Lincoln's Suspension of the Writ of Habeas Corpus

There seems to be some confusion of Presidential Powers during a time of war. To wit, capable or not, the president has the power to suspend portions of the Constitution. Right or wrong. An historical precident has been set.

habeas corpus

habeas corpus

Pronounced As: habs kôrps [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose.

The writ's sole function is to release an individual from unlawful imprisonment; through this use it has come to be regarded as the great writ of liberty. The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.

The most common present-day usage of the writ is to appeal state criminal convictions to the federal courts when the petitioner believes his constitutional rights were violated by state procedure.

An individual incarcerated in a state prison is expected to exhaust all possible routes available before applying to a federal judge for habeas corpus.

The term is mentioned as early as the 14th cent. in England, and was formalized in the Habeas Corpus Act of 1679. The privilege of the use of this writ as a safeguard against illegal imprisonment was highly regarded by the British colonists in America, and wrongful refusals to issue the writ were one of the grievances before the American Revolution.

As a result, the Constitution of the United States provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it (Article 1, Section 9).

President Lincoln suspended habeas corpus in 1861 at the beginning of the Civil War, and his decision was upheld by Congress-despite protests by Chief Justice Roger Taney that such suspension was not within the powers of the President.

The Supreme Court's liberal decisions in the 1950s and 1960s in the area of prisoners' rights encouraged many incarcerated persons to file writs challenging their convictions.

In recent years, the Court under William Rehnquist has limited multiple habeas corpus filings, particularly from prisoners on death row.

The Suspension of Habeas Corpus

And Ex parte: Milligan

On our 1997 Olde Colony Civil War Round Table picnic in Fort Warren on Georges island, member Jack Zeletsky, who had researched and studied the Fort for many years, mentioned in his speech that some members of the Maryland legislators, including Baltimore's Mayor and Chief of Police, were arrested without charge, trial and conviction, and were thrown to the jail in Fort Warren. The question that we are going to examine is ------ Did Lincoln overstep his power by suspending the writ of Habeus Corpus? Did Lincoln violate their Constitutional right? Let's examine the facts and issues.

The political situation was extremely grave in early Jan. 1861. Six states from the deep South, leading by South Carolina (12/20/60), Mississippi (1/9/61), Florida (1/10/61), Alabama (1/11/61), Georgia (1/19/61) and Louisiana (1/26/61), seceded from the Union. Texas (3/2/61) followed. President-elect Lincoln were powerless to do anything then, not until after his Presidential sworn-in in March 1861. After the Confederates bombarded Fort Sumter in April 12, 1861, Lincoln called for 75,000 volunteers to save the Union. Virginia (4/17/61), Arkansas (5/6/61), North Carolina (5/20/61) and Tennessee (6/8/61) followed suit to secede. The situation of the Federal Capital, Washington, was very precarious. On its south, Alexandria, the northern part of Virginia, it was packed with rebels. Surrounding the capital, north, east and west was Maryland, a slave state, and full of Confederates and its sympathizers. The 6th Massachusetts regiment answered the call to guard the Capital, while en route Baltimore to change train, the soldiers were attacked by a mob of hostile Marylanders on 4/19/1861. Some Mass. soldiers (6th Mass. regiment) were killed. The Mass. soldiers were forced to defend themselves by returning fire.

The majority of the Maryland legislature fortunately refused to consider a secession ordinance, thus, saved the Capital. In order to take a preventive strike against any probable plots by the Confederate sympathizer, Lincoln ordered the suspension of the writ of habeus corpus, covering the departments in Pennsylvania, Delaware, Maryland and Washington. General Scott ordered General Montgomery Meigs to arrest any suspicious disloyal citizens. Chief Justice Roger B. Taney (a Marylander, and he was the same Supreme Chief Justice who decided the notorious Dred Scott case, which was overturned by the later U.S. Supreme Court cases, after the passing of the 13th Amendment.) protested strongly and argued only Congress had the authority to suspend habeus corpus. In examining the language of the Constitution, it did not address which branch of Government had that authority. Lincoln just assumed that power and ignored Taney's protest. Lincoln believed he had to take bold step to preserve the Union during the emergency of the nation. The Taney Court decided the Dred Scott case (7-2) in favor of the South, voiding the Missouri Compromise, upholding the Fugitive Slave Act, and extending its long arm to the Land of the Free.

