It is truly peculiar how people who adamantly deny the concept of state nullification, which at least has some historical and scholarly merit to it in the early days of the republic, are also always the first to embrace a strange concept of "executive nullification" against the courts the second that habeas corpus ruling against Lincoln enters into the picture. Oh well. I guess consistency simply isn't your thing, Walt.
Had the whole Court supported Taney's position in Merrymanit would have changed things.
The only reason that never happened is because Lincoln, the loser, refused to appeal his loss to the full court.
But Taney had no chance of getting the majority to go along with his interpretation.
Considering that the entirity of the founding fathers, plus all the judicial rulings up until then, plus the plain reading of the constitution itself say that Taney was CORRECT in his ruling, that is unlikely.
Chief Justice Rehnquist wrote a book on this very subject.
Yes. You've quoted it many times and it is no more correct now than it was the first time. The simple fact is that, of all the qualified jurists who have ever written on that clause, the overwhelming majority of them have said the power belongs only to congress.
Merryman would have rendered a service far greater to the insurgency than burning bridges if he had gotten this issue before the whole Court. Taney could have made that happen.
But he didn't. Getting the issue before the whole court was a trump card he couldn't play because his ruling in Merryman had no support in a fair reading of law and precedent.
Walt