from a non historian who does know something of the law:  

The Constitution did not grant the judiciary the right to be the final arbiter of the Consitution.  That was taken on by the Supreme Court (John Marshall) in Marbury vs. Madison.  

This thread demonstrates what comes from trying to make mere mortal human beings into either gods or demons.  Our "heros" are never without fault; the "villians" rarely without any good.  We seem never to learn this; they, as we, are just humans!

As thinking folk, may we say even "intellectuals", we should carefully look at all aspects of our history, not to judge those who made and lived it but to learn from it and to try to make our own choices better.
---------- Original Message ----------------------------------
From: [log in to unmask]
Reply-To: Discussion of research and writing about Virginia history <[log in to unmask]>
Date:          Wed, 14 Feb 2007 18:18:38 EST

>Lincoln unilaterally decided in April 1861 that he had the power to suspend  
>the writ of habeas corpus, and ordered it.  He then had almost the entire  
>Maryland legislature arrested and thrown into jail at Ft. McHenry (along with  
>closing down almost 300 newspapers who criticized him).  John Merryman, one  of 
>the MD legislators, filed a writ of habeas corpus with Chief Justice Roger B.  
>Taney.  In Ex Parte Merryman, Taney found that Lincoln had  violated the 
>Constitution since only the Congress had the power to suspend  habeas corpus.  He 
>ordered Lincoln to release Merryman and sent his order  over to the White 
>House.  Lincoln's response was that he didn't care what  the Supreme Court thought 
>and issued an order for the arrest and  imprisonment of Chief Justice Taney 
>at Ft. McHenry.  Fortunately, the  federal Marshall in DC hesitated to carry 
>out the arrest order and it  was never done (the document is in the National 
>Archives). Lincoln, who  swore before Taney to uphold the Constitution when 
>inaugurated, had decided that  he, not the Supreme Court, was the final arbiter of 
>the Constitution.  He  routinely took such actions during the war putting his 
>supposed goal of "saving  the Union" ahead of his sworn oath to uphold the 
>Constitution and the law of the  US.
> 
>After the war, in 1866, in Ex Parte Milligan, the US Supreme  Court found 
>that Lincoln's military tribunals, which tried people during the war  in place of 
>civil courts, were unconstitutional.  This included the court  which 
>convicted the so-called assassination conspirators, who unfortunately had  already 
>been hung.  The court found that Lincoln's policies, as in the case  of Ex Parte 
>Merryman, had totally usurped the power given to the  judiciary under the 
>Constitution.  
> 
>Many refer to Lincoln as the American Ceasar due to his dictatorial actions  
>in these regards.
> 
> 
>
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