Today in Supreme Court History

Today in Supreme Court History: May 25, 1861


5/25/1861: John Merryman arrested. Chief Justice Taney ruled that his detention was unconstitutional in Ex Parte Merryman.

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  1. And rumor has it a raging Lincoln ordered the Chief Justice arrested, but his subordinates wisely ignored the order.

    I generally have only contempt for Taney, but, when he's right, he's right. And Lincoln basically confessed Taney right: “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”

    If Taney had been wrong, there would have been no law violated...

      1. Lincoln was the most catastrophic President, in a class alone, 10 times more damaging than the usual dunderheads on the list, like Carter, Obama, Bush, now Biden. These failed idiots did not cause the deaths of 600000 people, like 2 million today.

        This Taney arrest was one of the things this gay man did right, but then he took it back. Of course, Taney would have been far better hanging. Instead he died a slow, painful death, penniless.

        Lincoln also had soldiers pistol whip judges while on the bench for their writs releasing Confederate spies. That was good.

        The arrest warrant may be viewed in the Museum of the Marshall Service. It should be in Constitution Hall under glass with glowing lights.

        1. The thing is, though, the judges were doing their job, which was to say what the law is. Lincoln and company didn't like what the law was, and largely ignored it. And given the practicalities, they may even have been right.

          But are judges supposed to ignore the law, or claim that it says something different than what it does? No, they did the right thing. It's up to them to faithfully interpret the Constitution, whatever the executive branch decides to do in response.

          1. KryKry. Is releasing traitorous Confederate spies out of sympathy for the rebellion your idea of obeying the law?

            1. If the law requires that they be released, then yes. That you don't like the result is irrelevant to what the law actually says.

              1. You are probably right. I was thinking pistol whipping judges while on the bench by soldiers was a good thing Lincoln did. It may be just another bad thing.

                1. Authoritarian Awed At Authoritarianism!

            2. If they're being held illegally, absolutely.

              The thing is, Lincoln was having people arrested and held without trial just for politically opposing him. Writing newspaper editorials he didn't like, for instance. Of course he accused them of being spies, to justify it. But suspending the writ permitted him to hold them indefinitely without having to prove they were spies.

              This wasn't going on on battlefields, it was in peaceful areas far from the battle, where life was going on normally, and the courts were fully functional.

              1. This kind of omits a lot of pretty important context here, including that there were a lot of states teetering on the brink of secession, that there was a lot of non-combatant sympathizer-sabotage going on, etc.,.

                1. You kind of omit a lot of pretty important context here, pretending secession was immoral, and forgetting Lincoln proudly boasted that if enforcing slavery was the price to pay to keep the Union intact, he would gladly do so. The Confederacy was all about personal slavery. The Union was all government slavery.

                  1. "pretending secession was immoral"
                    It was. Breaking up the Union to protect and expand slavery was deeply immoral.

                    " forgetting Lincoln proudly boasted that if enforcing slavery was the price to pay to keep the Union intact" Nice try, but wanting to preserve an increasingly anti-slavery Union and avoid war still > the Confederacy's effort to protect and expand mass human slavery.

                    " The Confederacy was all about personal slavery. The Union was all government slavery."

                    A ridiculously false equivalence.

                    When so-called 'libertarians' can't tell the moral difference between a pro-and anti- *human slavery* movement that says a lot about what they really believe.

                    1. I don't see how the morality of secession is in any way relevant to the legal question here.

                      Lincoln's position was that really important stuff entitled him to violate the Constitution. That's what that quote I led with above was about: A President asserting that he was entitled to violate the highest law of the land, and his oath of office.

                    2. "I don’t see how the morality of secession is in any way relevant to the legal question here."

                      Sigh, the internet.

                      "You kind of omit a lot of pretty important context here, pretending secession was immoral"

                    3. "Sigh, the internet."

                      That's not much of an argument. Actually, it's not any argument at all.

                      I'm a rule of law, though the heavens should fall, sort of guy. In part because, frankly, the heavens are more likely to fall from abandoning the rule of law, than from upholding it.

                    4. You need to read the thread here, dude.

                    5. "rule of law, though the heavens should fall"

                      The law is just a servant of the people, it does not rule.

                    6. The rule of law is essential to making the government the servant of the people the law says it is to be, rather than its own servant.

                      Government is a dangerous force, a monster we wrap in chains and make work for us. And it continually whispers, "Take off some of these chains, and I can do better work."

