I recently posted a short paper taking issue with the standard restatement of Ex parte Merryman. This paper is a short reply to several responses which I have received from Andrew Hyman (posted at the Originalism Blog) and others.

This paper addresses the myths that make up Merryman scholarship. The first and primary Merryman myth is that Lincoln ignored or defied a judicial order from Taney to release Merryman. The second Merryman myth is that Lincoln ignored Taney’s opinion. The third Merryman myth is that Lincoln could have and should have upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) U.S. Supreme Court. The fourth myth is that General Cadwalader, who was in overall command of Fort McHenry, ignored or defied Taney by not showing up for the first day’s hearing on May 27, 1861, and that he defied Taney by not producing Merryman as he was ordered to do.

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 defy court orders if the President comes to a good faith conclusion that the courts have erred. I have not here or elsewhere 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, and it may not. Instead, I make only the more limited claim that Merryman and what we currently know about Lincoln’s actions in connection with the Merryman litigation and its aftermath 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 Merryman.

[10 July 2015]