When an U.S. President takes his oath, he swears "that he will faithfully execute the office of President of the United States, and will to the best of his ability, preserve, protect and defend the Constitution of the United States." If there were only one choice between saving the Union or upholding the law, I believe Lincoln would not hesitate to take the former, a more important aspect of the Constitution. Habeus corpus should not be suspended, except in war, riot and insurrection. It is clear that Lincoln had such authority under this exception rule. The U.S. Constitution, Article I, Section 9, paragraph 2, says,"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The delegates to the Constitutional Convention in 1778 voted unanimously on the first clause. Later, Gouverneur Morris introduced a qualifying second exception clause adapted from the Massachusetts state constitution, and the provision were passed by a vote of 7 states to 3 states. So, it is clear that Pres. Lincoln did not violate anybody's Constitutional right by suspending habeus corpus. But the question went further to examine whether or not the conditions in 1861 constituted war, riot and insurrection? Let's look at the facts again. As secession began, many Federal forts fell into the hands of the Confederates; military officers of the southern extraction resigned in drove from the old Army and went South; Gen. David Twiggs of Georgia surrendered his Federal Military Department to the Texans without a fight; Secretary of War Floyd of the Buchannan Administration amassed huge amount of military equipment in the hands of the military authorities with Southern sympathy; and crisis at the two forts, Pickens in Florida and Sumter in S. Carolina of which, nobody knew which one would blow up first at that time. All these facts were pointing to riots, insurrection and act of war. Certainly the conditions satisfied the exception clause to suspend habeus corpus.

In time of war, the laws are silent. (A Latin phrase: inter arma silent leges)

Whenever the case law related to Habeus Corpus is discussed, the landmark case Ex parte: Milligan will be cited. Lambdin P. Milligan moved to Indiana from New Orleans, Louisiana, bringing his slaves with him. When the Civil War started, he got himself involved in an subversive political organization, the Sons of Liberty, and launched an anti-government propaganda movement. In early 1864, Congress passed a law saying that Habeus Corpus could be suspended during war and insurrection. On 10/21/1864, Milligan was arrested by the order of Gen. Alvin P. Hovey, commander of the military district of Indiana. On 10/21/1864, the military commission tried Milligan and found him guilty, and sentenced him to be hanged. Milligan's defending attorneys discussed the case with Lincoln who promised to commute Milligan's sentence. Of course, Lincoln was assassinated before he could pardon Milligan. The appeal dragged on to 1866, and by then, the war and the national emergency were long over. The need to hang traitors did not exist anymore and in fact, people wanted to forget this horrible war episode and it would be politically incorrect to carry out the sentence. What would the Supreme Court do?

Well, the only route that the Supreme Court could do to save Milligan's neck was to declare the law unconstitutional. The decision was a narrow 5 to 4 votes by the 9 Supreme Court Justices. The interesting coincident was that the majority 4 of the 5 votes were Lincoln appointees. The court opinion was written by Justice David Davis, Lincoln's old Eighth Circuit court friend from Illinois and Lincoln's 1860 presidential campaign manager, and concurred by Chief Justice Salmon Chase, Lincoln's ex-Secretary of Treasury, and Justices Noah Swayne, Samuel Miller and James Wayne. Justice Chase was known as the "Attorney General for Runaway Negroes" in his salad days when he was practicing law in Ohio, using habeas corpus as his weapon. It was ironic that Salmon Chase used the same habeas corpus to save slaves and master alike.

Every Supreme Court decision became precedent (stare decisis) and would be cited by the future generation. Therefore, they had to write a "narrow" decision so that the future case would apply only if it fits to all these narrow conditions. They said when the civil courts were open, military commission (court) had no authority to arrest, trial and convict a citizen of the United States. Let me quote part of their opinion:

"It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and on return made to it the court decides whether the party applying is denied the right of proceeding any further with it."

During the 1866 era, the decision was considered as a blow to the Republican's attempt to reconstruct the South and cheered by the Democrats and the white southerners.

Today, every law student has to study this case in their Constitutional Law course. Numerous legal scholars had commented about this case. In 1920s Charles Warren's Ex parte Milligan became one of the most widely anthologized decisions of the United States Supreme Court, one of the benchmark of American liberty. John Garraty wrote Quarrels That Have Shaped the Constitution which included an essay by Allan Nevins (a famous Civil War writer who wrote a multi-volume Civil War books) describing the Milligan decision as a great triumph for the civil liberties of America in time of war. In Michael Belknap's American Political Trials (1981), Frank Klement contributed an essay on Ex parte Milligan describing the decision as "a notable victory for civil rights' that "has stood the test of time." Historian Emma Lou Thornbrough stated that Ex parte Milligan has been "long regarded as a landmark in the history of civil liberties."

It is fascinating that our Civil War brought in a few pages of landmark Constitutional Law.

(Written by Gordon Kwok, December 1997, using several Reference books.)

(Unexpectedly, this little article had created a storm. I will assign a psudo-name to protect the identity of the protestor. Let's call the person John Doe of the XYZ Civil War Organization.)

1/28/98
Dear Joe (Geden) {Joe is a Chartered member and '97 Research Chairman of the Olde Colony Civil War Round Table (OCCWRT)} As you know I always read your Newsletter and since I have a particular interest in the writ of Habeas Corpus, I paid close attention to Gordon Kwok's article. Tell him as gently as possible that he is wrong. Lincoln had no right to suspend the writ of habeas corpus. Why? Take out a copy of the Constitution, article I, section 9, paragraph 2, deals with "Limitations upon powers of Congress." The President usurped this power. It's a good thing he did but he clearly violated the Constitution.

