Federal Habeas Corpus (original) (raw)
Related papers
1998
In 1803, Man did not think he was powerful enoup to g!ve orders to Conand. the Pre.ident. After the elections of 1800, with the Jeffersonians in con-Con the Pl'8lidency the Federalist Court was in no ~sition to dictate to the he •. Mal'8uif realized that he could not u~Jlola the eonstitu-ttonaUty of 13 or the Judiciary Act of 1789 and directSeeretary of State 20 James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshal! believed that the Court was supreme on matters of constitutional interpretation. This conclusion is bome out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it tum.ed its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase: I think. the modem doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault. The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he pl~yed a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judicial"l'Junctioned as a yea-saying, not a negative, branch. The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it "a nuisance.' Congress responded with legislation that declared the bridges at issue to be "lawful structures," and the Court then ruled that the bridges were no longer unlawful obstructions. l In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: "whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval." 2 Settling Constitutional Issues In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability. Neal Devins and I talked about this article. We tried to recall a time when the Court ever "settled" a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompamed by revised procedures, was constitutional.
Appellate Review of Courts-Martial in the United States
Catholic University Law Review, 2021
William Tecumseh Sherman was one of the greatest commanders of the 19 th century. His accomplishments in the Civil War are immortal, and he became Commanding General of the Army. Less known is the fact that he briefly, and without much success, practiced law in, of all places, Leavenworth, Kansas. Sherman expressed himself vigorously on the subject of law and the armed forces. I read this quote because it illustrates the accepted view of the subject for much of the nation's history and helps to explain some of what I intend to cover in speaking of the development of appellate review of courts-martial: [I]t will be a grave error if, by negligence, we permit the military law to become emasculated by allowing lawyers to inject into it principles derived from their practice in the civil courts, which belong to a totally different system of jurisprudence. The object of the civil law is to secure to every human being in a community all the liberty, security and happiness possible, consistent with the safety of all. The object of military law is to govern armies composed of strong men, so as to be capable of exercising the largest measure of force at the will of the nation. These objects are as wide apart as the poles, and each requires its own separate system of laws-statute and common. 'An army is a collection of armed men obliged to obey one man.' Every enactment, every change of rule which impairs the principle weakens the army, impairs its value, and defeats the very object of its existence. All the traditions of civil lawyers are antagonistic to this vital principle, and