Terms and Conditions Apply: Constitutional Rights in Wartime

Terms and Conditions Apply: Constitutional Rights in Wartime

Liam Walsh, Fall 2022

The people of the United States undoubtedly enjoy a remarkable collection of rights that citizenries across the world cannot boast. Lines like “all men are created equal” or “the Blessings of Liberty”, along with the revolutionary rights to freedom of expression and protest set forth in the First Amendment cannot help but give the impression that the rights and privileges afforded to the people of the United States are unwavering. After all, there are no terms and conditions laid forth for when such rights are in effect. The concept of natural rights should guarantee such principles as eternal; without end. However, this has not always been true historically.

One of the most interesting cases involves President Abraham Lincoln’s administration pursuing the suppression of rights during the American Civil War. The onset of the secessionist rebellion in the South posed a grave national security threat to the American Union. The ease with which Confederate sympathizers could infiltrate the Union, given that some lived in the North, prompted President Lincoln to circumvent his constitutional power in his government’s attempt to preserve the Union. The award-winning Civil War documentary by Ken Burns sums it up well, noting that “to preserve the Constitution, Lincoln had for three months gone beyond it – waging war without congressional consent, seizing northern telegraph offices, suspending habeas corpus”[1]. Indeed, President Lincoln also declared Martial Law and allowed civilians to be tried in Military Courts. The most notable and controversial move by the president, however, involved a right enumerated in article 1 section 9 clause 2 of the United States Constitution.

The writ of habeas corpus protects the people of the United States against wrongful and indefinite imprisonment without trial. Oftentimes referred to as the “Great Writ”, it is a remarkably crucial component of criminal justice in America in that it secures the right for all people accused of a crime to have their case tried in a courtroom. To that extent, it guarantees that there must be due process before a person can be confined to a jail cell. The ACLU states that “habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power”[2].

It was on April 27, 1861 that Lincoln told his military commanders that the writ of habeas corpus was to be suspended between Washington D.C. and Philadelphia. He instructed his Union commanders to jail any rebels or dissenters that may have been opposed to the Union cause. Although the argument could be made that this was simply a necessity to directly target treason, Lincoln gave an institution with no authority to jail civilians, the military, the power to arrest subjects as it saw fit. With such power transferred to individual Union military commanders, people usually with no legal background became the arbiters of the law and could deny freedom to anyone they chose. History.com adds that “those arrested could be held without indictment or arraignment”[3], which essentially nullified the ability of detainees to challenge their arrest or put up a legal defense. Nearly a month after the suspension of habeas corpus, the first court case over the suspension of the Great Writ would unfold.

An open supporter of secession by the name of John Merryman was arrested in Maryland on May 25th by US soldiers on the charge of treason. While he was being held at Fort McHenry, Merryman appealed his detainment with a writ of habeas corpus. The current Chief Justice of the United States was Roger B. Taney, who was also a federal circuit court judge presiding over the region where Merryman had been detained. Citing Merryman’s detainment as illegal and unconstitutional, Chief Justice Taney granted a writ of habeas corpus for Merryman. This well-known case, Ex parte Merryman[4], was foundational as it challenged the President’s ability to suspend habeas corpus. It was Chief Justice Taney who issued the ruling. He concluded that the president had exceeded his power by granting military authorities the right to arrest without due process.

Article 1 section 9 clause 2 of the US Constitution enumerates the Great Writ of Habeas Corpus. The clause ensures 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”[5]. The key component of the clause at question is that technically the right can be revoked at any time if it is necessary for national security or public safety. Foremost, the phraseology of the statement is quite interesting. It technically means that the existence of this key right, so often taken for granted in the United States, can actually be revoked at any time. This directly contradicts the sentiment of natural rights that supported the framework of America’s founding. Given this, on what legal ground did Taney have to rule against Lincoln?

Taney’s ruling did acknowledge that habeas corpus can legally be suspended by the United States government in times of war or unrest. However, the question over the governing body of the United States that had the authority to do so was the grounds on which Taney ruled that Lincoln’s actions were unconstitutional. Referring to article 1 section 9 of the Constitution, Taney ruled that “this article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department,”[6]. Indeed, the question was not of whether or not habeas corpus could be suspended at all, but rather the fact that the power was vested in Congress to do so, and not the president. He continued to say that “I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power,”[6] Taney ruled. This reaffirmed the notion that detainment of civilians by military authority was not justified, and that the justice system has to act alongside the executive branch to make the arrests under the suspension of habeas corpus constitutional. Union General George Cadwalader was the commanding officer of the garrison in which Meryyman was held. Taney ordered Cadwalader to release Merryman, as his constitutional rights had been violated and there was no legal ground to keep him prisoner. Cadwalader refused, claiming that he had been granted the authority by the president and that he was merely doing his job.

Lincoln, however, remained undeterred by Taney’s ruling. In fact, it only led to Lincoln becoming concerned about Taney’s sympathies. In response to Taney, The Virginia Mercury notes that “Lincoln ignored the ruling,”[7] and, by some accounts, even considered issuing an arrest warrant against Chief Justice Taney[7]. Such acts by a president widely revered in America as one of the best in the nation’s history is a testament  to the lack of awareness around this controversy. Moreover, it is possibly a symptom of the general unwillingness of the nation to acknowledge Lincoln’s flaws because of a sentiment that he can not be criticized due to his role in saving the Union. But can an argument be made that  the historical context excuses Lincoln’s actions?

