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Posted: Sat Jul 29th, 2006 02:20 am

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81^st Post

Shadowrebel
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Mana:

Indy,

Thank you for your reply.

Indy wrote:

Only Congress may suspend the writ of habeas corpus.

This was not so much an argued point, nor something presented as a new interpretation, as it was a matter-of-fact observation made by Chief Justice John Marshall. This principle would be much more hotly debated in the later Supreme Court Cases of the American Civil War, which centered around wartime civil liberties and the ability of the various branches of government to control them.
To me, a matter-of-fact observation means just that. That it can't be construed as official precedent. And if it was just the Chief Justice expressing an opinion, without input from the other justices, it holds even less water.

As it this ruling was mention to conjunction to the Taney ruling ex parte Merryman the important part of the SCOTUS opinion is that Congress can suspend Writ of Habeas Corpus. Here is the what the court decided also from Wikipedia.

Full case name:
Ex parte Erick Bollman, decided with Ex parte Samuel Swartwout

Citations:
8 U.S. 75; 2 L. Ed. 554; 1807 U.S. LEXIS 369; 4 Cranch 75

Prior history:
Defendants charged with treason and imprisoned, U.S. Circuit Court for the District of Columbia

Subsequent history:
none

Holding

The Supreme Court had the power to order that a writ of habeas corpus be issued to release the petitioners from prison, because the Constitution grants that power to federal courts unless Congress suspends it. The petitioners' alleged conspiracy did not rise to the level of treason as defined by the Constitution.

Court membership

Chief Justice John Marshall

Associate Justices William Cushing, Samuel Chase, Bushrod Washington, William Johnson, Henry Livingston

Case opinions

Majority by: Marshall

Joined by: Cushing, Chase, Washington, Livingston

Dissent by: Johnson

Laws applied

U.S. Const. Art. I, III, Amend. IV, VI; Judiciary Act of 1789

The Marshall opinion is not a court opinion, however the opinion of the court above clearly state Congress can suspend Habeas, no mention of the President having the right to do it is in the decision. The other cases mentioned on the site have nothing, that I can find, to do with suspension of Habeas. I agree that if Marshall's opinion was the only mention regarding this case of only Congress having the right to suspend it would not mean much if anything, however since the case states Congress can suspend it , IMO, supports the Taney decision. Do you think Lincoln had the legal right to suspend Habeas in Maryland?

Indy wrote:

I think we'll have to agree to disagree about a lot of things, Lincoln included, but I won't stop in trying to persuade you the other way.

On the other hand you may find yourself coming over to this way.

If you at thought I was a loss causer then I feel that I accomplished showing Jessie what some of the Southern bitterness is about, which was my purpose of posting on this thread.

Have a great weekend.

Shadowrebel (John)

Last edited on Sat Jul 29th, 2006 02:24 am by Shadowrebel

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Posted: Tue Aug 1st, 2006 12:34 am

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83^rd Post

Shadowrebel
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Mana:

Greetings Indy,

Thank you for your post. Lincoln suspended the writ in 1861 without any approval from Congress. Ex post facto does not make it legal. No where in the Constitution does it state Congress can delegate the power to suspend Habeas.

Regards,

Shadowrebel (John)

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Posted: Tue Aug 1st, 2006 06:25 pm

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84^th Post

burnsideshot
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Mana:

Ah... yes John, You have done a terrific job answering all questions I had regarding this post. I have taken a LOT of information from this which was very beneficial for me. I have also learned that the statement I made regarding the bitterness of the South was faulty. It appears there is also plenty of bitterness right in my own backyard... and I hadn't even noticed until the replies came pouring in. Thanks to everyone... excuse my lack of question pushing. I'm trying to stay neutral. I enjoy watching the debates

Along for the ride, Your Friend,

Jessie

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Posted: Wed Aug 2nd, 2006 12:36 am

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86^th Post

Shadowrebel
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Mana:

Indy posted:

Whether after the fact makes it legal or not, you have to admit that the Constitution was being tested like never before and they were treading on new ground.

I agree with this and think that neither side used the Supreme Court, as they should have, to settle secession.

The fact that Congress (who you state is the branch that can suspend habeas) backed up his actions should not be dismissed.

Congress can suspend Habeas and backing up his actions ex post facto was against the law:

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.

No Bill of Attainder or ex post facto Law shall be passed. (source: U.S. Constitution Article I Section 9) Article one defines the powers of Congress:

Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. (source: U.S. Constitution).

I have no problem with you disagreeing with my intrepretation of the Constitution on this issue. My interpretation is only my opinion on what the this section of the Constitution means.

I would assume that Lincoln was entitled to a few mistakes, just as someone like Stonewall Jackson was.

We all are entitled to a few mistakes, Lincoln included, I have probably used up my lifetime supply of mistakes.

But please Stonewall making mistakes?????

Some things are sacred.

