum.
It is not an express legal declaration, but an inescapable logical consequence of such a ruling that habeas corpus may be suspended only by the legislature. If clause X applies to the legislature, and clause X is also the only way to suspend habeas corpus, then it is an inescapable consequence of the first statement that only the legislature may suspend habeas corpus. In other words, while Bollman did not rule on a case of suspension, it did rule on the suspension clause's location in the Constitution. Therefore one could not rule today that the president had a suspension right without overturning the Bollman ruling.
Who may suspend habeas corpus has never been definitively answered. The Chief Justice is right and you are wrong.
To the contrary. The answer to the question of who may suspend habeas corpus is an inescapable logical consequence of what was ruled in Bollman. If Bollman is true, only the legislature may suspend it.
I'll post a couple of links for you. The first is the definition of Obiter Dictum since you don't seem to understand what it is.
You should consider reading your own link then, as you have arbitrarily ascribed the term "dictum" to the legal statement on which the Bollman case was ruled (remember the word "therefore"???) without any justification whatsoever. Finally, here is a great article by Eric Freedman called Just Because John Marshall Said It Doesn't Make It So .
Try reading that article a little closer yourself. It indisputably identifies Bollman as the first major case dealing with the suspension clause. It's subject matter is the applicability of the clause in state courts though.
Mr. Freedman isn't writing on the suspension of habeas corpus he does not that the Chief Justices remarks were made in dictum.
Not so. He only states that the "statements" applying to the subjects he is addressing were "dictum in the case at hand." He repeats this line while speaking of suspension, but only about a specific assertion of Marshall as to the manner in which Congress could suspend habeas corpus - not on the applicability of the suspension clause itself. Elsewhere his references to dictum are specified and even quoted, all pertaining to the ruling's dealings with judicial act sections. Try again.
But my opinon and your opinion and even Chief Justice Marshall's opinion in Bollman do not constitute a definitive decision on whether Lincoln's actions were legal.
Yet Marshall's ruling does constitute a definitive decision on Article 1, Section 9, clause 2's applicability to the executive branch. Rehnquist may suggest otherwise today, but his counterparts in the 1860's agreed that the question had been answered by way of Bollman. Taney thought so in his Merryman ruling. One of his former associates, retired Justice Benjamin Curtis, specifically indicated the question to have been answered in earlier judicial decisions on this issue, undoubtedly one of them being Bollman.
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President. Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus ," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief." - Justice Benjamin R. Curtis, retired, in Executive Power, 1862