The sure way to put the kibosh on President Lincoln suspending the Writ was to get the issue before the whole Court. Taney didn't push that because his Merryman ruling, like Dred Scott was poorly based in the law.
"Scholars still debate whether Lincoln had the authority to invoke the Constitutional provision suspending Habeas Corpus during the early days of the war. I will not wade into the muddy waters of that debate. I am more interested in talking about what Lincoln did after March of 1863--for that is when Congress gave Lincoln legislative authority to suspend the writ. From that point forward, Lincoln faced no constitutional obstacles. He could arrest whomever he chose, without courts interfering with Writs of Habeas Corpus. What did Lincoln do at this point? Did he attempt to stifle political debate, by imprisoning his opponents? In short, did he trample on the civil liberties the Writ of Habeas Corpus was meant to protect?
A recent historical study, entitled The Fate of Liberty, says "no." The author, Mark Neely, combed through the musty boxes of arrest records from the Civil War "to find out who was arrested when the Writ of Habeas Corpus was suspended and why." Neely concludes that, throughout the war, Lincoln was guided by a "steady desire to avoid political abuse under the Habeas-Corpus policy."
According to the best estimates, about 38,000 civilians were arrested by the military during the Civil War. Who were they? Almost all fell within a few categories: "draft dodgers, suspected deserters, defrauders of the government, swindlers of recruits, ex-Confederate soldiers, and smugglers." And strikingly, most of these were Confederate citizens, caught behind Northern lines. The numbers show that very few civilians were taken from their homes and arrested. And of those few arrests, only a handful were colored by political considerations.
Indeed, Lincoln issued his most sweeping proclamation suspending Habeas Corpus not to silence political dissent, but to stop judicial interference in the draft. Early in the war, patriotic zeal was so strong that volunteers flooded into the Army. But as the war dragged on, public enthusiasm ebbed. Eventually, the government was reduced to instituting a draft. Conscription was rather unpopular, to say the least. If any of you remember the burning of draft cards during the Vietnam War, imagine that unrest multiplied several times over in the New York City Draft Riots in 1863. The problem was especially bad in Pennsylvania. Coal miners attacked men thought to be "in sympathy with the draft." State and federal courts added to the problem. They were churning out Writs of Habeas Corpus, freeing soldiers as soon as they were drafted. Lincoln observed that "[T]he course pursued by certain judges is defeating the draft."
Lincoln's response was to suspend the Writ throughout the North in any case that involved military arrest of deserters or draft dodgers. And for good measure, he threw in prisoners of war, spies, and those giving assistance to the enemy--say, by smuggling goods to the Confederate government. But his focus was always on military necessity. Lincoln never tried to suppress political dissent. He understood that a democracy only grows stronger by allowing people to voice their opposition to the government, even in the midst of war. He understood that the strength of the Union lay not only in force of arms, but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas. And as one historian has put it, "[T]he opposition press in the North was vibrant, vigorous, and often vicious."
...
In sum, the Vallandigham episode is emblematic of Lincoln's approach to political liberties during the Civil War. The President was not out to trample on the First Amendment. He was not out to crush his political opposition. He suspended the writ of Habeas Corpus in response to perceived military threats to the Union. After he, and later Congress, removed that Constitutional safeguard, the Lincoln Administration did not use its power selfishly or arbitrarily. It arrested only those people who actively supported the Confederate war machine--people like Merryman, who recruited troops to march south. And when people walked this fine line between political dissent and treason, as Vallandigham did, Lincoln tried to err on the side of free speech.
Midway through the war, Lincoln predicted that Habeas Corpus would quickly be re-instituted after the war was over. He could not bring himself to believe that Americans would allow the wartime suspension of Habeas Corpus to extend into peacetime, he said, "Any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life." Lincoln died before he could see the writ of habeas corpus restored.
In one of his most famous debates with Stephen Douglas, Lincoln spoke about how a society that tolerates slavery corrodes the very foundations of its own liberty. These words, I think, reveal Lincoln's awareness that he wasn't battling for territory on a map. He was battling to preserve a nation "conceived in Liberty."
Lincoln asked:
"What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere. Destroy this spirit, and you have planted the seeds of despotism around our doors. Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises."
So today, let us heed the wisdom of a man who led our nation to a "new birth of freedom." Let us always be, first and foremost, lovers of liberty. Thank you"
--Remarks of Justice Sandra Day O'Connor.
Walt
Quite frankly, I'm surprised she's not citing some goofy "international law" UN statute as retroactive justification for Lincoln's unconstitutional suspension of habeas corpus.
