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Comment by rm_-rf_slash | Hacker News Reader

There are times when the Constitution can be overlooked for the sake of public safety. Abraham Lincoln famously suspended habeas corpus during Civil War riots, and most historians look favorably upon the decision to maintain order during the young United States' most turbulent time in history.

The NSA, on the other hand, not only lacks the rationale of clear and immenent danger for continuing their dragnet program, but it has been shown time and time again that such programs have a minimal, if any, effect on protecting American citizens from acts of terrorism. For the sake of public faith in a democracy with checks and balances, the dragnet should be stopped.

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No, there aren't such times. The suspension of habeas corpus by Lincoln was Constitutional:

> Article I, Section 9: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The fact that that clause is in Article 1 suggests that Congress should be the one to suspend habaes corpus. But Lincoln did it unilaterally. But that is a debatable opinion.

The Southern states were not in a state of rebellion; they had constitutionally seceded.

There is no mention of, or stated process for, secession of states in the Constitution. In Texas v. White:

"Chase, [Chief Justice], ruled in favor of Texas on the ground that the Confederate state government in Texas had no legal existence on the basis that the secession of Texas from the United States was illegal. The critical finding underpinning the ruling that Texas could not secede from the United States was that, following its admission to the United States in 1845, Texas had become part of "an indestructible Union, composed of indestructible states." In practical terms, this meant that Texas has never seceded from the United States."

https://en.wikipedia.org/wiki/Secession_in_the_United_States...

https://en.wikipedia.org/wiki/Texas_v._White

> There is no mention of, or stated process for, secession of states in the Constitution.

You're exactly right! And the Tenth Amendment states quite clearly, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

Since the Constitution gives the United States no power over secession, and does not prohibit it, then it's clearly reserved to the respective States, or to the people thereof.

Secession is 100% legal; Texas v. White is no more compelling a precedent than Dred Scott v. Sandford. There's simply no other unbiased way to read the Constitution.

Did Lincoln really overlook the Constitution when suspending habeas corpus?

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The circumstances in which Lincoln suspended it seem to fit pretty well within those exceptions.

The 4th Amendment enumerates no exceptions, of course.

"U.S. Supreme Court Chief Justice Roger Taney, sitting as a federal circuit court judge, ruled that the authority to suspend habeas corpus lay exclusively with Congress. Saying that Taney's orders were unconstitutional, President Abraham Lincoln defied them, as did the army under Lincoln's orders, and John Merryman remained inaccessible to the judiciary while Congress remained in recess."

https://en.wikipedia.org/wiki/Ex_parte_Merryman

Sure, but that doesn't make it so, unless you're one of those folks who holds that Constitutionality is based on the courts' opinion by definition. There may be room for debate, but that doesn't mean the Constitution was just bypassed in this case.

> Sure, but that doesn't make it so, unless you're one of those folks who holds that Constitutionality is based on the courts' opinion by definition.

That's been how it works in practice ever since Marbury v. Madison.

BTW, the fourth amendment contains the mother of all exceptions: "unreasonable searches and seizures"

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