Honoring a great president.

[David Floyd]

Congress didn't reverse SCOTUS' ruling, they simply voted that they wished to suspend habeus rights for those people Lincoln had designated, thereby putting into conformity with the SCOTUS decision.

Irrelevant. I'm not arguing that NO ONE had the power to suspend habeas corpus, only that Lincoln didn't. My position is supported by both Bollman and Merryman. Can you cite a case supporting your position?

[Imran Siddiqui]

I would direct you to the 9th and 10th Amendments.

Doesn't answer my question in the slightest.

The power is implied in the 9th and 10th Amendments.

And if I say "No, it isn't" what are you going to do? The 9th and 10th don't specify anything and have been used by waaaay too many to stand for a whole bevy of 'rights'. I've even seem some on the left say that the 9th Amendment means everyone has a fundamental right to health care. That's what happens when people believe these vague amendments mean everything under the sun.

President is legally bound to uphold the United States Constitution.

And if he believes he is upholding the Constitution by not listening to the SCOTUS (because he thinks SCOTUS is interpreting things wrong)?

The Constitution doesn't give the Supreme Court the power of Constitutional interpretation. It gave itself that.

If the President does NOT follow the Constitution, and if Congress refuses to impeach him, and if the people re-elect him, then unfortunately there's not a lot that can be done. But that doesn't mean the President is devoid of obligations to follow the law.

Practically, that is what it means.

However, I do find it interesting that you usually slam me for maintaining my position in the face of SCOTUS decisions to the contrary, whereas now you are doing the same damn thing.

So which is it, Imran? You can't have it both ways.

Of course I can. YOU are by saying the Court has streached the ICC too far, but the Court should be followed in this reasoning. So you are being hypocrite if you say I can't do the same .

I'm not arguing that NO ONE had the power to suspend habeas corpus, only that Lincoln didn't.

But if the Congress says it will suspend habeas rights, then they are suspended right? So what if those rights were 'unconstitutionally' suspended by the President up until Congress suspended them.

[MrFun]

Originally posted by Imran Siddiqui

Congress doesn't have the power to declare anything Constitutional, especially when the Supreme Court has already said otherwise.

Congress didn't reverse SCOTUS' ruling, they simply voted that they wished to suspend habeus rights for those people Lincoln had designated, thereby putting into conformity with the SCOTUS decision.

exactly

[David Floyd]

Regarding the 9th and 10th Amendments, I think briefly looking at their history is useful. Part of the reason they are there is because James Madison needed a way to mollify those (such as Alexander Hamilton) who believed that a Bill of Rights was actually counterproductive to liberty, given the text of the Constitution (I, BTW, agree with Hamilton). The amendments are simply further limiting the power of the federal government by making it clear that the people retain any rights not mentioned by the Constitution, and that the states and the people also retain any powers not specifically granted to Congress or denied to the States. One might even say that the 9th and 10th Amendments were an attempt to inject natural law into the Constitution.

Now, you bring up the point that some people say the 9th means a right to universal health care. That's silly, and we both know it. The Founders did not have the Euro-socialist view of rights, they had the view of rights consistent with liberty. Rhetoric aside, we both know the 9th Amendment can't mean a right to universal health care, because a right to universal health care implies a right to the money of other people, which is not a view to which the Founders - ANY OF THEM - could possibly have ascribed.

And if he believes he is upholding the Constitution by not listening to the SCOTUS (because he thinks SCOTUS is interpreting things wrong)?

The Constitution doesn't give the Supreme Court the power of Constitutional interpretation. It gave itself that.

Yes, the Supreme Court DID "give itself" that right, in declaring Section 13 of the Judicial Act of 1789 unconstitutional. Act of genius on Marshall's part, really, given the fact that any other result would have resulted in Jefferson ignoring the Court into irrelevancy. But, lest we delve into the justification for Marbury v. Madison, let's stick to the topic at hand. The power of judicial review, Marbury v. Madison, etc., are not the issues.

The power of judicial review existed in 1861. It was generally recognized that SCOTUS interpreted the Constitution, and could even strike down federal law. If this was incorrect, then this could have been challenged in the Dred Scott case or Marbury v Madison with regards to federal law, or at virtually any time in the 50+ years separating the two. Judicial review was a fact, and it was also a fact that the power of Constitutional interpretation laid with the SCOTUS.

Given that, the President cannot say he is upholding the Constitution by ignoring the Supreme Court.

Oh, and by the way, if Congress felt that Marshall acted outside of his authority with regards to judicial review, then Congress could simply have impeached Marshall, right? I mean, that's your argument regarding Lincoln, isn't it?

Practically, that is what it means.

