Lincoln and Habeas Corpus

Summary

History As It Happens: Lincoln and Habeas Corpus Hosted by Martin Di Caro | Release Date: June 3, 2025

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1. Introduction: Contemporary Concerns Over Habeas Corpus

In the episode titled "Lincoln and Habeas Corpus," host Martin DeCaro delves into the pressing issue of the Trump administration's consideration to suspend habeas corpus amidst an intensifying immigration crackdown. The discussion opens with concern over the constitutional implications of such a suspension, drawing parallels to historical precedents, particularly Abraham Lincoln's actions during the Civil War.

Quote:

Martin DeCaro [00:27]: "President Trump's immigration crackdown is intensifying. The White House says it's considering suspending habeas corpus. The constitutional right, the standing right of an individual to challenge their detention in court."

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2. Misrepresentation of Habeas Corpus by Contemporary Officials

The episode highlights Kristi Noem's public statements regarding habeas corpus, illustrating a significant misunderstanding of its constitutional foundations. During a Senate Committee hearing, Noem inaccurately defines habeas corpus, leading to a critical exchange with Democratic Senator Maggie Hassan.

Key Exchange:

Kristi Noem [03:41]: "Habeas corpus is a constitutional right that the president has to be able to remove people from this country, suspend their rights."

Maggie Hassan [03:48]: "Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people..."

Noem's inability to correctly articulate the suspension clause underscores the broader issue of political figures misusing historical and legal concepts for contemporary agendas.

Quote:

Martin DeCaro [07:03]: "It is hard to believe and depressing too, how someone in Noem's position could be so ignorant."

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3. Historical Context: Lincoln's Suspension of Habeas Corpus

Historian Jim Oakes provides an in-depth analysis of Abraham Lincoln's decision to suspend habeas corpus during the Civil War. He discusses the circumstances leading to the suspension, including the threat of Confederate forces surrounding Washington D.C. and the subsequent actions taken by Lincoln to maintain national security.

Key Points:

• April 1861: Pro-secessionist riots in Baltimore led to the suspension of habeas corpus along key lines between Philadelphia and Washington D.C.
• John Merriman's Arrest: Merriman, involved in pro-secessionist activities, was detained without charge, prompting Chief Justice Roger Taney to issue a writ of habeas corpus, which Lincoln's administration refused to honor.

Quote:

Jim Oakes [15:37]: "Without charge and put into confinement in Fort McHenry in Baltimore Harbor. And the next day, his lawyers go to Chief Justice Roger Taney..."

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4. Legal Implications and Constitutional Debate

The conversation shifts to the legal debates surrounding the suspension of habeas corpus. Oakes challenges the notion that only Congress has the authority to suspend it, suggesting that Lincoln's actions may have been an overreach of executive power. He references Article I and Article II of the Constitution to argue the complexities of executive versus legislative authority in times of rebellion or invasion.

Key Discussion:

Jim Oakes [18:46]: "It was almost circumstantial. It was put there by the committee of style. I think Lincoln had a good case that the suspension of habeas corpus is as much as an executive authority as it is a congressional authority."

Oakes further critiques Lincoln's refusal to comply with Supreme Court orders regarding habeas corpus, labeling it a breach of presidential duty and setting a controversial precedent.

Quote:

Jim Oakes [21:22]: "He refused to obey Taney here."

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5. The Case of Clement Vallandigham: A Testimony to Overreach

A significant portion of the episode is dedicated to the case of Clement Vallandigham, a Peace Democrat arrested for his anti-war speeches in Ohio. Oakes explains how Vallandigham's arrest under military commission laws exemplified the overzealous prosecution of civilians and the dangers of suppressing dissent during wartime.

Key Events:

• Vallandigham openly criticized the war effort, was arrested by General Ambrose Burnside, and tried by a military commission.
• Lincoln commuted Vallandigham's sentence to banishment, allowing him to flee to Canada, which ignited public debate and condemnation from figures like New York Governor Horatio Seymour.

Quote:

Jim Oakes [31:45]: "Lincoln is saying, this is not a free speech issue. This is an action that Millennium took. He is fomenting insurrection in the sense that he is urging people to disobey the draft and to violate the law."

