*I herein present, unaltered in any way, an article I published on April 17, 2014, for the Independent American Party (now renamed Independent American Patriots)*

On April 27, 1861 President Abraham Lincoln perpetrated one of his most dastardly attacks upon the United States Constitution and on the rights of Americans. In an action worthy of a dictator, President Lincoln unilaterally suspended the writ of habeas corpus, effectively ending due process in the United States and subjecting the Union to military jurisdiction. By suspending the writ of habeas corpus, President Lincoln broke his oath of office, violated Article 1, Section 9, Clause 2 of the Constitution, obliterated the Fourth, Fifth, and Sixth Amendments, smashed historical precedent, and departed from the limited government philosophy of the Founding Fathers. This article will explain what our Founders thought of the writ of habeas corpus, why it matters today, and why violating is such a heinous act.

Article 1, Section 9, Clause 2 of the Constitution states: “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.” Habeas corpus laws date back to at least the Magna Carta of 1215 and were later clarified and codified in English law. The Magna Carta declares: “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” Kings had gotten into the habit of kidnapping their subjects and holding them without charge, trial, or any real cause. The Magna Carta addressed this issue and established a legal precedent whereby abductees could be summoned before a court to determine whether or not their imprisonment was justified.

The phrase habeas corpus is Latin for “produce the body.” As explained above, court orders, or writs, were issued to produce the prisoner and bring him before a court to determine the legality of his incarceration. Without this precious right, governments could arbitrarily and at will arrest and imprison their citizens, the latter having no legal means of redress other than armed revolt. In their wisdom, the Founding Fathers erected a formidable defense around the right to have writs of habeas corpus, jury trial, and due process. Let us take time now to see what our Founders believed about the need for habeas corpus.

Alexander Hamilton observed that “the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.” Hamilton deemed habeas corpus laws the “remedy for this fatal evil” and quoted Sir William Blackstone as referring to habeas corpus as the “bulwark of the British Constitution” (Hamilton, The Federalist Papers, No. 84). The Founders likewise saw the Fourth Amendment as the bulwark of the American Constitution.

Like Hamilton, James Iredell, one of America’s first Supreme Court justices, identified “arbitrary imprisonment” as “the principal source of tyranny in all ages” (spoken at the North Carolina state ratifying convention, July 28, 1788). On the same occasion, Iredell stated that any attempt to suspend jury trial in the United States would draw the “resentment and detestation of the people,” would be worthy of “eternal infamy,” and would ultimately be “as unsuccessful as it was wicked.” Iredell did not mince words nor compromise on this precious right.

Perhaps the biggest supporter of habeas corpus laws was the great Thomas Jefferson. Jefferson referred to “trial by jury . . . the habeas corpus, the freedom of the press, [and] the freedom of religion” as the “first principles of liberty” (Jefferson to Albert Gallatin, November, 1803). The Sage of Monticello chastised his fellow countrymen for being “contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army.” He referred to this apathetic attitude as a “degeneracy in the principles of liberty” (Jefferson to William Stephens Smith, February, 1788). To Jefferson, habeas corpus laws were just as fundamental as the Freedom of religion or Freedom of the press.

Jefferson felt so strongly about the writ of habeas corpus that in 1788 he proposed a bill of rights be added to the Constitution which, among other things, stipulated “no suspension of habeas corpus” (Jefferson to A. Donald, 1788). After receiving a copy of the newly crafted Constitution while serving as minister to France, Jefferson quickly wrote to James Madison that he was disappointed that the document did not include a “bill of rights providing clearly . . . the eternal and unremitting force of the habeas corpus laws, and trials by jury” among other protections of rights (Jefferson to James Madison, December 20, 1787). In his First Inaugural address as president, Jefferson highlighted “freedom of person under the protection of the habeas corpus, and trial by juries impartially selected” as part of the “bright constellation” of Liberty-minded principles that would guide his administration (Jefferson, First Inaugural Address, March 4, 1801).

