Category: Law
Tilting at Gay Marriage
If you want to make a conservative look really dumb, bring up gay marriage. Yes I know evolution is great for laughs too. (Gaps in the fossil record? Bwahahahaha….) But nothing quite captures the vapidity of conservatism as the gay marriage issue – exposing them as empty dogmatists, whose beliefs are fundamentally based on nothing but belief itself.
1. Biology
Conservatives often come at gay marriage by attacking the state of being gay – characterizing it as deviant, if not abhorrent – as some aberration that at best deserves tolerance, not respect or validation.
But being gay is natural, normal, and COMMON. On the spectrum of human traits, it’s somewhat less common than being left-handed, but much more common than being red-haired. We know, furthermore, that homosexuality is rooted in biology, not personal choice, because it occurs universally across all human cultures – past and present – and because it’s (weakly) hereditary. It occurs in many other animal species. Among bonobos – our closest genetic cousins (with chimps) – gay sex isnt just common – it’s the norm: sex between females occurs more frequently than any other kind. (Bonobos, those clever apes, have also discerned the advantages of oral sex and the missionary position – without the benefit of adult videos or the internet.)
Conservatives will assert that marriage is fundamentally about having babies – incognizant (or willfully ignorant) of marriage between septuagenarians and other infertile couples. Marriage does indeed have a biological basis – as does sexuality: it’s all about the pair bond. Anyone who argues that sex is all about having children likely hasnt had very much of it – or had much fun at it.
2. Culture
If culture should guide us, conservatives need to buckle themselves in: worldwide, polygamy is quite common, and has been for much of human history. Culture, furthermore, is dynamic, and western culture now commonly accepts and endorses gay marriage. Numerous Christian and Jewish denominations accept gay marriage among their adherents, and even perform religious marriage ceremonies for same-sex couples.
3. Semantics
When all else fails, a desperate conservative’s last parry is the assertion that marriage is “defined” as being between one man and one woman. But try as you may, you will not a single modern dictionary that does not include “gay marriage” as one definition of “marriage”.
Gay Marriage is among those rarest of issues, where there’s just one side to the argument. That’s why the acceptance and institutionalization of gay marriage is proliferating throughout the US and across the developed world. Gay Marriage to a conservative is like a windmill to Don Quixote – the attack is as irresistible as it is futile – and laughable. Their only weapons are bigotry and ignorance – and our observance of their folly greatly aids our development of a pathology of conservatism.
While being gay is quite normal and natural, conservatism in many respects resembles mental illness – one hopes that a treatment may someday be had.
Refs:
http://en.wikipedia.org/wiki/Same-sex_marriage
http://en.wikipedia.org/wiki/Homosexual_behavior_in_animals
http://en.wikipedia.org/wiki/Bonobo#Sexual_social_behavior
http://en.wikipedia.org/wiki/List_of_animals_displaying_homosexual_behavior
http://education.yahoo.com/reference/dictionary/entry/marriage
http://www.collinsdictionary.com/dictionary/english/marriage
http://www.macmillandictionary.com/dictionary/american/marriage
http://www.merriam-webster.com/dictionary/marriage
http://dictionary.cambridge.org/dictionary/british/marriage_1
Worked to the Bone II
We left off asking why it is that Americans put in so many hours compared to workers in other rich countries. The short answer is: it aint the American work ethic – it’s backward American labor laws. And ironically, one consequence of forcing workers to work so much – is that fewer working-age Americans actually choose to work, compared to workers in many other rich countries.
Unlike EVERY other rich country in the world – and many poor ones too – the US guarantees to full-time workers ZERO paid vacation days. Sort of astonishing when you take a step back to look at the numbers: legally required vacay in most western European countries is 4-7 weeks. In the US: 0. How about paid holidays? In Europe, typically about 10 paid holidays per year. In the US: 0 again. In many rich countries, workers, by law, get 30-40 paid days off per year. In the US: 0.
Next there’s paid parental leave. The US is one of 4 countries that do not offer it – the other 3 are Lesotho, Swaziland and Papua New Guinea. The typical benefit in rich countries is 3-4 months of paid leave – often at full pay. In America: 0.
The difference between the US and the rest of the world is legislation – American labor laws have not been updated since the 19th century. Even when Americans are fortunate enough to have paid vacation, they’re often unable to take it, for fear of sending the “wrong signal” to employers – that they’re not workaholicky enough. To cure this problem, many countries not only require paid vacation, but they require that it be taken.
