Whitener 1 Introduction There is an inherent paradox in preserving individual civil liberties while providing the state with sufficient

authority to secure the blessings of collective liberty; one which has been at the heart of America’s socio-political discourse since the birth of the Republic. This paper will examine the constitutional, political, and moral debates effected by one such instance. In doing so, it will inquire into Abraham Lincoln’s decision to suspend the privilege of the writ of habeas corpus during the Civil War, and examine the arguments for and against its suspension. My central aim, therefore, is to offer a treatment of the relationship between Lincoln’s justifications for the suspension of the writ and the attending discourse on liberty which his actions created. To do so properly, it is necessary to begin with an explanation of the term habeas corpus, and a recollection of the socio-political climate within the Union which immediately preceded and contributed to the writ’s suspension. The writ of habeas corpus is a product of the English common law tradition, and exists as one of the most sacrosanct of legal principles in the American judicial system. An instrument of judicial recourse designed to safeguard individual civil liberties from the authority of the state, the writ of habeas corpus requires a prisoner to be arraigned before a magistrate and presented with sufficient cause for his detention. Though frequently understood as an inviolable right in political theory, the U.S Constitution declares the writ of habeas corpus to be no more than a “privilege,” justly suspended when the public safety may require it. Determining when such an occasion was present, and which branch of government was authorized to address it when its presence was acknowledged, however, was in no way facile, and until the Lincoln administration, without precedent in all of American history.

Whitener 2 After the fall of Fort Sumter on April, 15, 1861, the Union was imperiled to a greater degree than perhaps at any other time in its history. On the April 19, the Sixth Massachusetts Militia arrived in Washington at the President’s request after having literally fought their way through Baltimore. The following day, all lines of communication were severed by prosecession Marylanders. On April 25, the Seventh New York Militia arrived in Washington after encountering resistance in Maryland. The calamity of the situation was palpable; not only was Washington isolated from one state in the Union, of which it still remained the capital, the Federal government’s attempts to restore order had been met with wholesale disregard for the nation and its laws. Despite this most desperate situation, Lincoln hesitated to resort to such a measure as suspending the privilege of the writ of habeas corpus.1 Instead, he remained convinced that alternative manners of political recourse would not only prove to be more effective, but more desirable. In fact, he looked upon the bombardment of the cities of Maryland as preferable to the writ’s suspension. Lincoln directed General Winfield Scott to do precisely this in cases of “necessity,” but only “in the extremest necessity” was he authorized to suspend habeas corpus.2 This pattern is extant throughout Lincoln’s correspondences with Union generals, and suggests that the ultimate decision to suspend was not one of choice, but one of necessity. In fact, President Lincoln’s initial announcement of suspension, promulgated on April 27, 1861, carried with it only territorial rather than national jurisdiction. Lincoln’s order to General Scott specifies the following:

1 Sherill Halbert: The Suspension of the Writ of Habeas Corpus by President Lincoln, p. 98. 2 Ibid.

Whitener 3 “You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line…you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you, personally or through the officer in command at the point where the resistance occurs, are authorized to suspend that writ.” 3 The distinctions contained within the aforementioned remarks suggest Lincoln’s extreme reluctance to invoke the government’s authority to suspend throughout the Union, the writ of habeas corpus. Rather than choosing to suspend the writ, it might be contended that the circumstances and agency beyond his control forced him to do so.

Section I: Making the Case for Suspension In the state of nature, both animals and men are the most vigilant and ferocious when under attack by an enemy; in the state of civilized governmental affairs, citizens and statesman, though constrained by legal mandates, will nevertheless override all laws when driven to the wall by a murderous assailant. In each scenario, the immutable law of self-defense ultimately takes precedence over the tenuous principle of liberty. Plainly, Lincoln believed that the Union had a right and a duty to defend itself against that which sought to bring it harm; he was not, however, of the opinion that doing so necessarily entailed encroaching upon constitutionality. Echoing the sentiments of the framers, Lincoln contended that the existence of the Union was fundamentally dependant on the preservation of the guiding principles put forth in the Constitution. To infringe upon them was to chip away at the very cornerstone of American liberty, and jeopardize the fate of the nation itself. Was it, then, possible to defend both without Whitener 4
3 Roy P. Basler et al., eds., The Collected Works of Abraham Lincoln, 9 vols. Vol. 4, p. 347.