From these quotations, and others that could be cited, it is clear that the Founders jealously guarded the precious writ of habeas corpus. Yet, in 1861 President Lincoln perverted the nature of the United States government by suspending habeas corpus jury trial, and attacking other rights such as the Freedom of the press. Even at the time the general consensus was that President Lincoln had overstepped the Constitution. However, because of the suspension of habeas corpus and attacks on dissenting press, the fear of being hauled off to a military prison prevented most from vigorously protesting Lincoln’s usurpations. A low estimate finds that over 13,500 Northerners were arbitrarily imprisoned, never charged with a crime, and denied their basic rights guaranteed in the Constitution and Bill of Rights (James G. Randall, Constitutional Problems Under Lincoln, New York: 1926, 152-153).

Of those who did speak out against President Lincoln’s theretofore unprecedented violations of the Constitution, Chief Justice Roger B. Taney of the United States Supreme Court is perhaps the most well-known. On May 25, 1861 John Merryman, who was thought to be a secessionist, was arrested in his home in Maryland in the dead of night, without a warrant, by federal troops. Merryman was whisked away to the military prison at Fort McHenry while Lincoln’s troops put Maryland under martial law to nip in the bud suspicions that the state was planning to secede. When the writ of habeas corpus filed by Merryman’s lawyers reached Justice Taney, he immediately moved to grant the writ. Military officers at Fort McHenry refused to comply, however, prompting Justice Taney to declare the military and the president beyond their constitutional bounds. Justice Taney subsequently released an official judicial opinion on the matter. The main points of his opinion will be reviewed below.

After giving background information on the arrest of Merryman, Justice Taney explained the illegal actions of General Cadwallader of Fort McHenry. He wrote, “Having the prisoner thus in custody upon these vague and unsupported accusations, [General Cadwallader] refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the President to suspend it (this and all subsequent Taney quotations taken from Opinion of Chief Justice Taney, In the Case of Ex Parte John Merryman, Applying for a Writ of Habeas Corpus, New Orleans, 1861; link below).

Justice Taney continued: “As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to relegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process.” He further wrote that he was surprised to hear President Lincoln claim this authority since, as Justice Taney recorded, “I had supposed it to be one of those points of constitutional law upon which there was no 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.”

President Lincoln, it seems, invented his notion of executive authority out of whole cloth. Justice Taney made the observation that the vestiture of power in Article 1, Section 9, Clause 2 to suspend habeas corpus falls under the section of the Constitution that deals exclusively with legislative authority. As Article 1, Section 1 plainly states, “All legislative Powers herein granted shall be vested in a Congress” – not in the president. Justice Taney recounted how the American Founders had thrown off “arbitrary government” to establish “free institutions” and a “freer” government and therefore would never have granted the Executive Branch power to arbitrarily suspend habeas corpus.

Justice Taney was equally worried about military involvement in judicial affairs. He explained that the military “has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers.” Cognizant of historical precedent wherein militaries gradually usurp control over civil matters, the Founders crafted the Constitution so as to empower civilian jurisdiction and preeminence in judicial affairs.

One lengthy paragraph of Justice Taney’s opinion is of particular interest because it gives a good synopsis of who holds political power in the American system and where the boundaries are drawn. That paragraph is quoted here in full:

“With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, 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 privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus – and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defense in times of tumult and danger. The Government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted. For the tenth Article of the Amendment to the Constitution, in express terms, provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Justice Taney accurately explained that the Constitution delegates only a handful of carefully specified powers to the federal government while reserving the rest to the American People. When an elected representative breaks his oath to the Constitution by overstepping its boundaries, he comes out in open war against the People and their natural rights. Such was the case with Abraham Lincoln when he illegally waged war on the Southern states and suspended habeas corpus and jury trials in order to quell opposition to his rule.

Some might question the relevance of an article on the writ of habeas corpus. After all, don’t we have a well-oiled justice system and don’t we live in a civilized and enlightened society? The fact is that America’s justice system is a farce. The law is not administered uniformly, but favors the wealthy and influential. Politicians, for example, get a slap on the wrist when they break the law whereas average Americans are being thrown into privately-owned, for-profit prisons for such ridiculous offenses as throwing a shoe at an elected representative or posting a supposedly threatening comment on Facebook or collecting rain water on their own property. Not only is injustice rampant, but the writ of habeas corpus has come under direct attack by Congress and the Executive Branch in recent legislation.

