Guelzo on Ex parte Merryman

Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America 47 (2006) (“Chief Justice Taney issued a writ of habeas corpus to transfer Merryman to the Maryland [or state] civil[ian] courts—where anyone could have predicted that proslavery judges would have released Merryman on sight.”);

Allen C. Guelzo, Restoring the Proclamation: Abraham Lincoln, Confiscation, and Emancipation in the Civil War Era, 50 Howard L.J. 397, 410 (2007) (“Lincoln had already defied one attempt at Supreme Court meddling in 1861 in Ex parte Merryman . . . .” (emphasis added)), <https://cupola.gettysburg.edu/cgi/viewcontent.cgi?httpsredir=1&article=1039&context=cwfac>; 

Allen C. Guelzo, Fateful Lightning: A New History of the Civil War and Reconstruction 278 (2012) (characterizing Merryman as being decided by Taney in consequence of his oversight over the “Fourth Circuit Court of Appeals” (emphasis added));

Allen C. Guelzo, Special Report, SR100, Abraham Lincoln or the Progressives: Who was the real father of big government?, Heritage Foundation 12 (2012) (characterizing Merryman as issued by Taney as “presiding judge for the U.S. Fifth Circuit”); id. (describing Taney as issuing “a writ for Merryman’s release to his court”), <https://static.heritage.org/2012/pdf/SR100.pdf>; [Tillman adding: 4th Circuit or 5th Circuit?] [Tillman adding: was the “Fifth Circuit” something one could preside over?] 

Allen C. Guelzo, Reconstruction: A Concise History 86 (2018) (characterizing Taney as having issued Merryman as a “circuit judge”);

Allen Guelzo, Ex parte Merryman (1861), Constituting America (circa 2018) (last accessed Dec. 29, 2022), <https://tinyurl.com/yvzcrjev>, <https://tinyurl.com/4rwe6t9h>, <https://constitutingamerica.org/wp-content/uploads/2018/01/90DayStudySupremeCourt2017-FINAL.pdf>; also reported at: Allen Guelzo, Essay 61—Ex Parte Merryman (1861), <https://soundcloud.com/constituting-america/essay-61-ex-parte-merryman-1861-by-allen-guelzo> (at 5:35ff) (circa 2018) (“The technical status of the [Taney’s] comment has always been the first issue in ex parte Merryman, since Taney issued [his opinion] in his co-capacity as a federal circuit judge, but prefaced it as being issued from his U.S. Supreme Court chambers as though it were the product of a full hearing before the Supreme Court.”). Cf. Jonathan W. White, The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War, 3(2) J. Civil War Era 211, 218 (June 2013) (“Taney was sitting as a circuit justice in the U.S. Circuit Court for the District of Maryland, but he made his opinion appear to be that of a Supreme Court justice ‘at chambers.’”). [Tillman adding: Guelzo’s Constituting America blog post cites White’s book, but not White’s Journal of the Civil War Era article—it appears that White’s journal article is the source of Guelzo’s position.] 

Allen C. Guelzo, Reconstruction: A Very Short Introduction 89 (OUP 2020) (“But Merryman was only Taney’s opinion as a circuit judge, not a full Supreme Court decision, and Abraham Lincoln simply ignored it.”), <https://tinyurl.com/yjr37fpp>;

Allen C. Guelzo, Audacious Abe, First Things: A Monthly Journal of Religion and Public Life (Nov. 2021) 1–9 (reviewing Brand’s The Zealot and the Emancipator (2020), DiLorenzo’s The Problem with Lincoln (2020), and Striner’s Summoned to Glory (2020)) (criticizing Striner and stating: “John Merryman’s ‘case’ was never heard ‘in court[]’”); id. (criticizing Stringer with: “Robert E. Lee was the commanding officer of the First Cavalry, not the Second . . . .”); 

Allen C. Guelzo, Abraham Lincoln: Redeemer President (2d ed 2022), <https://tinyurl.com/3y5k7s7f>;

Id. at Preface (“Lincoln had no intention of allowing his [Lincoln’s] decision to suspend the writ of habeas corpus to be appealed to the Supreme Court.”); [Tillman adding: how was any appear possible?]

Id. (Merryman’s lawyer sought out Taney “in his double capacity as federal circuit judge for Maryland” and Supreme Court Chief Justice);

Id. (Taney ordering “Merryman’s jailers . . . to produce Merryman for civil trial”); [TILLMAN adding: not really a “trial”—more of a hearing before a neutral adjudicator] [Tillman adding: above, in the Heritage report from 2012, Guelzo uses “release” language]  

Id. (characterizing Taney’s substantive discussion in Merryman as “ridiculous”); [Tillman adding: hyperbole, used in this fashion, seems very misplaced]

Jeffrey Rosen & Allen Guelzo, Lincoln, Democracy, and the American Experiment, National Constitution Center (April 11, 2024), <https://tinyurl.com/3wf8jxtn>, <https://tinyurl.com/44xzmhcm>. Guelzo: “Now of course, Chief Justice Taney has a fit over this, issues his own opinion in Ex Parte Merryman denouncing what Lincoln has done is unconstitutional and hoping then that Lincoln would appeal what he had written to the entire Supreme Court, in which case Taney would hope to get a full court decision striking down the suspension of the writ of habeas corpus. Lincoln doesn’t appeal it.” [at page 14, at 00:57:02.7]; [Tillman adding: how was any appeal by Lincoln (or the administration or the Army or Cadwaladr) possible?]

Other Guelzo-authored sources: searched via Westlaw, LexisNexis, ProQuest, and JSTOR.

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Seth Barrett Tillman, ‘Guelzo on Ex parte Merryman,’ New Reform Club (Mar. 12, 2026, 7:01 AM), <https://reformclub.blogspot.com/2026/03/more-on-merryman.html>;