I am willing to post what I think each side should have done within the system to try to solve their differences, either on this thread or if more apporprate on a new one. I would be interested in what others think.

Regards,

Shadowrebel (John)

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Posted: Wed Aug 2nd, 2006 12:45 am

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87^th Post

Shadowrebel
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Mana:

Jessie,

Thank you for the kind words. I tried the best way I knew to help you and am glad you feel I did. While I feel the South has a better arguement for what they think, I feel both sides have legitiment complaints. In over thirty years of studying the conflict and having being involved in numerous debates on many topic about it, the one thing I have found both side agree on is their passion in what they think.

It is easy to think the South is bitter and not the North. I also at one time thought the South was bitter for no reason and the North was not. A real eye opener when you listen to both sides.

You can ask questions without taking sides. Enjoy the ride and have fun doing it.

Regards,

John

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Posted: Wed Aug 9th, 2006 01:08 am

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Shadowrebel
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Indy,

I am not a lawyer either. You are right in stating that ex post facto is after the fact. Nowhere I can find in the Constitution does the President have the right to suspend habeas only Congress. The Congress giving its' blessing to an illegal act, IMO, does not make it legel. If anyone can show me in the Constitution the President can suspend habeas as he did in Maryland, as Taney ruled he could not, I will consider changing my view.

Regards,

Shadowrebel

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Posted: Wed Aug 9th, 2006 02:34 pm

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90^th Post

indy19th
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Shadowrebel wrote: Indy,

I am not a lawyer either. You are right in stating that ex post facto is after the fact. Nowhere I can find in the Constitution does the President have the right to suspend habeas only Congress. The Congress giving its' blessing to an illegal act, IMO, does not make it legel. If anyone can show me in the Constitution the President can suspend habeas as he did in Maryland, as Taney ruled he could not, I will consider changing my view.

Regards,

Shadowrebel

If anyone can show me that states could unilaterally secede from the union and also that a confederation of states in rebellion could seize gov't property and smuggle federal munitions into states in rebellion and fire shots in anger at federal installations, I might consider changing my view as well.

But here's a little more on habeas:

...WHEN MERRYMAN FILED HIS REQUEST WITH HIS LOCAL CIRCUIT JUDGE, HE WENT TO NONE OTHER THAN ROGER TANEY, CHIEF JUSTICE OF THE U.S. SUPREME COURT.

10 WHEN HE RECEIVED MERRYMAN'S PETITION, TANEY ORDERED THE COMMANDER OF FORT 11 INSTEAD OF SENDING MERRYMAN, THE COLONEL SENT BACK AN AIDE BEARING A POLITE MESSAGE. THE PRESIDENT HAD AUTHORIZED THE COLONEL, IN THIS TIME OF WAR, TO SUSPEND THE WRIT OF HABEAS CORPUS. MERRYMAN WOULD STAY AT FORT MCHENRY. THIS, AS YOU CAN IMAGINE, INCENSED THE CHIEF 12

LINCOLN DID NOT PUBLICLY RESPOND TO TANEY'S OPINION UNTIL CONGRESS MET A MONTH LATER, ON JULY 4. LINCOLN SAID THAT, HAD HE NOT SUSPENDED HABEAS CORPUS IMMEDIATELY, WASHINGTON ITSELF MIGHT NOW BE IN SOUTHERN HANDS. THAT, OF COURSE, WOULD HAVE PREVENTED CONGRESS FROM MEETING, LET ALONE FROM RESPONDING TO THE REBELLION. LINCOLN THEN TOOK AIM AT TANEY'S CLAIM THAT THE PRESIDENT'S JOB WAS TO SIT BACK AND ENSURE THAT THE LAWS BE FAITHFULLY EXECUTED, EVEN IN THE FACE OF MERRYMAN'S RECRUITING SOLDIERS FOR THE CONFEDERATE CAUSE. IN THE CONFEDERACY, FULLY ONE-THIRD OF THE COUNTRY, THE CONSTITUTION ITSELF WAS BEING IGNORED. SHOULD LINCOLN'S HANDS BE TIED BY THE WRIT OF HABEAS CORPUS IN SUCH A NATIONAL EMERGENCY? HE ASKED:

"13

MERRYMAN STAYED IN JAIL. NOW, MERRYMAN WAS ONLY ONE OF MANY PEOPLE ARRESTED, WITHOUT BENEFIT OF HABEAS CORPUS RELIEF, IN THE EARLY DAYS OF THE WAR FOR PROVIDING MILITARY AID TO THE YOUNG CONFEDERACY. LINCOLN LATER14

