After the outbreak of the American Civil War, President Abraham Lincoln, claiming emergency powers, suspended habeas corpus, a person's right to have a judge determine the legality of his imprisonment. Lincoln authorized the military to arrest and indefinitely detain anyone suspected of aiding the rebels. This decision outraged many of Lincoln's contemporaries, and has been a subject of debate for constitutional scholars ever since. Roger Taney, the Chief Justice of the Supreme Court during Lincoln's presidency, voiced particular outrage in his Ex parte Merryman opinion. The following essay will summarize Taney's arguments against Lincoln's claim of executive power, arguing that Taney's interpretation of the Constitution is superior to Lincoln's.
According to historians David Donald and James Randall, Lincoln relied on arbitrary arrests for political expediency. If Lincoln had exclusively utilized the courts to judge cases of suspected treason, he would have convicted few, since the Constitution sets strict requirements for a treason conviction. Moreover, those who were convicted might become martyrs and incite more resistance. Therefore, Lincoln suspended habeas corpus and allowed the military to conduct arbitrary arrests. [i]
Lincoln gave several more diplomatic justifications for suspending habeas corpus. First, he formulated a u201Cdoctrine of necessity.u201D Since the president takes an oath to preserve, protect, and defend the Constitution, he must violate it during emergencies to preserve the government. Sometimes we amputate limbs to preserve life; similarly, presidents must occasionally violate the Constitution to save it. Second, Lincoln offered two constitutional justifications for his actions. He cited the president's duty to make sure that the nation's laws are faithfully executed; since disloyal Northerners could prevent Lincoln from u201Cfaithfully executingu201D law, he could suspend their right to habeas corpus. [ii] He then cited the commander-in-chief clause of the Constitution, claiming that, as commander-in-chief in wartime, he had u201Ca right to take any measure which may best subdue the enemy.u201D [iii]
Before considering Ex parte Merryman, we should discuss the events that led Taney to write the opinion. In May 1861, Union General George Cadwalader ordered John Merryman's arrest for being u201Can active secessionist sympathizer.u201D Under Cadwalader's order, Merryman was held in a military prison at Fort McHenry. When Taney, who was on circuit duty, demanded that Cadwalader allow him to judge the legality of Merryman's detainment, Cadwalader refused, citing Lincoln's orders. Taney then attempted to hold Cadwalader in contempt, but Union soldiers refused to admit the marshal who tried to serve him Taney's writ. Thereafter, a frustrated Taney wrote his Merryman opinion. [iv]
In his Ex parte Merryman opinion, Chief Justice Roger Taney addresses Lincoln's claims of sweeping executive power. He directly challenges Lincoln's claim that his duty to faithfully execute the nation's laws justifies the suspension of habeas corpus. The clause that requires the president to u201Cfaithfully executeu201D the laws, Taney says, does not permit him to u201Cexecute them himself, or through agents or officers, civil or military.u201D [v] Instead, the president's duty is to assure that no outside force interferes with the government's execution of the laws. Therefore, he must help the judicial branch if some outside force threatens the judiciary's power; he does not have the right to utilize the military to usurp judicial authority.