Why am I interested in this? Many of the Baltimore Officials wound up at Fort Lafayette in Brooklyn ------ and I discussed this problem in every speech I gave in Brooklyn!

John Doe
XYZ Civil War Organization

Notes from the Editor of OCCWRT:
Habeas Corpus, legal term for a writ issued by a judge commanding that a person be brought into court at a given time and place. A petition for such writ is usually made before a judge by an attorney on behalf of a client detained on a charge. Failure of a police officer or other official to comply is punishable by the court. Habeas Corpus was formalized in England in the Habeas Corpus Act, 1679, in the reign of Charles II to prevent persons being held in prison indefinitely without trial ----- then a common practice in some European countries. Habeas Corpus was also a right in the American colonies, and violation of it became one of the grievances leading to the American Revolution. It is guaranteed to U.S. citizens and residents under the Constitution (Art. I, Sec. 9, Par. 2) but for public safety may be suspended in time of rebellion or invasion. President Lincoln suspended it during the Civil War. All state constitutions guarantee habeas corpus, but some permit suspension after martial law has been declared. A state court cannot issue a writ for a prisoner held by the Federal Government. Dave J. Kenney

To: Editor OCCWRT's "The Campaign"

Our friend, John Doe, of the XYZ Civil War Organization, sent me a copy of Gordon Kwok's article in the February Issue of our NL (Newsletter). John made a margin comment and wrote a separate note stating that Pres. Lincoln had no right to suspend the writ of Habeas Corpus.

This has the markings of a debate. Perhaps Bud could present his case at an OCCWRT meeting or Gordon could state his at a meeting in John's hometown. If not, may be a debate by mail would be possible.
Joe H. Geden

"Great Presidential Decisions: p.18 Lincoln moved and obtained Congressional sanctions afterward. When the C.W. came, he met the issue with a series of purely executive measures, for Congress was not convened until July 1861.

"Lincoln --- His Words & His World" p.50. His suspension of habeas corpus was used more as a preventive precaution than as a punitive weapon.

"Political History of USA During the Great Rebellion" p.160 Opinion of Atty. Gen. Edward Bates in a letter 5th July 1861 to President Lincoln: ------ supports suspension of writ of habeas corpus as temporary to meet a pressing emergency.

"President Lincoln's Third largest City" (written by John Doe) p.135 On 27 Apr 1861, fearful that Maryland would be lost to secessionists, President Lincoln ordered Lieutenant General Winfield Scott to announce the suspension of the writ of habeas corpus there.
Joe H. Geden OCCWRT

From John's letter 5th March, 1998
"Bear in mind that I am not arguing that Lincoln was wrong. All I am saying is that he certainly did violate the Constitution."
John Doe
XYZ Civil War Organization

Letter to the Editor
Referring to John Doe's comment.
Dear Dave,
I understand John Doe of the XYZ Civil War Organization believes that Pres. Lincoln had no right to suspend the writ of Habeas Corpus, and Lincoln had usurped this power and violated the Constitution.

I'll make my reply short. The reply is meant to be a friendly discussion, and hopefully we could all learn something from one another, no matter which viewpoint one takes.

There are several methods to interpret a legal document: (a) by strict interpretation (b) by looking at its implication (c) by examining the intent of the parties, or, in this case, (d) the legislative history.

If we use the strict interpretation method, Bud's view may be right. Article I applies exclusively to the Congress. On Art. I, section 9, it talks about limitations of powers of Congress. But if we look at the four corners of the Constitution, and examine the implication, we could find that the President surly has such a right to suspend Habeas Corpus. Our country is built on the foundation of balance of power. The Congress made laws. The President executed laws. The Judiciary interpreted laws. No one branch of Government is more powerful than the other, and thus our system maintains the proper checks and balances. If we examine the decisions of the U.S. Supreme Court, we will find that the Court used method (b) and (c) more often than method (a). Please note that Lincoln got Congressional sanctions and ratification of his order after July 1861. I could find a case law (example) to support the President's authority to suspense Habeas Corpus, with the acquiescence of the D.C. Supreme Court. When Mary Surratt was convicted on conspiring to assassinate Lincoln, her lawyer, John Clampitt, filed the writ of Habeas Corpus to stop her execution. Pres. Andrew Johnson ordered the suspension of the writ of Habeas Corpus, and directed Gen. Winfield Scott Hancock, commander of the military district covering that jurisdiction, to deliver the order to the presiding Judge Andrew Wylie, who allowed the execution of Mary Surratt to be carried out.