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6. Enduring Significance and Lessons for Today

Oakes reflects on the lasting impact of Lincoln's suspension of habeas corpus, emphasizing how modern interpretations of civil liberties have evolved to view such actions as overreaches of executive power. He warns against the contemporary threats to civil liberties posed by political figures advocating for similar suppressions without legitimate cause.

Key Insights:

• The suspension of habeas corpus should be a measure of last resort, reserved for genuine emergencies like invasions or rebellions, which are absent today.
• The current political climate's flirtation with suspending fundamental rights could lead to constitutional crises and the erosion of the rule of law.

Quote:

Jim Oakes [38:13]: "Which is why right now, where we're living, the period we're living in right now is so fraught, because it seems like what had been understood, what had come to be understood as rights are being tossed out the window as soon as we're under pressure."

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7. Conclusion: Upholding Constitutional Principles

The episode concludes by reaffirming the importance of adhering to constitutional safeguards like habeas corpus to maintain a free and just society. DeCaro and Oakes emphasize that historical lessons, particularly from Lincoln's era, should guide current and future leaders in preserving civil liberties against authoritarian impulses.

Final Thought:

Martin DeCaro [41:58]: "It's not rule of law. It's not rule of law. It's rule of whoever happens to be in power."

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Additional Highlights:

• Humorous Interlude: The episode features clips from Groucho Marx’s films “Duck Soup” and “Animal Crackers,” humorously illustrating public ignorance of habeas corpus.

  Quote:

  Groucho Marx [02:18]: "I wanted to get rid of habeas corpus, but I should have gotten rid of you instead."

• Lincoln's Defense: Oakes discusses Lincoln's July 4th address, wherein Lincoln justifies his actions by prioritizing national preservation over strict adherence to procedural norms during wartime.

  Quote:

  Jim Oakes [20:07]: "He had spent federal moneys, he had called up a militia. He had issued a blockade... And he asked Congress for retrospective authorization of all of those actions, and they gave it to him."

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Epilogue: Looking Ahead

As the episode wraps up, Martin DeCaro hints at future topics, including the enduring legacy of World War II's D-Day invasion, maintaining the podcast’s commitment to exploring how historical events shape present-day realities.

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For a deeper understanding of the delicate balance between national security and civil liberties, and how history informs current political decisions, tune into "History As It Happens" every Tuesday and Friday.

Transcript

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[Martin DeCaro]

History as it happens. June 3, 2025. Lincoln and Habeas corpus. President Trump's immigration crackdown is intensifying. The White House says it's considering suspending habeas corpus. The constitutional right, the standing right of an individual to challenge their detention in court.

[Unnamed Reporter]

One of the President's top aides today.

[Jim Oakes]

Stephen Miller, confirmed publicly that the White.

[Unnamed Reporter]

House is exploring this extraordinary step.

[Martin DeCaro]

The privilege of the writ of habeas corpus can be suspended in a time of invasion. So I would say that's an option where activ.

[Kristi Noem]

This president has never said he's going to do this. He's never communicated to me or his administration that they're going to consider suspending habeas corpus. But I do think the Constitution allows them the right to consider it.

[Martin DeCaro]

Trump administration officials say if Abraham Lincoln had the power to suspend one of the most important legal rights in Western civilization, then so does Donald Trump today. Why? Because he wants to deport immigrants faster? Lincoln suspended habeas corpus in part of the country days after the start of the Civil War. Can we really compare these situations? That's next as we report history as it happens. I'm Martin DeCaro.

[Jim Oakes]

Well, in this particular case, where you have a prominent federal official butchering the actual history of something that's very important right now, our role is to go in and say, that's wrong. This is the actual meaning of habeas corpus. This is where it comes from. This is its significance. This is what happened during the Civil War. This is what Lincoln actually did versus what you think he did. This. This is what the role that Congress has. These are the issues in a case like this. I think we do have a role to play.

[Martin DeCaro]

You know, I'm pretty sure the first time I heard the term habeas corpus was from Marx. No, not Karl Marx, Groucho Marx.

[Groucho Marx]

I suggest that we give him 10 years in Leavenworth or 11 years in 12 worth. I'll tell you what I'll do. I'll take 5 and 10 in Woolworth. I wanted to get rid of habeas corpus, but I should have gotten rid of you instead. I Object. Even I object. Then I object, too. You're on trial. You can't object.

