Really, JDS.  Comments like the one I quote from you below weaken your
credibility.  Neither professor Gutzman nor Finkelman has made the argument
you say they have.  Neither of them has defended Lincoln on the grounds
that might makes right.  Nor is it at all clear that this was Lincoln's
"philosophy."

*****

I hope the list collectively will forgive the following post.  While it is
the case that we are seemingly far astray of Virginia history, Warren
Hofstra and I argue, in our forthcoming volume on Virginia history, that
one of the primary reasons we study Virginia is precisely because so many
of the great issues of American history are encapsulated within Virginia's
history.  And surely questions about the constitution, while a bit off
topic, do return us to the nature and meaning of Virginia history.  This
thread began as a discussion of how we memorialize the Civil War.  In that
light, this really is a discussion of relevance to our list's audience.

*****

What professor Gutzman wrote, and what professor Finkelman agreed with, is
a very different assertion from what JDS seems to have read them to say.
Since I think the professor's post were clear, I think the reading problem
is JDS's.  That said, it may be helpful to reiterate the argument.

Professor Gutzman asserted, correctly, that the Constitution does not
obviously forbid a President to suspend the writ of Habeus Corpus during
time of rebellion.  The interpretation that Lincoln acted in an
unconstitutional matter, which JDS and others have asserted (following
Taney), rests on the placement of the clause authorizing suspension of
Habeus Corpus within the body of the constitution.  It rests, in other
words, on inference, not on the actual language of the Constitution itself.
And we should not infer from that that Lincoln's unilateral action was
unconstitutional.

We should note a number of things about Taney's decision in Ex Parte
Merryman.  First, Taney's argument depended upon the placement of the
clause permitting suspension of Habeus Corpus in Article I, section 9 of
the US Constitution, which deal with the powers of the legislature, as
Professor Gutzman has already argued.  However, there is nothing in the
actual language itself which suggests that this power is reserved only to
the legislature.  The Constitution is vague on this crucial point.

Second, Lincoln did not accept the interpretation offered by Taney.  In his
4 July 1861 special message to Congress, Lincoln specifically addressed
Taney's reasoning, and demonstrated that it was incorrect.  A court, even
the supreme court, is not adequately empowered to deal with the kind of
threat to the Constitution itself that an organized rebellion represents.
Attorney General Edward Bates developed this line of reasoning further,
effectively rebutting Taney.  Taney's interpretation, in other words, never
had support within the executive branch, and it is not at all clear that
the arguments proferred by the executive branch were wrong then, or that
they would be wrong now should the matter ever return to the scrutiny of
the court.  As Marshal himself found out in the Cherokee Removal cases, it
is not sufficient for the supreme court to pass judgement.  Ultimately, the
Court's judgement must be affirmed by the will of the people.

Harry Jaffa, whose commentary on Lincoln carrys considerable weight, has
the following observation to make:

"It is true that the clause dealing with habeus corpus is in Article I,
which sets forth the powers of Congress, and not in Article II, which
concerns the executive.  But Lincoln has already shown that in construing
any one provision of the Constitution in its relationship with other
provisions with which it may appear to be in conflict, the dominating
purpose of the Constitution, as distinct from its instrumental purposes,
must provide the guide to its interpretation.  There can hardly be any
question but that the provision for suspending the writ of habeus corpus is
placed in the Constitution to enable the government to provide for the
public safety in the case of rebellion.  *Where* in the Constitution it is
placed is wholly subordinate to why it is there at all.  Lincoln's
suspension of the writ is therefore lawful.  Q.E.D."  [Harry V. Jaffa, A
NEW BIRTH OF FREEDOM:  ABRAHAM LINCOLN AND THE COMING OF THE CIVIL WAR
(Boston, 2000), p. 364.]

[As an aside, the author's bio in the back of this book, which I assume was
written by Jaffa himself, says the following ". . . he also wrote Barry
Goldwater's acceptance speech at the 1964 Republican National Convention."
p. 549.  It would seem that my memory served me well, after all.]

JDS is correct, at least to my knowledge, that Taney's reasoning in
Merryman has not been reconsidered by the Supreme Court.  But that is
because it never had overwhelming support within the Legislative branch
either.  Congress, wisely choosing to defuse the smaller constitutional
confrontation over Habeus Corpus taking place in the context of the much
larger constitutional crisis that the war represented, put the matter to
rest on 3 March, 1863 by passing the Habeus Corpus Act of 1863.  In
practice, this Act regularized what was already going on.  Thus, as a
consequence of this action, Congress rendered unnecessary any further
confrontation between the administration and the Court, by, and here is the
critical point, authorizing the President to proceed as he already was
doing.  And, since there have not been any further secession crises in
which a president might need to revoke Habeus Corpus, as provided for in
the Constitution, there the matter has rested.

*****

As a procedural matter, I think it is important to argue with what people
actually say.  When JDS ascribes arguments to people that they did not
make, as he does below, he weakens the civility of the discussion.  No one
has made the argument JDS states below, and certainly not the two
professors to whom he refers.  The argument here has always been about
whether Lincoln proceeded properly, and never about "convenience" or
"inconvenience."  No one has suggested that Lincoln's actions were
legitimate simply because he had the power to do what he wanted to do.

Best,
Kevin



> I am also surprised by two such distinguished members of academia siding
> with the Lincoln philosophy that if it is inconvenient to follow the
> Constitution a president is not bound to do so


--
Kevin R. Hardwick, Ph.D.
Assistant Professor
Department of History, MSC 2001
James Madison University
Harrisonburg VA 22807
Phone:  540/568-6306
Email:  [log in to unmask]

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