The statement completely misunderstands or misreads Milligan.
The Court in Milligan held that if civilian courts are functioning, the gov. cannot try a civilian in a military trial.
Furthermore, as anyone can plainly see if they bother to read Milligan, the case turns in on the 1863 Habeas Corpus act, which of
course was passed after Merryman.
Congress was rarely in session from the founding to the Civil War. It often did not have a quorum to act at all under the Articles
of Confederation. The framers knew that Habeas might have to be suspended quickly and immediately, such as during an "emergency"
like the attack on the United States of America by the putative nation calling itself the Confederate States of America. Thus, it is
constitutionally impossile to imagine that the Framers did not intend the president to have the power to respond quickly in an
emergency, and not have to wait days or weeks or months for Congress to come back into session. Taney, a seething proslavery
secessionist sympathizer offered his opinion in Merryman, not because it made logical constitutional sense, but because he wanted to
disrupt Lincoln's efforts to prevent Maryland from seceded. The Supreme Court as a whole widely ignored Taney's circuit court
opinion.
--
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:
> You can also read the court decision in Ex parte Milligan, 71 U.S. 2 (1866),
> which upheld Chief Justice Taney's finding in Ex Parte Merryman that only the
> Congress has the power to suspend habeas corpus, here:
> <A HREF="http://www.civil-liberties.com/pages/exparte_milligan.htm">http://www.civil-liberties.com/pages/exparte_milligan.htm</A>
>
> JDS
>
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