[Martin DeCaro]

That was Duck Soup, 1933. The trial of Ciccolini, played by Chico Marx. And in Animal Crackers, 1930, Groucho as Rufus T. Firefly, Chico as Ravelli. You know, he seemed to play in Italian.

[Groucho Marx]

You know, we did a good day's work. How do you feel? Tired. Maybe you ought to lie down for a couple of years, eh? Why don't you just lie down until rigor mortar sets in? Come up Revelli. I'll show you how we get the painting. Yeah, we'll go to court and we'll get out of Rid of habeas corpus. You're going to get rid of what? Oh, I should never have started that way. I can see that. I say we'll go to court and we'll get out a rid of habeas corpus. Yes, a corpus. It's a corpus. Didn't you ever see habeas corpus? No, but I see Habeas Irish Rose.

[Martin DeCaro]

So, as a boy, I thought these movies were hilarious. They're still hilarious. The Marx Brothers were comedians, not secretaries of homeland security. And I had to laugh to keep from crying when Secretary Kristi Noemi, testifying before a Senate Committee on May 20, could not define habeas corpus. Here is her exchange with Democratic Senator Maggie Hassan.

[Maggie Hassan]

So, Secretary Noem, what is habeas corpus?

[Kristi Noem]

Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country, suspend their rights.

[Maggie Hassan]

Let me. Let me stop, ma' am. Habeas corpus. Excuse me. That's. That's incorrect, President. Excuse me. Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people. If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason. Habeas corpus is the foundational right that separates free societies like America from police states like North Korea. As a senator from the live free or die state, this matters a lot to me and my constituents and to all Americans. So, Secretary Noem, do you support the core protection that habeas corpus provides? That the government must provide a public reason in order to detain and imprison someone?

[Kristi Noem]

Yeah, I support habeas corpus. I also recognize that the President of the United States has the authority under the Constitution to decide if it should be suspended or not.

[Maggie Hassan]

It has never.

[Kristi Noem]

Let us be clear, though.

[Maggie Hassan]

It has never been done. It has never been done without approval of Congress. Even Abraham Lincoln got retroactive approval from Congress. So I have been asking executive branch nominees a simple question over the past few months. If the President orders them to break the law, I've been asking, will you follow the law or follow the order? I want to ask you a more specific question here. If the President tries to suspend habeas corpus and a federal court reverses the President's order, will you comply with the court order and uphold habeas corpus or will you follow the President's directive?

[Kristi Noem]

We are following all federal court orders and are complying with that, as is the President and every decision that makes sense.

[Maggie Hassan]

Well, that is obvious. Obviously not true. For anybody who reads the news, there are federal court orders right now, including returning somebody who deployed mistakenly. But to be clear, this is about a fundamental legal right that ensures that we live in a free society instead of a police state.

[Martin DeCaro]

A bit later, Democratic Senator Andy Kim revisited the topic.

[Andy Kim]

I wanted to just go back to something that was raised earlier by habeas corpus. Can you confirm to us that you understand that any suspension of habeas corpus requires an act of Congress?

[Kristi Noem]

President Lincoln executed habeas corpus in the past with retroactive action by Congress. I believe that any President that was able to do that in the past, it should be afforded to our current day President. This President has never said he's going to do this. He's never communicated to me or his administration that they're going to consider suspending habeas corpus. But I do think the Constitution allows them the right to consider it.

[Andy Kim]

When we saw what happened with. How many times has habeas corpus been suspended in our.

[Kristi Noem]

Once. That I know of four times. I'm not certain if those were, but.

[Andy Kim]

The instance that you were referring to was one where the courts subsequently showed that Congress is the one that has the ability. Do you know what section of the Constitution, the suspension clause of habeas corpus is?

[Kristi Noem]

I do not. Nope.

[Andy Kim]

Do you know which article it is in?

[Kristi Noem]

No, I do not, sir.

[Andy Kim]

Okay. Well, it is in Article 1. Do you know which branch of government Article 1 outlines the tasks and the responsibilities for.

[Kristi Noem]

Yes.

[Andy Kim]

Which one?

[Kristi Noem]

Congress.

[Andy Kim]

Yes.

