We have this opinion piece from Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution, discussing Abraham Lincoln’s reaction to Roger B. Taney’s ruling in the case of Ex Parte Merryman. He tells us, “It has long been thought and taught that President Lincoln defied an judicial order issued by Chief Justice Taney in Ex parte Merryman, a case involving Lincoln’s suspension of the writ of habeas corpus in the early days of the Civil War.”
The conventional view of Lincoln’s response is being challenged, however. “Over a year ago, Seth Barrett Tillman challenged the conventional teaching on Merryman in a couple short essays on SSRN (here and here) and, earlier this year, in a blog post that took particular aim at Professor Paulsen’s use of the case. Now Tillman’s longer, more thorough, and fascinating (for law nerds) article, Ex Parte Merryman: Myth, History, and Scholarship, systematically debunking the myths surrounding the facts and holding of Ex Parte Merryman, has or will soon about to appear in the Military Law Review”
Tillman tells us, “The first and primary Merryman myth is that President Lincoln ignored or defied a judicial order from Chief Justice Taney to release John Merryman. However, Taney never ordered anyone to release Merryman.” He quotes Taney’s order, “I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the [C]ircuit [C]ourt of the United States for the [D]istrict of Maryland, and direct the clerk to transmit a copy, under seal, to the [P]resident of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to ‘take care that the laws be faithfully executed,’ to determine what measures he will take to cause the civil process of the United States to be respected and enforced.” Tillman stresses, “Again, Taney issued no order to release Merryman. It follows, therefore, that Lincoln could not have ignored or defied it, nor could anyone else for that matter. Even if we assume, counterfactually, that Taney had issued an order releasing Merryman, any such order would have been directed against the named defendant—Merryman’s jailer—General George Cadwalader, not against Lincoln. Lincoln was not a party in Merryman. Lincoln was not served with process in Merryman.” So the idea that Lincoln defied Taney’s judicial order is wrong. It’s a myth.
Tillman then identifies the second myth about the case: “The second Merryman myth is that Lincoln ignored Taney’s opinion: that is, Lincoln’s post-Merryman conduct and his interactions with Executive Branch subordinates failed to properly reflect the law as established by Taney. Simply put, the legal and normative assumptions behind this critique of Lincoln’s conduct do not cohere with the basic structure of the American legal system.” He tells us, “In the first paragraph of Cooper v. Aaron, a unanimous Supreme Court stated, ‘[This case] necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution.’ In short, even Cooper, which is the most forceful and ambitious statement of the scope of federal judicial authority, framed the issue in terms of state officials’ wrongful interference or other noncompliance with extant federal judicial orders, not in terms of noncompliance with mere opinions. Applying the legal standard laid out in Cooper to Lincoln during Merryman would be quite anachronistic. But, even if the legal standard laid out in Cooper ought to apply to Lincoln’s conduct, Cooper does not mandate that officials (such as the President) must comply with mere opinions. In short, faulting Lincoln for noncompliance with Taney’s Merryman opinion makes little sense as a formal legal matter.” He says, “Taney did not order his [Merryman’s] release. Taney’s opinion put forward only advice (or, perhaps, a legal position akin to an Office of Legal Counsel memorandum), not a traditional judicial order. In other words, Merryman was effectively an advisory opinion, and given the disparity between Taney’s order (which left Merryman in jail) and his opinion (which asserted that Merryman was entitled to be freed), it was perhaps a good deal less”
This is a terrific article that explodes the conventional view about Lincoln and the Merryman Case. Does it change your view about Merryman?