resorting to illegality? When threatened with a rebellion of its own citizens, must a government violate its own constitution to preserve the nation it is charged with defending.4 This was the dilemma with which Lincoln was confronted. Though it may well be contended that the constitution exists as an inviolable contract between citizen and state, which neither sanctions nor condones actions deleterious to either, it is equally probable that its provisions were intended to serve as a mutable framework upon which an ever-changing society would be dependant. If the constitution were not sufficiently robust to ensure its own preservation, its practical usefulness as a framework of government would be tenuous at best, and fatal at worst; furthermore, if Lincoln’s actions were unconstitutional and yet necessary in order to save the union, the constitution itself would seem to be defective. His interpretation of the Constitution, however, clearly legitimated the use of extraordinary measures to ensure its preservation and the essence of republican liberty instantiated within it. Implicit in this understanding, however, was an unapologetic commitment to political expediency. Appropriating undelegated constitutional terms to the executive, was, in Lincoln’s view, a legitimate and constitutional means to an end upon which the fate of the Union was dependant. In a Special Session of Congress convened on Independence Day, 1861, Lincoln sought to justify the emergency actions undertaken at the beginning of the war, and reaffirm liberty as the principle purpose of national existence.5 In doing so, he attempted to answer conclusively the question which permeated the nation’s collective political consciousness: “whether a constitutional republic, or a democracy…can, or cannot, maintain its territorial integrity, against Whitener 5

4 Sydney G. Fisher, The Suspension of Habeas Corpus, p. 485. 5 Herman Belz: Constitutionalism and Equal Rights in the Civil War Era, Lincoln and the Constitution, p. 38.

its own domestic foes.” In doing so, the President implored his audience to look beyond the strict dichotomy of liberty which either sanctioned or condemned its qualified suspension. “Is there, in all republics,” he asked, “this inherent, and fatal weakness?…Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” 6 Seeking to avoid the calamity that would surely ensue should the latter prove to be the case, Lincoln forlornly asserted that “…no choice was left but to call out the war power of the Government; and so to resist force, employed for its own destruction, by force, for its preservation.” 7 One such power of the government, the right to suspend the privilege of habeas corpus, is contained within Article 1., Section 9., Clause 2 of the United States Constitution.8 Though the rightful and intended executor of this power remains to this day unresolved, Lincoln’s opinion on the matter, however, was unequivocal.

“Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself is silent as to which, or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be case, the danger together; the very assembling believed that the framers of the instrument intended, that in every should run its course, until Congress could be called of which might be prevented, as was Whitener 6

intended in this case, by the rebellion. No

more extended argument is now offered; as an opinion, at some length, will
6 Henry Steele Commager: Fifty Basic Civil War Documents: Lincoln Message to Congress, p. 59. 7 Ibid. 8 The terms of the above-mentioned statute are as follows: “The privilege of the writ of habeas corpus shall not be suspend unless where in cases of rebellion or invasion the public safety may require it.”

probably be presented by the Attorney General. Whether there should be any better legislation upon the subject, and if any, what, is submitted entirely to the judgment of Congress.” 9

The much anticipated opinion of Attorney General Bates was made public the following day. The Attorney General’s conclusions seemed to cast dispersion on Lincoln’s critics while simultaneously upholding the rectitude of his actions. Bates concluded that in suspending the writ of the privilege of habeas corpus, the President had been legally and morally correct in asserting his constitutionally provided authority to suppress a rebellion, which was in actual existence. Similar sentiments regarding the scope and extent of constitutionally permissible executive authority were likewise elucidated in Lincoln’s private correspondences. In the Corning letter of June 1863, Lincoln upheld the right of the executive to exercise the power to suspend the privilege of the writ of habeas corpus. His Democratic critics had contended that the government could make no arbitrary arrests or suspend the privilege of habeas corpus outside designated areas of rebellion and military occupation--actions which the President had, arguably, theretofore performed.10 Lincoln, however, held that because the Constitution “makes no such distinction, I am unable to believe that there is such constitutional distinction.” Furthermore, he asserted that the writ could be suspended and arrests at the behest of the executive made whenever the public Whitener 7 safety required it, regardless of where the need to do so had arisen. In each instance, the

9 Basler: Collected Works of Lincoln, Vol. 4, p. 430. 10 Belz: Constitutionalism and Equal Rights, Lincoln and the Constitution, p. 36.

President reasoned that because the Constitution is silent on who may exercise this power, it shall justifiably and unequivocally be reserved for the executive during periods of national emergency and Congressional recess. Even before writing the Corning letter, however, it was clear to Lincoln that the Union was sufficiently imperiled that qualified Executive intervention was not only justified, but required. By September of 1862, the socio-political climate had dictated the terms of the discourse to Lincoln thus: suspend the privilege of the writ of habeas corpus or risk facilitating the destruction of the United States of America. Carrying the weight and fate of the nation on his shoulders, Lincoln sought to avert the latter, by affirming the former. On September 24th, Lincoln issued a General Proclamation for the Suspension of Habeas Corpus; in so doing, he had not only appropriated for the executive branch the terms of Article 1, Section 9, Clause 2, but reaffirmed the precedent that in times of national emergency, the rule of law often lacks sufficient jurisdiction to constrain the rule of necessity. This is not, however, to say that Lincoln’s actions should necessarily be interpreted as wholesale transgressions of his Constitutional mandates; for the oath which required him to “preserve, protect and defend the constitution” also required him to execute effectively his obligation to “guarantee to every state in [the] Union a Republican government and…protect each of them against invasion and on application of the legislature or of the Executive (when the legislature cannot be convened) against domestic violence.” 11

Whitener 8 Lincoln’s second and more cerebral justificatory approach appealed to the theoretical

11 If the terms of Article I., Section. IX., Clause II were at all ambiguous, those of Article IV., Section IV were exceedingly clear and undeniably relevant to Lincoln’s political calculus.

relationship that was thought to exist between the Union, the Constitution, and the nature of republican government. His emotive petition to the July 4, 1861 Special Session of Congress had been an ostensibly legalistic justification for his actions theretofore; but it also served as the foundation for the philosophical apologia that would characterize much of his reasoning thereafter. In a draft of his report to this Special Session of Congress, Lincoln observed that “The whole of the laws which were required to be faithfully executed, were [in the midst of rebellion] being resisted…in nearly one-third of the states. Must they be allowed to finally fail of execution?…“are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” The politico-philosophical arguments which Lincoln here began to employ centered around a symbiotic relationship which he thought to have existed between the nation (the Union) and the Constitution. In the Hodges letter of 1864, president Lincoln asked, whether it was “possible to lose the nation, and yet preserve the constitution.” In doing so, he looked beyond the legalistic outlook that had once characterized the defense of his actions, and appealed to an inseparable relationship extant between the Union and the Constitution; a relationship which, regardless of the socio-political crises that threatened it, must have remained sound for the American experiment in liberty to endure. “By general law life and limb must be protected,” he observed, “yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.” Mere hyberbolic rhetoric though it may have been, Lincoln’s point in both instances was well-made; even if his actions strayed from the confines of constitutionality, they might, so went the argument, remain requisite and justifiable in periods of national emergency. For if the Civil War

Whitener 9 was waged to preserve the Union and defend republican liberty, defeat would signal their collective destruction. Hermann Belz contends as much in emphasizing Lincoln’s ultimate appeal to “a kind of constitutional common sense that, while respecting the requirements of procedural regularity and formal legality, was concerned above all with preserving the substance of republican liberty.” 12 In light of such sentiments, it may be inferred that Lincoln viewed the Constitution as more than the mere legal framework around which the nation’s governmental affairs would be conducted; instead, it is likely that he saw the Constitution and the nation as one symbiotic whole; both figuratively and literally, the Constitution was the nation, and more importantly, the nation was the Constitution. To preserve the nation, then, was to preserve the Constitution; for as Lincoln himself had insisted, “I could not feel that, to the best of my ability, I had even tried to preserve the constitution, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution all together.” 13 His appropriation of the power to suspend the privilege of the writ of habeas corpus must, therefore, be understood not as a capricious whim of a despotism, but as the necessary and ultimate recourse of a wartime statesman in his struggle to preserve the Union. Caution must be expressed, however, in the formulation of an overly-intellectualized portrayal of Lincoln’s rationale. Mark E. Neely, while freely admitting that Lincoln’s thought was “not nakedly opportunistic or embarrassingly shallow,” nevertheless contends that “Lincoln was not an intellectual, certainly not a systematic thinker: he was a politician and one slights the Whitener 10

12 Belz, Constitutionalism and Equal Rights, Lincoln and the Constitution, p. 41. 13 Basler: Collected Works of Lincoln, 7:281.

instrumental side of Lincoln’s statement only at great peril.” Plainly, the contextual dimension of Lincoln’s actions, is, in Neely’s judgment, of greater importance than any intellectual qualities ascribed to his role as an individual political actor. As profound as Neely’s judgments may seem, they exist in marked variance with traditional historiographical interpretations. Herbert Croly, in his 1909 essay “Lincoln as More Than an American,” sees Lincoln as an idealistic visionary, whose “peculiar service to his countrymen…was that of seeing straighter and thinking harder than did his contemporaries.” Lincoln, in Croly’s opinion, was not merely a politician whose actions reflected the practical demands of the historical context within which he was situated; he was an example of “high and disinterested intellectual culture, who “preferred the satisfaction of his own intellectual and social instincts.” 14 Similar sentiments exist in the writings of Roy P. Basler, who attempted to assess the presence or absence of political opportunism in Lincoln’s actions. Basler concludes that Lincoln was not simply a reactionary opportunist, wholly devoid of the foresight which an intellectual approach to statesmanship might have fostered. Basler’s understanding suggests that the rational-philosophical basis for Lincolnian statesmanship which Neely denies, was, in reality, an instrument for transcending the very historical context which they affirm. Lincoln’s actions, therefore, are to be praised for their foresighted timelessness, not ascribed completely to the contextual exigencies which fostered them.

Whitener 11 Section II: The Strict Constructionist Response
14 Herbert Croly, The Promise of American Life, pp. 87, 89-92.

Though clearly placed in the Constitution under the powers of the Legislative branch, the terms of Section IX, Clause II have been at the center of both contemporary and historical debate over the rectitude of Lincoln’s actions; linguistic equivocity, however, features far more prominently in the Constitution than a prima facie reading might suggest. Contrary to other articles of constraining authority in the same section, Clause II makes no mention of which branch of government is provided the authority to suspend the writ of the privilege of habeas corpus. In the absence of such specificity, Lincoln assumed, as the framers likely would have intended, this power for the executive branch. As confident as Lincoln was in the constitutionality of his actions, his critics were equally convinced that the President had violated the very principles he sought to uphold. The then Chief Justice of the Supreme Court, Roger B. Taney, proved to be one of Lincoln’s most vociferous critics. His understanding of constitutionally permissible Executive authority differed markedly from that of Lincoln, and was expressed as such in the now (in)famous Ex Parte Merryman decision. Merryman is unique in that is the only opinion of a Federal Court which treats precisely the issue of whether the Executive or the Legislative Branch has the Constitutional right to suspend the privilege of the writ of habeas corpus. In it, Taney upheld vigorously the power of Congress alone to suspend the writ, but failed to acknowledge the dire state of rebellion into which the nation had descended, which, ironically, had been the catalyst for the decision itself. Nowhere in the Border States were Southern sympathizers more active or rebellion more pressing than in Maryland; one of the most ardent supporters of each political telos was a resident