[Martin DeCaro]

It is hard to believe and depressing too, how someone in Nome's position could be so ignorant. But she wasn't entirely wrong. We'll get into that in a moment. And you may also have heard Nome mention Abe Lincoln. Lincoln suspended habeas corpus during the Civil War when a secessionist riot broke out in Baltimore. I'm not sure Noem's ever read a book about Abe Lincoln. Maybe she has. Historian Jim Oakes is an expert on Lincoln, slavery and antebellum politics in 19th century America. He is the author of Freedom national the Destruction of Slavery in The United States, 1861-1865, among many fine books, all of which I've read. Our conversation next.

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[Martin DeCaro]

Jim Oaks, welcome back.

[Jim Oakes]

Nice to be here, Martin. Thanks for having me.

[Martin DeCaro]

Yeah, it's been a bit. But I found a reason to have you back on to talk about the always relevant Civil War era, Abraham Lincoln. We need historians because when we leave history up to politicians like Kristi Noem, they massacre it. But you personally, as a historian, you don't use your platform for political commentary. What role should historians play in discourse these days?

[Jim Oakes]

Well, in this particular case, where you have a prominent federal official butchering the actual history of something that's very important right now, our role is to go in and say, that's wrong. This is the actual meaning of habeas corpus. This is where it comes from. This is its significance. This is what happened during the Civil War. This is what Lincoln actually did versus what you think he did. This is what the role that Congress has. These are the issues in a case like this. I think we do have a role to play. We do have a role of clarifying some very, very important issues that have arisen in contemporary politics.

[Martin DeCaro]

Article 1, section 9. 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. But habeas corpus is not an American invention. This goes back centuries, right?

[Jim Oakes]

Yes, to 1215, actually. So it's in the Magna Carta. It's often called a foundational right because it is in some ways the first and most basic of all civil liberties or civil rights. It is a restraint on the state. It means literally something like, show me the body or something, you know, produce the body, which is to say, you cannot just hold someone in jail. You can't arrest them and put them in detention without charging them. And you must bring them to a court of law and formally charge them you just can't hold people in detention or in this contemporary case, deport them without due process. And it's closely related to, but not exactly the same as the other great due process. Right. Which is trial by jury. And both issues come up in the Civil War era and get intermingled just as they're intermingled if you actually read the wording of the Magna Carta, they're intermingled there. And they don't get disentangled artificially until after the Civil War in a Supreme Court ruling.

[Martin DeCaro]

And there's good reason why this is one of the few specific legal concepts mentioned in the Constitution by the framers of the Constitution. Right. I mean, they didn't just throw this in here by accident.

[Jim Oakes]

Yes. It was there before there was a Bill of Rights. It was in the Constitution.

[Martin DeCaro]

That's right.

[Jim Oakes]

Right. It is the foundational right of all other rights.

[Martin DeCaro]

And was it because of the experience with the British, or was it even broader than that as to why the framers put it in there?

[Jim Oakes]

It's just a fundamental aspect of Anglo common law. Anglo American common law. It is so fundamental to the idea of freedom and liberty, the rights of Englishmen, which the revolutionary believe they were defending, that it's not surprising that it's there in the actual text of the Constitution, not in the amendments. I mean, the Fifth Amendment also adds everyone is entitled to due process, but it's just such a fundamental right that you need to know. You need to know what it is and you need to know why it's there and what makes it so fundamental. It is a very serious restraint on the power of the state to arbitrarily arrest people without cause.

[Martin DeCaro]

Yes. It's not permanent. It can be suspended. It's only been suspended four times in U.S. history. In South Carolina, during Reconstruction, during the Philippines War, 1905, there was an insurgency, I believe, in the Philippines. It was suspended in two provinces because that was under US control at the time. And in Hawaii, in Hawaii itself. After Pearl Harbor, Hawaii was not a state yet. It was an American possession. So the first time is what the.

[Jim Oakes]

Civil War is the first time. Three major constitutional questions arise from the suspension of habeas corpus. And it happens within days, literally days of the beginning of the war.

[Martin DeCaro]

We're going to get to that right now. But just because something was done in the past doesn't mean it should be done now. Abraham Lincoln may have made a mistake, and we'll get to that. And the language he used to justify his suspension. Kristi Noem said the Execution of habeas corpus. I believe she meant the suspension of habeas corpus.