No, that's incorrect. Power and obligation are two separate issues.

Of course I can. YOU are by saying the Court has streached the ICC too far, but the Court should be followed in this reasoning. So you are being hypocrite if you say I can't do the same

Sorry, you're wrong. My position is perfectly consistent. I am saying that SCOTUS has the power of judicial review, yet they often misuse or misapply this power. However, I believe they used it properly in the case of Merryman.

Your position seems to be a bit confused. When I argue that the Supreme Court misinterprets the Constitution, you simply say "tough ****", yet when I bring up an interpretation you happen to disagree with, you turn around and make the same argument that I make.

Maybe you can understand my confusion here

But if the Congress says it will suspend habeas rights, then they are suspended right? So what if those rights were 'unconstitutionally' suspended by the President up until Congress suspended them.

So what? Well, in the Merryman case, it means that the arrest and holding of Merryman was in violation of the Constitution. So what? Tell that to Merryman.

[David Floyd]

MrFun,

Rather than just echoing Imran's arguments - especially the one's I've already shot down - either come up with your own or go sit in the corner until you have something relevant to say.

[Imran Siddiqui]

you bring up the point that some people say the 9th means a right to universal health care. That's silly, and we both know it. The Founders did not have the Euro-socialist view of rights, they had the view of rights consistent with liberty.

And the Founders did not have a view of a right to privacy in abortion (yes, the practice existed back then). In fact many of them believed the church did have a role to play in society. And of course they all believed that the states could do whatever they wanted, as long as they didn't go against Article 1. Doesn't matter.. they're dead.

Act of genius on Marshall's part, really, given the fact that any other result would have resulted in Jefferson ignoring the Court into irrelevancy.

AH! So you admit that the President can ignore the Supreme Court. After all Jefferson was a 'founder' and he thought so. Thank you .

Oh, and by the way, if Congress felt that Marshall acted outside of his authority with regards to judicial review, then Congress could simply have impeached Marshall, right? I mean, that's your argument regarding Lincoln, isn't it?

And since they didn't that means he was free to do. So by not impeaching Lincoln, means he was free to do it.

Thanks for continually making my point for me.

Sorry, you're wrong. My position is perfectly consistent. I am saying that SCOTUS has the power of judicial review, yet they often misuse or misapply this power. However, I believe they used it properly in the case of Merryman.

Your position seems to be a bit confused. When I argue that the Supreme Court misinterprets the Constitution, you simply say "tough ****", yet when I bring up an interpretation you happen to disagree with, you turn around and make the same argument that I make.

Maybe you can understand my confusion here

No, I don't. You said your position is one thing, then basically said the same thing only restated and said it was my position and said it was totally different.

Yes, you are confused but I don't think ANYONE can understand why .

it means that the arrest and holding of Merryman was in violation of the Constitution. So what? Tell that to Merryman.

I'm sure he cared. He was still in jail. Yes, yes... he got a 'moral victory'. I'm sure he didn't really give a damn.

Rather than just echoing Imran's arguments - especially the one's I've already shot down

Obviously he's saying you haven't come close to shooting them down... which you haven't.

[MrFun]

Expressing my agreement with someone else is part of a person's right to free discussion.

So stop whining.

[David Floyd]

Sorry, that was sorta harsh, anyway. My apologies.

[David Floyd]

And the Founders did not have a view of a right to privacy in abortion.

No, but I think they would agree that the 9th does partially mean a right to privacy in general.

AH! So you admit that the President can ignore the Supreme Court. After all Jefferson was a 'founder' and he thought so.

Sure, any President CAN ignore the Supreme Court. Doesn't mean they are upholding the Constitution, though.
Madison was also a Founder, and HIS administration wanted conscription to fight the War of 1812.

Point being simply this - stick to the damn topic. If you want to talk about the 9th and 10th Amendments, that's fine - an argument based solely upon the text upholds my position just fine. As I've stated in the past, Original Intentist arguments are extremely tricky. Either way, you don't agree with them so don't make them.

And since they didn't that means he was free to do. So by not impeaching Lincoln, means he was free to do it.

That's not the case at all. Read Merryman.

No, I don't. You said your position is one thing, then basically said the same thing only restated and said it was my position and said it was totally different.

Let me go REAL slow. I believe that SCOTUS retains the power of judicial review. I believe SCOTUS was correct in Merryman, but incorrect in, for example, Wickard v. Filburn. I can't actually tell what YOU believe anymore, so why don't you just clearly take a position?

I'm sure he cared. He was still in jail.

Only because Lincoln continued to violate the Constitution. If you are saying that Lincoln had the power to put Merryman in jail because of actions he took PRIOR to a valid suspension of habeas corpus, that's absolutely ridiculous.

