The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 — John Shaqi
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
History
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
Constitutional law -- United States; Constitutions -- United States
From these words arises the doctrine of Political Questions, an escape
clause from the trammels of judicial review for high executive officers
in the performance of their discretionary duties. The doctrine was
continued, even expanded, by Marshall's successor. In Luther _v._
Borden,[43] decided in 1849, the Court was invited to review the
determination by the President that the existing government of Rhode
Island was "republican" in form. It declined the invitation, holding
that the decision of Congress and of the President as Congress's
delegate was final in the matter, and bound the courts. Otherwise said
Chief Justice Taney, the guarantee clause of the Constitution (Article
IV, section 4) "is a guarantee of anarchy and not of order". But a year
later the same Chief Justice, speaking again for the unanimous Court,
did not hesitate to rule that the President's powers as
commander-in-chief were purely military in character, those of any top
general or top admiral.[44] Hamilton had said the same thing in
Federalist No. 69.
Alongside the opinions of the Court of this period, however, stand
certain opinions of Attorneys General that yield a less balanced bill of
fare. For it is the case that, from the first down to the present year
of grace, these family lawyers of the Administration in power have
tended to favor expansive conceptions of presidential prerogative. As
early as 1831 we find an Attorney-General arguing before the Supreme
Court that, in performance of the trust enjoined upon him by the
"faithful execution" clause, the President "not only may, but ... is
bound to avail himself of every appropriate means not forbidden by
law."[45] Especially noteworthy is a series of opinions handed down by
Attorney-General Cushing in the course of the years 1853 to 1855. In one
of these the Attorney-General laid down the doctrine that a marshal of
the United States, when opposed in the execution of his duty by unlawful
combinations too powerful to be dealt with by the ordinary processes of
a federal court, had authority to summon the entire able-bodied force of
his precinct as a _posse comitatus_, comprising not only bystanders and
citizens generally but any and all armed forces,[46] which is precisely
the theory upon which Lincoln based his call for volunteers in April,
1861.
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