[Jim Oakes]

I don't think she meant it. I don't think she knew what she was talking about.

[Martin DeCaro]

With all Trump administration people, it's impossible to know if they're ignorant, cynical, who knows? But yeah, she said a couple of different times she was interrupted repeatedly by the lawmakers questioning her. Lincoln did this. So we believe a current president can do it.

[Kristi Noem]

President Lincoln executed habeas corpus in the past with retroactive action by Congress. I believe that any president that was able to do that in the past, it should be afforded to our current day president.

[Martin DeCaro]

So let's establish a little bit of context here because we're going to talk about Lincoln and habeas corpus, but also his other war measures, war powers. But right now, let's talk about what's happening in April 1861 and why Lincoln does this. Right. Some Union soldiers were attacked by a mob or something.

[Jim Oakes]

Sure. Washington, D.C. is surrounded by slave states. The northern border is Maryland, which was a slave state. Virginia to the south was a slave state. Virginia was on the verge of withdrawing from the Union. The secession convention was in session, stuff like that. So no one was sure what would happen to Washington D.C. given that it was surrounded by slave states and the cause of the Civil War was, you know, leave the Union to protect slavery. Right. So within days of the firing of Fort Sumter, Maryland, which becomes one of the four loyal slave states, has some serious pro secessionist, pro slavery forces operating. And on April 19, for several days after April 19, a riot breaks out in Baltimore. Pro slavery, pro secession riot. And the rioters literally burned the railroad bridges, then cut the telegraph wires between Philadelphia and between Baltimore. Well, between Philadelphia and Washington D.C. at a time when Washington D.C. was not yet fully protected and Union troops needed those communication lines and the railroad lines to get to Washington D.C. to protect it from what looked like an imminent invasion from the Confederate forces. They have over 8,000 confederates already amassed at Harpers Ferry. So this was a serious threat to Washington D.C. and it was in that context that Lincoln authorizes the General in Chief of the Army, Winfield Scott, to suspend the writ of habeas corpus anywhere between, on the lines between Philadelphia and Washington D.C. so that they could arrest the people who were committing these crimes. On April 29th. I believe it was one of those people, a member of the Maryland legislature who was actively involved, who seems to have been involved in the burning of railroad bridges, the destruction of communications between Washington D.C. and the north, named John Merriman I think is John Merriman.

[Martin DeCaro]

Yes, John Merriman. A wealthy Maryland John Merriman is arrested.

[Jim Oakes]

Without charge and put into confinement in Fort McHenry in Baltimore Harbor. And the next day, his lawyers go to Chief Justice Roger Taney in Washington, D.C. and ask for a writ of habeas corpus. Taney issues that writ, orders that Merriman be produced in court in the Baltimore Circuit Court. In those days, Supreme Court justices rode also as circuit justices, and his circuit was included Maryland and Baltimore. So he orders them to appear in the Baltimore Circuit court with Merriman, produce the body in the classic meaning of habeas corpus. And they refuse. The military authorities refuse to do it. And he issues another order to appear, and they don't appear. And he finally issues an order, but he issues the order not as a circuit justice, but as a Supreme Court justice writing in chambers, which is by himself. But it's a Supreme Court order, and it's an order that says that he responds to Lincoln's. Lincoln's lawyers have responded to the demand to produce Merriman by saying that they didn't produce him because they were under orders from the President to suspend habeas corpus. So Tony's order response is twofold. He says that under the Constitution, the right to suspend habeas corpus is a legislative right. It's contained in Article 1 of the Constitution, the right to suspend habeas corpus and that. But you cannot try someone in a military court where the courts are functioning.

[Martin DeCaro]

So history has a sense of humor. Justice Taney, Lincoln's nemesis from Dred Scott. But whatever, he was right about this being a congressional responsibility. But there are good reasons why Lincoln suspends it. Without Congress and these circumstances no longer obtain. Today, there is the very practical matter of Congress not being in session yet. So the election of 1860, November, the new Congress doesn't sit until the following December. Thirteen months later, Lincoln can't even get an emergency session or a special session of Congress together until July of 1861, because there are still congressional elections happening in the odd numbered year, right? I mean, we don't do that anymore. All the elections are held in the even numbered year, and then the Congress is sat in January. There are still. I mean, we don't even know who the new Congress is going to be yet when all this is going down. And I guess there's still some states are having elections.