Left to free markets, workers will never get much time off. The average American full time worker only takes 16 paid vacation days – less than the statutory minimum in practically every rich country.
Conservatives tend to be selectively stupid when it comes to free markets – even something so basic as supply and demand. When work becomes more valuable – when it comes with benefits like unemployment insurance, paid vacation time and maternity leave – more people want to work. This goes a long way toward explaining why labor force participation rates (LFPR) – the fraction of working age people actually at work – tend to be higher in northern European countries that have progressive labor laws. Switzerland, Sweden, Denmark and Norway are tops in LFPR, with rates of 78-83%. Germany, UK, NZ and Canada – all of whom have paid parental leave and mandatory paid vacation time – are close behind at 77% AND RISING. The US is down at 73%… and dropping. Labor laws in the US suck – Americans have responded by staying out of the work force, compared to people in other countries. Yet another workplace reality that Ayn Rand and her disciples failed to incorporate into their joke of an economic model.
Looking at unemployment rates, the US also compares badly with countries with far more generous unemployment benefits. Unemployment insurance is part of labor compensation – thus more UI means more compensation, which means more people will want to work. Only a conservative can pretend to not to grasp so simple a relationship. According to Forbes, the countries with the cushiest unemployment benefits ALL have less unemployment than the US: Sweden, Finland, Germany, Israel, Norway, Japan.
Conservatives fantasize about a Europe with progressive labor laws and widespread unemployment – people hangin’ out and collectin’ welfare. Reality is the opposite: Europe has proportionately more working-age people at work than the US. The difference between liberal and conservative views on employment law is that liberal views are legitimate theories, grounded in reality. Conservative blather persists in a factual vacuum – they are not theories, but dogmas – accepted on faith without evidence. And as with all matters of faith, they are not amenable to fact or logic. Europe has an exceedingly generous welfare state – and people are therefore MORE likely to go to work.
Being fundamentally without principle, conservatives can take any stand on any issue. A party that pretends on Monday to be pro-family should be expected on Tuesday to push for paid maternity leave. But conservatives instead reserve Tuesdays for yet more vapid sermons on small government and less regulation – which translates into: sorry, mom – get back to work – just like they do in Lesotho and Swaziland. So maybe it’s not a coincidence that an American baby is twice as likely to die in its 1st year compared to babies born in other western countries – but dead babies arent factored into conservative “pro-family” ideology – no more than motherhood.
Refs:
http://en.wikipedia.org/wiki/List_of_statutory_minimum_employment_leave_by_country
http://en.wikipedia.org/wiki/Parental_leave
http://www.huffingtonpost.com/2013/02/04/maternity-leave-paid-parental-leave-_n_2617284.html
http://www.huffingtonpost.ca/2012/05/22/maternity-leaves-around-the-world_n_1536120.html
http://stats.oecd.org/Index.aspx?DatasetCode=LFS_SEXAGE_I_R#
Worked To the Bone I
Conservatives did their usual thing with a recent CBO report on the ACA – the real dumb ones didnt understand it and said a bunch of stupid stuff. The dishonest ones – who’ve long appreciated the benefits of saying stupid stuff to a base only too happy to hear it – did the same. The press dutifully reported their inanity as “viewpoints” if not “information.”
After 48 hours spent spewing the lie that the ACA will cost 2 million jobs, things have cooled down – but the typical dim conservative has now stored it as “fact”. We’ll surely hear the lie repeated right on through the 2016 election – because that’s the way it goes in conservative politics. The dumber your constituency, the freer you are to say what you like, no matter the facts.
The reality behind the CBO report is that the ACA has given workers more options. No jobs are going to be eliminated because of new ACA benefits, but rather, as CBO says explicitly, workers are expected to CHOOSE to work fewer hours – as a matter of personal preference. People arent getting fired or seeing their hours reduced. The new law simply provides workers with new opportunities – to work less to care for children or elderly parents – or simply to take some personal time – without worrying about losing their health insurance. Economists pass no judgment on your desire to work more or less – any more than they’d judge your choice of ice cream flavors – it’s a matter of pure preference – de gustibus non est disputandum.
But the entire episode passed without pundits seizing on this fundamental fact: Americans work far more hours than people in other rich countries. Compared to the 1790 hours worked by the average American full-time worker per year, the average Canadian works 1710; the average Brit: 1650; the average Dane: 1550; and the average German: 1400!