The law of suspending Habeas Corpus in cases of rebellion or invasion was already in the Constitution. The President simply enforced the existing law. It is the President's duty to execute the laws of the land and he certainly has the power to do so. The only question left to be answered is, whether the political situation in the Spring of 1861 constituted a Rebellion, so that it would qualify the condition of the exception rule in Art I, sect. 9, par. 2. If the political condition of the country in 1861 Spring was a rebellion, then Lincoln had the power to suspend Habeas Corpus. If not, then Lincoln would have no right to do so. This is a question of fact, and you the juror would have to decide the matter for yourself.

I believe any "reasonable" person would conclude that during 1861 to 1865, Civil War did exist in America. Rebellion did occur in America. Therefore, the President of the United States, who is responsible on the Executive Branch of the Government, has full authority to execute the law, using the exception rule in Art I, sect. 9, par. 2, to suspend the writ of Habeas Corpus, for the purpose of suppressing the Rebellion, and save the Nation from disintegration.

Sincerely,
Gordon Kwok
3/14/1998

Did President Lincoln suspend the U.S. Constitution?

Answer: No

Did President Lincoln suspend Habeas Corpus?

Answer: Yes, in 1861 and 1862

Was Habeas Corpus ever restored?

Answer: Yes, in 1866.

Here's the story:

As the Civil War started, in the very beginning of Lincoln's presidential term, a group of "Peace Democrats" proposed a peaceful resolution to the developing Civil War by offering a truce with the South, and forming a constitutional convention to amend the U.S. Constitution to protect States' rights. The proposal was ignored by the Unionists of the North and not taken seriously by the South. However, the Peace Democrats, also call copperheads by their enemies, publicly criticized Lincoln's belief that violating the U.S. Constitution was required to save it as a whole. With Congress not in session until July, Lincoln assumed all powers not delegated in the Constitution, including the power to suspend habeas corpus. In 1861, Lincoln had already suspended civil law in territories where resistance to the North's military power would be dangerous. In 1862, when copperhead democrats began criticizing Lincoln's violation of the Constitution, Lincoln suspended habeas corpus throughout the nation and had many copperhead democrats arrested under military authority because he felt that the State Courts in the north west would not convict war protesters such as the copperheads. He proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would come under Martial Law.

Among the 13,000 people arrested under martial law was a Maryland Secessionist, John Merryman. Immediately, Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States issued a writ of habeas corpus commanding the military to bring Merryman before him. The military refused to follow the writ. Justice Taney, in Ex parte MERRYMAN, then ruled the suspension of habeas corpus unconstitutional because the writ could not be suspended without an Act of Congress. President Lincoln and the military ignored Justice Taney's ruling.

Finally, in 1866, after the war, the Supreme Court officially restored habeas corpus in Ex-parte Milligan, ruling that military trials in areas where the civil courts were capable of functioning were illegal.

http://writ.findlaw.com/commentary/20011017_levinson.html

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WHAT IS THE CONSTITUTION'S ROLE IN WARTIME?:
Why Free Speech And Other Rights Are Not As Safe As You Might Think
By SANFORD LEVINSON
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Wednesday, Oct. 17, 2001

Does law speak in time of war? And, if so, to whom, and how loudly? No question is more important to a polity that claims to be structured by constitutional norms.

The United States Constitution contains no "emergency power" or general "suspension" clause of the kind found in the Weimar Constitution or the current Indian Constitution. It is difficult to read our constitutional history, however, without believing that the Constitution is often reduced at best to a whisper during times of war.

Suspending Habeas Corpus

The most obvious source of examples to support this proposition is the Lincoln presidency. Indeed, one of Lincoln's first acts was to order suspension of habeas corpus.

The Constitution does allow the suspension of habeas corpus — in the single clause that establishes even a limited authority to abrogate law in wartime. This clause, however, appears in Section 9 of Article I — the Article defining Congress' powers — not in Article II, where the President's powers are defined. That placement strongly suggests that Congress must grant prior authorization when habeas corpus is suspended. In 1861, Lincoln had no such authorization.

Early in his career, Lincoln had spoken of "reverence for the laws" as the "political religion of the nation." He also called on all Americans to "swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others."

How then, did Lincoln defend his unilateral suspension of habeas corpus? He made the claim — a dubious one, as noted above — that the Constitution empowered him to do so. But he also posed a rhetorical question: If "all the laws, but one, [are] to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Lincoln knew most citizens would favor the suspension of habeas corpus over the destruction of the government, given the choice.

The Emancipation Proclamation

Later, with a stroke of the pen Lincoln, in the Emancipation Proclamation, unilaterally ordered one of the most extensive confiscations of "property" in world history. His authority was based on "the power in me vested as Commander-in Chief . . . and as a fit an necessary war measure." One could plausibly view this as a violation of the Constitution's prohibition on the government's taking property without due process or compensation.

Consider the response of one newspaper that supported the Proclamation: "Nobody pretends this act is constitutional, and nobody cares whether it is or not."

