That is not true. Article I, Section 1 states that the powers in that article belong to the legislature. The suspension power occurs in Article I, Section 9. Therefore the suspension power belongs to the legislature.
Practically every writing from the founding fathers agrees with this as well. Not until Lincoln came along and needed a means of arresting political opposition did anyone dispute that the power was Congress's.
[GOPcapitalist] That is not true. Article I, Section 1 states that the powers in that article belong to the legislature. The suspension power occurs in Article I, Section 9. Therefore the suspension power belongs to the legislature.
The Constitution is apparently not explicit enough. The Supreme Court has been very explicit in ruling, as you observe, that the suspension power belongs to the legislature.
In #583 (to WhiskeyPapa) I quoted from Ex Parte Milligan which supports that position. In more modern times, the Supreme Court ruled in the case of DUNCAN v. KAHANAMOKU, 327 U.S. 304 (1946).
U.S. Supreme Court DUNCAN v. KAHANAMOKU, 327 U.S. 304 (1946) http://laws.findlaw.com/us/327/304.html
Mr. Justice Hugo Black delivered the opinion of the court.
The petitioners in these cases were sentenced to prison by military tribunals in Hawaii. Both are civilians. The question before us is whether the military tribunals had power to do this. The United States District Court for Hawaii in habeas corpus proceedings held that the military tribunals had no such power and ordered that they be set free. The Circuit Court of Appeals reversed, and ordered that the petitioners be returned to prison. 9 Cir., 146 F.2d 576. Both cases thus involve the rights of individuals charged with crime and not connected with the armed forces to have their guilt or innocence determined in courts to law which provide established procedural safeguards, rather than by military tribunals which fail to afford many of these safeguards. Since these judicial safeguards are prized privileges of our system of government we granted certiorari. 324 U.S. 833 , 65 S.Ct. 677.
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Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued. Ex parte Quirin, supra, 317 U.S. at page 19, 63 S.Ct. at page 6. Our system of government clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people's throughout our history. For that reason we have maintained legislatures chosen by citizens or their representatives and courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary criminal trials and have guarded against them by provisions embodied in the constitution itself. See Ex parte Milligan, 4 Wall. 2; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472. Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.
Military tribunals have no such standing. For as this Court has said before: '... the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.' Dow v. Johnson, 100 U.S. 158 , 169. Congress prior to the time of the enactment of the Organic Act had only once authorized the supplanting of the courts by military tribunals. Legislation to that effect was enacted immediately after the South's unsuccessful attempt to secede from the Union. Insofar as that legislation applied to the Southern States after the war was at an end it was challenged by a series of Presidential vetoes as vigorous as any in the country's history. And in order to prevent this Court from passing on the constitutionality of this legislation Congress found it necessary to curtail our appellate jurisdiction. Indeed, prior to the Organic Act, the only time this Court had ever discussed the supplanting of courts by military tribunals in a situation other than that involving the establishment of a military government over recently occupied enemy territory, it had emphatically declared that 'civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.' Ex parte Milligan, 4 Wall. 2, 124, 125.
We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment of 'martial law' it had in mind and did not wish to exceed the boundaries between military and civilian power, in which our people have always believed, which responsible military and executive officers had heeded, and which had become part of our political philosophy and institutions prior to the time Congress passed the Organic Act. The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. Yet the government seeks to justify the punishment of both White and Duncan on the ground of such supposed Congressional authorization. We hold that both petitioners are now entitled to be released from custody.
REVERSED.
In a concurring opinion, Mr. Justice Murphy wrote:
Such considerations led this Court in Ex parte Milligan, 4 Wall. 2, to lay down the rule that the military lacks [327 U.S. 304, 326] any constitutional power in war or in peace to substitute its tribunals for civil courts that are open and operating in the proper and unobstructed exercise of their jurisdiction. Only when a foreign invasion or civil war actually closes the courts and renders it impossible for them to administer criminal justice can martial law validly be invoked to suspend their functions. Even the suspension of power under those conditions is of a most temporary character. 'As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.' Id., 4 Wall. at page 127.
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Moreover, there is no question here as to the loyalty of the Hawaiian judiciary or as to the desire and ability of the judges to cooperate fully with military requirements. There is no evidence of disorder in the community which might have prevented the courts from conducting jury trials. As was said in the Milligan case, 4 Wall. at page 127, 'It is difficult to see how the safety of the country required martial law in Indiana (Hawaii). If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.' Thus, since the courts were open and able to function, the military trials of the petitioners were in violation of the Constitution. Whether, if the courts had been closed by necessity, the military could have tried the petitioners or merely could have held them until the courts reopened is a constitutional issue absent from these cases.
The so-called 'open court' rule of the Milligan case, to be sure, has been the subject of severe criticism, especially by military commentators. That criticism is repeated by the Government in these cases. It is said that the fact that courts are open is but one of many factors relevant to determining the necessity and hence the constitutionality of military trials of civilians. The argument is made that however adequate the 'open court' rule may have been in 1628 or 1864 it is distinctly unsuited to modern warfare conditions where all of the territories of a warring nation may be in combat zones or imminently threatened with long-range attack even while civil courts are operating. Hence if a military commander, on the basis of his conception of military necessity, requires all civilians accused of crime to be tried summarily before martial law tribunals, the Bill of Rights must bow humbly to his judgment despite the unquestioned ability of the civil courts to exercise their criminal jurisdiction.
The argument thus advanced is as untenable today as it was when cast in the language of the Plantagenets, the Tudors and the Stuarts. It is a rank appeal to abandon the fate of all our liberties to the reasonableness of the judgment of those who are trained primarily for war. It seeks to justify military usurpation of civilian authority to punish crime without regard to the potency of the Bill of Rights. It deserves repudiation.
Andrew Jackson suspended the Writ when he was a general.
You deny the most reasonable actions because you detest the outcome -- the maintenance of the United States.
Walt