I agree with David and Rich that John Hinderaker’s Bundy post is very strong. As a matter of law, Cliven Bundy is in the wrong. He is nevertheless a sympathetic figure, and the concerns raised by the standoff in Nevada transcend the illegality of his conduct.
Rich’s recollection of Lincoln’s exhortation that reverence for the law become “the political religion of the nation” triggered my recollection of a seemingly inconsistent speech Lincoln delivered as president nearly a quarter-century later. As the Civil War raged, the president very controversially suspended the writ of habeas corpus and imposed martial law in states where Confederate operatives and sympathizers were taking seditious action. Addressing Congress on July 4, 1861, Lincoln defended his suspension of the writ:
Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?
Now, it was only advisedly that I described this speech as “seemingly” inconsistent with the one Rich excerpted. For one thing, Lincoln did not believe his suspension of the writ violated the law, and he had a very colorable argument. The Constitution provides for the writ’s suspension in cases of rebellion or invasion; it does not say who may suspend it. The Supreme Court’s eventual conclusion (in the 1866 case of Ex Parte Milligan) that Congress must enact a suspension because the relevant clause is in Article I was sensible, but it was not indisputable. Lincoln was not without reason to believe that he had the necessary authority as long as a rebellion or invasion had occurred. Moreover, Lincoln’s passion for the rule of law was evident even in the act of arguably breaking it: He not only vigorously contended that his suspension was lawful; he also urged Congress to affirm the suspension by passing legislation (which Congress did in 1863).