Posted on 04/12/2007 9:34:54 AM PDT by TexConfederate1861
Thank you for the source then. Hamdi v. Rumsfeld was decided in 2004 though. Being the later of the two, Rehnquist's views expressed there trump any earlier claims.
But in his address he was correctly pointing out that the matter had never been before the entire Supreme Court for a ruling and in that he's right as well.
Except that he himself signed a ruling to that effect only 4 years later.
That's the court's point - nobody but Congress can suspend it, therefore habeas must have been in effect.
Hamdi was a split decision that answered 3 or 4 different questions. The plurality decision was written by O'Connor with Rehnquist, Kennedy, and Breyer. Scalia was joined by Stevens in writing a concurrence on some points and dissent on others, giving the plurality a majority. Souter was joined by Ginsberg for a similar concurrence/dissent that gave the plurality a majority on other points. Thomas was the only full dissent on all points.
On the matter of who could suspend habeas corpus, both the plurality by O'Connor and the Scalia opinion agreed that it was only Congress.
That gives them 6 justices on this point: Scalia, Stevens, O'Connor, Kennedy, Rehnquist, and Breyer.
From Justice O'Conner's majority decision:
"All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. All agree suspension of the writ has not occurred here."
If suspension of the writ had not occured then how could it be a matter for the court to decide who could suspend it? And if it was not a matter for the court to decide then statements that only Congress can suspend the writ are made in dicta.
It's clear from both the majority and minority opinions that had the question of who may suspend habeas corpus been a part of the case then the Court would have come down on the side of only Congress having that power. So should Bush ever suspend it on his own we're pretty sure how the court would vote. But until he does, or some future president does, then the question remains unresolved. Regardless of how you feel about it.
I believe that if you checked the Chief Justice's writings you would find he's been pretty consistent in his belief that only Congress can suspend habeas corpus. Chief Justice Marshall believed it, Chief Justice Taney believed it, deep down I think that Chief Justice Chase probably believed it, Chief Justice Rehnquist believed it, I believe it, you believe it, most people would agree with it. But unfortunately the Constitution isn't specific on who may suspend it. Chase touched on the ambiguity in his Milligan decision, and the matter of whether the president can suspend the writ has never been ruled on by the entire court. I doubt it ever will be for three reasons. The first is that current presidents aren't faced with situation Lincoln had where Congress is in recess from March until December. The second is that the President probably knows where the Court would come down on the matter if they ever had the chance to rule on it. The third is that the chance of invasion or rebellion is pretty remote.
Very easily. In order to make the determination that the writ has not been suspended it is first necessary to know under what conditions a suspension may occur and whether those conditions are currently established. Not only is this a necessary determination - it is one that is plainly required by precedent. In a widely quoted and widely affirmed holding, Ex Parte Bollman says "the power to award the writ by any of the courts of the United States, must be given by written law." If the writ is given to the courts by written law then it is not in suspense, and can only come into suspense when that written law is taken away from the courts. I know of no other way in our system of government to alter the written law than by a bill of Congress. It necessarily follows from this, as Marshall concluded, that a bill of Congress must be passed in order to suspend the writ of habeas corpus.
And if it was not a matter for the court to decide then statements that only Congress can suspend the writ are made in dicta.
Your understanding of obiter dictum is both amateurish and wrong. Obiter dictum refers to that which is external to the opinion's ratio decidendi - the component principles of law used to construct the rationale of the decision. A judicial dictum is inserted as a corrollary device of the case, often to illustrate or speculate on a point of law. If the text in question comprises a part of the decision rationale though, it is not dictum. In Ex Parte Bollman the source and nature of authority conferred by Suspension Clause was overriding rationale of the decision.
It matters not whether the court determines a suspension had occurred (which would be an absurd criterion analogous to asserting that a court cannot try a person for murder whose guilt is not already known, because a suspension by definition must be constitutionally permitted or otherwise it is not a suspension but an unconstitutional arrest of the writ's execution), but rather only whether the legislative origins of the suspension clause comprise a part of the rationale upon which the case is decided. Per Marshall's repeated and explicit language referencing this legislative origin, it clearly did comprise the case's ratio decidendi - a fact that has been repeatedly confirmed by subsequent federal court treatment of the case as a settled matter of precedent.
The Constitution is not specific on the power of judicial review either. Judicial review is nonetheless accepted as a settled matter of precedent from Marbury v. Madison. The same goes for the Suspension Clause from Ex Parte Bollman, hence the recent reaffirmation by a 6 member majority of the Supreme Court that only Congress may suspend habeas corpus in Hamdi v. Rumsfeld.