Taney also challenges Lincoln's assertion that emergencies require the executive to usurp congressional and judicial authority. Near the end of the opinion, he says that, if the executive branch can, in any situation, overstep other branches, then u201Cthe people of the United States are no longer living under a government of laws.u201D In Taney's view, the Constitution is not a mere suggestion of how government should operate under ideal circumstances. Instead, it is a concrete document to which the executive must adhere at all times, including times of emergency. If presidents can abandon the Constitution u201Cupon any pretext or under any circumstances,u201D the Constitution means nothing. [vi]
Perhaps most importantly, Taney says the framers never intended for the executive to suspend habeas corpus. He offers mounds of evidence to support this contention. First, he cites a major crisis during Thomas Jefferson's presidency. Aaron Burr, Jefferson's vice president, led a conspiracy to seize territory around New Orleans to form a new country. During this time, Jefferson actually wanted to suspend the writ, but wrote that he lacked the authority. Instead, he suggested that Congress exercise its power to suspend habeas corpus. [vii]
Second, he writes that the framers, fearing a liberal interpretation of the u201Cnecessary and properu201D clause, which gives Congress the right to pass any law deemed u201Cnecessary and properu201D for carrying out its duties, listed several fundamental rights that cannot be violated. It is not a coincidence, Taney says, that the first right listed is the writ of habeas corpus, which may only be suspended in times of invasion or rebellion. [viii]
Third, Taney argues that it defies common sense to believe the framers would have trusted the executive with the right to suspend habeas corpus. They had just broken away from a powerful, despotic English monarch. Therefore, they distrusted a powerful executive, especially one who could arrest citizens and hold them indefinitely without trial. As evidence, Taney cites the strict limits Article 2 places on the executive, such as the requirement for congressional approval of treaties with foreign nations and his short term of office. [ix]
Taney persuasively argues that the Constitution expressly denies the executive the right to suspend habeas corpus, even going so far as to say u201CI had supposed it to be one of those points of constitutional law upon which there was do difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of Congress.u201D [x] To support this contention, Taney cites Article 1, Section 9 of the Constitution, which gives Congress alone the power to suspend Habeas Corpus. He also cites the fact that Article 1 u201Cis devoted to the legislative department of the United States, and has not the slightest reference to the executive department.u201D [xi] To further support his case, Taney discusses Article 2 of the Constitution, which deals with the executive branch. Taney writes that u201Cif the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article.u201D [xii] However, Article 2 never gives the president this power.
Taney quotes his predecessors on the Supreme Court to bolster his arguments. Justice Joseph Story, for example, once wrote that u201CIt would seem, as the power is given to Congress to suspend the writ of habeas corpus…that the right to judge whether the exigency had arisen must exclusively belong to that body.u201D [xiii] Moreover, he refers to an opinion written by Chief Justice John Marshall. Marshall's opinion says that, if suspending the writ is necessary for public safety, only Congress may do so. Until Congress suspends the writ, the courts must maintain habeas corpus. To capitalize on the high esteem most Americans give Marshall, Taney says u201CI can add nothing to these clear and emphatic words of my great predecessor.u201D [xiv]
The influence of English common law on America's legal system, Taney argues, supports his position. For centuries, the English dealt with monarchs who arbitrarily imprisoned their own citizens. Therefore, they, like the framers, denied executives the authority to suspend habeas corpus. Taney quotes English judge William Blackstone at length, who once wrote that u201CBut the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient.u201D [xv] Though Taney concedes that the English and American systems differ greatly, he reminds readers that u201Cupon this subject they (English judges) are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice.u201D [xvi]
Even if Congress had suspended habeas corpus, Taney argues, Merryman should still be released. Cadwalader did not have probable cause to detain Merryman. Taney correctly points out that Cadwalader never produced any witnesses to support his accusations, nor did he bother to specify u201Cthe acts which, in the judgment of the military officer, constituted these crimes.u201D [xvii] Furthermore, even if the suspension of habeas corpus were legal, the military could not refuse to cooperate with the judicial branch. Though the military can arrest private citizens, it must immediately transfer them to civil authorities.
On the question of the framers' original intent, Taney's view is clearly the correct one. The framers would never have wanted the executive to have the power to suspend habeas corpus under any circumstances; they repeatedly criticized their previous ruler, the English king, for similar behavior. For example, in the u201CDeclaration of Independence,u201D Thomas Jefferson attacks King George because he u201Chas affected to render the military independent of and superior to civil power.u201D [xviii] Lincoln, by allowing the military to arbitrarily arrest private citizens and sidestep judicial authority, differed little from George III. Moreover, as Taney points out, during Thomas Jefferson's presidency, when most of the framers were still in government, no one, even during a time of crisis (the Burr conspiracy), believed the president could suspend habeas corpus. Nor did President James Madison, the u201Cfather of the Constitution,u201D claim sweeping executive powers during the War of 1812, as Tom DiLorenzo has written. [xix]
Even if we do not consider the framers' original intent, Taney's interpretation is clearly superior; as Taney writes, this should be u201Cone of those points of constitutional law upon which there was no difference of opinion.u201D Article 1, Section 9 of the Constitution gives Congress, not the president, the power to suspend habeas corpus. If the president had the power to suspend habeas corpus, it would be found in Article 2, which deals with the executive branch; it is not.
