The American Spectator

Congress, the President and Habeas Corpus : /p>

The placement of the habeas corpus language in Article I is not necessarily dispositive of the question. Art. I deals not only with the legislative power but also the national power. Art. I section 9, which contains the habeas corpus language also prohibits the granting of titles of nobility by the United States (note not Congress). Section 10 prohibits the states from exercising certain powers that “nation states” would have otherwise.

p>Storey’s opinion and Marshall’s dicta are more on point. I always have suspected that Taney’s decision in Merriman was as much political as “legal.” One should remember that the opinion was rendered when Taney was sitting as a Circuit Court Judge. Further, after Taney’s legislative actions in Dred Scott , one should treat all of his opinions with some degree of caution. br> — Charles Horgan /p> p> Robert A. Levy replies: br> Thanks for your comment. Of course, the “Title of Nobility” clause appears in the same paragraph as a parallel provision requiring congressional consent. So it’s plausible that the entire paragraph was crafted with Congress in mind. No matter: the executive power to grant titles of nobility is non-existent, with or without Art. I, sec. 9. In a government of enumerated powers, no power exists unless it is affirmatively granted. Indeed, the “Title of Nobility” clause, even as it applies to Congress, is almost certainly unnecessary. My guess is that it was included out of an abundance of caution to ensure that the legislature would not overreach in carrying out its lawmaking role.