Title: Lincoln's Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis
Abstract: In the 143 years since the end of the Civil War, historians have examined Abraham Lincoln and his conduct of the war in great and at times excruciating depth. Lincoln’s power to suspend the writ of habeas corpus was extensively explored during the Civil War, but since then his suspensions have escaped detailed scrutiny despite the controversy they provoked, their widespread and effective use to combat malignant opposition to the war, and their uncertain grounding in the Constitution. This scholarly inattention is surprising, but there are a number of possible explanations. Probing the constitutional validity of the suspensions requires a textual analysis of the Constitution that is more congenial to lawyers than to scholars. The crisis Lincoln faced and the stature he has achieved make it easy for historians to justify his actions without examining them. If a president has the power to suspend the writ of habeas corpus, his power exists only in the event of rebellion or invasion, neither of which is likely to occur, so why burden history with musty law? For whatever reasons, there has been no in-depth scholarly analysis of Lincoln’s actions since the Civil War and little evaluation of that analysis since an 1888 article by S. G. Fisher. All accounts of Lincoln’s presidency discuss the habeas corpus suspensions, of course, and many of them take sides for or against Lincoln, but the constitutional issue is not considered in detail. This is true even of James Randall’s Constitutional Problems Under Lincoln, a brilliant synthesis of history and law. William Duker and law professors Daniel Farber and Akhil Reed Amar have examined the issue, but, as we will see, their constitutional analyses are brief, superficial, and flawed. Under the Constitution the federal government can unquestionably suspend the privilege of the writ of habeas corpus if the public safety requires it during times of rebellion or invasion. The issue is whether
Publication Year: 2008
Publication Date: 2008-01-01
Language: en
Type: article
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Cited By Count: 4
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