Opus 2013-116: Cornerstone Considerations: CUSA, Suspending Habeas Corpus, Part 2 of 3

It makes sense that in a time of extreme emergency, when delay can mean disaster, you have a means of streamlining the process of law enforcement.  The Roman Republic had the provision to appoint an absolute dictator for one year when a crisis threatened.  Power was absolute but the time was limited.  Eventually this was perverted and manipulated.  Julius Caesar was murdered because he wanted to become dictator for life.  They took their laws seriously in those day.

That is why it is listed in Article I of the Constitution.  Emergencies happen.  Even in the Bill of Rights, designed to limit government power, we see this in Amendment V.

“No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger;...”

The specific phrase “suspension of habeas corpus” is only in Article I of the Constitution.  That Article lists the powers of congress, not the president.  Lincoln was aware of this and went through channels.  He had the authorization of Congress

“Whereas a rebellion was existing on the third day of March, 1863, which rebellion is still existing; and: Whereas by a statute which was approved on that day it was enacted by the Senate and House of Representatives of the United States in Congress assembled that during the present insurrection the President of the United States, whenever in his judgment the public safety may require, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof;...”  Lincoln, Abraham.  The Writings of Abraham Lincoln - Volume 6: 1862-1863, Amazon Free Edition, Loc. 4431-51.

Why would this worry me today?  We live in a nation based on Common Law.  This comes from England.  In this system the law means what the judges say it means, not what it says.  The result is that precedent is king.  When we look at justification to reach beyond what has been understood by the masses we look for old rulings.  As in decisions by our Supreme Court, the application is in the reasoning and precedent rather than the exact action taken.  It is when you read Lincoln’s other writings that you find reason to worry.  In a letter dated June 12, 1863 to Erastus Corning and Others he explains his reasoning.

“By the third resolution the meeting indicate their opinion that military arrests may be constitutional in localities where rebellion actually exists, but that such arrests are unconstitutional in localities where rebellion or insurrection does not actually exist. They insist that such arrests shall not be made ‘outside of the lines of necessary military occupation and the scenes of insurrection.’ Inasmuch, however, as the Constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of can be constitutional only when, in cases of rebellion or invasion, the public safety may require them; and I insist that in such cases - they are constitutional wherever the public safety does require them, as well in places to which they may prevent the rebellion extending, as in those where it may be already prevailing; as well where they may restrain mischievous interference with the raising and supplying of armies to suppress the rebellion as where the rebellion may actually be;...”  Lincoln, Abraham.  The Writings of Abraham Lincoln - Volume 6: 1862-1863, Amazon Free Edition, Loc. 3529-36.

Common law means that the Judiciary can ignore the words and intent of the law.  This gives the president, not just the judges, the justification to ignore the will of congress and the people.  That means the future is murky indeed. 

To be continued...

homo unius libri