Justice Benjamin R. Curtis quoted this newspaper's comment in his pamphlet attacking the Proclamation. Curtis deemed the Proclamation a particular "cause for alarm" in that it showed, he thought, a "tendency to lawlessness" even by public officials. "[P]ublic servants may themselves break the fundamental law of the country . . . in violation of their solemn oath of office; and 'nobody cares,'" Curtis complained, suggesting that Lincoln, with the Proclamation, broke his oath to uphold the Constitution.

I suspect that most of us find Curtis's concerns almost beside the point. Ironically, though, that simply establishes the validity of his basic insight: Even today, nobody cares.

The exigencies of war might have had something to do with the widespread acceptance of the Proclamation — seen as a step in defeating the South. But the sheer moral force of Lincoln's action certainly won him adherents as well.

Debs and Dennis: When Free Speech Yields to War

Of course, it is not only the Lincoln presidency that exemplifies the truth behind Justice Holmes's assertion that ordinary constitutional norms may be relaxed "when a nation is at war."

Indeed, Holmes himself wrote the infamous anti-free speech Debs opinion for the Supreme Court. The opinion allowed Eugene Debs, the leading socialist politician in our history, to be jailed for ten years because he had expressed opposition to World War I.

Years later, in 1951, the Court still viewed speech in wartime (Cold War-time) much the same way. In Dennis v. U.S., the Court upheld the imprisonment of top leaders of the Communist Party.

The Court's rationale? In part, it based its decision upon the rule suggested by Learned Hand that the ability of the state to punish speech should be the result of multiplying the likelihood of the threatened event by the "gravity" of the evil. The formula, of course, is troubling: A threat that is extremely unlikely to become reality, but is also extremely grave, might still justify suppressing speech.

To be sure, Dennis and Debs seem implicitly to have been overruled by the 1969 Brandenburg decision. There, the Court overturned Ku Klux Klansman Clarence Brandenburg's conviction for calling for "revengeance" against blacks, Jews, and Catholics, on the ground that the conviction violated the First Amendment.

Still, the barest acquaintance with American constitutional history teaches that nothing is necessarily forever. In 1969, Brandenburg was viewed as basically irrelevant; society, in the Sixties, seemed to have triumphed over the Klan.

Would today's Supreme Court be as protective of a vocal supporter of Osama bin Laden? What if the speaker were a Moslem resident alien identified with a radical Islamic fundamental group? And what if the speech were given to other members of the same radical group — calling for participation in a "jihad" against a hated United States?

The "Pentagon Papers" Decision: Less Pro-First Amendment Than It Appears

Consider even the famous "Pentagon Papers" decision in 1971. In that decision, the Supreme Court freed the New York Times from a lower court's injunction against its publication of the classified history of the Vietnam War. The opinion now stands as a famous free speech victory. But is it as much of a victory as it appears?

We do well to recall that three justices (Blackmun, Burger, and Harlan) would have sustained the injunction. Two other justices, Stewart and White — the "swing votes" — gave as the reason for their pro-Times vote the lack of congressional authorization for suppression. Moreover, White left open the possibility that while the injunction — as a prior restraint — was impermissible, the Times could be punishable by damages awarded post-publication.

Only a minority of four justices, therefore, thought that the nation's leading newspapers were completely protected by the First Amendment — in the sense that they would have been protected even if a Congressional statute had specifically directed that the Pentagon Papers could never be published.

Is the famous Pentagon Papers case, then, solid law? Not as solid as one might think. A similar case could conceivably make its way to the Court on an expedited basis this year, and this time, the type of Congressional statute that Justices White and Stewart said was needed might well exist.

Certainly the Bush Administration — which has urged networks not to show the bin Laden video, and decried leaks of classified information — would show little sympathy for a "Pentagon Papers"-like leak. Nor, one might think, would Congress.

Would Korematsu Be Decided Differently Today?

Just as many of us have assumed Brandenburg and the Pentagon Papers case will remain the law, so too many of us have assumed that the notorious Korematsu case will not. But this assumption, too, may be inaccurate.

In 1944's Korematsu case, in a ruling with which many are familiar, the Supreme Court upheld the President's Executive Order 9066. The Order forced relocation and internment of Japanese-Americans–as well as their Japanese-national parents who, though resident aliens, were ineligible to become American citizens under then-existing American naturalization law. In passionate dissent, Justice Roberts termed the internment camps "concentration camps."

In 1988, the United States formally apologized and even paid compensation to those affected. Korematsu, however, remains on the books; the Court has never formally overruled it.

No one familiar with recent defenses of the rationality of "racial" — or, more accurately, national origin/religious — profiling can be confident that Korematsu would not be decided similarly today.

Increasing Court Deference to Compelling State Interests

The years since 1969's Brandenburg pro-First Amendment decision have seen an opposite trend: the flourishing of the doctrine of "compelling state interests."

In practice the point of this doctrine, it seems, is to excuse deviation from what are ordinarily believed to be basic norms, by reference to the unacceptable costs of adhering to these norms. Exemplifying this trend, the Supreme Court's 1981 decision in Haig v. Agee deserves renewed attention — not so much for its ruling as for its reasoning.

