Contributor, The Volokh Conspiracy

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. For example, in his recent book, The Constitution: An Introduction, Michael Paulsen prominently features this reading of Lincoln’s actions: “Most dramatically of all, Lincoln had defied a judicial decree invalidating his suspension of habeas corpus (in the Ex parte Merryman case)…. (222); and “Abraham Lincoln did not comply with Chief Justice Taney’s order in Merryman. (249).  Indeed, Paulsen has gone so far as to describe the President’s “Merryman Power” to refuse to follow a Supreme Court order the President believes to be unconstitutional. In his description of what happened in Merryman, Paulsen is adopting what has become the conventional wisdom about the case. But like much conventional wisdom surrounding the iconic cases in constitutional law, it appears to be wrong.

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. Here is the abstract:

Ex parte Merryman is iconic. It is, arguably, the first major American case testing the scope of lawful military authority during war time. Not only during a war, but during a civil war. Not only were the civilian (judicial) authorities in conflict with the military authorities, but the Chief Justice of the United States clashed with the President — or, at least, that is the story as it is commonly told. It is an 1861 case, but the stakes were large and, sadly, the issues remain relevant if not eternal.

However, the standard restatement of the facts and holding of Ex parte Merryman appearing in many (if not most) law review articles is wrong. Moreover, these mistakes are not unique to academic lawyers; a fair number of judges, historians, and academics in allied fields make the same or very similar mistakes. These repeated errors are somewhat surprising because Merryman is, if not a leading case, only one short step removed from the received case law canon. To put it another way, what is frequently written about Merryman is a series of myths. This Article seeks to disentangle Merryman’s many myths from reality.

And here is the conclusion:

Lest there be any confusion . . . some have argued that the President—in certain circumstances—has an independent power to interpret the Constitution, and a concomitant power to ignore or defy court orders if the President comes to a good faith conclusion that the courts have erred. This Article has not opined on the correctness of this departmentalist view. This view may be the best or the correct understanding of the original public meaning of the Constitution, or it may not.

Instead, this Article makes the more limited claim that Merryman and what we currently know about Cadwalader’s and Lincoln’s actions in connection with the Merryman litigation, what preceded it, and its aftermath—all are too ambiguous to lend support to a strong departmentalist view of the Constitution. It may be that there is support for a Merryman power, but wherever that support may be, it is not to be had in Ex parte Merryman.

That said, Civil War documents may be newly unearthed or rediscovered. If tomorrow a military record were discovered establishing that Cadwalader gave the command to turn the United States Marshal away from Fort McHenry and that he gave that command after having received Townsend’s order, there would be no reason to be surprised. Alternatively, if tomorrow a military record establishing just the opposite were discovered, there would be no reason to be surprised either. Likewise, if tomorrow a letter or other document were found from Lincoln disavowing any intent to defy judicial orders in the habeas context, it should not be a cause for surprise. And, if tomorrow a letter or other document were found from Lincoln robustly authorizing just such defiance, there would be no cause for surprise either.

The historical record we have today lacks the requisite clarity necessary to reach a considered judgment regarding what Lincoln intended, and how he was understood by his subordinates and the wider public when he gave the Army discretion to suspend habeas corpus. One reason the record may lack such clarity is that, during the Merryman litigation and in its immediate aftermath, President Lincoln might never have given this specific legal question any thought at all. Of course, the other reason we lack clarity is that Chief Justice Taney never ordered Lincoln, or anyone else, to release John Merryman.

Anyone who teaches or cites this case must read what comes in between.