I have posted elsewhere about the power of the President to make war as commander in chief. This is a good example of the abuse of such war-making power. Lincoln in effect suspended the writ of habeas corpus in certain areas. That is clearly unconstitutional as only Congress has such power. Lincoln was clealy acting beyond the law. This is not a supreme court case but a lower federal court case. Merryman was imprisoned and applied for a writ of habeas corpus. The case came to Chief Justice Taney for in those days the members of the Supreme Court rode circuit and this case came before him as circuit judge. He rightfully found the imprisoment illegal and raged against Lincoln as being more absolute than the English Kings. "These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found." After the decision, Lincoln ignored it and had his attorney general write an opinion approving what Lincoln had done. Chief Justice Rehnquist later wrote that the attorney general's opinion would only convince a "true believer," but Lincoln relied upon it even to cite it in a speech to Congress. Does this sound eeringly familiar? Some historians allege that Lincoln had an arrest warrant issued for Taney, because of this opinion, but then Lincoln changed his mind and had it withdrawn. Congress finally suspended the writ in 1863 following the constitution.

Habeas corpus should not be suspended arbitrarily- if at all. Taney was right when he wrote These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms.