Abraham Lincoln's Suspension of Civil Liberties and Our Holier Than Thou Attitude

You cannot give people democracy. They must want it and be willing to fight for it and to die for it. We look around the world and see governments doing things with which we disagree. We forget our past and we fail to recognize sometimes the people are not right. Remember Abraham Lincoln:

During Lincoln's presidency, he was criticized for taking what were considered "extra-constitutional measures." But in the end, the verdict of history is that Lincoln's use of power did not constitute abuse since historians rank Lincoln as number one among the great presidents.

Far harsher would have been his denunciation if the whole American experiment of a democratic Union had failed--as seemed possible given the circumstances. If such a disaster occurred, what benefit would have been gained by adhering to a fallen Constitution? It was a classic example of the age-old conflict in a democracy: how to balance individual rights with security for a nation.

Between Abraham Lincoln's April 1861 call for troops--the beginning of the Civil War--and the official convening of Congress in special session on July 4, 1861, Lincoln performed a whole series of important acts by sheer assumption of presidential power. Lincoln, without congressional approval, called forth the militia to "suppress said combinations," which he ordered "to disperse and retire peacefully" to their homes. He increased the size of the Army and Navy, expended funds for the purchase of weapons, instituted a blockade--an act of war--and suspended the precious writ of habeas corpus, all without congressional approval.

Lincoln termed these actions not the declaration of "civil war," but rather the suppression of rebellion. Congress is constitutionally empowered to declare war, but suppression of rebellion has been recognized as an executive function, for which the prerogative of setting aside civil procedures has been placed in the President's hands.

Lincoln suspended the writ of habeas corpus, a procedural method by which one who is imprisoned can be immediately released if his imprisonment is found not to conform to law. With suspension of the writ, this immediate judicial review of detention becomes unavailable. This suspension triggered the most heated and serious constitutional disputes of the Lincoln Administration.

In April 1861 John Merryman spoke out against the Union and in favor of the South and recruited a company of soldiers for the Confederate Army. He not only exercised his constitutional right to disagree with what the government was doing, but engaged in raising an armed group to attack and attempt to destroy the government.

On May 25, Merryman was arrested by the military for treason. His counsel sought a writ of habeas corpus from Chief Justice Roger B. Taney, alleging that Merryman was being illegally held. Taney issued a writ to fort commander George Cadwalader directing him to produce Merryman before the Court the next day at 11:00 a.m. Cadwalader respectfully refused on the ground that President Lincoln had authorized the suspension of the writ of habeas corpus.

Taney immediately issued an attachment for Cadwalader for contempt. The marshal could not enter the fort to serve the attachment, so the old justice, recognizing the impossibility of enforcing his order, settled back and produced the now-famous opinion, Ex parte Merryman. The Chief Justice defended the power of Congress alone to suspend the writ of habeas corpus.

The Constitution permits the suspension of the writ in "cases of rebellion and when the public safety" requires it. But it is unclear who has the power, Congress or the President.

Taney relied on the fact that the right to suspend the writ was in Article I, section 9 of the Constitution, the section describing congressional duties. Dean of Lincoln historians Richard Nelson Current believes that it was put in this article because the Committee on Style could find no other place for it.

Taney failed to acknowledge that a rebellion was in progress and that the fate of the nation was, in fact, at stake. Taney missed the crucial point made in the draft of Lincoln's report to Congress on July 4:

[T]he whole of the laws which I was sworn to [execute] were being resisted...in nearly one-third of the states. Must I have allowed them to finally fail of execution?... Are all the laws but one [the right to habeas corpus] to go unexecuted, and the government itself...go to pieces, lest that one be violated?

Two years later, Congress resolved the ambiguity in the Constitution and permitted the President the right to suspend the writ while the rebellion continued. Imagine the reaction of our fellow American citizens today if an anti-war demonstrator was treated as Merryman was in 1861 or if the writ of habeas corpus was suspended.