Chase touched on the ambiguity in his Milligan decision
Justice Chase did not write Ex Parte Milligan. Justice Davis did. You also incorrectly attributed the following statement to the Milligan ruling back in #423, which I presume to be what you are referring to here:
While we do not admit that any legislation of Congress was needed to sustain this proclamation of the President, it being clearly within his power, as commander-in-chief, to issue it; yet, if it is asserted that legislative action is necessary to give validity to it, Congress has seen fit to expressly ratify the proclamation by the act of March 3d, 1863, by declaring that the President, whenever in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States, and in any part thereof.
In yet another stunning display of your ineptness on this matter, the passage above that you quoted above and attributed to Ex Parte Milligan does NOT in fact come from the Supreme Court ruling, but rather the opening statement of the Attorney General's office when it was arguing the case! The court, of course, ruled against the Attorney General's position.
...except for one problem. That passage is NOT from the ruling of Ex Parte Milligan. It is from the Attorney General's argument before the Supreme Court. The Supreme Court soundly rejected the Attorney General's position in Milligan. Nice try though.
I don’t think Calhoun thought there WAS a guarantee of a balance, but felt that there NEEDED to be one. Under the circumstances, I think he was proven right. This country could have avoided a bloody war, etc.
I think that guilt would not have been an issue. You must remember that there were close friendships on both sides, and that settling the issue peacefully was a preference. If Lincoln had given way on the point of secession, I think that things would have smoothed out quickly.
The South only took posession of public property within their territory. They didn’t STEAL anything.
Just want to keep clearly in mind exactly what "state's right" was in question.
They took property which didn't belong to them. That's a definition of stealing in any book.
I feel guilty if I've done something wrong. If I haven't done anything wrong then I don't feel guilty. Are you suggesting the South had something to feel guilty about?
Or they can just look and see that nobody has suspended the writ. Wouldn't that be easier? Justice O'Conner apparently had no problems recognizing that. Chief Justice Marshall didn't find that the writ had been suspended. The only one who seems to have a problem realizing that the writ hadn't been suspended seems to be you. And since the court cannot rule on something had hadn't happened then they can't rule on who may suspend the writ.
Obiter dictum refers to that which is external to the opinion's ratio decidendi - the component principles of law used to construct the rationale of the decision.
Then apparently the entire legal community is wrong as well. They all seem to think that it refers to comments made by a judge on a point that didn't arise in the case. The question of who may suspend habeas corpus didn't arise in Bollman because nobody had suspended it. It didn't arise in Hamadi because nobody had suspended it then either. Comments made in both cases concerning suspension of habius corpus were made in dicta. Everyone seems to realize this except you.
It was in THEIR territory. It wasn’t a embassy. So your definition is flawed.
Since suspension is a legal act, it is necessary to determine whether the legal conditions of a suspension have been met. Simply saying "it's suspended" doesn't suffice in a court of law.
Justice O'Conner apparently had no problems recognizing that.
O'Connor recognized it through a methodical legal case that assessed the conditions of suspension in detail. That same case found one of those conditions to be an act of Congress.
The only one who seems to have a problem realizing that the writ hadn't been suspended seems to be you.
No. That would be your own intentional mischaracterization of my argument. A suspension can only occur if constitutional criteria are met. Otherwise it is not a suspension.
And since the court cannot rule on something had hadn't happened then they can't rule on who may suspend the writ.
You're logic is skewed. By the same principle, a court could not hear the case of a genuinely innocent person accused of a crime since they can't rule on something that didn't happen. But that, of course, would be absurd as is your amateur conceptualization of obiter dictum.
Not at all, I was under the inpression that YOU felt they did.
And yet you cannot produce so much as a single person OTHER than yourself who identifies the Bollman rule as "dicta." Meanwhile I've provided multiple other federal court rulings from judges who have cited the Bollman rule on the suspension clause as a matter of settled precedent. It seems in fact that the only person here who fails to realize the ratio decidendi characteristic of the Bollman rule is you.
By the way: the term "dicta," which you keep using in all circumstances, is plural. The proper term is "dictum," the instance of the Bollman rule being a singular alleged example. Needless to say, your repeatedly demonstrated unfamiliarity with the term's grammatical usage reflects directly upon your shallow comprehension of the term itself.
Typo - you’re should be your.
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