Revisionism about EX PARTE MERRYMAN

Chief Justice Taney's showdown with the new President in the opening stages of the civil war, over Lincoln's suspension of the writ of habeas corpus, is a much-discussed incident in US constitutional history (and in our military history, too).

An article last year in Military Law Review offered an important revisionist account of the MERRYMAN case. For a link, click here.

It is a defense of Lincoln's behavior in this matter, an effort to undermine the common idea that Lincoln was running roughshod over the rule of law by ignoring a duly issued order.

Seth Barrett Tillman argues in essence that Taney never ordered Merryman released, although he did issue an opinion that seems to advise the President to do so. Further, Taney was acting out of line there, because judicial advisory opinions are not contemplated in the US constitution, and are inconsistent with "separation of powers norms."

"In short, Lincoln had every reason to believe that there was no obligation to obey Taney's opinion."

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