Should Abraham Lincoln have suspended the writ of habeas corpus in 1861? In so doing, did he act constitutionally?
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Yes on both. Those who were endangering the public safety needed to be placed where they couldn’t endanger it anymore, but there wasn’t enough evidence to present to the courts to hold them. The public safety required suspects be held until it could be determined if they were loyal or not. The suspension of the privilege of the writ of habeas corpus is a tool the Constitution provides the government in order to do this in the event of rebellion or invasion. The President has the authority to determine when a rebellion exists. To say that only Congress may do this means that it can’t be done if the rebellion or invasion takes place when Congress is not in session, making the Constitution, in essence, a suicide pact, which famously it it not.
A year or so ago one of my classes while getting my masters I was required to take a Constitutional History class and one of the questions we discussed was this very issue. Based on the readings from various Constitutional scholars such as Akhil Reed Amar (who I really liked), I came to the conclusion that Lincoln did act within his legal right as President. first nothing in the habeas clause stated Lincoln needed to get congressional approval. Lincoln argued that the President had the right for unilateral action, to defend the constitution. Therefore, the President in time of rebellion had the constitutional authority to protect the laws of the land and to suspend habeas corpus. That being said, there are still many constitutional scholars who will disagree… so this is my 2 cents.
Chris Wehner
Article I section 9 of the U.S.Constitution, 2nd clause
“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.”
as there definitely was a “rebellion or invasion” happening it would seem Abe was within his Constitutional powers {no matter what the twit Pat Buchanan says}
now should he? I’ll say yes, there was rebellion in the air and the Chief Justice was suspect and the strategically placed state of Maryland was unsure which way to go .So Lincoln acted decisively to pre-empt any inconvenient rulings by the former and to hold the latter to the flag. So I think he was within the law and acted correctly.
I agree with Al, and Revardy Johnson, who wrote a pamphlet defending Lincoln’s actions, based in large part on prior decisions authored by Taney.
Along the above lines, Manning writes that Taney was writing an opinion, based on a New York case from 1860 that was up on appeal, that would have expanded slavery into the territories and required free states and the federal government to act in fugutive slave cases. She cites Finkelman and Fehrenbacher.
So, yes, constitutional and necessary.
Taney was writing an opinion for the expected appeal from New York of the Lemon Case. What Taney was planning to say was that no state could exclude slaves from their territory. This was a logical extension of Dred Scott.
So much for States Rights.
Yes, He was dealing with both a secession and a major war that followed. I agree with Col Mackey ret. “The President has the authority to determine when a rebellion exists”. And I feel Lincoln considered secession a rebellion.
I think Mr. Ray O’Hara hit the nail in the head.
I’m wondering Dr. Simpson if this question has anything to do with the recent film “The Conspirator,” and how the suspension was “abused” (based on the film) against Surratt?
Alex
Nope.