You want to talk legal theory, and make grand pronouncements about constitutional law and
how it works, and tell me you hope my students read the constitution better than I do, but
then when confronted with a hypothetical that undermines your grand theory you retreat to
"forget the hypothetical."
So, when you are ready to seriously discuss the theory, let me know. Meanwhile, the facts
in Maryland were the Merryman was a sabateur who was organizing troops in what was already
and ongoing rebellion. The President has an obligation to "defend" the Constitution.
Congress was not in session. Seems to me this is exactly the kind of situation the
framers envisioned for allowing the suspension of Habeas Corpus.
Paul Finekelman
[log in to unmask] wrote:
> Forget the hypothetical case, because those weren't the facts in
> Lincoln's action. There were no enemies at the gate in May of 1861. The
> Fort Sumter exchange, forced by Lincoln, had taken place on April 12th, and
> Lincoln was in a panic since his tough guy strategy backfired on him and he
> had forced the country into war without any serious negotiation with the
> Southern states. Sure, if Martians flew down and zapped the Capital, as in
> "Mars Attacks", the exigent circumstances would exist for the president and
> the military to do what had to be done to repulse the space invaders. But
> this has nothing to do with Lincoln's unconstitutional, illegal, and
> tyrannical actions that we have discussed
>
> "has traditionally been suspended under emergencies by
> executives"
>
> Please enlighten me, in response to your above assertion, of one
> other situation since Lincoln's presidency where an American president has
> taken action without the prior approval of the Congress pursuant to Article
> 1, Section 9, to suspend habeas corpus. It has never happened, and you
> should know it.
>
> I am afraid that your approach is regressing in the manner taught in
> law school: if the law is on your side, argue the law; if the facts are on
> your side, argue the facts; if neither the law or the facts are on your
> side, just argue. You have neither the law (Cf Ex Parte Merryman and Ex
> Parte Milligan), or the facts (Cf Article 1, Section 9 of the Constitution)
> to support your position, so you are arguing hypothetical facts which didn't
> exist and were no bases for Lincoln's obviously unconstitutional action.
>
> JDS
>
> (Oh, as stated previously during my participation, I am)
>
> Jeffrey Duke Southmayd
> Somewhat Less Than Distinguished Attorney at Law
> Southmayd & Miller
> 1220 19th Street, N.W.
> Fourth Floor
> Washington, D.C. 20036
> (202) 331-4100
> [log in to unmask]
> <A HREF="www.southmayd.net">www.southmayd.net</A> My Southmayd family genealogy site.
>
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--
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]
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