I guess this is what Obama studied about Lincoln
During the Civil War, President Lincoln suspended the writ of habeascorpus three times: first, on April 27, 1861, again on September 24, 1862, a few days after signing the Emancipation Proclamation, and finally on September 15, 1863. Although there is no exact record of the total number arrested during the Civil War, the Commissary General of prisoners listed 13,535 citizens arrested from February 1862 to April 1865. It should come as no surprise then that freedom from arbitrary arrest became the most important constitutional issue in the early part of the Civil War. This freedom was limited by the fact that the majority of the loyal North, both Democrats and Republicans, believed that secession was not a constitutional right and that a rebellion was underway. That elevated constitutional issues to paramount concern. Thus, these suspensions of rights enhanced the controversy regarding the constitutionality and amount of power allotted to the President. They also encouraged such government agencies as the Post Office to restrict free press by confiscating controversial issues of newspapers and other publications. These suspensions may have encouraged citizens to take the law into their own hands such as in the cases where they destroyed Copperhead presses. We now turn to an examination of these suspensions of the writ of habeascorpus in order to assess their First Amendment implications, their Constitutional justifications, and their impact on citizens and the press.
Suspension of the Writ
On April 14, 1861, Fort Sumpter fell to the Confederacy. On April 27, 1861, President Lincoln gave the Commanding General of the U.S. Army, Winfield Scott, the following instructions in order to prevent secession-minded Marylanders from interfering with the Capital's communication with the North:
You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line, which is now used between the City of Philadelphia and the City of Washington, via Perryville, Annapolis City, and Annapolis Junction, 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. (8)
The public had forced the pro-Union governor Thomas Hicks to call the legislature into session. He warned the President that the legislature was filled with Confederate sympathizers. (9) Lincoln was reluctant to act as a letter to General Winfield Scott dated April 25, 1861 indicates. In it Lincoln discouraged ordering the arrest of members of the Maryland legislature:
The Maryland Legislature assembles tomorrow at Annapolis; and, not improbably, will take action to arm the people of that State against the United States . . . they have a clearly legal right to assemble; and, we can not know in advance, that their action will not be lawful, and peaceful . . . we can not permanently prevent their action . . . we can not long hold them as prisoners . . . I therefore conclude that it is only left to the commanding General to watch, and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt, and efficient means to counteract, even, if necessary, to the bombardment of their cities - and in the extremist necessity, the suspension of the writ of habeas corpus. (10)
The crisis quickly took and turn for the worst and the President filled the Maryland's capital with federal troops and military authorities. They made several arrests including the Baltimore marshal of police George P. Kane, Baltimore Mayor William Brown, and, on September 17, nine members of the Maryland legislature and the chief clerk of the Maryland Senate. The members of the Maryland legislature were arrested for fear that, if allowed to attend the legislative session, they would vote for secession from the Union.
For all of his handwringing, Lincoln believed it was better to save the Union than live up to its guarantees. (11) In 1862 in a public letter to Horace Greely, he went so far as to say, "If I could save the Union without freeing any slave I would do it; and if I could save it by freeing all the slaves I would do it." (12) There is perhaps no worse example of the restriction of free speech in the entire Civil War than this one. Duly elected members of a state legislature were prevented from assembling and speaking on a critical issue. Along with free speech and assembly, states' rights were crushed in this effort to preserve the Union. It was clear from this moment what hierarchy of values Lincoln held dear.
Ex parte Merryman
Lincoln's assertion of power was not to go unchallenged. Less than a month after his suspension of the writ, a case began wending its way through the courts. The Merryman case was brought to bar to determine whether the President or the Congress had the power to suspend the writ of habeascorpus. It began on May 25, 1861, when John Merryman, a southern sympathizer and secessionist from Maryland, was taken into military custody. He immediately asked to be released under a writ of habeascorpus. In one of the oddities of history, the Chief Justice of the Supreme Court Roger B. Taney, a Democrat appointed by President Jackson, sat in judgment on the case as the circuit judge. Taney had penned the infamous Dred Scott decision of 1857 which Lincoln had consistently attacked. Now Taney and Lincoln crossed swords again.
In arguing for the President's power to suspend the writ, Attorney General Bates contended that the three great branches of the Government are coordinate; the executive cannot rightly be subjected to the judiciary. The President, he maintained, is in a peculiar manner their preserver and protector as the defender of the Constitution. (13) Moreover, it is the President's duty to put down a rebellion because the courts are too weak to do so. Bates pointed out that the power of the Presidency does open the way for possible abuse; however, it is just as true that a legislature may be factious or a court corrupt. The President cannot be required to appear before a judge to answer for his official acts because the court would be usurping the authority of Executive Branch. (14) Bates contended that for any breach of trust the President is answerable before the high court of impeachment and no other tribunal.
In filing his opinion, Taney responded that the President had no lawful power to issue such an order and that a writ of habeascorpus should preside. In Ex parte Merryman Taney claimed that only Congress could suspend the privilege of the writ and that the President, though sworn to "take care that the laws be faithfully executed," had broken the laws himself. In a clever rhetorical ploy, Taney used a hermeneutic argument invoking the rule of construction according to context. He pointed out that the provision regarding habeascorpus appears in that portion of the Constitution which pertains to legislative powers; therefore, its suspension was a legislative, not executive prerogative. Taney argued further that the military authorities should reveal the day and cause of the capture of Merryman and explain the reasons for his detention of Merryman. (15) Such requirements were, of course, usual in civil affairs, but not in military ones.
In a message to Congress on July 4, 1861, Lincoln answered Taney. He began by pointing out that he was reluctant to suspend the writ, but that dire threats to the nation in general and the military in particular required such action:
Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus . . . This authority has purposely been exercised but very sparingly. Nevertheless, . . . the attention of the country has been called to proposition that one who is sworn to "take care that the laws be faithfully executed" should not himself violate them. 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 . . . 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, are in such extreme tenderness of the citizens 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? . . . But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution . . . 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. It was decided that we have a case of rebellion . . . (16)
As with Dred Scott, Taney stuck to the letter of the law and read the Constitution strictly. Lincoln sought refuge in a higher law: the law of survival. He gave his defenders grist for their propaganda mills by claiming that his suspension of the privilege of the writ of habeascorpus did not violate any law. According to Lincoln, the Constitution was "silent as to . . . who, is to exercise the power" of suspension. (17) He would not release Merryman, even in the face of Taney's writ. |