Agee was what Laurence Tribe describes as a "singularly unattractive" litigant — "a former C.I.A. employee whose declared purpose in travelling abroad was to expose the identities of C.I.A. agents." Unsurprisingly, the Court had little trouble upholding the national government's power to withhold his passport. Few disagreed with the ruling, and that may be why Haig v. Agee has attracted relatively little comment.

What deserves notice, though, is what the Court wrote along the way: It is, the Court stated, "'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Suppose the Court really meant what it said — for there is no reason to think it did not. Suppose, too, that the Court chooses not to require from the government an explicit and empirical demonstration of a close connection between the power sought, and actual protection of "the security of the Nation." The inevitable conclusion is that all bets are off with regard to the courts offering genuine protection of civil liberties during time of war.

Congressional Protection of Civil Liberties?

If we cannot look to the Court to protect our civil liberties in the coming years, we can at least ask Congress to do so. Perhaps unexpected–some might say unholy–coalitions in Congress between Representatives like Bob Barr and Barney Frank will spring up.

Or perhaps usually opposed groups like the National Rifle Association and the American Civil Liberties Union, who claim to be able to hear a resonant Constitution that speaks during times of war, may see a common interest. One can scarcely be optimistic about these coalitions or groups prevailing, however.

Many readers may find "optimism" the wrong word; they might instead endorse the claims of Attorney General Ashcroft that emergency does indeed call for the maximum exercise of governmental power and concomitantly flexible constitutional interpretation.

Or perhaps they might agree with Alabama Senator Richard Shelby that the United States in effect should emulate Great Britain by passing the equivalent of an "Official Secrets Act." The Act could make it a criminal offense to receive information that the recipient knows to be classified, a proposal that would already be law were it not for a courageous veto by former President Clinton late in his term. (It helped, no doubt, that Clinton was encouraged to exercise the veto by almost every major news organization.)

The Need For Constitutional Debate, Now More Than Ever

The most serious constitutional debates in coming weeks will take place in plain view, as it were — in the nation's editorial and letters-to-the-editor columns, on talk shows, and in Congress.

All Americans have a vital stake in the outcome of these debates and all, therefore, should feel empowered to participate in them. One scarcely needs legal training in order to understand the basic issues posed by "balancing" national security claims against traditional individual liberties. This is not a situation where "experts" can tell us what to do — it is one in which we must look to our own conscience, values and beliefs.

Chief Justice John Marshall famously wrote, in Marbury v. Madison, that it is the province of the Court to say what the law is. I am tempted to add that it is most certainly "the province" of the citizenry in general, and of their representatives in Congress, to say what the law is now, with regard to the issues I have discussed here.

In any event, it is naïve to believe that the Supreme Court will invalidate any government action that receives both congressional and presidential imprimatur as necessary and proper to protect Americans against the terrorist threat. If our liberties are to be protected, it is up to us to protect them.

Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at the University of Texas (Austin). An internationally eminent scholar of constitutional law, Professor Levinson also teaches and writes about professional responsibility, jurisprudence, and political theory. He is author of Constitutional Faith (Princeton 1988) and Written in Stone (Duke 1998).

the president has the power to suspend portions of the Constitution. Right or wrong. An historical precident has been set.

Actually, as you show in your second post, the Constitution provides for a suspension of habeus corpus, and defines habeas corpus as a "priviledge" so Lincon's action was not really a suspension of the Constitution.

HABEAS CORPUS

THE MOST EXTRAORDINARY WRIT
By:

JOSEPH DALE ROBERTSON
Box 724
Pinehurst, Texas 77362

Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus.

ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it’s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to “the law of the land”. From Magna Carta the exact quote is: “...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common “law of the land” as was expressly recognized by Magna Carta.

CIVIL LAW VS. COMMON LAW: However, Habeas Corpus was generally unknown to the various civil law systems of Europe which are generally devolved from Roman and/or Justinian law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. Thus, it is altogether understandable that the ultimate right to determine the propriety of restraint upon the liberty of an individual is an almost unique feature derived from the ancient Anglo-Saxon common law of England. Indeed, the Magna Carta itself is arguably a reaction to the incursion of European civil law into the English common law legal system via William in 1066. The running tension and contest between the civil law of the “Norman intruders” intrusively confronting the ancient Anglo-Saxon common law continued throughout the period 1066 to the 1640’s when, following the English Civil War, and the beheading of King Charles I in 1649, the people’s parliament clearly established the respective position of King and citizen. In this crucible of contest, the confrontation of top down authoritarian civil law principles clashed and continuously competed with, but then yielded to, the ancient “good old” common law of the land. In the final analysis, the strength and resilience, and I might add common sense, of the evolved, time tested, common law prevailed. The interest of the people as reflected in their common law won a several centuries old contest with the civil law brought to England by the Norman conquest. Habeas Corpus is merely one feature, albeit it an important one, of the common law. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the state’s awesome power to restrain liberty.