SCHOLARS STILL DEBATE WHETHER LINCOLN HAD AUTHORITY TO INVOKE THE CONSTITUTIONAL PROVISION SUSPENDING HABEAS CORPUS DURING THE EARLY DAYS OF THE WAR. I WILL NOT WADE INTO THE MUDDY WATERS OF THAT DEBATE. I AM MORE INTERESTED IN TALKING ABOUT WHAT LINCOLN DID AFTER MARCH OF 1863--FOR THAT IS WHEN CONGRESS GAVE LINCOLN LEGISLATIVE AUTHORITY TO SUSPEND THE WRIT. FROM THAT POINT FORWARD, LINCOLN FACED NO CONSTITUTIONAL OBSTACLES. HE: COULD ARREST WHOMEVER HE CHOSE, WITHOUT COURTS INTERFERING WITH WRITS OF HABEAS CORPUS. WHAT DID LINCOLN DO AT THIS POINT? DID HE ATTEMPT TO STIFLE POL1TICAL DEBATE, BY IMPRISONING HIS OPPONENTS? IN SHORT, DID HE TRAMPLE ON THE CIVIL LIBERTIES THAT THE WRIT OF HABEAS CORPUS WAS MEANT TO PROTECT?

A RECENT HISTORICAL STUDY, ENTITLED THE FATE OF LIBERTY, SAYS "NO." THE AUTHOR, MARK NEELY, COMBED THROUGH THE 15 NEELY CONCLUDES THAT, THROUGHOUT THE WAR, LINCOLN WAS GUIDED BY A "STEADY DESIRE TO AVOID POLITICAL ABUSE UNDER THE HABEAS-CORPUS POLICY.''^16...

http://www.gdg.org/Research/Monuments/oconnor.html

BTW, who wrote this? Sandra Day O'Connor. Her name might sound a little familiar.

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Posted: Thu Aug 10th, 2006 01:34 am

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91^st Post

Shadowrebel
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Mana:

Indy,

Indy wrote:

If anyone can show me that states could unilaterally secede from the union and also that a confederation of states in rebellion could seize gov't property and smuggle federal munitions into states in rebellion and fire shots in anger at federal installations, I might consider changing my view as well.

I guess you are about to change your view

. You have been shown that the States could secede, even if you will not admit it. Since the Confederate States were not in rebellion they were acting in self-defense.

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Posted: Fri Aug 11th, 2006 02:54 am

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92^nd Post

James Longstreet
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I'm with Shadowrebel.

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Posted: Fri Aug 11th, 2006 05:23 am

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93^rd Post

Tecumsah
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Mana:

Another interesting thing to look at would be how Jefferson Davis used the same authority. The Confederate Constitution---Article 1, Section 9, Line 3--granted Davis the same power and the Confederate Congress did so in the winter session of 1863-64. However, the Confederate Congress went even further. They gave the same authority to the Secretary of War and the commanding general of the Trans-Mississippi Department. While everyone talks of Lincoln and habeas corpus, we never hear about Jefferson Davis and his actions in this regard.

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Posted: Fri Aug 11th, 2006 01:49 pm

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indy19th
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Shadowrebel wrote: Indy,

Indy wrote:

If anyone can show me that states could unilaterally secede from the union and also that a confederation of states in rebellion could seize gov't property and smuggle federal munitions into states in rebellion and fire shots in anger at federal installations, I might consider changing my view as well.

I guess you are about to change your view

. You have been shown that the States could secede, even if you will not admit it. Since the Confederate States were not in rebellion they were acting in self-defense.

Ok I have had my fun.

What is your point on O'Connor? She gives an opinion on Lincoln after he had the power to suspend but, on the MUDDY WATERS OF THAT DEBATE she remains silent. I think Taney had more impact on American history then O'Connor ever remotely had. He also was Chief Justice of the court, she was not, so I think he would have a little more standing then she does.
Taney was still just one person on a board of nine. He gave his opinion. Congress backed Lincoln. I don't ever remember seeing the Supreme Court cry unconstitutional AFTER Congress backed Lincoln on habeas. (The point you make about Taney having more impact on American history is debateable at least. Afterall she was the first female Supreme Court Justice.)

I don't see what the problem is here. If Congress has authority on habeas, like you and your pal Taney say they do, then why is this authority not all encompassing? If it's their authority, why are they not allowed to delegate this authority to the President? If they trust the President enough, during a time of crisis, he should be allowed this authority. He's simply the lightning rod.

A RECENT HISTORICAL STUDY, ENTITLED THE FATE OF LIBERTY, SAYS "NO." THE AUTHOR, MARK NEELY, COMBED THROUGH THE 15 NEELY CONCLUDES THAT, THROUGHOUT THE WAR, LINCOLN WAS GUIDED BY A "STEADY DESIRE TO AVOID POLITICAL ABUSE UNDER THE HABEAS-CORPUS POLICY.

Who is Mark Neely? What was his purpose for doing the study? What side does he think is right as to the war? A book of interest is Lincoln's Wrath by Jeffery Manber and Neil Dahlstrom.

Respectfully,

Shadowrebel

Mark Neely is evidently an accomplished writer. Maybe you should pick up HIS book.

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