Meanwhile you have a realm of immeasurably more credible jurists, not to mention the virtually unanimous view of the founding fathers themselves, who say that the suspension power belongs to Congress and Congress alone.
That list includes two chief justices, 3 associate justices, one president and founding father, delegates to the continental congresses and constitutional convention, and participants in the ratification convention. In justices alone, 5 still beats 1 and always will.
"It may seem that Lincoln violated the rule of law in in effort to vindicate the legal order. Much of this apparent paradox dissolves on closer examination, partly because most of his action were indeed lawful, and partly because the rule of law is not an inflexible concept." [Page 196]
As we have seen, most of what Lincoln did, then and later, was in fact constitutional.... {page 196]
"That is not to say that everything he did was constitutional." {Page 196]
"Military jurisidiction was extended beyond constitutional bounds in the North...." [Page 196
"... money was spent and the military expanded without the necessary authority from Congress...." [Page 196]
"... the freedom of the press was sometimes infringed." [pp. 196-7]
"Not a perfect record, but a creditable one..." [Page 197]
"Under this analysis, Lincoln's action in Merryman would not stand for any general right to disobey judicial decrees. It would stand only for a limited right to disobey decrees when the judge lacked the sheer power to issue a binding order. If this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necessity defense that he did in fact offer." [Page 192]
"Some of Lincoln's initial acts were unconstitutional even under the relatively favorable view of his powers taken in this book." [Page 192]
"At least his unauthorized expansion of the regular army and disbursement of funds fall into this category." [Page 192]
"Disobedience of Taney's order may fall into the same category, unless that order was a nullity." [Page 192]
"... Lincoln's suspension of habeas in areas removed from any hint of insurrection arguably went beyond his emergency powers to respond to sudden attack." [Page 192]
"And of course, none of the constitutional arguments in favor of Lincoln's actions during the war are incontestable. Some would argue that nearly everything Lincoln did in those early days was unconstitutional. Thus, to a smaller or greater extent, we are forced to consider Lincoln's claim that otherwise unlawful actions were justified by necessity." [Page 192]
"It probably goes too far to say the the president can always make his own independent determination of whether a court had jurisdiction." [Page 190]
"Once an injunction is issued, it must be obeyed even if it was erroneous. A legal error in entering the injunction is no defense to a conetmpt citation. A legal error in entering the injunction is no defense to a contempt citation. This is true even if the injunction violates a constitutional right. For instance, a court order that violates the First Amendment normally must be obeyed until it is set aside on appeal. Similarly, if a judgment is entered in one state, another state must recognize that judgment as valid without inquiring into the merits of the case. Hence, even if Taney was wrong, his order was enitled to obedience. The incorrectness of Taney's view on the merits would be no defense in a contempt hearing. Similarly, if Taney had then issued a damage award to Merryman, as he might have doen in an action for false imprisonment, that judgment would have been enforceable in any other court in the Union, regardless of the underlying merits. In lawyer's jargon, the judgment is immune from collateral attack. In plainer language, it acquires a life and validity of its own, disconnected from the legal and factual claims that gave birth to it." [pp. 189-90]
"Despite the disagreement about judicial supremacy, almost everyone agrees about one point: the president must enforce the judgments of the federal courts in specific cases, right or wrong." [Page 188]
"The test would have required the prosecutor to show a clear danger that Vallandigham's speech would have directly harmed the war effort. It seems unlikely, but possible, that such a showing could have been made." [Page 172]
"These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity...." [Page 118, quoting Lincoln]
And, as Abraham Lincoln said in 1858:
Public setiment is everything -- he who moulds public sentiment is greater than he who makes statutes.
-- Abraham Lincoln, in his first debate with Stephen A. Douglas, Ottawa, Illinois, August 21, 1858.
CLEMENT LAIRD VALLANDIGHAM
March 13, 1863
Dayton, Ohio
Referring to the Conscription Bill, he said:
The three-hundred-dollar provision is a most unjust discrimination against the poor. I propose that the City Council of Dayton appropriate money enough, and vote a tax for it, to release the city from the draft, and thus spare the lives and limbs of those citizens who are too poor to pay. I would recommend the same measure to Cincinnati, Chicago, and other cities of the North. The tax will equalize the burden, and make the rich pay some part of that "last dollar." Three hundred dollars, too, is just the price fixed, by an Abolition congress, for the emancipated negroes of the District of Columbia. It is not the price of blood. The Administration says to every man between twenty and forty-five, THREE HUNDRED DOLLARS OR YOUR LIFE. A tax by every city, township and country is just the way to meet and equalize the demand.
[italics in original]