Distinguishing Bush from Lincoln, Jefferson and FDR

[Marty Lederman]

Re: RE: RE: Why impose a course on constitutional law on our students?I think that case is consistent with my distinction.  Lincoln (and Johnson after him) did not assert a constitutional trump -- instead, they publicly (and ultimately unsuccessfully) construed the Habeas Act of 1863 narrowly , i.e., they assumed a very broad reading of the statutory suspension.  Not so much in Vallandigham -- where, as you've written, neither party asserted that the statute applied -- but in Milligan, where the Executive argued (perhaps unreasonably) for a narrow construction of the habeas act -- an argument that the Court unanimously rejected.  But notably, as far as I know the Executive branch never argued -- certainly not in Vallandigham or Milligan -- that it would be unconstitutional for Congress to preserve habeas rights of the petitioners in question -- DOJ basically conceded that if the statute allowed the petition, then that was that.  The argument that Congress cannot provide habeas rights against the President's best judgment was not made until Rasul, as far as I'm aware.
  ----- Original Message ----- 
  From: Curtis, Michael K. 
  To: Marty Lederman ; Sanford Levinson ; curtism at bellsouth.net ; isomin at gmu.edu 
  Cc: CONLAWPROF at lists.ucla.edu 
  Sent: Tuesday, July 10, 2007 2:53 PM
  Subject: RE: Distinguishing Bush from Lincoln, Jefferson and FDR


  It does seem to me that Lincoln ignored the congressional statute ratifying but limiting his suspension of habeas corpus-by interpreting it, as I recall, as not applying to military arrests.  This was pertinent e.g. in the Vallandigham case, where V. was arrested by the military in Ohio and tried by a military commission for making an anti-war speech.  Lincoln denied that that was what he was tried & convicted for but the record is clear and Lincoln was not accurate in what he said.  Since the civil courts were functioning in Ohio, under the congressional act, it seems that V. should have either been put on trial or if not charged by the end of the next term of federal court, released.  A federal judge however refused to issue the writ.  Lincoln was open about what he was doing-though not candid about the facts of V's case.  So there is that significant difference.  For a short discussion see e.g., Curtis, Free Speech, The People's Darling Privilege at 306-314 & and authorities cited.  A longer discussion appears in Lincoln, Vallandigham, and Anti-War Speech During the Civil War, Wm & Mary Bill of Rts J.   See also Lincoln, The Constitution of Necessity, and the Necessity of Constitutions:  A Reply to Prof. Paulsen, 39 Me. L. Rev. 1 (2007).



  Michael Curtis




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  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
  Sent: Tuesday, July 10, 2007 2:09 PM
  To: Sanford Levinson; curtism at bellsouth.net; isomin at gmu.edu
  Cc: CONLAWPROF at lists.ucla.edu
  Subject: Distinguishing Bush from Lincoln, Jefferson and FDR



  It's a bit off-topic for the thread, but just so as to clarify Sandy's reference to me:



  Lincoln and Roosevelt certainly did at times take fairly unorthodox views of the law in order to achieve what they thought necessary (and Jefferson ignored his own best judgment of the constitutionality of the Louisiana Purchase in favor of the dominant view).  The two things that strike as as very different about the Bush Administration are:



  (i) the assertion of a strong, at times unbounded, power to disregard statutory and treaty-based limits on Commander-in-Chief authority (along with other unorthodox and uncompromising assertions of Article II prerogatives) -- I'd greatly appreciate any examples of FRD or Lincoln professing any Commander-in-Chief or "foreign affairs" or "emergency" power to disregard statutes and treaties, apart from Roosevelt's bluster about the Price Control Act; and 



  (ii) more often than not, adopting unorthodox legal views in secret, all the while continuing to profess standard-issue legal fidelity in public (e.g., "We never torture."), such that none of the ordinary checks and balances can operate (whereas Lincoln and FDR announced and defended their unorthodox views in broad daylight, and conceded that Congress and/or the courts would be the ultimate arbiters).  



  One still might think that Lincoln's and FDR's deviations from "best" understandings of the law are less defensible than Bush's, for whatever reason (e.g., the stakes of the questions; the plausibility of the legal conclusions) -- my point is simply that what's happening in this Administration is distinguishable in important respects.

    ----- Original Message ----- 

    From: Sanford Levinson 

    To: curtism at bellsouth.net ; isomin at gmu.edu 

    Cc: CONLAWPROF at lists.ucla.edu 

    Sent: Tuesday, July 10, 2007 11:47 AM

    Subject: Re: RE: RE: Why impose a course on constitutional law on our students?



    As everyone on this list knows (perhaps all too well), I loathe and despise the Bush Administration.  That being said, a major purpose of my constitutional law course, which begins with the Philadelphians ruthless disregard of both their limited congressional mandate and, more importantly, Article XIII, is to address the central reality that many of our "greatest leaders," i.e., the ones we build monuments to, played fast and loose with what might have been thought to be the "best" understandings of the law.  So any attack on Bush must take Jefferson, Lincoln, and Roosevelt (for starters) into account.  Marty Ledewrman has argued very well that these presidents can be distinguished on other than straight political grounds, but the real point is that one can't have the conversation at all without immersion in the relevant history for which most Supreme Court opinions are irrelevant or simply inadequate.  So what do we omit in order to address the dead presidents?  My own answer, of course, is Marbury (among others).  Or do we try to discuss the issues posed by the Bush Administration ahistorically (or, what is much the same thing, by perfunctory reference to a Federalist Paper or two)?

    Sandy 


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