Comments on: Graham-Levin dispute opens in Court

By: robertkry

robertkry — Fri, 13 Jan 2006 21:14:17 +0000

It’s true! Lincoln issued a warrant for Taney’s arrest after Taney granted the writ in Merryman. However, no one dared execute it. But there is something of a tradition of military commanders’ throwing judges in jail for issuing the writ to military prisoners during wartime. General Jackson did it during the War of 1812 and was fined $1000 for contempt.

By: Kent Scheidegger

Kent Scheidegger — Tue, 10 Jan 2006 00:17:43 +0000

The Merryman writ was issued by Chief Justice Taney, of Dred Scott infame. He sent the marshal out to Ft. McHenry with a writ. The soldier on duty took the paper politely, and neither he nor Merryman emerged. Taney then asked rhetorically what else he could do, and the answer was nothing. For anyone else ignoring a writ, he would have the marshal round up a posse, but sending a posse against an army did not seem like a good idea. The incident is described in a book by the late Chief Justice Rehnquist, and I don't recall any mention of Taney being thrown in jail.

By: Stella

Stella — Mon, 09 Jan 2006 10:28:34 +0000

okay okay… I said Milligan, but meant ex Parte Merryman.

By: Kent Scheidegger

Kent Scheidegger — Sun, 08 Jan 2006 15:45:45 +0000

Stella asks, “Didn’t Lincoln throw the Justice on Ex Parte Milligan in jail for his decision?”

Given that Milligan was decided in 1866, I consider that rather unlikely.

By: Stella

Stella — Sat, 07 Jan 2006 11:28:41 +0000

This is nothing new, though, is it? Didn’t Lincoln throw the Justice on Ex Parte Milligan in jail for his decision? It seems the war powers argument and the authority of the executive under those powers has historically migrated towards plenary executive privilege. Perhaps outside the scope of this blog, but it would be interesting to see some academic commentary on the constititutional justifications behind the unified executive (?) theory Cheney et al have been arguing for.