A few days ago, I came across a post by Being Classically Liberal infamous admin known as (F) cherry picking Lincoln’s record in classic neo-confederate style solely to perpetuate an ideology over fact. Mind you, I consider BCL one of the best classical liberal pages on facebook, sans F, though I can totally appreciate the diversity of opinions, no matter how crack pot some may be.
Much like liberals, radical libertarian ideologues always start the story in the middle, or elide context altogether to further their ideological goals. Thomas Sowell summed this up best as the “triumph of ideology over facts.” So, here are the facts:
Lincoln’s first day in office was March 5th, 1861. On July 4, 1861 ( a mere four months later), in his message to Congress, Lincoln gives his first full explanation for war and recites Article I, Section 9 which reads in full:
“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.”
Plainly written in the Constitution and vociferously debated at the Constitutional Convention was the general consensus that there may in fact be circumstances where the writ had to be suspended in the most extreme cases of war or invasion (so there’s that).
Moreover, in Lincoln’s aforementioned message to Congress, Lincoln asks Congress to validate the specific war powers he took the liberty in using (as Commander-in-chief), and eventually Congress allowed the President to suspend the writ during the period of rebellion. This makes sense insofar as Congress itself, during a rebellion may be unable to convene and the writ would have to be suspended suddenly (Lincoln makes this point in his message as well). Also, context must be considered. He called Congress into session to either ratify the suspension or rescind it. The South had taken up arms against the Government of the United States, they were actively trying to overthrow the government the Constitution gave life to. The same document Lincoln swore an oath to protect. As Lincoln so eloquently states:
“[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?”
Essentially, Lincoln’s oath is to uphold the Constitution and the South is trying to break the union of which it persists. Lincoln is concluding that all the laws of the Constitution shall not go unenforced due to the ambiguity of who actually has the power to suspend the writ of habeas corpus.
The government itself was in peril and was coming apart at the seams. Rather than engaging southern troops, should Lincoln have arrested them on the battlefield, read them their rights, and afforded them due process? Should all the prisoners of war be privy to a writ of habeas corpus during hostilities? It was unclear the United States would even survive the conflict, at which point the Constitution would matter not at all.
The crux of the actual debate, in which Lincoln also considered as mentioned earlier, is the Constitution does not make clear exactly who has the power to suspend the writ. In Ex Parte Merriman, Chief Justice Robert Taney (a southern sympathizer and the author the majority opinion in Dred Scott, declaring the ownership of another human being constitutional and providing the impetus for the Civil War in the first place), argued that because the clause to suspend the writ is in Article I, Section 9 (the article delineating the powers of Congress) that it alone has the sole power to suspend the writ. He never acknowledged the fact there was an active rebellion/insurrection and the republic itself was at stake. He never considered Lincoln’s arguments in his message to Congress, because he didn’t care, he only cared about his own personal predilections and was determined to read them into the law rather than look at it objectively.
Some historians, such as Richard Nelson Current, believe that the writ of habeas corpus clause was put here by the Committee on Style could find no other place for it (it was initially in Article III, then moved to Article I).
– Will Ricciardella