Lincoln and Taney

[Rick Smith]

(02-04-2015 10:15 AM)Wild Bill Wrote:  I am not sure how much Taney had to "push" the case over the fugitive act through the US Supreme Court It was a 9-0 decision (Abelman v. Booth, 1859). It was based on Art. IV, Sec 2, Cl. 3 of the US Constitution of 1789. The injustice of the act was a problem for Congress to solve, not the court. Congress did act in 1862 to negate the fugitive act. If I remember correctly, Lincoln pledged to enforce the act before the war's beginning. The war changed that and a lot of other things, too.

As to Laurie's question, Taney's rationale was that habeas corpus was under Art. !, the section that refers to powers of Congress, not Art. II, which refers to the powers of the President. I am unaware that Lincoln ever thought of arresting Taney, who ruled in the case (ex pre Merryman, 1861) on circuit, not in front of the whole court. Lincoln simply ordered his military commander at Ft. McHenry to ignore Taney's ruling which was done.

Interestingly, the Confederate Constitution had the exact same wording. Unlike Lincoln, Jeff Davis did ask his Congress to suspend habeas corpus, which it did several times during the war.

In other words, Taney was just upholding the Constitution. What a novel concept.