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 ...
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My recent reading includes a review, by friend Henry, of SLAVISH SHORE, a new book from Harvard University Press about the life of Richard Henry Dana Jr. Dana argued the Prize Cases before the US Supreme Court in February 1863. At issue: when is a war a war? when is a blockade a blockade? was Lincoln's action in pursuing a war through the imposition of a blockade lawful? As Henry explains it: "A blockade is a war measure, and a President is authorized under his war powers to impose a blockade only when Congress has declared war against another nation....Lincoln denied that the Confederate states were a nation, he insisted that they were mere insurrectionists and traitors. No one questions that Lincoln could have closed the ports, as opposed to blockading them, but Britain had 'made it clear that it would not accept American "closure" of Southern ports that would expose British shippers to arrest as common smugglers.'" In that last half sentence, ...
The June cover story is a piece by David Bromwich entitled "What Went Wrong: Assessing Obama's Legacy." It is not quite as negative as the headline suggests. Bromwich, whose image you see here, considers Obama superior not only to his precursor, but almost certainly superior to whomever shall be his successor. There is a lot of quotable material here. I'll confine myself to just two quotes, though they will be substantial ones. That said, there is this: "In foreign policy, Afghanistan was the first order of business in Obama's presidency. His options must have appeared exceedingly narrow. During the campaign, he had followed a middle path on America's wars. He said that Iraq was the wrong war and that Afghanistan was the right one: Bush's error had been to take his eye off the deeper danger. By early spring of 2009, Obama knew that his judgment -- though it earned him praise from the media -- had simply been wrong. The U.S. effort in Afghanist...