Constantine is right on the  money here.
Paul Finkelman

Constantine Gutzman wrote:

> Actually, contrary to what JDS says, the Constitution does not clearly
> indicate that habeas corpus can only be suspended by act of Congress.  That
> is an inference some people have drawn from the fact that the relevant
> language -- "The privilege of the writ of habeas corpus shall not be
> suspended, unless when in cases of rebellion or invasion the public safety
> may require it. " -- appears in Article I, the Legislative Branch article.
> President Lincoln, believing that he faced an emergency, acted to suspend
> habeas corpus without first calling Congress into special session; Congress
> (if my memory serves) subsequently validated this act retrospectively.
>
> Since in the 19th century Congress rarely met and transportation from
> distant states was slow, Lincoln can be forgiven for his Hamiltonian
> conclusion that this power was implicit in the Constitution.  (Cf. Walling,
> _Republican Empire_)  His argument that he could rightfully do this
> certainly was no weaker than the one that said, also despite the absence of
> langauge making it explicit, that states had a right to secede.
>
> Prof. K.R. Constantine Gutzman
> Department of History
> Western Connecticut State University
>
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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
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