[Jim Oakes]

I'm not entirely persuaded, and I don't think scholars are entirely persuaded that the fact that the suspension clause is contained in Article 1 appears to be. It was almost circumstantial. It was put there by the committee of style. I think Lincoln had a good case that the suspension of habeas corpus is as much as an executive authority as it is a congressional authority. So I don't think that legal issue is as clear cut as the congresswoman who was interviewing Nome suggested it was.

[Kristi Noem]

Yeah, I support habeas corpus. I also recognize that the president of the United States has the authority under the Constitution to decide if it should be suspended or not.

[Maggie Hassan]

It has never.

[Kristi Noem]

Let us be clear.

[Maggie Hassan]

It has never been done. It. It has never been done without approval of Congress. Even Abraham Lincoln got retroactive approval from Congress.

[Jim Oakes]

It doesn't make sense for the reasons you just spelled out. Right. It doesn't make sense in a situation where the country is literally invaded, that armies are amassing on its borders, its forts are being attacked, and Congress is not in session. As Lincoln put it in his famous defense, on the day Congress did come into special session, are all the laws to be violated except one and the nation fall to pieces so that one can be maintained? Right. And I think he had a pretty good case that it makes no sense given the long period of time in which Congress was out of session. And there is. There is some reason to believe that the way the wording was devised at the Constitution convention did leave wiggle room for it to be an executive as well as a congressional function. Interestingly, you know, in his address to Congress on July 4, when he comes into special session, he had done a lot of things that Congress is supposed to do.

[Martin DeCaro]

We're going to talk about those.

[Jim Oakes]

He had spent federal moneys, he had called up a militia. He had issued a blockade, imposed a blockade on. So these are all things that Congress is supposed to do. And he asked Congress for retrospective authorization of all of those actions, and they gave it to him. He did not ask for retrospective authorization of the habeas corpus suspension because he didn't believe. Believe that Tony's interpretation of the Constitution was correct. Congress did eventually give him retroactive authorization. He didn't ask for it for that. And in some of the orders he issued after that, and it was. It was later, it was in a year later, in 62, and it was for different reasons. It's not clear that they didn't believe he had the power. But just in case they gave him the retroactive authorization, Maybe the more important.

[Martin DeCaro]

Issue then is under what circumstances can habeas corpus be suspended? It's pretty clear you need to have an invasion or A rebellion. We don't have an invasion or a rebellion today.

[Jim Oakes]

I actually think there is a serious issue that is relevant now, and this is something most scholars think Lincoln was wrong to do, which is that he just refused to obey a direct order of the Supreme Court.

[Martin DeCaro]

That's right. He refused to obey Taney here.

[Jim Oakes]

Taney issued that order as a Supreme Court order, not as a circuit court order. And he just refused to obey it. And virtually all scholars, as far as I know, think that that was a serious breach of his rights as the president and his oath of office. So that's the issue that if there's a contemporary issue, I don't think it's that Congress alone is the right to suspend habeas corpus. It's that he violated the Supreme Court order. And, you know, the Dred Scott decision is an interesting case. Right. Because when Lincoln and the Republicans almost un unanimously denounced the Dred Scott decision, they all said that they're prepared, and Lincoln said they're prepared to obey that order in the sense that Dred Scott and Harriet Scott and their children were required and were in fact, sent back into slavery. And nobody was saying that order should be disobeyed. Everything else about the order they disagreed with. Right. And they did. They considered obrader dicta. They considered it inappropriate, but they obeyed the order. Right. And Lincoln did not obey Taney's order. That was a breach on his part.

[Martin DeCaro]

I have James McPherson's book here. This Mighty Scourge has a great chapter about Lincoln and these legal issues. He cites a modern constitutional scholar who said, a part cannot be supreme over the whole to the injury or destruction of the whole. To your point earlier, how Lincoln is justifying this, okay, I'm going to stick to the letter of the law and not suspend habeas corpus, but then we won't have a country potentially anymore. And so what good is.

[Jim Oakes]

Will the whole country fall apart? Literally fall to pieces? He says. Right. I think that's a very plausible argument, and it's consistent with my sense that the suspension clause is not specifically confined to Congress. If this is not a circumstance in which the suspension is justified, then I don't know what is.

