Not at all. They won the case in the circuit court. Tell me, walt. Would you ever appeal against your own WIN in court?
They obviously won nothing worth winning in the circuit court, as the president ignored the ruling. Getting the issue before the whole Court would have put a lot more pressure on President Lincoln. Taney didn't pursue that.
More on habeas:
"Only Congress can suspend" was and is not "obvious." The phrase is in the Constitution where Congressional obligations are laid out but it does not limit the suspension to only Congress. Read Article I, Sec. 8 with its "Congress shall" and compare with sec. 9 which does not specifically lay out who is responsible. Reverdy Johnson, a very conservative Marylander, but also an unconditional Unionist, wrote a devastating attack on Taney's Merryman decision.
At the Constitutional Convention, the original proposal for this section of the Constitution made its suspension specially a power of the legislative branch but the legislative limitation was dropped when the convention took up the matter. A good precedent for the president to assume the power.
In 1861, the primary precedent for the executive branch suspending the writ had been Gen. Jackson in New Orleans in 1814-15. With the city under threat of imminent invasion by the British, Andrew Jackson declared martial law. Martial law remained in effect after the January battle, but rumors reached the city that peace was declared. Pierre Louaillier, the leader of the Louisiana State House of Representatives, wrote and published a letter attacked Jackson. The general responded by throwing Louaillier in jail and refusing a writ issued by Dominick Hall, the United States district court judge. When Hall issued the writ, Jackson not only ignored it, but arrested Hall and sent him beyond the lines. The very next day official word reached Jackson that the war was over. The general revoked martial law, freed all the political prisoners, and allowed Hall to return.
Hall then convened his court, and fined Jackson $1,000 for contempt for his refusal to recognize the court's writ. Jackson paid the fine under protest.
Thirty years later, in February 1844, the United States Congress ordered the fine refunded with interest from the date of Jackson's payment (31 March 1815). The bill passed the House 158 to 28 and there was no division in the Senate. With fine irony, the bill was supported by Southerners, both Democrats and Whigs and by Northern Democrats and was opposed by Northern Whigs.
The supporters' view was best expressed by Cong. James Belser, a Whig from Alabama:
"The suspension of the habeas corpus, which has ever been recognized under all free governments as the bulwark of liberty, could only take place in cases of rebellion or invasion—when the public safety absolutely required it be suspended. That was the limitation; and it was important to contemplate another point, viz: that the Constitution secures to every state a republican form of government. He admitted that there were but few cases which would authorize a commander in this country to suspend the writ of habeas corpus. But there were such cases, and they were above all law; they existed antecedent to the adoption of the Constitution and the formation of the Government. He contended that the facts, as they existed in this case fully justified General Jackson; and the gentlemen might as well attempt to turn the course of the Mississippi, as to endeavor to alter the public verdict which had been rendered by seventeen states of this Union in Justification of General Jackson." The last is reference to resolutions received by Congress from 17 state legislatures requesting the refund of the fine. The 17 included all of the then admitted states which would form the Confederacy—missing only Jackson's home state, Tennessee! [Congressional Globe, 28th Cong. 1st Sess., January 8, 1844, p. 119]
The $1,000 fine was not a small matter—as a major general, Jackson's base pay in 1815 was $2400 per year."
From the ACW moderated newsgroup.
Walt
The logic behind that conclusion completely neglects Article I, which explicitly states that all powers granted within that article are to be vested in Congress. NONE of the founders saw it any other way, and quite frankly I'll take their word for it over that of some guy named Reverdy Johnson and that leftist hag Sandra Day O'Connor any day.
"The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government, in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding months." - Charles Pickney, announcing the proposal to limit the suspension of habeas corpus, Constitutional Convention, 1787
"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals." - Richard Henry Lee, Anti-Federalist #16, "Federal Farmer"
"In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good." - Robert Yates, delegate to the Constitutional Convetion, Anti-Federalist #9, "Brutus"
"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] at all, namely, in those of rebellion or invasion. These are clear and certain terms, facts of public notoriety, and whenever these shall cease to exist, the suspension of the writ must necessarily cease also." - Judge Francis Dana, presenting the Constitution to the Massachusetts Ratification Convention
"In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion, or invasion. A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ." - St. George Tucker, Commentaries, 1803
"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide." - Justice John Marshall, writing for the majority in Ex Parte Bollman and Swartwout, United States Supreme Court, 1807
"Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body." - Thomas Jefferson, Autobiography, 1821
"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power" - William Rawle, "A View of the Constitution of the United States of America," 1826
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body." - Justice Joseph Story, "Commentaries on the Constitution of the United States," Book 3, Chapter XXXII, § 1336, 1833
"And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted." - Justice Levi Woodbury, dissent in Luther v. Borden, United States Supreme Court, 1849
"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." - Justice Roger B. Taney, Ex Parte Merryman, US Circuit Court of Appeals, 1861
"There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus" is conferred by the Constitution on Congress, or on the President. The only judicial decisions which have been made upon this question have been adverse to the power of the President.Still, very able lawyers have endeavored to maintain -- perhaps to the satisfaction of others -- have maintained, that the power to deprive a particular person of the "privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can prohibit the courts from issuing the writ, yet that the executive might, in particular cases, suspend or deny the privilege which the writ was designed to secure. I am not aware that any one has attempted to show that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a more bold than wise experiment on the credulity of the people, who should attempt to convince them that this power is found in the habeas corpus clause of the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested save that described by the President himself, as belonging to him as commander-in-chief." - Justice Benjamin R. Curtis, "Executive Power," 1862
At the Constitutional Convention, the original proposal for this section of the Constitution made its suspension specially a power of the legislative branch but the legislative limitation was dropped when the convention took up the matter.
That is false. NO effort to drop the legislative limitation appears anywhere in the debates. The clause was simply assigned under Article I, which clearly designated the powers within it as congressional ones thereby making a second designation redundant and unnecessary.
In 1861, the primary precedent for the executive branch suspending the writ had been Gen. Jackson in New Orleans in 1814-15.
Precedent for executive suspension? I think not. Andrew Jackson was not president in 1814 nor would he be for another decade and a half.