In October, 2001 the infamous PATRIOT Act was quite literally ramrodded through Congress by the Bush Administration and foisted upon the unsuspecting American People. Members of Congress only had 15 minutes to read the hundreds of pages of legislation which had been drafted in secret. Had they read the the PATRIOT Act, they 4 would have realized that it authorizes the federal government to spy on Americans, tap their phones without a warrant, and conspicuously does away with Fourth Amendment guarantees of due process – including the right to writs of habeas corpus. The Act also allows federal agents to write and administer their own search warrants and place a gag order, on pain of prosecution, upon those they secretly investigate. Numerous individuals have been arrested and imprisoned in Guantanamo Bay, Cuba and other military facilities out of the reach of civilian jurisdiction pursuant to the PATRIOT Act.

The National Defense Authorization Act 2012 (NDAA) likewise shreds the protections given in the Bill of Rights and authorizes, in purposefully vague language, the Executive Branch to use the military to arrest and detain indefinitely in military prisons, without charge or trial, anyone deemed by the president to be a threat to national security. Were a president today to have the ambition of Lincoln, he could do untold harm to Americans under the PATRIOT Act and the NDAA.

Many other dastardly pieces of legislation such as the 2005 Civilian Inmate Labor Program, the 2006 Military Commissions Act, the 2007 John Warner National Defense Authorization Act, and the 2009 National Emergency Centers Act assault our rights and subvert the Constitution. Whether it is Abraham Lincoln, Woodrow Wilson, George W. Bush, Barack Obama, or the myriad of other despots who have ruled the United States for a century and a half, both sides of the power structure – Republicans and Democrats alike – are waging war against the American People and our God-given Liberties. However, as cockroaches scurry into hiding when hit by light, these political tyrants will flee when exposed by the brilliant light of truth. It is our job to become informed and to hold our representatives accountable for not honoring their oath to defend the Constitution.

When we make a sincere effort to study real history, we learn that our legacy is far more glorious than we are led to believe, while simultaneously darker and more sordid than we want to admit. The love and devotion our Founders had to personal Liberty and rule of law is humbling and inspiring. And the true nature and deeds of celebrated national heroes like Abraham Lincoln is revolting and maddening. The good and the bad both must be studied, however. Education in truth is the key to effecting positive change. We must become intellectually honest and doggedly pursue truth and fact at every peril, even if it takes us through the field where the sacred cows of our heart sit grazing on the ignorance fostered by our lack of commitment to unbiased truth. Only an educated, moral, God-fearing, and vigilant People are worthy of Freedom. Let us rise up and diligently earn our inheritance, along with our noble Founders, in the paradise of Freedom desired by so many yet achieved by so few.

Zack Strong,
September 16, 2023 (originally published April 17, 2014)

A Few Sources for Further Study on the Constitution and Habeas Corpus:

The Making of America: The Substance and Meaning of the Constitution by W. Cleon Skousen. Available at http://www.nccs.net. Perhaps the greatest book ever written on the true interpretation of the Constitution.

Full text for Justice Roger Taney’s opinion on Lincoln’s unjust suspension of habeas corpus: https://archive.org/details/16643818.4120.emory.edu/mode/2up

An analysis of the Ex Parte Merryman case:
https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-war

Article by Laurence M. Vance: http://archive.lewrockwell.com/orig4/vance4.html

Alexander Hamilton, The Federalist Papers, No. 84: https://avalon.law.yale.edu/18th_century/fed84.asp

Text of the Magna Carta: http://www.constitution.org/eng/magnacar.htm

Full text of James Randall’s book Constitutional Problems Under Lincoln. Beware, however, Randall’s sycophantic praise of Lincoln: https://archive.org/details/constitutionalpr00randa

Thomas Jefferson’s First Inaugural Address: http://www.bartleby.com/124/pres16.html

Article “No More Asking For Permission to Speak” by Judge Andrew Napolitano on the
PATRIOT Act: https://www.lewrockwell.com/2013/03/andrew-p-napolitano/no-more-asking-for-permission-tospeak/

“How Congress Has Assaulted Our Freedoms in the Patriot Act” by Judge Napolitano: http://archive.lewrockwell.com/orig6/napolitano2.html