Obviously he's saying you haven't come close to shooting them down... which you haven't.

Oh really? Let's re-examine:

1)Lincoln suspended habeas corpus.
2)The Ex parte Merryman case decided that Lincoln did not have this power.
3)Therefore, Lincoln violated the Constitution.

Your response:
1)You disagree with the Merryman decision.
2)You disagree with the Marbury v. Madison decision.
3)You don't think the President has to listen to the Supreme Court.

So, I posted facts, backed up by valid case law. You posted opinions, backed up by more opinions. Two Chief Justices of the Supreme Court have taken my position. Who the **** are you?

[DinoDoc]

Originally posted by Imran Siddiqui
Secondly, remember, the President doesn't have to enforce SCOTUS decisions if he doesn't want to.

Does that mean we can finally dispense with the ppretense Lincoln didn't take it upon himself to shread various parts of the Constitution?

[Sikander]

Originally posted by David Floyd

I'm not going to address the question because it's irrelevant. Asking that question assumes that one can only legitimately criticize if one can do the job better. While I feel that I could have handled the situation better than Lincoln (better as defined by me, anyway) I don't feel that this is necessary for me to point out what Lincoln did wrong. Again, you asking me that question is functionally the same as me asking you that question about Hitler if you say that the Holocaust was bad.

Ok panel, here's your starter for ten. What would you do if you were Hitler?

(bing)

Reg!

I'd annex the Sudetenland!

(bing)

Bill!

I'd pay a Dutchman to burn the Reichstag!

[Ned]

Lincoln ordered Taney's arrest following Merryman


"Frederick S. Calhoun, the Chief Historian for the United States Marshal’s Service, at the Department of Justice, recently wrote a 200 year history of Federal Marshals, entitled, The Lawmen: United States Marshals and their Deputies, 1789–1989 (Smithsonian Institute, Washington, D.C. 1989). This historical study gives a detailed account of an arrest warrant, signed by President Abraham Lincoln, in the early days of his administration. The warrant was to arrest the Chief Justice of the United States, Roger B. Taney, following his opinion in the case of Ex parte Merryman (May, 1861). The account is found in the chapter entitled, "Arrest of Traitors and Suspension of Habeas Corpus." It was taken from the private papers of the Federal Marshall, Ward Hill Laman, at the Huntington Library in Pasadena:

Taney’s opinion seriously embarrassed Lincoln and his advisers. Southern sympathizers and Northern opponents of the war praised Taney as a partisan of civil liberties standing alone against military tyranny. Taney’s opinion exacerbated the delicate situation in Maryland, a border state yet undecided in its commitment to the Union. According to Marshal Lamon, "After due consideration the administration determined upon the arrest of the Chief Justice." Lincoln issued a presidential arrest warrant for Taney, but then arose the question of service. "Who should make the arrest and should Taney be imprisoned?"

It was finally determined to place the order of arrest in the hands of the United States Marshal for the District of Columbia. Laman then recalls that "Lincoln gave the warrant to him, instructing Lamon to "use his own discretion about making the arrest unless he should receive further orders."

The account of the warrant to arrest the Chief Justice cannot be found in any of the innumerable Lincoln biographies or accounts of the early days of the Civil War. Since it only recently surfaced, Lincoln historians and biographers have never mentioned the story, probably because it has been outside the main stream of historical information, and hence has not been known. Once it surfaced, Lincoln apologists and Civil War gatekeepers, have been quick to attack the account as a fabrication, because Lincoln would never have done such a thing; and, it would have set off "a political firestorm," so they say; and hence, it is just too preposterous to be true.

It does seem too preposterous to be true, probably because of all the grave errors and wrongs allegedly committed by Lincoln’s administration, this would rank at the top of the list. It would have destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the President, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end.

But as outrageous as this may appear, during those chaotic first months of the Civil War, it would not have been so unthinkable to arrest and silence Taney. The military arrested people in all walks of life. Charles W. Smith, a biographer of Taney (1973), gives this account of the scope of the arrests of civilians:

Without the sanction of law the federal government arrested men by the thousands and confined them in military prisons. The number of such executive arrests was certainly over 13,000, and it has been estimated to have been as high as 38,000 (Columbia Law Review, XXI, 527–28, 1921). This policy was bitterly criticized in some quarters, but it is generally assumed that the people as a whole supported the arrest policy.