                      Take too many of them off, and it will remove the rest, and wrap US in the chains. We must never forget that, no matter how many times its advocates tell us the rule of law is a dispensable obstacle to some greater good.

                2. Also geography.

                  Virginia had already seceded, and for those who don't know this, DC is a landlocked area between Virginia and Maryland, with major rail access (then as now) by tracks coming down from Philadelphia and going through Baltimore (MD).

                  As city ordinance prohibited steam trains within the City of Baltimore, all trains had to end at the city limits with through cars being pulled through the city by horses. Baltimore was thus a choke point for not only supplies headed down to DC but also troops, and this came to a head on April 19, 1861 with the 6th Massachusetts which wound up in a shootout with a mob and had four soldiers killed.

                  John Merryman was accused of dismantling railroad bridges leading into Baltimore -- i.e. attempting to cut off DC's lifeline.

                3. I'm not seeing how that's relevant to the legal question of whether or not the Executive branch is constitutionally entitled to suspend the writ of habeas corpus, shut down the courts in peaceful areas, arrest legislators for votes and speech on the floor of the legislature, (Debate clause!) and shut down opposition newspapers.

                  1. It's related in the way that any 'let the law be enforced though the heavens fall' is related.

                    1. The heavens were not going to fall because some newspapers critical of Lincoln were published. Lincoln did great things but also had dictatorial qualities.

                    2. Everybody who doesn't want the law enforced claims the heavens will fall if it is. Who knows? Maybe one day they'll actually be right about it.

                    3. "The heavens were not going to fall because some newspapers critical of Lincoln were published."

                      In Maryland and other border states at that time one might be forgiven for questioning this hindsight.

                    4. "Everybody who doesn’t want the law enforced claims the heavens will fall if it is."

                      That's not true, of course, and more to the point in the middle of a full blown Civil War is a pretty extraordinary situation.

                    5. It actually is true. Every single dictator makes the exact arguments Lincoln did.

                      And in any event, the American public had the right to oppose Lincoln and the Civil War. You shouldn't suspend Civil rights to try to win a war. Ask Japanese Americans in WW2 about that.

                4. Btett is still right about the law. Lincoln should have fought the Civil War without trouncing on civil liberties. Same with Wilson and FDR.

                  Taney wasn't going to win this fight, because Presidents don't care very much what courts rule regarding the conduct of wars, but his ruling was correct, even if unenforceable.

                  1. Sure, as a legal matter the principle behind Merryman strikes me as correct. But the law ain't everything, nor should it ever be.

                    1. It should be everything if you're a judge, or you're in the wrong line of work.

                      From a legal standpoint, every last last public official is legally obligated to obey every last syllable of the Constitution. Sure, the law isn't everything, in the sense that there are decisions that aren't dictated by it. It is the highest thing, though, legally speaking.

              2. Lincoln was the textbook example of the ends justifying the means. His ends -- the abolition of slavery and the preservation of the union -- were impeccable. He trampled all over the Constitution to get there. I suspect he could have accomplished those ends with a little less damage to the rule of law than he did. But, overall, it's hard to argue with preserving the union and abolishing slavery.

                1. His end, as he himself was explicit about, was ONLY the preservation of the union, which he was willing to rescue slavery to achieve. The abolition of slavery was a military tactic, nothing more, which is why the Emancipation Proclamation only freed slaves where the Union had not power to free them. It was intended to spark a slave rebellion, while slave states that didn't secede got to keep blacks in slavery.

                  Remember, Lincoln supported the Corwin amendment. That's how much he was devoted to freeing the slaves.

                  1. "His end, as he himself was explicit about, was ONLY the preservation of the union, which he was willing to rescue slavery to achieve."

                    Again, this is very facile. He worked hard his whole career to limit and ultimately get rid of slavery but he wasn't ready to do so via a Civil War when he was elected. He did evolve to the position that it was a just end of the war and not just a military tactic, as the 13th Amendment demonstrates.

                    1. Yes, after trying and failing to avert secession by granting slavery untouchable constitutional protection, after trying to lure the seceded states back in by offering them perpetual protection for slavery, and after using abolishing slavery only where he lacked the power to do so as a military tactic, he did, finally, go ahead and abolish slavery, after achieving his overriding goal of dragging the Confederacy back into the union.

                      I suppose you'd have a different opinion of him if the Confederacy had been less obstinate or more trusting, and actually taken him up on one of his offers to give slavery perpetual protection.