For fear of perpetuating the stereotype of the lazy, party-crazy German, and the sober, hard-working Mexican, I hesitate to mention that, within OECD, Mexicans work by far the most hours (2200) – 55% more than Germans. The EU conflict between Greece and Germany could be attributable to cultural differences: hard-working Greeks put in 40% more hours than indolent Germans – more than 2000 hours per year.
But America’s not losing its nose-to-the-grindstone edge anytime soon – CBO says that total hours worked by already worked-to-the-bone Americans will still increase over the coming decade – only that the increase will be smaller than it would have been in the absence of the ACA. How much smaller? 2%, tops. Given that Americans are already working 5% more than Canadians, 10% more than Brits and 35% more than Germans, this cannot possibly be a serious concern. For the average American worker, less is more – especially when it’s the worker who’s making the decision to work a little bit less. Conservatives are all about personal choice – except when it concerns real people making real life choices. After all, what’s liberty without the freedom to be a slave?
Pondering these numbers, one might grow curious as to why Americans put in so many hours compared to workers in other rich countries. Is it a superior work ethic? Not nearly. Tune in Friday when we investigate the source of long American hours.
Note: The Field Guide, effective this week, will have new material every Monday, Wednesday and Friday, with the possible threat of Bonus Material on weekends. Yes it’s true that Krugman only does 2 columns per week – but CT loses far less time dodging undergrads and trimming his beard….
Refs:
http://www.cbo.gov/publication/45096
http://www.latimes.com/business/hiltzik/la-fi-mh-cbo-20140204,0,3106578.story#axzz2tWReHhfk
http://www.huffingtonpost.com/bob-semro/affordable-care-act-a-job_b_4741300.html
Thomas v. Marshall
We begin not with Clarence Thomas, but the remarkable jurist he replaced: Thurgood Marshall. Even if he never sat on the Court, Marshall would be remembered as one of the great attorneys of his generation – successfully arguing the biggest case of the 20th century – Brown v. the Board of Education – and coming away with a unanimous decision. Marshall won 29 of 32 cases he argued before the Supreme Count – and another 14 out of 19 as US Solicitor General. Fighting to expand American civil liberties for more than 50 years, first as a civil rights litigator and later as an Associate Justice, Marshall’s contribution to American society compares with any lawyer or judge of his era.
Clarence Thomas, however, was NOT nominated to the Supreme Court for his talents, but in spite of them. He’d been an undistinguished civil servant when he was nominated to the DC Circuit. After just 16 months as an undistinguished appellate judge, he was nominated to the Supreme Court to fill Marshall’s seat.
The ABA gave Thomas the lowest rating of any Supreme Court nominee of at least the past 40 years. ALL of the Court’s other 8 current Justices, as well as retired Justices Souter and Stevens, were unanimously rated “Well-qualified”. Thomas, by comparison received 13 votes of “Qualified”, and 2 votes of “Not Qualified” from the 15 member panel.
The past 23 years have borne out the ABA’s judgment. Thomas has been a cipher – silent during oral argument – and so outlandish in his opinions that he can rarely get four other justices to sign on. The one area in which he’s distinguished himself is in his assault on the rights of prisoners – advocating to make prison beatings permissible under the 8th amendment. (Yes, really.) Thomas isnt a bad justice – he’s an abomination.
Thurgood Marshall would be remembered as a great jurist even if he had never sat on the Court – Clarence Thomas should never have sat on the Court, even if no one had ever heard of Anita Hill or Angela Wright. Their accusations – well-evidenced and entirely credible – unfortunately distracted from an equally valid concern: that Thomas was AND IS unfit to be on the Court – not only for his poor character, but for his incompetence.
Every so often, as happened recently, Thomas is heard to whine about our modern sensitivity regarding race. Perhaps he is so unreflective – perhaps no one ever delivered the news: in the absence of those sensitives, Thomas would never have been nominated to the Court. His condemnation of affirmative action is utter hypocrisy: he had no trouble with it when he was its beneficiary. Thomas likes to recount how his Yale law degree was scoffed at by prospective employers, skeptical that he made it into Yale on the strength of his talents. Perusing some of his many hysterical lone dissents – defending a strip-search of a 13 year-old girl for 2 Advil tablets; insisting that the Voting Rights Act is unconstitutional; arguing for a presidential power to hold a US citizen indefinitely, without going before a judge; and at every opportunity: that beating prisoners, no matter how brutally, is fine under the 8th amendment – one reasonably wonders what Yale saw in him.