The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King’s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated “star chamber court” at Westminster, so called because of the stars on its ceiling. Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King’s courts. It was the King’s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William’s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649.

THE HABEAS CORPUS ACT: The English common law practice and procedure respecting Habeas Corpus was codified by Parliament in 1679 by enactment of the Habeas Corpus Act. This historic act of the English Parliament empowered English courts to issue Writs of Habeas Corpus even during periods when the court was not in session and provided significant penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was nevertheless establishing itself as the primary means by which individual liberty was empowered at the expense of the arbitrary exercise of power by the state. During the 19th century the Writ of Habeas Corpus was further expanded to include those held by a purely private process other than that of the state.

AMERICAN DEVELOPMENT OF HABEAS CORPUS: As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.” It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. The “afterthought”, that is to say the Bill of Rights, was not included even as amendments until James Madison single handedly, but persistently and successfully, argued before congress for its adoption and passage on 15 December 1791, some two years after the constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.

CIVIL WAR & HABEAS CORPUS: The most famous American Habeas Corpus action prior to the civil war was the case of Ex parte Dred Scott. Dred Scott was a slave owned by a physician. Upon the death of his master, it was promised that Dred Scott would be set free. However, at that time Dred Scott was still being detained as a slave. Dred Scott petitioned the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted by the Federal District Court and subsequently upheld by the Federal Court of Appeals. However, the Habeas Corpus was overturned by the United States Supreme Court on the grounds that Dred Scott, as a slave, was not a “person” as contemplated by the United States Constitution and therefore did not have the right to petition the Federal Courts for a Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the great writ as Sir William Blackstone put it, was effectively suspended. This notable case remains as one of the most controversial Habeas Corpus actions in American history.

As is generally known, the Writ of Habeas Corpus was suspended by President Lincoln during the civil war. Chief Justice Roger Tanney, in the case of Ex parte Merryman (See: Ex parte Merryman, 17 Fed. Cas. No.9, 487, p.144 (1861)) strongly excepted suspension of Habeas Corpus by a sitting president and concluded that only the congress had the power of suspension under Article I Section 9 of the constitution. The ruling of the Supreme Court was apparently ignored by the President and the military during the civil war. Congress later authorized the already presidential suspension of the writ in 1863. After 1863, and acting on congressional authorization, the military was permitted to temporarily hold people who were to be turned over to and adjudicated by the civil courts. After the assassination of President Lincoln, and in the case of Ex parte Milligan (See: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866)) the United States Supreme Court granted the writ and once again established that only Congress had the power to suspend the Writ of Habeas Corpus and that the military had no jurisdiction over the trial of civilians in the post civil war South.

THE MODERN WRIT OF HABEAS CORPUS: Today the Writ of Habeas Corpus is used in many different ways. It applies to post conviction relief in criminal matters even where the judgment of judge and jury is final. It applies to those who are in police custody but who are not charged with a crime. It applies to those who are awaiting trial but who have not been able to make an excessive bail. It applies to death row prisoners who challenge their death sentence. It applies to prisoners who remain in custody after the expiration of their lawful sentence. Additionally, Habeas Corpus applies to both adults and children who are restrained of their liberty in some meaningful manner but who are not in the actual custody of police or other public authority. For example, Writs of Habeas Corpus have been issued in civil cases on application of a parent where a child’s custody is being sought against the wishes of the other parent who allegedly “restrains” the child. It applies equally to those who have been held because of their mental condition. And the writ applies equally for any other fact or circumstance, civil or criminal, in which the liberty of someone is restrained in any meaningful manner. Habeas Corpus extends even to those who are already released from actual custody on bail and who are contesting the manner and/or authority of the restrictions which bail places on their liberty or the charge for which they have been required to make bail. And although, research by this writer has failed to reveal any cases to date, home schooling contest are subject to the writ of Habeas Corpus. Parents whose authority to home school their own children and who are challenged by the state or other authority may properly file a Writ of Habeas Corpus to adjudicate the dispute as in any other child custody case. And, the writ may properly be signed and filed by an attorney - or - by “any other person” (See: Texas Code of Criminal Procedure, Article 11.12 and 11.13.) who has knowledge of the improvident restraint of liberty. In fact, there is legal precedent recognizing the duty of any citizen to proceed by Writ of Habeas Corpus to notice a court and to invoke the duty of the court as to Habeas Corpus when any illegal restraint of any other citizen is observed.