Many of Lincoln's defenders concede the unconstitutionality of his suspension of habeas corpus, but argue that, although the suspension was dictatorial, Lincoln was a u201Cgood dictator.u201D James G. Randall even called Lincoln a u201Cbenevolent dictator,u201D a phrase many would consider an oxymoron. However, it is easy for those who never suffered the effects of Lincoln's u201Cbenevolentu201D dictatorship to defend him. John Merryman, who was arrested in his home without probable cause, would disagree with Randall's analysis. So would Francis Key Howard, who spent two years in military prison at Fort McHenry and wrote a book about his experience there called The American Bastille. [xx] Moreover, what is the Constitution worth if one man (the president), under a pretext of his choosing, can decide to ignore it?
After Taney issued his Merryman opinion, which President Lincoln ignored, the Lincoln administration increased its usurpation of judicial and congressional powers. Lincoln, incensed by Taney's defense of civil liberties, issued a warrant for his arrest. Several sources corroborate this controversial warrant. First, the private papers of Lincoln's former law partner, Ward Hill Laman (who was a Federal Marshal at the time) contain a reference to the warrant, saying u201CAfter due consideration the administration decided upon the arrest of the chief justice.u201D Second, Taney warned friends that he may be arrested, including George Brown, the future mayor of Baltimore. Fortunately, no one could find a marshal who was willing to arrest an 84-year-old judge. [xxi]
Lincoln's attempt to arrest Taney helps prove Taney's accusation that Lincoln was willing to usurp judicial authority and endanger American liberty. Lincoln not only ignored an order from the Chief Justice of the Supreme Court; he even tried to have the judge arrested. If Lincoln had succeeded in arresting Taney, he would have virtually destroyed the separation of powers upon which this nation was founded. How can the judiciary maintain its independence if the president can have the Chief Justice arrested for merely issuing an opinion with which he disagrees?
Donald and Randall's analysis also supports Taney's opinion. If Lincoln decided to suspend habeas corpus simply because he feared that he could gain few treason convictions, he viewed the Constitution as an obstacle to be sidestepped, not a foundation for preserving liberty. Furthermore, his belief that he would attain few convictions supports Taney's claims. After declaring that the military lacked probable cause in the Merryman case, Taney concluded that the government probably lacked evidence for many of its other arrests and encouraged other judges to demand writs of habeas corpus. [xxii] Lincoln's cynicism helps show that Taney was correct.
President Lincoln's suspension of habeas corpus lacked both moral and constitutional justification. It confined thousands in military prisons for opposing war and voided years of jurisprudence. The Constitution never gives the president the right to suspend habeas corpus, nor can that right be inferred from the commander-in-chief clause or the president's duty to faithfully execute the laws. Lincoln's suspension was not only illegal; it was also dangerous, threatening the separation of powers that prevents any one branch of government from becoming too powerful. Moreover, his actions inspired future presidents to ignore the Constitution during times of crisis. Especially today, with the post-9/11 crackdown on civil liberties, Americans would be wise to reread Ex parte Merryman.
Notes
[i] James G. Randall and David Donald, The Civil War and Reconstruction, 2nd Ed. (Boston: D.C. Heath and Company, 1961), 300.
[ii] Michael Genovese, The Power of the American Presidency (New York: Oxford University Press, 2001), 81.
[iii] Genovese, 84.
[iv] Randall, 301–302.
[v] Roger Taney, u201CEx Parte Merryman,u201D n.d. (28 Mar. 2005).
[vi] Ibid.
[vii] Ibid.
[viii] Ibid.
[ix] Ibid.
[x] Ibid.
[xi] Ibid.
[xii] Ibid.
[xiii] Ibid.
[xiv] Ibid.
[xv] Ibid.
[xvi] Ibid.
[xvii] Ibid.
[xviii] Thomas Jefferson, u201CDeclaration of Independence, n.d. (28 Mar. 2005).
[xix] Thomas J. DiLorenzo, The Real Lincoln (New York: Three Rivers Press, 2002), 134.
[xx] Ibid., 134.
[xxi] Charles Adams, u201CLincoln's Presidential Warrant to Arrest Chief Justice Roger B. Taney,u201D 5 Jan. 2004 (28 Mar. 2005).
[xxii] Ibid.
April 5, 2005