                    2. Lincoln worked his entire career to limit and end slavery, but, yes, when he was elected he did not think a full blown Civil War was a price worth paying to do that (remember, like a lot of anti-slavery folks up North, and a lot of Southern pro-slaver folks, he was fairly convinced that containing slavery would make it go away without such a fight). But the criticism over the Emancipation Proclamation is especially obtuse considering when he had the political ability to do so and no military reason he still championed the 13th Amendment through.

                      The guy did probably the single most important things in our history re living up to what kind of nation we said we were. He literally struck the most important blow for 'liberty' in our history. It's very instructive to see how many ostensible libertarians feel only the need to criticize him...

                2. "He trampled all over the Constitution to get there. "

                  This seems hyperbole to me. Iirc it wasn't so much him, say, arresting Horace Greely for writing any critical editorial as it was arresting people in key, tumultuous areas during an on-breaking civil war surrounding the seat of the federal government.

                  1. It was him arresting people who might be persuasive to people. Just like any dictator does.

                    1. That's ridiculous in its obtuseness of context, in this case the 'dictator' was trying to stem a full blown Civil War in the seat of Federal power surrounded by states that had either seceeded or were on the brink thereof.

                    2. Funny to be trying to stem a full blown civil war after deciding to fight one.

                      "Dictator" is about how you try to do things, not what you're trying to do.

        2. The arrest warrant may be viewed in the Museum of the Marshall Service.

          It of course cannot be, because it never existed.

          1. Hi, David. Next time in Fort Smith Arkansas, see the museum. Ask to see it.

      2. This strike me as the kind of 'rumor' for which the evidence existing if it were directed at Trump you'd dismiss rather out of hand.

        1. The warrant is in the Fed Marshall Museum. Go visit it as a rare instance of real lawyer traitor accountability. A lawyer persuaded to take it back from the hand of the Marshall.

          1. Cuckoo for CoCo Puffs misses point.

            1. I'm not seeing how he's missing the point, if he's right about it being on display. (A point to which I can't personally testify.)

    1. My ConLaw professor stated that Taney wrote in his diary that he fully expected Lincoln to have him arrested.

      He'd have been 84 years old at the time.

    2. Where's the part in the link about the rumor you mention?

      1. I posted the wrong link, which is why I posted the right one in a reply to myself.

        1. That one says it's a very questionable rumor.

          1. It's chiefly "questionable" because Lincoln was deified, and his feet of clay have to be hidden. It's not like he didn't have any other judges arrested.

            1. If an equivalent rumor about Trump were as sourced as this you'd dismiss it out of hand.

              1. What, you mean sourced on the record by somebody who was known to be present at the time? That's a lot sounder basis than your average media report about Trump.

            2. It's chiefly questionable because it comes from a single source and not a single documentary piece of evidence of this warrant has ever been discovered.

  2. Taney orchestrated and wrote Dred Scott, the first decision following Marbury. This first instance of judicial review repealed a law that prevented war for 30 years, violated a ratified international treaty with Canada, and violated Article 1 Section 1 of the constitution. It set off the Civil War.

    Good job lawyer profession. It proved that Supreme Court decisions are mere expressions of the feelings and biases of the Justices. They are garbage with zero validity in law, in policy, in decency, in logic.

    1. Dred Scott & Roe were both decisions that ignited controversy rather than settling an issue.

      1. If Dred Scott killed 600000, like 2 million today, Roe killed millions, like millions today.

        The arrests of today's Justices for insurrection, their one hour trial, and their imprisonment has full legal justification. The sole evidence would be their treasonous legal utterances. The insurrection law should be changed in sentencing, to summary execution in the court basement. We need to fumigate the hierarchy of this pestilential occupation.

        1. Another of Addled Avian's Asinine Authoritarian Announcements!

          1. Queenie. As Democrats should, avoid the mirror. It is not your friend.

            1. Crazy Cockatoo Considers itself Comely!

              1. Put on MSNBC. Really ugly people hate America for the shabby treatment they received all their lives. Gorillas would be more attractive as anchors and as hate spewing commentators.

                1. Who's a Pretty Bird?

  3. Did Taney ever get anything right?

    If there is a rebellion and Congress is not in session, the President has to be able to confine suspected traitors without interfrrence from un-elected judges. Congress can either ratify later or can impeach the president, those are the remedies.

    1. The Constitution didn't give us a dictator, but you would.

      1. "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"

        1. Yup, that's a dictator talking. Somebody oathbound to uphold and defend the Constitution, to see the law faithfully executed, who wants instead to violate it. So he makes excuses.

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