To be fair, not a single Justice on the Court today bears up in comparison to Marshall. But in one Court opinion after the next, and one interview after the other, far from washing out the stain with which he arrived to the Court, Thomas has only deepened our conviction that not only was he an absurd successor to the remarkable Thurgood Marshall – but that he lacks the minimum of skill, judgment and conscience required of his office.
Refs:
http://en.wikipedia.org/wiki/Thurgood_Marshall
http://en.wikipedia.org/wiki/Clarence_Thomas
http://news.yahoo.com/clarence-thomas-on-race-194104252.html
http://www.businessinsider.com/how-clarence-thomas-grew-to-hate-affirmative-action-2013-10
http://www.huffingtonpost.com/2013/06/24/clarence-thomas-affirmative-action_n_3491433.html
http://articles.latimes.com/2011/jul/03/nation/la-na-clarence-thomas-20110703
http://usatoday30.usatoday.com/news/washington/2006-01-04-alito_x.htm?csp=34
http://blogs.sacbee.com/i-tool_tips/2009/07/aba-ratings-of-federal-court-n.html
http://www.law.cornell.edu/supct/html/03-6696.ZD1.html
http://www.huffingtonpost.com/2009/06/25/savana-redding-strip-sear_n_220717.html
http://en.wikipedia.org/wiki/Hope_v._Pelzer
http://www.huffingtonpost.com/2013/06/27/hank-johnson-clarence-thomas_n_3512999.html
http://opinionator.blogs.nytimes.com/2010/03/11/clarence-thomas-silent-but-sure/
http://reason.com/blog/2013/06/24/clarence-thomas-continues-his-long-war-o
http://www.slate.com/articles/news_and_politics/jurisprudence/2011/04/cruel_but_not_unusual.html
http://mediamatters.org/blog/2009/06/25/will-media-start-calling-justice-thomas-out-of/151521
2nd Amendment
To understand how the Supreme Court came to strike down a Chicago ordinance banning handguns, and declare for the first time that American’s have a right to keep (if not bear) arms, it helps to understand a little-known bit of American legal history.
Few Americans know that the venerable Bill of Rights was NOT originally applicable to states – it was merely a check on the Federal Government. Chief Justice John Marshall said so himself in an 1833 decision, and almost 100 yrs passed before the issue was revisited. Virginia, New Hampshire and New York could throw you in the clink, take your property, beat a confession out of you, and never even tell you what you were charged with – and the US Constitution was totally cool with that. After all, the Constitution constitutes a Federal Government, laying out what it can and cannot do – it isnt about the states.
The constitution, of course, has a few “no state shall” clauses – making treaties and coining money is a no-no – but searches without probable cause and seizures without warrants? Yes, they can. Or could – for almost 150 years, until Bill of Rights was gradually applied to constrain state action too.
Technically, the Bill of Rights still doesnt really apply against state governments. Rather, states are constrained by the due process clause of the 14th amendment, which reads in pertinent part, “No State shall… deprive any person of life, liberty, or property, without due process of law.” If you’re wondering what the f that really means – the Supremes shared your wonderment, and avoided answering the question for a half-century. But then they got busy….
In 1925, the Supremes took up the curious case of Benjamin Gitlow – he published a paper that called for the overthrow of the government, and New York State locked him up for it, to the considerable detriment of Gitlow’s freedoms of speech and the press. Reasoning that these freedoms are “among the fundamental personal rights and ‘liberties'”, the Supreme Court held that the 14th amendment’s “due process” clause protected both from impingement by the states. Over the next 40 years, using this same logic, the Supreme Court determined that the due process clause of the 14th amendment effectively INCORPORATED (almost) the entire Bill of Rights, to operate as a check on state governments.
After the 1960s, another 40 years passed, and it seemed the process known as “selective incorporation” was complete. Most of the Bill of Rights made it in, including almost all of the rights of the accused – but there was one significant omission: the 2nd amendment.
At present, four justices of the Supreme Court (Robers, Allito, Thomas, Scalia) explicitly subscribe to the notion of “Originalism” as their primary means of interpretating the US Constitution. It’s their belief that the meaning of the Constitution should not evolve over time, but should be fixed by the contemporary intent and understanding of its framers and ratifiers. One of the seminal texts of Originalism (Government by the Judiciary by Raoul Berger) specifically attacks the Supreme’s use of the due process clause of the 14th am to apply the bill of rights against the states. Given that Originalists now have 4 votes on the Court, one would think it highly unlikely that the doctrine of selective incorporation would be expanded.
