Dispatches from the Creation Wars

Lincoln’s Unconstitutional Ways

One of the most overlooked events in American history is the battle between Lincoln and the Supreme Court over habeas corpus. One would think that the recent Supreme Court cases involving the authority of a president to suspend habeas corpus would have been an ideal time for those in the media to give the story some historical context by discussing that history, but that would mean they might actually be doing their job, so what were the odds of that really? I’ve written briefly about this before in the larger context of how our government has frequently crushed free speech in times of war to insulate themselves from criticism.

In the early days of the Civil War, Lincoln came under fire from a group that was often called the “copperhead Democrats”. They opposed the war and sought to broker a truce and call a new constitutional convention to frame an amendment protecting state’s rights. In 1861, Lincoln suspended the civil law in certain territories and claimed for himself all powers not specifically delegated in the constitution. In 1862, he suspended habeus corpus and ordered the arrest of many of the leaders of this group under military law. 13,000 people were arrested and imprisoned by his order. The Chief Justice of the Supreme Court, Roger Taney, declared the action unconstitutional, arguing that only Congress can suspend habeas corpus (the same position that the Supreme Court recently took in the Hamdi and Padilla cases) and Lincoln not only ignored the ruling and continued to do what he wanted to do, but issued an arrest warrant for the 84-year old Chief Justice. The warrant was not served, apparently, because they couldn’t find a US marshall willing to drag the elderly justice to a military prison.

Thomas DiLorenzo has written a new article giving more context to this story. As it turns out, this was not at all unusual for Lincoln. There were at least 2 other times that Lincoln had placed judges under house arrest, placing troops around their home to keep them from leaving, in order to prevent them from attending hearings in cases where they had issued habeas corpus writs against the administration demanding that they give a defendant due process. I’m tempted to say that our current president is likely an admirer of Lincoln’s actions, but I doubt it’s true. My guess is that if you asked him who Roger Taney was, he’d get a blank look on his face and wait for one of his handlers to rescue him.


  1. #1 serial catowner
    August 28, 2004

    Page Smith, in his Trial by Fire, says opponents of the draft were using a claim of ‘habeus corpus’ to refuse service, and this, if true, would explain to some extent the large numbers of people involved.