Taney’s Ex parte Merryman decision, if followed by the executive branch of the government, would have given comfort to the enemy, so it was claimed, by letting an accused traitor go free. His decision was condemned, "steeped in the crown of treason," wrote one editor. The New York Times wrote that he used "the powers of his office to serve the cause of traitors." The editor of The Missouri Democrat, went so far as to suggest that getting rid of Taney "will be a good riddance for the country." Northern editors for weeks after the decision enflamed their readers with hate for Chief Justice Taney. But this attack was just plain nonsense. All the Merryman decision did, was to require the government to follow the ancient rule of English liberty – which was set forth in the Constitution – that only the Congress could take away the right of habeas corpus. That would have required Lincoln to call Congress into session, and ask Congress to suspend the right to habeas corpus. How was that so bad?

Thus Merryman decision, it was erroneously claimed, loomed as a serious obstacle to the government’s policy of stamping out secessionists and secessionist sympathizers. If Lincoln obeyed the Court’s order thousands of those arrested illegally would have been freed. Lincoln and most Northerners, during the war, accepted the Machiavellian doctrine that the end justified the means, when the end was to preserve the Union, and was to be achieved regardless of the Constitution and rulings of the Supreme Court. Lincoln expressed that policy to a Chicago clergyman:

"As commander in chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy."

Taney continued to irritate the Lincoln administration after his Ex parte Merryman decision. When Lincoln was ignoring the Supreme Court’s ruling, Taney sent copies of his opinion to other judges, urging them to issue writs of habeas corpus, and many of them did, even enforcing writs against military arrests of civilians. In his circuit in Maryland, Taney delayed a number of treason trials, as it was his right to do controlling the docket, because with the passion of the times, he doubted a fair trial could be had.

No doubt Taney’s obstructionism reached the ears of the President. And it was then that the plan was hatched to arrest and silence old Justice, who just wouldn’t shut up. Lincoln sent a letter to Taney following his decision in the Merriman case, but the letter has never been found. (New York Herald, June 2, 1861). But that could explain why Taney told others, "The government had considered the possibility of arresting him." Someway, he got the word.

The near-arrest of the Chief Justice is not just found in the history of the United States Marshal’s Service. Until recent research, there was a second account supposedly corroborating the story of the Federal Marshal Laman. This second account was in a footnote in Professor Harold Hyman’s A More Perfect Union (1973), p. 86, n. 15, citing the private papers of Frances Lieber, also at the Huntington Library. Lieber wrote the Lieber Code which became the Laws of War for Northern armies. That should have been enough proof, with two independent sources. Unfortunately, the Curator at the Huntington Library reports that the Lieber papers contain no reference to Lincoln’s warrant to arrest the Chief Justice. That left only the papers of Ward Hill Laman. When this became known, Laman’s character was attacked by the gatekeepers, to support the theory that the whole story was a fabrication. It seems he was a heavy drinker. Lincoln’s apologist could relax and maintain the whole account was a fabrication by the Federal Marshal.

Unfortunately, for Lincoln’s apologists, research recently unearthed two other solid sources to corroborate the account set forth in the private papers of the Federal Marshal, Laman.

In 1887, George W. Brown, the mayor of Baltimore, later a Supreme Court judge for Baltimore, wrote in his book, Baltimore and the Nineteenth of April, 1861: A Study of War, (John Hopkins University, 1887) p. 90, of a conversation he had with Taney following the Merryman decision:

"Mr. Brown, I am an old man, a very old man, (he had completed his 84th year) but perhaps I was preserved for this occasion." I replied, "Sir, I thank God that you were."

He then told me that he knew his own imprisonment had been a matter of consultation, but the danger had passed, and he warned me from information he had received, that my time would come.

It did.

Eight years before in 1879, The Memoirs of Benjamin Robbin Curtis’s were published. Justice Curtis was one of the most prominent lawyers in that period. He represented President Johnson in his trial before the Senate following his impeachment. Most important, he served as a Justice on the Supreme Court. He wrote the dissenting opinion in Dred Scott, which Lincoln carried in his pocket while debating with Stephen A. Douglas. He resigned from the Court after a dispute with Taney over that case. Yet he admired the Chief Justice for his Merryman decision, and makes reference to the plan to arrest Taney, calling it a "great crime."

If he had never done anything else that was high, heroic, and important, his noble vindication of the writ of habeas corpus and the dignity and authority of his office against the rash minister of State who, in the pride of a fancied executive power, came near to the commission of a great crime, will command the admiration and gratitude of every lover of constitutional liberty so long as our institutions endure. Vol. 1, p. 240.

Commenting on this, Mayor Brown wrote 8 years later:

"The crime referred to was the intended imprisonment of the Chief Justice. Although this crime was not committed, a criminal precedent had been set and was ruthlessly followed."