The 2nd am. seems especially ill-suited to be applied “against” states, given that it ostensibly serves states:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The framers of the Const. could just as easily have omitted the first two clauses, and simply written, “The right of the people to keep and bear Arms, shall not be infringed.” Instead, they related the individual right of “the people” to keep and bear arms to the State’s need for a militia. Thus, a fair description of the 2nd amendment’s original purpose, back in the late 18th century, might have been to prevent the newly created federal government from disarming a populace – thus guaranteeing the states’ ability to form militias to defend themselves from that same federal government, if necessary. If states themselves decided they didnt want or need a militia, they seemingly could have disarmed their citizenry.
It helps to understand what a militia is – as distinct from an army. Militias can be no more than an informal gathering of (armed) people of the community – while an army is formally raised by the government. In the past, it was common for a country to have NO army during peacetime. Armies would be raised in anticipation of war, and disbanded at the end of a war – the militia would keep the peace in the interim. Armies, furthermore, had a negative connotation: they were often foreigners, and people of otherwise dubious purpose and origin. Militias, by comparison, were trusted because they were commonly one’s neighbors.
The Civil War forever changed the balance of power between state and federal governments. This should be intuitive: the Civil War ended in the south’s legal, political and military reconquest. It is therefore quite sensible to read the 14th amendment – ratified in 1868 – as stripping the states of some of their sovereignty – specifically curtailing their power to deny their residents “due process”. One can further understand the Supreme Court’s decision to use the estimable Bill of Rights as the fount for determining what exactly states could no longer do. In the aftermath of the Civil War, it is not a stretch to understand the 14th amendment as requiring states to respect many basic human rights. But the same logic simply cannot be applied to the 2nd Am. The US had only just (barely) defeated the Confederacy 3 years earlier – it is inconceivable that the conquering states would shortly thereafter pass a Constitutional amendment that prevented states from disarming their populace!
But that’s exactly what 4 so-called originalists on the S.Ct held…
Refs:
http://en.wikipedia.org/wiki/Barron_v._Baltimore
http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
http://en.wikipedia.org/wiki/Gitlow_v._New_York
http://constitutioncenter.org/constitution/full-text
http://www.nationalreview.com/bench-memos/49953/incorporation-and-originalism/matthew-j-franck
The Snowden Affair
Upon Obama’s election, many speculated on how the American political landscape would be affected. Who’d have guessed that it only took a black president to dampen the right’s enthusiasm about police power.
One of life’s most vexing qualities is that it never supplies a counterfactual. Would the RNC have rallied behind a Bush President in the face of the Snowden affair? In 2005-06, when the original NSA warrantless wiretapping scandal broke, most conservative pundits and politicians defended Bush’s policy. The RNC attacked every moderate and liberal who criticized it. In the summer of ’06, you could find this headline at GOP.com:
“Liberal Judge Backs Dem Agenda To Weaken National Security – Ruling by Liberal Judge Against NSA Surveillance… A Blow to America’s National Security”
Bush eventually relented, agreeing to obtain warrants (in a closed FISA court) for electronic eavesdropping; and Congress changed the law to relax the warrant requirement. The RNC never rescinded its endorsement of Bush’s practices.
The charm of conservatives is that they stand for nothing in particular. Unlike Liberalism, conservatism is not a political philosophy, but merely a bag of junk crammed together by historical accident. Conservatism is entirely lacking in first principles, which allows conservatives to stake out any position under the sun. They’re really a mercurial bunch.
And so all these many years later (7), here’s where the RNC stands, as of this week, on this latest case of NSA eavesdropping:
“…every time an American citizen makes a phone call, the NSA gets a record of the location, the number called, the time of the call and the length of the conversation; all of which are an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution…. the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause…. unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy.”
It may take some time to absorb all that – a rambling RNC endorsement of the same bill of rights they’ve been gleefully hacking away at for more than 40 years. RNC “conservatives” might be shocked that according to Antonin Scalia, there is no constitutional right to privacy! Conservative judges have been busy eviscerating every protection and privacy interest named above: the warrant requirement, probable cause and expectations of privacy among them.