Whitener 12 of Baltimore named John Merryman. Merryman demonstrated brazenly and publicly his objections to the controversial policies undertaken by President Lincoln through both words and deeds. An ardent supporter of Southern autonomy, Merryman recruited a company of soldiers for the Confederate Army and became their Lieutenant Drillmaster. Such actions were tantamount to treason and, as such, precipitated a tumultuous legal conflict between the President and the Chief Justice. 15 On May 25, 1861, Merryman was arrested by the U.S military for various actions of alleged insurrection, and held in Fort McHenry, Baltimore. As the alleged reasons for his detention were not presented in open court, Merryman’s council swiftly petitioned for a writ of habeas corpus. The following day, Chief Justice Taney took jurisdiction in the case as a Circuit Judge and issued a writ to General Cadwalader, directing him to produce Merryman in court the next morning at 11:00 a.m. In light of President Lincoln’s suspension of the privilege of the writ, Cadwalader felt duty-bound to respectfully refuse Taney’s order.16 Taney’s initial outrage over Lincoln’s actions was compounded by Cadwalader’s refusal to obey the writ. The General was held to be in contempt, but, like the writ, Taney’s pronouncement had been relegated by Lincoln’s proclamation to little more than unenforceable banter. Recognizing but refusing to accept the state of constitutional crisis into which the nation had descended, the eighty-five year old Taney remained ebullient in criticizing the man he held to be responsible.

Whitener 13

15 Halbert: Suspension of Habeas Corpus by Lincoln, p. 99. 16 Ibid.

To the venerable old Chief Justice, the question had been “too plain and too well settled to be open to dispute.” 17 Yet, since the President had, in his view, “exercised a power which he does not posses under the constitution,” a “proper respect for the high office he fills,” compelled Taney to “state plainly and fully” the grounds for his opinion.11 Taney’s principle objection to Lincoln’s appropriation of Art. I, Sec. IX, Cl. II, was “that the privilege could not be suspended except by act of Congress.” 18 An ardent strict constructionist, Taney was convinced that the position of the statute under consideration was sufficient to justify its place within the powers of Congress. Furthermore, he contended that nothing in the Constitution could justify its appropriation by the Executive branch alone. “It is the second Article of the Constitution,” he wrote, “ that provides for the organization of the Executive Department, and enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizens now claimed was intended to be conferred on the President, it would undoubtedly be found in the words of this article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power…” 19 If the constitution, in its present linguistic state, specified the power to suspend the privilege of the writ of habeas corpus unambiguously, as Taney thought to be the case, then any and all arguments to the contrary would be untenable.20 Not only was he convinced Whitener 14 thoroughly of the Constitution’s explicit delegation of the power to suspend the writ to Congress,
17 17 Federal Cases 148. (Case No. 9, 487). 11 Ibid. 18 Commager: Civil War Docs, Ex Parte Merryman, p. 111. 19 Ibid., 112. 20 Some five years later (after the war’s conclusion), these general sentiments were upheld by the Supreme Court in Ex Parte Milligan. Writing for the majority, Chief Justice Salmon Chase held that “the constitution of the United States is a law for rulers and people, equally in war and in peace…The government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.”

he appealed to historical precedent and constitutional law to validate his position. In crafting the Merryman decision, Taney appealed to and quoted at length the commentaries of his predecessors concerning the suspension of habeas corpus. Citing Justice Story’s Commentaries on the Constitution of the United States, Taney adroitly furnishes Story’s contention that though “it is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ…no suspension of the writ has ever been authorized by Congress since the establishment of the Constitution.” In light of the alleged verdict of history and the terms of the constitution, Taney shares in Story’s belief that “it would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.” 21 Former Chief Justice John Marshall had expressed similar sentiments in the majority opinion in the case of Ex Parte Bollman and Swartwout. “If at any time,” Marshall had written, “the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the legislature is to decide.” 22 The principle tenor Whitener 15 of constitutional theory had, in Taney’s view, not only denied fervently the executive

