"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.
It was as much dumb luck as anything else that placed Lincoln in the White House in this critical time. To expect another Lincoln would be foolish. Nor should the legal system be designed on the assumption that all leaders will have his qualities. Even the wisest rulers must be restrained by law. But no matter how many checks and balances and protections we build into the system, we must keep in mind Hamilton's admonition. "Sir, when you have divided and nicely balanced the departments of government; when you have strongly connected the virtue of your rulers with their interest; when, in short, you have rendered.your system as perfect as human forms can be-you must place confidence; you must give power." In the end, all power can be abused, so we must take the risk of putting confidence in those who exercise power. This is as much true of generals and justices as it is of presidents. We had best take care that, like~Lincoln, they are worthy of our trust."
-- "Lincoln's Constitution", p. 200, by Daniel Farber
Walt
Where does the Constitution state that only Congress can change the size of the military?