Brown then cites the oft quoted remark by Secretary Seward to Lord Lyons (British ambassador to the United States), boasting of his power to imprison just about anyone.

Finally, it was Secretary of State, William Seward, who signed the executive orders suspending the right of habeas corpus throughout the war, when it should normally have been the President. Curtis’s account refers to "the rash minister of State," who could be none other than William Seward. History shows that it was Seward who urged the President to embark on a policy of unrestrained arrests of private citizens by the military. Most likely it was Seward who urged the President to sign the warrant to arrest Taney, and most likely on second thought, Lincoln did not permit the arrest to take place. Chief Justice Taney and Seward were bitter enemies. So much so that Taney said, if Seward were elected President, he would not administer the oath of office to him. So arresting and imprisoning Taney would have been Seward’s final triumph over the Chief Justice.

And so the case stands, the Presidential warrant to arrest the Chief Justice is on solid ground. It represents just one more tough nut the apologists and gate keepers have to live with; it cannot be swept under the rug, so to speak, as a fabrication.

http://www.lewrockwell.com/orig2/adams3.html

[David Floyd]

Wow, thanks for the info Ned.

[Imran Siddiqui]

I believe that SCOTUS retains the power of judicial review. I believe SCOTUS was correct in Merryman, but incorrect in, for example, Wickard v. Filburn. I can't actually tell what YOU believe anymore, so why don't you just clearly take a position?

Why should I? I didn't make the original assertion that Lincoln was a dictator because he violated the Constitution.

If you are saying that Lincoln had the power to put Merryman in jail because of actions he took PRIOR to a valid suspension of habeas corpus, that's absolutely ridiculous.

I fear for education in Texas. You said "So What? Tell that to Merryman". Do you think Merryman would have cared that he won a Supreme Court case if he's still in jail because Congress decided to suspend his habeas rights? The Court didn't seem to offer any retroactive relief.

1)Lincoln suspended habeas corpus.
2)The Ex parte Merryman case decided that Lincoln did not have this power.
3)Therefore, Lincoln violated the Constitution.

Your response:
1)You disagree with the Merryman decision.
2)You disagree with the Marbury v. Madison decision.
3)You don't think the President has to listen to the Supreme Court.

Did I say I disagreed with any of those decisions? I mean, really, which is it? I don't take a position or I disagreed. Trying to have your cake and eat it too? I'm pointing out that on a textualist reading of the Constitution, Lincoln didn't violate the document.

Two Chief Justices of the Supreme Court have taken my position. Who the **** are you?

Can I say the same thing when you disagree with Commerce Clause jurisprudence, which has been the position of the court for over half a century, encompassing more than two Chief Justices?

You think Wickard was wrongly decided. Generations of Supreme Court jurisprudence have taken the contrary position. Who the **** are you?

[David Floyd]

Why should I? I didn't make the original assertion that Lincoln was a dictator because he violated the Constitution.

No, you took the position that Lincoln didn't violate the Constitution. Two Supreme Court cases CLEARLY show that he did, one of which was targeted specifically to the situation. If Lincoln violated the Constitution, and then ignored the Supreme Court when it told him to stop, then what would you call him besides "dictator"?

You said "So What? Tell that to Merryman". Do you think Merryman would have cared that he won a Supreme Court case if he's still in jail because Congress decided to suspend his habeas rights?

Actually, AFAIK, Congress never suspended habeas corpus, merely empowered the President to do so. If you are interested in a textualist reading of the Constitution, that's a violation of the Constitution, as well as a violation of the separation of powers. The proper way to transfer power would have been a Constitutional amendment. This "transfer of power" was, as I recall, struck down in Ex parte Milligan.

Did I say I disagreed with any of those decisions? I mean, really, which is it? I don't take a position or I disagreed. Trying to have your cake and eat it too? I'm pointing out that on a textualist reading of the Constitution, Lincoln didn't violate the document.

And I'm pointing out that according to the Bollman and Merryman decisions, he did. And I also disagree that a textualist reading lends any credence to your position. The power to suspend habeas corpus is listed with all of the Congressional powers. I understand your point that Article I, II, and III all grant powers to multiple branches, but in each case, the grant of power is clear. Therefore, a textualist reading would lead me to believe that when it does not specifically mention who has the power to suspend habeas corpus, that power must lie with Congress given the position of the clause in the Constitution.

Can I say the same thing when you disagree with Commerce Clause jurisprudence, which has been the position of the court for over half a century, encompassing more than two Chief Justices?

Yes you can, and often enough, you do. Whether you or I disagree with a SCOTUS decision doesn't change a thing. It simply means that we disagree. The SCOTUS decision obviously is the controlling law.