21 Commager: Civil War Docs, Ex Parte Merryman, p. 112. Commentaries, sec. 1336. 22 Ibid. Taney’s reference to Chief Justice Marshall’s remarks in Ex Parte Bollman and Swarthout concerning which branch of govt. was constitutionally justified in suspending the writ, is to take them far beyond their original context. Marshall was referring to the Judiciary Act of 1789 and, as mere obiter dictum, contended that any time the public safety required the suspension of the powers vested in the act, the Congress and not the courts would act as the executor. A somewhat cynical reading of Merryman might lead one to the conclusion that Taney’s appropriation of Marshall’s remarks amount to little more than a shallow appeal to authority amidst a politicallymotivated diatribe against a political enemy. I leave the reader, however, to develop his/her own view of the veracity of Taney’s argument.

appropriation of Art. I, Sec. IX, Cl. II, but established a precedent which had theretofore been respected in political practice. Lincoln’s actions, in Taney’s judgment, had at once violated this precedent and “gone far beyond the mere suspension of the privilege of habeas corpus.” 23 Just as the suspension of the privilege of habeas corpus carried with it the establishment of martial law and military tribunals to apprehend, try, and convict suspected insurrectionaries, so too did it foster a culture of attending rights violations. Taney’s understanding of constitutionally permissible executive authority was quite clearly abhorrent to either notion. Though he went to great linguistic lengths to justify his position by citing both American and English historical and constitutional precedent, Taney either failed or refused to acknowledge the fact that a rebellion was in actual existence which threatened to destroy the Union. Instead, he spoke very generally about the nature of the Constitution and the rule of law in a republican political system. “I can only say, the Chief Justice declared, “that if the authority which the Constitution has confided to the Judiciary department and judicial officers may thus upon any pretext or under any circumstances be usurped by the military power at its discretion, the people of the United States are no longer living under a Government of laws.” 24 Ex Parte Merryman has been cited as a scholarly, and by some, a definitive discussion of the right of the Executive to suspend the privilege of the writ of habeas corpus.25 It must not,
23 Ibid., 113. 24 Ibid. 25 Halbert: Suspension of Habeas Corpus by Lincoln, p. 101.

however, be regarded as an irrefutable counterargument which demonstrates conclusively the thesis it sought to advance. As Sherrill Halbert contends, it was, in the end, the opinion of but Whitener 16 one man; though written by the Chief Justice of the United States, it emanated from a Circuit Court, and as such, carried with it neither the gravitas of a Supreme Court decision nor the consenting opinions of any justices thereon. 26 Though Lincoln made no public notice of the opinion, sufficient evidence exists which demonstrates that he was nevertheless aware of it. In the draft of his address to the July 4th Special Session of Congress, Lincoln seemed to respond perspicaciously to the allegations which Taney had lobbied against him. “I have been reminded from a high quarter,” the President wrote “that one who is sworn to ‘take care that the laws be faithfully executed’ should not himself be one to violate them.” For Lincoln, however, the matter was clear; “In my opinion,” he wrote later in the same draft, “I violated no law. The provision of the constitution that ‘The privilege of the writ of habeas corpus shall not be suspended unless where in cases of rebellion or invasion the public safety may require it’, is equivalent to a provision--is a provision--that such privilege may be suspended when, in cases of rebellion or invasion the public safety does require it. I decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ of habeas corpus.” 27 Though he nowhere mentions by name either Justice Taney or the Merryman decision, little difficulty is involved in identifying the subject(s) to which his remarks were addressed.

26 Ibid., 109. 27 Ibid, pp. 101-102.

The strict mode of constitutional interpretation invoked by Taney and the constitutional theory which contributed to his opinion, are most assuredly not devoid of merit. As the first article specified the powers of Congress--both positive and negative--it and it alone, so ran the Whitener 17 theory, would serve as the term’s rightful executor. As plausible, albeit simplistic, as this line of thinking may be, Justice Taney’s exclusive reliance on it and it alone effectively undermined its relevance, some might say validity, as a means of addressing adequately the original question; for the Chief Justice either failed or refused to recognize the socio-political exigencies from which the case originally stemmed. Perhaps even more unforgivably, the venerable old Justice failed completely to respect the original intent of the framers or appreciate the efforts of the Constitutional committee on style and organization. It is to these his misjudgments and their weaknesses in invalidating the actions of Lincoln toward which the following section is directed.