Now I know it’s fair to criticize Obama similarly – that he was a critic of Bush’s policies 7 years ago – and an advocate for expanded police power today. He’s making the same error many well-meaning executives fall into: pursuing policies that are expedient in the moment, but which carry grave threats downstream. He no doubt thinks of himself and his team as righteous dudes on a critical mission – and he damn well wont be the guy who blinks and lets a 3rd attack on Lower Manhattan happen on his watch – but the Republic can and will survive the leveling of a few more crowded office buildings. Our western tradition of sacrificing security for liberty will not, however, survive perpetual erosion beneath the onslaught of “war-time” presidents, during what may well be a perpetual war. The lesson one hopes conservatives will take away is that unchecked executive power is always bad – that the founders’ scheme of inserting a judge between the executive power and personal privacy is indeed a good thing – whether that power is wielded by white guys or by Hawaiian-Kansan-Chicagoans of Muslim-Kenyan ancestry.
As for the guy who brought all this to the fore: to the extent that Snowden revealed lawbreaking on the part of the Federal Government, he is a whistleblower, and should be afforded immunity from prosecution. But to the extent that he exposed legal, covert US operations abroad, he is a traitor, and should be captured and tried.
Searches and seizures of Americans’ private, personal phone records are undoubtedly subject to 4th am. protections – and the NSA clearly violated the balance between liberty and security elaborated by the US Supreme Ct.
But Angela Merkel, bless her soul, is not a US citizen or resident and is not entitled to protections under the US Bill of Rights. Eavesdropping on allied heads of state may be an awesomely stupid policy, but it is a legitimate policy choice, and well within the ambit of the US executive branch. Snowden, thus, did his country a great service in revealing lawbreaking on the part of its executive branch; he did a great disservice in exposing legal and legitimate covert operations abroad.
I close enigmatically with Lincoln’s not-famous-enough dalliance with the Writ of Habeus Corpus. An ancient common-law right, “Habeus Corpus” is a Latin term meaning “show me the body” – a demand by a court of an executive, to produce someone they’re holding and explain why holding them seems like a swell idea. “The Writ” isnt like other rights – it’s special. Unlike the rights of speech, assembly, religion, counsel, jury, etc., all of which got tabled in the summer of 1787, and only became law with the rest of the Bill of Rights a few years later, The Writ made it into the body of the Constitution itself (Art I Sect. 9). – And for good reason: every other right you have depends upon a writ of habeus corpus to actually get before a judge to complain about the executive who done you wrong.
Less than 2 months after his inauguration, Lincoln suspended The Writ – denying some prisoners the right to appear before an impartial magistrate – that they might be held Gitmo style, without a day in court or a judge to say boo. This suspension was limited in scope, applying only to a small part of Maryland. But it came at a critical moment of the Civil War: Maryland was at risk of falling into Confederate hands. The Union Army captured and held several pro-Confederate Maryland Militiamen and, relying on Lincoln’s suspension of The Writ, refused to bring them before a judge.
No less a jurist than US Supreme Court Chief Justice Roger Taney heard the case (sitting not as CJ, but as appellate circuit judge) and decided AGAINST Lincoln – noting that Congress, not the President, has the authority to suspend The Writ, Taney ordered the executive to produce the prisoner. Lincoln ignored the order, and the controversy was soon enough mooted by other events.
In a speech to Congress afterward, Lincoln asked, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” He would later write, “…the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.”
In the more civilized parts of the Union, Lincoln is everybody’s favorite president – and he thought the Constitution was not fixed in its meaning, but that the trade-off between liberty and security could swing toward security as circumstance required – and as the president in his discretion determined….
“Those who would sacrifice liberty for security deserve neither” – not Lincoln, but Franklin gets credit for that one-liner. But those were different times….
Refs:
http://liveactionnews.org/justice-scalias-refresher-on-constitutional-originalism/
http://www.buzzfeed.com/andrewkaczynski/the-republican-party-has-completly-flip-flopped-on-national
http://www.msnbc.com/msnbc/rnc-condemns-nsa-spying-shock-turnaround-0
http://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_States#Suspension_during_the_Civil_War
http://constitutioncenter.org/constitution/full-text
http://en.wikipedia.org/wiki/Ex_parte_Merryman
http://www.abrahamlincolnonline.org/lincoln/speeches/corning.htm
Carlton Thurman's Liberal Field Guide 