A New Look at Abraham Lincoln
Few figures in American history are as polarizing as Abraham Lincoln. For admirers of Lincoln, the president was a liberator of the enslaved and a man who guided America through one of its darkest hours with shrewd grace. Lincoln’s critics, on the other hand, allude to the president’s moral shallowness on the issue of slavery –– manifested in the pragmatic impetus of the Emancipation Proclamation. Lincoln’s polarizing nature has not, however, merely been confined to the moral realm. His legal maneuverings during the Civil War elicited, and continue to elicit, intense reactions. Lincoln’s decision to suspend the writ of habeas corpus during the war has been scrutinized in a particularly acute fashion.
Cursory analyses of Lincoln’s suspension of the writ of habeas corpus tend to establish a false binary over the constitutionality of the suspension, ignoring the evolving nuances of the legal context of his executive actions. Far from stamping him as a decidedly unjust executor of the Constitution in suspending the writ, Lincoln’s suspension affirmed his ambiguity-imbued persona. While he initially erred when he suspended the writ in 1861, Lincoln’s winning of Congressional approval for suspending habeas corpus two years later affirmed his respect for the Constitution. Lincoln is consequently a reflection of an overexcited executive, a man who responded to the perils of the Civil War by briefly skirting the Constitution before correcting course. As President Biden engages in a dangerous geopolitical environment, involving menacing autocracies in Eastern Europe, he should heed the lesson of executive restraint, especially since crises often catalyze presidential overexcitement.
The American legal system’s writ of habeas corpus is founded in English Common Law.1 Habeas corpus refers to a defendant’s right to present themselves in court to challenge the supposed legality of their imprisonment. The significance of the writ in England can be linked to the year 1215, when English nobles successfully pressured King John to sign the Magna Carta.2 The document hampered the king’s ability to act unilaterally and specifically declared that a king could not suspend habeas corpus absent parliamentary approval.3
Ever concerned about the prospect of a tyrant, the crafters of the United States Constitution enshrined the right of habeas corpus in Article One, Section Nine of the document.4 The article specifically asserts that “habeas corpus should not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”5 However, debate subsequently emerged among the founders concerning the circumstances under which the writ could be suspended.
After the Civil War began, Lincoln became concerned about the prospect of a non-neutral Maryland bordering Washington DC.6 Attempting to restrain the organizing capacity of potential subversives in the state, he ordered General Winfield Scott to suspend habeas corpus along rail lines passing through Maryland.7 John Merryman, a Maryland planter suspected of taking part in treasonous activities, was arrested shortly thereafter. Responding to a legal suit on behalf of Merryman, Roger Taney, the chief justice on the U.S. Circuit Court in Maryland, demanded that Union General George Cadwalader appear in court to explain his denial of Merryman’s right to habeas corpus.8 Cadwalader refused the court order, citing Lincoln’s original order to General Scott as justification.9 Taney responded by issuing blistering oral and written opinions suggesting that the Constitution vested the power to suspend habeas corpus with Congress and not the president.10
Taney’s argument rests in his understanding of Article One, Section Nine. According to Taney, Congress has the sole authority to suspend habeas corpus because it is described in a section of the Constitution that states from the outset, “that all legislative powers therein shall be vested in the Congress of the United States, which shall consist of a Senate and a House of Representatives.”11 Taney is certainly correct that the article describes limits on the powers of the Legislative Branch. His latter contention that the inclusion of habeas corpus in the context of a discussion concerning the Legislative Branch suggests that Congress is the rightful government body capable of suspending the writ is thus constitutionally coherent.
In a sharp rebuttal to Taney, Lincoln criticized the judge’s decision in Ex Parte Merryman publicly, attacking the validity of Taney’s argument in a July Fourth address to Congress. Lincoln is technically not mistaken in asserting that “the Constitution itself is silent as to which or who is to exercise the power” to suspend the writ.12 Despite such silence, the fact that habeas corpus is alluded to in a section of the Constitution explicitly purporting to discuss the powers of the Legislature demonstrates an implicit acknowledgement, on behalf of the framers, of the writ’s suspension residing in the Congressional domain. Lincoln ignores that reality entirely in his argument, which makes his decision to suspend the writ an example of executive overreach. Lincoln is also guilty of hyperbole in his legal debate with Taney. Such hyperbole is manifested in his rhetorical reply to Taney in which he asks, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”13 Lincoln’s claim is far-fetched: that maintaining a neutral Maryland directly hinged on the suspension of habeas corpus. That Lincoln even endeavors to make such a rhetorical retort also nascently reflects his own awareness of the unconstitutionality of his decision. After all, undergirding his claim that a neutral Maryland, and, in turn, the stability of the Union, was at stake in his suspension decision was his attempt to distract from the basic constitutional realities of a fairly self-evident legal question.
