You still don't get it.

 Lincoln had the power under the Constitution to act in the emergency; thus he
had the power to suspect HC where it was necessary to suspend it, and under the
circumstances the Constitution allows -- rebellion or actual invasion and
necessary for the public safety.  The constitution does not specify Congress must
do it, it only says that HC cannot be suspended except under certain
circumstances.

Imagine an invasion of the DC.  The Enemy seizes both houses of Congress and
arrests all members. The President escapes and organizes a defense of the US.  He
is in Baltimore and declares martial law in response to the "actual invasion" and
to the fact that the enemy is organizing supporters in Baltimore. Under your
theory, the President cannot suspend HC.

You can't really believe that.  Nor could you believe that people like Washington
and Madison and Hamilton, in drafting the Constitution, would have expected such
a result.

Now imagine that the Pres. gathers his forces, retakes DC and frees Congress,
which promptly passes a new HC law authorizing suspensions. Surely you cannot
believe that the president acted unconstitutionally in the first place; rather,
what we have is Congress acting within its sphere and passinga law to regularize
and AFFIRM what the President had done.

As to your question about "en banc" hearings before the SC.  I doubt such was
possible under Supreme Court rules and the judiciary acts of 1789 and 1802 which
were in force at the time; but more importantly, Lincoln had suspended HC and
thus Taney's writ had no authority, so why appeal it; Taney's writ was simply,
and properly, ignored.

Merryman, a traitor and a sabateur, was simply lucky that the Lincoln
administration only locked him up in Fort McHenry, instead of hanging him.

Paul Finkelman

--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK  74104-3189

phone 918-631-3706
Fax   918-631-2194
e-mail:   [log in to unmask]



[log in to unmask] wrote:

>         Exactly, at that point (1863) the suspension of habeas corpus became
> at least arguably constitutional, but not before, or else why the need for
> the statute?  Lincoln and the Congress knew he was wrong, and so took action
> to clean up the problem in accordance with the Constitution; but only after
> Lincoln had been ignoring the requirements of the Constitution for two years.
>  No, the president has no powers not contained in the Constitution, or
> otherwise  contained in statute duly enacted by the Congress and signed into
> law under the Constitution, or given to him by the courts in construing those
> laws.  The leader who has the absolute discretion to do whatever he wants to
> do is known as a despot, and the Founding Fathers didn't cotton too much to
> that sort running the government.
>
>        If Taney was such a poor jurist, why didn't the Lincoln administration
> seek a hearing en banc of the Supreme Court after Merryman was issued to set
> Taney straight, and why is that decision still the leading authority on that
> point of law (that's a redundant question by the way)?
>
>        Your other points appear to be differences without significance.
>
>        I will drop the subject to avoid boring those not interested, unless
> someone else jumps into the discussion.
>
>        In Lincoln's case, the facts are the facts, and the fact he was
> assassinated doesn't magically erase his lawless actions as president, or
> make them acceptable under the Constitution and consistent with his oath of
> office.  Some historians (but certainly not all) need to separate their
> patriotism and their emotions from the cold, hard facts, something many I
> have encountered have a real problem doing when the facts don't comport with
> the politically correct environment in which academics interact, or the
> opinion of someone who has written more books then they have.
>
> JDS
>
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