The pen is mightier than the sword, except when it's not

[ciroccoj]

Yeah, me again, with more bits & bytes & bon mots that make my law-geeky heart grammargasm with delight:

• The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false: for the government, within the Constitution, has all the powers granted to it, where are necesssary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
  
  - Ex parte Milligan, 71 U.S. (4 Wall.) 2, 127 (1866) (Davis, J.) (seeking to limit the lawful use of martial law to situations of actual war and to the locality of such a war).
  
  
• Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergey. Its grants of power to the Federal Government and its limitations of the power of the States were determined in light of the emergency...
  
  - Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).
  
  
• President Lincoln's actions during the Civil War, especially in the first twelve weeks between the bobmardment of Fort Sumter, on April 12, 1861, and the convening of Congress on July 4, 1861, have been the subject of much study and debate. During this period Lincoln demonstrated perhaps the most awesome display of executive power in American history ... Acting as the protector of the Union, Lincoln called forth the militia, imposed a blockade on the ports of the Southern states, paid out unappropriated funds to private persons unauthorized to receive such payments, authorized the commander of the Army to suspend the writ of habeas corpus in the area between the cities of Philadelphia and Washington ... and enlarged the army and navy beyond the limits set by Congress. By the time Congress did convene, it was faced with extensive faits accomplis, leaving it no real choice but to ratify them and give its blessing to the President. Whereas some of these measures could be construed as falling within the constitutional or statutorily delegated presidential powers, others were more questionable.
  
  - Oren Gross, "Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?", (2003) 112 Yale L.J. 1011

Comments

[nonniemous.livejournal.com]

Lincoln also imprisoned a Supreme Court Justice who was attempting to stop him from doing all that.

[ciroccoj.livejournal.com]

Whoa. That's harsh. Kinda makes you think, doesn't it? I'm still not sure exactly what it makes you think, but there sure is a lot of thinking going on ;)