While Lincoln erred in 1861 in Merryman, legal analyses of his presidency that posit that he bulldozed over constitutional norms during the war are reductive. In fact, such presidents as Thomas Jefferson and Andrew Jackson suspended the writ in various circumstances in the republic’s early years.14 Cursory legal analyses of Lincoln’s presidency also ignore the events of 1863, the year in which Congress passed the Habeas Corpus Suspension Act. Indeed, Section One of the Habeas Corpus Suspension Act specifically enabled Lincoln “to suspend the writ when, in his opinion, public opinion requires it.”15 The reference to Lincoln’s “opinion” in Section One shows the transfer of legal authority from Congress to the president concerning the writ. This gives Lincoln tremendous — some might even say excessive — power. One only needs to look at the escalatory consequences of the free hand provided to President Lyndon Johnson in the Gulf of Tonkin Resolution as evidence of the potentially negative repercussions of the president wielding total Congressional backing. On the other hand, in spite of such escalatory dangers, the fact remains: Congress provided Lincoln with the legal justification that any sound reading of Article One, Section Nine of the Constitution would necessitate in 1863.
Notwithstanding the accuracy of Taney’s argument concerning how questions about the suspension of the writ should be dealt with in Congress, Lincoln eventually acknowledged as much in 1863. He should therefore be seen not as a president who was decidedly hostile to the Constitution, but as one who was overeager. After all, supposing that a president retained utter disregard for a constitution that he waged a brutal war to preserve –– and lost his life over –– might be missing the point. Lincoln’s initial overeagerness showcases the significant degree to which war and other seemingly existential crises can prompt executive overreach. Lincoln’s equation of the stability of Maryland and the Union at large with the question of the writ’s suspension also demonstrates how hyperbole tends to prevail in policy circles in times of uncertainty and apprehension. President Biden currently faces pressure to establish such things in Ukraine. Although he has resisted such escalatory measures thus far, he would benefit from a look at wartime Lincoln, a great president whose greatness persisted through the fog of history in spite of his legal and constitutional overzealousness at the beginning of the Civil War.
References
1 Evan McLaughlin, “Is ‘Military Necessity’ Enough? Lincoln’s Conception of Executive Power in Suspending Habeas Corpus in 1861,” scholarship.shu.edu, Seton Hall University, 22 March, 2022, https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3610&context=dissertations.
2 Evan McLaughlin, “Is ‘Military Necessity’ Enough?”
3 Ibid.
4 Ibid.
5 Robert Longley, “US Constitution: Article 1, Section 9,” thoughtco.com, thoughtco, March 22, 2022, https://www.thoughtco.com/constitution-article-i-section-9-3322344#:~:text=Article%201%2C%20Section%209%20of,and%20granting%20titles%20of%20nobility.
6 Scott Bomboy, “Lincoln and Taney’s great writ showdown,” constitutioncenter.org, National Constitution Center, May 28, 2021, https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown.
7 Bomboy, “Lincoln and Taney’s great writ showdown.”
8 Ibid.
9 Ibid.
10 Ibid.
11 Robert Taney, “The Merryman Case.; Decision of Chief Justice Taney.,” nytimes.com, New York Times, June 4, 1961, https://www.nytimes.com/1861/06/04/archives/the-merryman-case-decision-of-chief-justice-taney.html.
12 Bomboy, “Lincoln and Taney’s great writ showdown.”
13 Ibid.
14 Bomboy, “Lincoln and Taney’s great writ showdown.”
15 James Dueholm, “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Legal Analysis,”quod.lib.mich.edu, Journal of the Abraham Lincoln Association, March 22, 2022, https://quod.lib.umich.edu/j/jala/2629860.0029.205/--lincoln-s-suspension-of-the-writ-of-habeas-corpus?rgn=main;view=ful ltext.