Section III: Constitutionalism: Theory and Practice in Wartime Statesmanship Shortly after the Merryman opinion was published, Horace Binney, an eminent lawyer and the then leader of the Philadelphia bar, launched a scathing critique of Justice Taney’s understanding of the habeas corpus statute and its role within the constitution. Binney contended that the President could, of his own accord, suspend the writ and did so by deducing from the terms of the statute, the original intent of the framers to confer the power of suspension on the executive. In crafting his narrative, Binney attempted a kind of constitutional archaeology, the purpose of which was to uncover the theoretical intent of the framers while reconciling it the

existing terms of the document and the political practices of Lincoln. 28 Prior to their adoption and ratification in 1787, the terms of the Constitution underwent a comprehensive editing process performed by a Constitutional Committee on Style to ensure Whitener 18 individual cogency and collective coherence within the document. 29 As they have come down to us, both the terms and position of Article 1, Section 9, Clause 2, are the product of this process. To ease the reader’s understanding of the following discussion regarding these terms, I wish to provide them here in both their original and current versions:


“The privilege of the writ of habeas corpus shall not be suspended, unless where (when) in cases of rebellion or invasion the public safety may it.” In the current state of the clause, with the presence of the word “where” and the absence

of the original word “when,” the statute exists now as it did in 1861. There was (and indeed is) no explicit reference made to the legislature, and as adopted by the convention, this clause originally existed as an amendment to the fourth section of the eleventh article, which treats of the judiciary.30 The statute was moved thereafter by the Committee on Style to its present position. The most likely rationale for the present location of the clause is that the terms of the first article are restrictive throughout. 31 Most clauses in the ninth section of the first article are explicit in their restrictive demands on Congressional authority; yet the seventh clause restrains the
28 Binney’s arguments are contained in his The Power to Suspend the Privilege of the Writ of Habeas Corpus (Published by C. Sherman and Son). The most relevant portions of Binney’s argument are summarized in the subsequent paragraphs. 29 If the original intent of the Committee was to alleviate Constitutional ambiguity, the irony of its efforts is indeed palpable in light of the theme of this paper. 30 Fisher: The Suspension of Habeas Corpus, p. 463. 31 Ibid.

executive, and the eighth clause restrains all persons who hold an office of profit or trust under the United States. The mere presence of Clause II in Section IX is, therefore, of little avail in arguing for exclusionary Congressional authority; nor are similar arguments which depend on its presence in the first article itself. Whitener 19 A careful reading of the terms of article one will reveal that they are not confined exclusively to Congress. The seventh section, for instance, provides the Executive with the power to veto, while the tenth section specifies prohibitions of the states. Similarly, the third article, which treats of the judiciary, is not confined exclusively to its title; for it is in the second clause of the third section that Congress is provided the power to declare punishment of treason; it must here be noted and referenced that this suspending statute (unlike Article 1, Section 9, Clause 2) is explicit in delegating authority to that branch of government which has charge of the public safety in times of rebellion or invasion. Such inconsistencies, contrived or otherwise, would seem to undermine entirely the basis for the strict constructionist’s “argument from position.” If Article I, Section IX, Clause II had not spoken of the privilege of habeas corpus, but instead an act of habeas corpus, the argument that a “legislative” provision may only be suspended through legislative authority, might be plausible. The clause however, does not give power to authorize suspension, it gives power actually to suspend. 32 The former is undoubtedly characteristic of legislative authority, while the latter clearly indicates the intended role of the executive. 33 Furthermore, even if expressed in the form of a restriction, the habeas corpus
32 Ibid, p. 464. 33 This notion of the division of governmental authority is validated when one considers Lincoln’s September 24, 1861 decision to issue the General Proclamation of the Suspension of Habeas Corpus and the subsequent Congressional approval of his actions with the Habeas Corpus Act of 1863. Historical events as they transpired in political practice, can here (and frequently elsewhere) be seen to mirror exactly the principles of constitutional theory.

clause almost surely implied a corresponding grant; for though its terms restrict suspension to certain