CAVEAT & SUMMARY: On a more ominous note, the Writ of Habeas Corpus is not without its detractors today. Movement is underway throughout the United States and each of the states to curtail the employment and exercise of Habeas Corpus. This questionable, if not highly suspicious, exercise can be divided generally into two camps. Congressional restrictions on the writ; and judicial restrictions on the writ. For example, the United States Congress enacted the anti terrorism act in April of 1996 which effectively stripped the Supreme Court of its power to review lower federal court rulings in Habeas Corpus cases. However, the Supreme Court retained its power to review petitions for Habeas Corpus which are directly submitted to the court. Additionally, and more disturbingly, there is evidence that the Writ of Habeas Corpus has in some jurisdictions been selectively suspended in certain types of cases.

For example, frequently State courts selectively ignore, as a practical matter, the effect of the writ in cases where citizens are charged with the “unauthorized practice of law”. In most of these jurisdictions, it is disturbing to note that it is an agency of the state Supreme Court itself which makes the complaint and then prosecutes the charge. In these cases the supreme court is making the charge, prosecuting the charge only to later sit in final adjudication of the charge before their own court. The consolidation of power as reflected in this practice against the liberty of individual citizens smacks of star chamber practice and should be condemned by state legislators as was the star chamber itself condemned by the English Parliament in 1641. Additionally, many of these cases result in imprisonment of the defendant in a purely civil case only to thereafter be effectively denied review by the Writ of Habeas Corpus. Tragically, in these cases the ordinary review by appeal is also denied leaving the defendant with no adequate remedy under law. The Writ of Habeas Corpus in such cases is simply “overruled” without comment or findings or supporting law. It is precisely this practice which was sought to be avoided by those constitutional provisions pertaining to the separation of powers as well as the constitutional provisions that the Writ of Habeas Corpus is never to be suspended. While all states have constitutional provisions pertaining to the separation of powers only a few states have provisions prohibiting the suspension of Habeas Corpus. Nevertheless, the Extraordinary Writ of Habeas Corpus remains as the final and most fundamental process by which one may test the propriety of a restraint on individual liberty.

>Joseph Dale Robertson
25 August 2000 @ 14:47 Hours CDT

I'm searching for answers and both sides of the argument. I personally believe in personal rights and liberties, but I also recognize the necessities of war. Where is the line drawn? I hope these postings help clear up this issue, but then maybe they tend to muck up the water - so to speak.

There seems to be some confusion of Presidential Powers during a time of war. To wit, capable or not, the president has the power to suspend portions of the Constitution. Right or wrong. An historical precident has been set.

Huh? The Constitution specifically allows for the suspension of the Writ of Habeus Corpus during war. So how is using the Constitution, suspending it?

Article I, Section 9:

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Thanks for your discussion of American History and Constitutional Law. Right now, it's something we're all thinking about and trying to understand.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Good catch. It is interesting that it is called here a privilege and not a right.

Two questions: does the present situation qualify as a rebellion or invasion, and which branch of government is thereby empowered to suspend the privilege?

Lincoln saved the Union by preventing the Maryland congress from voting for succession. If Lincoln did not follow through on these actions on April 19, 1861, Washington DC would have been located in the South.

http://www.servtech.com/~grugyn/bk2a-6wl.htm

"The mayor of Baltimore and the governor of Maryland appealed to Lincoln that he send no more Federal troops through Baltimore. This was Lincoln's moment of truth. Should he allow Maryland to follow her sister states into secession, the District of Columbia would be surrounded by hostile States! Lincoln and his cabinet would be forced to flee (assuming they could) to Philadelphia or New York. The Regular army would most likely desert. Suddenly Maryland became the key to whether or not the Civil War would actually occur! Abraham Lincoln responded by placing the entire state under martial law and military occupation:

"Marylanders were similar to Virginians, strongly Southern, but cautious. However, when Lincoln called for troops to coerce the states, Virginia seceded. Immediately, Lincoln moved to secure Maryland. Habeas corpus was suspended and Southern sympathisers arrested in Baltimore. General Banks dissolved the Baltimore police board. Secretary of War Cameron wrote him: "The passage of any act of secession by the legislature of Maryland must be prevented. If necessary all or any part of the members must be arrested." Arrests were sufficient to prevent a vote. The mayor of Baltimore, most of the city government, and newspaper editors were jailed.""

To have such power, there must be a specific grant of that power in the Constitution. You haven't found it. Lincoln acted as a tyrant and got what every tyrant deserves.

Two questions: does the present situation qualify as a rebellion or invasion, and which branch of government is thereby empowered to suspend the privilege?

I think there is 1 question only: "does the present situation qualify as a rebellion or invasion"?

As for the other,

Article I Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

I would think therefore that Section 9 is considered a power granted to Congress.

The mayor of Baltimore, most of the city government, and newspaper editors were jailed.""

Cool...over a century ago and the same powers of dissolution were tearing at the fabric of American society. The socialist press and the ivory-tower elites.

To have such power, there must be a specific grant of that power in the Constitution. You haven't found it. Lincoln acted as a tyrant and got what every tyrant deserves.

Twodees, before you strike you should read. The Constitution specifies that the "priviledge of the writ of habeas corpus" can be suspended. The poster did find it. It's in the Constitution.