Chief Justice Roger Taney clashed, ineffectively, with Lincoln’s suspension of habeas corpus to detain subversives and saboteurs.
Today marks the 216th birthday of our first Republican president, and at least arguably the nation’s greatest president: Abraham Lincoln. There are a great many aspects to Lincoln’s character and career. I’ve written previously about Lincoln as our technology president, his enduring relevance to Republican philosophy and its Free-Labor ideology, his emancipation of the slaves in D.C. and nationally, his model in endorsing candidates, his 1838 Lyceum speech, his 1860 Cooper Union speech, his 1861 First Inaugural Address, his view of getting a job, and the Lincoln Memorial.
The aspect of Lincoln that’s in the news this week is about Lincoln and the courts. One of the more difficult chapters of Lincoln’s presidency was the Ex parte Merryman case, in which Chief Justice Roger Taney (the author of Dred Scott) clashed, ineffectively, with Lincoln’s suspension of habeas corpus to detain subversives and saboteurs. As our Ed Whelan explained yesterday, not only is the case controversial, but there are gaps in the historical record that have left it much contested what even happened:
Legal academics debate . . . Lincoln’s, or the Lincoln’s administration’s, response to the solo ruling by Chief Justice Roger Taney in Ex parte Merryman (1861). (It’s disputed whether Taney was riding circuit or exercising the authority of a single justice in chambers, but he certainly wasn’t issuing a ruling on behalf of the Court.) As law professor Seth Barrett Tillman sums it up, the Union Army arrested and detained John Merryman, whom they believed to be an “officer of a pro-secession militia group which allegedly had conspired to destroy (and did destroy) bridges and railway lines” at the outset of the Civil War. The conventional account . . . is that Lincoln refused to obey Taney’s order to release Merryman from military custody. But Tillman argues at length that Taney never ordered anyone to release the prisoner, that Taney only ordered the general to bring the prisoner to court, and that the available evidence does not establish that Lincoln ever authorized the general to ignore or defy Taney’s order. Law professor Will Baude adds that Taney may have lacked jurisdiction to issue his order.
The timeline of the case was seriously compressed, in an age when communications were not always reliable; indeed, Merryman was arrested by the federal force sent to reconnect Washington to the North by securing it from sabotage of the telegraph and rail lines. That successful effort ended with the lead train steaming into Washington with a 24-year-old engineer responsible for the telegraph repairs — Andrew Carnegie — riding on the front of the engine. As the National Constitution Center’s account summarizes:
On May 25, 1861, federal troops arrested a Maryland planter, John Merryman, on suspicion that he was involved in a conspiracy as part of an armed secessionist group. Merryman was detained at Fort McHenry without a warrant. Merryman’s attorney petitioned the U.S. Circuit Court for Maryland, which Taney oversaw, for his client’s release.
On May 26, Taney issued a writ of habeas corpus and ordered General George Cadwalader, Fort McHenry’s commander, to appear in the circuit courtroom along with Merryman and to explain his reasons for detaining Merryman. Cadwalader didn’t comply with the writ and instead sent a letter back to Taney on May 27 explaining that Lincoln had authorized military officers to suspend the writ when they felt there were public safety concerns. Taney then tried to notify Cadwalader that he was in contempt of court, but soldiers at Fort McHenry refused the notice.
On May 28, Taney issued an oral opinion, which was followed by a written opinion a few days later. He stated that the Constitution clearly intended for Congress, and not the President, to have to power to suspend the writ during emergencies. . . . However, Taney noted that he didn’t have the physical power to enforce the writ in this case because of the nature of the conflict at hand. “I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome,” he said. But Taney did order that a copy of his opinion be sent directly to President Lincoln.
Does the president have the power to refuse to comply with a court order? Tillman’s article concluded that “it may be that there is support for a Merryman power, but wherever that support may be, it is not to be had in Ex parte Merryman” because, at least as of 2015, “the historical record we have today lacks the requisite clarity necessary to reach a considered judgment regarding what Lincoln intended, and how he was understood by his subordinates and the wider public when he gave the Army discretion to suspend habeas corpus. One reason the record may lack such clarity is that, during the Merryman litigation and in its immediate aftermath, President Lincoln might never have given this specific legal question any thought at all. Of course, the other reason we lack clarity is that Chief Justice Taney never ordered Lincoln, or anyone else, to release John Merryman.”
Lincoln was one of our most lawyerly presidents, an accomplished litigator of trials and appeals who thought deeply and argued in depth about the law as a politician. His Secretary of State William Seward, Secretary of the Treasury Salmon P. Chase, Secretary of the Interior Caleb Smith, Postmaster General Montgomery Blair, and of course his Attorney General Edward Bates were all lawyers; so were his first vice president, Hannibal Hamlin, and his second secretary of war, Edwin Stanton. His message to Congress about his suspension of habeas corpus while Congress was out of session was careful to defend his view of the legal power to do so, just as his various ruminations on Dred Scott had dwelt upon exactly how binding that decision was. But he did not defend (nor renounce) any doctrine that the executive could ignore court orders ruling that his suspension of habeas corpus was unlawful. That question, he left to the ages.