[Martin DeCaro]

Yeah, there was a rebellion and Union troops had been attacked trying to get to the Capitol to defend it. Lincoln had told a little bit later, he had told, actually, in 1864, he told Senator Zechariah Chandler that as commander in chief of the Army Navy, in time of war, I suppose I have a right to take any measure which may best subdue the Enemy. So Lincoln is appealing to a higher constitutional duty to defend the country, defend the Union, preserve, protect, defend the nation during a rebellion, even if somebody had a nit to pick about a specific order. He's appealing to a higher constitutional duty. He called this war powers. The words war power don't appear in the Constitution. So what does Lincoln mean here? War power.

[Jim Oakes]

There's two separate issues after Lincoln. The day after Lincoln gave his July 4th justification, his attorney General, Edward Bates issued a formal justification. And his argument was that Article 2 of the Constitution specifying the executive's powers requires the President to take an oath to uphold the Constitution and to see that the laws of the country were faithfully executed. So partly, partly, what Lincoln is saying in that later speech is I have an oath that I'm required to see that the laws are faithfully executed. And if the laws are not being faithfully executed, I have to take whatever measures I need to take in the circumstances of a war or a rebellion to do this. Now, that is closely related. What are, as you said, we call them the war powers, even though there's no war powers clause in the Constitution. But the Constitution gives Congress, for example, the authority to declare war. And it designates the President as the commander in chief. And there is a history of discussion of what that means, what kinds of things that empower the President to do in times of war that a President could not do. That was accepted, that in times of war, the President can do things as commander in chief, or Congress can do things acting as a legislature that could not do in times of peace. The most important one, for purposes of my own scholarship, is that it meant the federal government could interfere with slavery and emancipate slaves, which it could not do in peacetime, but could do under the war powers in circumstances of where it's attempting to suppress a rebellion. So it is an accepted principle that the war powers allow the President to take actions that he could not do. So when he says that, he's saying something that is pretty widely accepted. But the problem is that, as you say, there's no war power clause in the Constitution specifying exactly what those powers are and what he can and can't do.

[Martin DeCaro]

So it seems like Lincoln understood that what he was doing here was unprecedented or was there some historical precedent that he pointed to in the law or in some real experience in our country or some other country or maybe British common law? He's innovating, right? War powers. He's innovating.

[Jim Oakes]

He is. But the war powers, like the suspension powers it's not clear whether or not he has to have the authorization of Congress to do this. And that's why Congress does retrospectively do it. And he does begin to write into his subsequent suspensions of habeas corpus. By the power vested in me by the Habeas Corpus act of Congress passed in 1862 and things like that. It's understood to be a joint power, so even the emancipation power, the president can emancipate. But when he issues the orders to emancipate, he'll say, by the authority vested in me by the confiscation act passed by Congress and as commander in chief, so he puts the two together. You know, there is no precedent. It had never happened. The suspension of habeas corpus is obviously there in the Constitution, but there's no precedent for it.

[Martin DeCaro]

That's right. We established that this was the first time. But I guess these broader issues, too. He's doing things that past presidents hadn't done or did not have a reason to do. I mean, even in The War of 1812, when the British burning down the White House, some of these things weren't done. So I'll just mention a couple of things here from McPherson's book, and then I'll move on to some of the other legal issues. September 24, 1862. So roughly a year and a half after the initial suspension between Philadelphia and Washington, habeas corpus is suspended throughout the entire country, north and South. And McPherson writes, For good measure, authorized martial law and trials by military courts of all rebels and insurgents, their aiders and abettors, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice. Wow, what broad language. Affording aid and comfort to rebels against the authority of the United States. McPherson says under these orders that I just mentioned, an estimated 13,000 civilians were arrested. 13,000 civilians arrested and detained without trial for varying lengths of time, most of them in the border slave states where Confederates and guerrillas were numerous. But even in the North, a number of anti war copperheads were arrested and several were tried and convicted by military tribunals for draft resistance, trading with the enemy, sabotage, and other alleged pro Confederate activities. Where do you come down in all this, Jim? Did Lincoln get most of this right? Some of it right, none of it right?