Whitener 20 conditions, it simultaneously delegates that power when those conditions have been fulfilled.34 The question remains, however, of whether what seems to exist as a truism in constitutional theory, remains valid in political practice. Expressed more explicitly, which branch of government is rightfully charged with ascertaining the conditions of rebellion or invasion and their corresponding threats to public safety? The terms of the constitution itself mandate that the Executive (not the Congress) “take care that the laws be faithfully executed.” 35 To do so effectively, must the president not have the right to determine when conditions are sufficiently grave that his power may be invoked? On March 3, 1863, Congress passed the Habeas Corpus Act of 1863. The most relevant section of which, for our purposes, affirmed: “That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the writ of the privilege of habeas corpus in any case throughout the United States, or any part thereof.” 36 The legislative program which culminated in the passage of this bill was endorsed and championed by a surprisingly large and vocal bastion of executive support. 37 Senator Collamer of Vermont had contended that “the executive is just as much clothed with authority, and bound
34 Fisher: The Suspension of Habeas Corpus, p. 465. 35 Article 2, Section 3. 36 Public Laws of the United States of America, 3rd S. 37th Congress, 12th statute, p. 755. 37 Lest I be criticized for ignoring the obvious, Congressional support for Lincoln’s actions was not absolute. In light of the fact that a majority in Congress supported the president, however, extensive treatment of petty political rebuttals is both needless and unhelpful.

in duty when called on, to give construction to the constitution in the execution of it as we are, and his decision is just as binding as ours…it is not common courtesy of one branch of this Whitener 21 Government to say to another, ‘We say the constitution means so an so, and we are infallible.’” 38 Collamer’s remarks reflect both the necessity to interpret the constitution in light of pressing socio-political exigencies, as well the duty of each branch of government to respect and remain cognizant of authoritative parity. In passing the bill, the Legislature thus affirmed President Lincoln’s decision to suspend the privilege of the writ of habeas corpus, and officially sanctioned his authority to appropriate the terms of Article I, Section IX, Clause II. In doing so, it made no positive claim to an exclusive Legislative right, and provided Lincoln with even more authority than he had originally sought. The promulgation of this pronouncement was, therefore, a stinging defeat for Lincoln’s detractors; for it was they who had asserted the authority of Congress alone to exercise the powers vested in the habeas corpus statute, and by its own decree, Congress had deemed Lincoln’s actions to be constitutionally permissible.

Conclusion Upon reflection of Lincoln’s decision to suspend the privilege of the writ of habeas corpus, it is not enough to merely reason toward approval or disapproval of his actions. The verdict of history would be cold, sterile, and largely devoid of value if it only offered an explanation of how and why past events occurred. It is infinitely more meaningful when it can assist in explaining the nature of modernity. If Lincoln had not suspended the writ, what would have happened? To answer the question is to simply speculate, but to think about it with care is
38 The Congressional Globe, 3rd S. 37th Congress, p, 247.

Whitener 22 to empathize with the rationale of the man responsible for successfully guiding the Union through its darkest hour. Lincoln believed wholeheartedly that if the American experiment in liberty were to endure, the government must have had the authority with which to defend itself against those who sought to bring it harm. His controversial appropriation of an ambiguous constitutional statute speaks volumes about the grave state into which the nation had descended. Forced by necessity and compelled by an insurrection which threatened to destroy the Union and the collective liberty it sought to uphold, Lincoln was duty-bound to suspend the rights of the individual to ensure that the nation itself could endure. The practical applications of his decision, while implemented imperfectly, were nevertheless affirmed by his congressional colleagues and validated as sound in the most demanding of judicial proceedings, the courtroom of public opinion. If Lincoln’s suspension of the privilege of habeas corpus has taught us anything, it is that for collective liberty to endure, there must first exist a populace responsible enough to respect the paradox so deeply embedded within it.

The Paradox of Liberty: Abraham Lincoln’s Suspension of the Privilege of Habeas Corpus During the War of Rebellion.
Joseph Whitener Michal Rozbicki PhD Seminar: History of Liberty in the United States Saint Louis University May 7, 2007

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