Civil War versus Bush's gross negligence pre 911 and post 911. If Lincoln's expediency was judged to be insufficient to spit on the Constitution, then Bush's expediency is so insufficient that only the most ignorant or craven of individuals would accept it.
Apparently the ignorant and the craven have succeeded.
---------------http://www.lewrockwell.com/orig5/young-andrew7.html
In his Ex parte Merryman opinion, Chief Justice Roger Taney addresses Lincoln’s claims of sweeping executive power. He directly challenges Lincoln’s claim that his duty to faithfully execute the nation’s laws justifies the suspension of habeas corpus. The clause that requires the president to “faithfully execute” the laws, Taney says, does not permit him to “execute them himself, or through agents or officers, civil or military.” [v] Instead, the president’s duty is to assure that no outside force interferes with the government’s execution of the laws. Therefore, he must help the judicial branch if some outside force threatens the judiciary’s power; he does not have the right to utilize the military to usurp judicial authority.
Taney also challenges Lincoln’s assertion that emergencies require the executive to usurp congressional and judicial authority. Near the end of the opinion, he says that, if the executive branch can, in any situation, overstep other branches, then “the people of the United States are no longer living under a government of laws.” In Taney’s view, the Constitution is not a mere suggestion of how government should operate under ideal circumstances. Instead, it is a concrete document to which the executive must adhere at all times, including times of emergency. If presidents can abandon the Constitution “upon any pretext or under any circumstances,” the Constitution means nothing. [vi]
Perhaps most importantly, Taney says the framers never intended for the executive to suspend habeas corpus. He offers mounds of evidence to support this contention. First, he cites a major crisis during Thomas Jefferson’s presidency. Aaron Burr, Jefferson’s vice president, led a conspiracy to seize territory around New Orleans to form a new country. During this time, Jefferson actually wanted to suspend the writ, but wrote that he lacked the authority. Instead, he suggested that Congress exercise its power to suspend habeas corpus. [vii]
Second, he writes that the framers, fearing a liberal interpretation of the “necessary and proper” clause, which gives Congress the right to pass any law deemed “necessary and proper” for carrying out its duties, listed several fundamental rights that cannot be violated. It is not a coincidence, Taney says, that the first right listed is the writ of habeas corpus, which may only be suspended in times of invasion or rebellion. [viii]
Third, Taney argues that it defies common sense to believe the framers would have trusted the executive with the right to suspend habeas corpus. They had just broken away from a powerful, despotic English monarch. Therefore, they distrusted a powerful executive, especially one who could arrest citizens and hold them indefinitely without trial. As evidence, Taney cites the strict limits Article 2 places on the executive, such as the requirement for congressional approval of treaties with foreign nations and his short term of office. [ix]
Taney persuasively argues that the Constitution expressly denies the executive the right to suspend habeas corpus, even going so far as to say “I had supposed it to be one of those points of constitutional law upon which there was do difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of Congress.” [x] To support this contention, Taney cites Article 1, Section 9 of the Constitution, which gives Congress alone the power to suspend Habeas Corpus. He also cites the fact that Article 1 “is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.” [xi] To further support his case, Taney discusses Article 2 of the Constitution, which deals with the executive branch. Taney writes that “if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article.” [xii] However, Article 2 never gives the president this power.
Taney quotes his predecessors on the Supreme Court to bolster his arguments. Justice Joseph Story, for example, once wrote that “It would seem, as the power is given to Congress to suspend the writ of habeas corpus…that the right to judge whether the exigency had arisen must exclusively belong to that body.” [xiii] Moreover, he refers to an opinion written by Chief Justice John Marshall. Marshall’s opinion says that, if suspending the writ is necessary for public safety, only Congress may do so. Until Congress suspends the writ, the courts must maintain habeas corpus. To capitalize on the high esteem most Americans give Marshall, Taney says “I can add nothing to these clear and emphatic words of my great predecessor.” [xiv]
The influence of English common law on America’s legal system, Taney argues, supports his position. For centuries, the English dealt with monarchs who arbitrarily imprisoned their own citizens. Therefore, they, like the framers, denied executives the authority to suspend habeas corpus. Taney quotes English judge William Blackstone at length, who once wrote that “But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient.” [xv] Though Taney concedes that the English and American systems differ greatly, he reminds readers that “upon this subject they (English judges) are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice.” [xvi]
Even if Congress had suspended habeas corpus, Taney argues, Merryman should still be released. Cadwalader did not have probable cause to detain Merryman. Taney correctly points out that Cadwalader never produced any witnesses to support his accusations, nor did he bother to specify “the acts which, in the judgment of the military officer, constituted these crimes.” [xvii] Furthermore, even if the suspension of habeas corpus were legal, the military could not refuse to cooperate with the judicial branch. Though the military can arrest private citizens, it must immediately transfer them to civil authorities.
On the question of the framers’ original intent, Taney’s view is clearly the correct one. The framers would never have wanted the executive to have the power to suspend habeas corpus under any circumstances; they repeatedly criticized their previous ruler, the English king, for similar behavior. For example, in the “Declaration of Independence,” Thomas Jefferson attacks King George because he “has affected to render the military independent of and superior to civil power.” [xviii] Lincoln, by allowing the military to arbitrarily arrest private citizens and sidestep judicial authority, differed little from George III. Moreover, as Taney points out, during Thomas Jefferson’s presidency, when most of the framers were still in government, no one, even during a time of crisis (the Burr conspiracy), believed the president could suspend habeas corpus. Nor did President James Madison, the “father of the Constitution,” claim sweeping executive powers during the War of 1812, as Tom DiLorenzo has written. [xix] |