Behind these moves, though, there was a genuine motive to preserve the Union by taking control of the judicial processes that Confederate sympathizers or operatives could use to their advantage. Indeed, the use of spies in the civil war was extensive – unlike anything ever before seen. President Lincoln himself justified his actions by declaring that “more rogues than honest men find shelter under habeas corpus”[8]. In the case of the Civil War, it is understandable that the court system could have easily been overwhelmed if all southern sympathizers were given a fair trial. Lincoln had several key arguments that he used to contend that he was justified in suspending certain peacetime rights.

Several months later, Lincoln hit back at Taney’s ruling on the fourth of July. Lincoln attempted to prove that the Constitution did indeed grant him the power, and rightfully so, to suspend habeas corpus during times of instability. Lincoln defended himself in front of Congress, and challenging the ruling in Ex parte Merryman, said that “…the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion”[9]. Lincoln was referring to how Congress was out of session at the time that he suspended the Great Writ, so he had no choice but to act by himself to take the necessary measures to preserve the Union.

Modern interpretations even agree with Lincoln that article 1 section 9 does not directly give power to any one branch of government. A piece by the Lincoln Memorial University argues that “Although the suspension appears to be unconstitutional, President Lincoln was justified in suspending the writ of habeas corpus due to provisions in Article II of the United States Constitution”[10]. It remains up for debate whether or not the power is vested in the executive or legislative branch to make this decision.

Conclusively, the citizens of the United States must maintain cognizance of the fact that constitutional rights are not necessarily guaranteed despite common perceptions. The right to a trial, the right to not suffer indefinite punishment – these are rights that are granted by the government and are thus not natural rights. This poses other questions, particularly about the social contract between citizens and government. The people of the United States voluntarily surrender some autonomy to the government under the pretense that the government will safeguard all rights enumerated in the Constitution. The people are not always truly in charge of their fate. Wars, rebellions, and insurrection – or just the threat of them – can easily serve as a catalyst for the denial of rights  For this reason, terms and conditions do apply to rights in the United States.


[1] The Civil War a film by Ken Burns. [Arlington, Va.: WETA, 2002] Web.. https://lccn.loc.gov/2004615082.

[2] “What You Should Know about Habeas Corpus.” American Civil Liberties Union. American Civil Liberties Union. Accessed November 3, 2022. https://www.aclu.org/other/what-you-should-know-about-habeas-corpus#:~:text=The%20%22Great%20Writ%22%20of%20habeas,freedom%20against%20arbitrary%20executive%20power.

[3] History.com Editors. “President Lincoln’s Suspension of Habeas Corpus Is Challenged.” History.com. A&E Television Networks, November 13, 2009. https://www.history.com/this-day-in-history/lincolns-suspension-of-habeas-corpus-is-challenged#:~:text=On%20April%2027%2C%201861%2C%20Lincoln,deemed%20threatening%20to%20military%20operations.

[4] Ex parte Merryman (Supreme Court June 1, 1861). .

[5] U.S. Const. art. I, § 9

[6] Roger B Taney, 1777- 1864, 5th Chief Justice of the United States, Quoted in Ex parte Merryman (Supreme Court June 1, 1861).

[7] Schermerhorn, Calvin. “Packing the Court: Lincoln and His Republicans Remade the Supreme Court to Fit Their Agenda.” Virginia Mercury. Virginia Mercury, October 13, 2020. https://www.virginiamercury.com/2020/10/13/packing-the-court-lincoln-and-his-republicans-remade-the-supreme-court-to-fit-their-agenda/.

[8] Abraham Lincoln, 1809-1865, 16th President of the United States (Republican, IL), Quoted on PBS The Civil War, September 23, 1990

[9] Bomboy, Scott. “Lincoln and Taney’s Great Writ Showdown.” National Constitution Center – constitutioncenter.org. National Constitution Center, May 28, 2022. https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown

[10] Barnes, Clayton. “A Comparison and Contrast of the Suspension of the Writ of Habeas Corpus by Presidents Abraham Lincoln & George W. Bush.” LMU Institutional Repository. Lincoln Memorial University, January 5, 2021. https://digitalcommons.lmunet.edu/lmulrev/vol8/iss1/6/.

Further Reading 

Dueholm, James A. “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis.” Journal of the Abraham Lincoln Association. Michigan Publishing, University of Michigan Library, 2008. https://quod.lib.umich.edu/j/jala/2629860.0029.205/–lincoln-s-suspension-of-the-writ-of-habeas-corpus?rgn=main%3Bview.

A Spotlight on a Primary Source by Abraham Lincoln. “The Gilder Lehrman Institute of American History.” A proclamation on the suspension of habeas corpus, 1862 | Gilder Lehrman Institute of American History. Accessed November 1, 2022. https://www.gilderlehrman.org/history-resources/spotlight-primary-source/proclamation-suspension-habeas-corpus-1862.

Worcester State University Fall 2022