[Jim Oakes]

Well, I think they were overzealous in the prosecution of civilians. Lincoln himself says at some point that when you do something like suspend habeas corpus or allow for military commission, trials by military commission, you're bound to make mistakes and Catch people who shouldn't be caught up in this process and things like that. By and large, as the numbers McPherson cites indicate overwhelmingly, overwhelmingly the people who were arrested without charge or tried by military commission were actual traitors, actual Confederates acting in loyal slave states, mostly the border slave states. The largest single number were probably in Missouri. Missouri was basically had a civil war within the Civil War. And there were vast numbers of pro confederates operating and subverting the state government. In the north the issue primarily arises, although there were were some indications that of the list that McPherson gives of the various reasons why some people in the north civilians were tried, you know, is correct. But the overwhelming majority of it was occasioned by the establishment of a draft. And it was draft resistance that mostly occasioned most of the trials of civilians by military commissions in the northern states. In the Northern states that's what led to the famous arrest and detention of Clement Vallandigham.

[Martin DeCaro]

Yeah, tell us about Clement Vallandigham. He basically, he didn't have free speech anymore.

[Jim Oakes]

Clement valenium is a fairly notorious depending on I suppose knows what your views of this are. He was a Peace Democrat. Peace Democrats are derided by their opponents as copperheads after the snake that bites and kills without warning. He was nationally known bidding to be the leader of the Peace Democrats nationwide. And he was from Ohio. A Union general, Ambrose Burnside, who had been dispatched to Ohio after his disastrous performance at Fredericksburg at the Battle of Fredericksburg, issued an overly broad, broad order declaring that anyone who basically utters anti war or subversive sentiments can be arrested and tried without charge or by a military commission. And Vallandigham is, is in Ohio and he deliberately goads Burnside with a speech that you know, basically says this war is outrageous, we shouldn't be fighting this war. You've turned this war from a war to save the Union into a war to abolish slavery. And that's not what we are supposed to be in war for, you know. And now you're coercing men through the draft to fight a war that we shouldn't be fighting. And Burnside arrests him and tries him before a military commission and sends him to prison. Millennium is very prominent.

[Martin DeCaro]

He becomes a cause celeb.

[Jim Oakes]

Yes, it becomes a cause celeb. Lincoln changes the sentence from prison to banishment. Valenium is literally carried to the border of the Union at Tennessee border under a flag of truth is banished to the Confederacy. He makes his way to Wilmington, North Carolina where he boards a blockade runner, makes his way to Canada, establishes himself in Windsor, Ontario, opposite Detroit, and runs for governor of Ohio from Canada and loses. And in the meantime, as you say, his case has become a cause to live. Lincoln is embarrassed by it. He believes Burnside overplayed his hand, but he doesn't want to embarrass. He doesn't want to embarrass the general. The most famous reaction comes in New York, where the governor, Democratic Governor Horatio Seymour, organizes issues. A public letter denouncing the decision, denouncing Vallandigham's arrest and conviction, then sends Lincoln a letter denouncing the conviction and organizes a huge rally in Albany to protest the tyrannical behavior of the President.

[Martin DeCaro]

I have to assume that some people were pretty annoyed that people were defending Vallandigham. I mean, he had his defenders, but other people must have been saying, jim, hey, we're at war here to save our country, and this guy's trying to subvert the war effort.

[Jim Oakes]

Sure. But I do think it is surprising how little resistance there was to the suspension of habeas corpus and the military commissions. There was in some ways there was more in the south, for a variety of different reasons. The states were resisting the orders coming from the national government. There's surprisingly little of that in the North. But there was this reaction in this particular case because it looked like it was a partisan. They're going after a Democrat, a prominent Democrat, because he gave a speech. This rally. And these letters from the governor of New York prompted Lincoln to issue a famous letter to another Northern Democrat, irascible Justice Corning. The Corning letter, in which he. He spells out why again, why he thinks he's justified in suspending habeas corpus and, and doing these kinds of things. And it's a very eloquent letter. It has another famous line in it about, you know, must I. Do you have the quote there?

[Martin DeCaro]

I do, I do, yeah. So, citing McPherson here, Lincoln said Vallandigham was damaging the army upon the existence and vigor of which the life of the nation depends. And then he posed a rhetorical question that turned out to be the most powerful and famous illustration of his point. Lincoln noted that the official punishment for desertion was death. So he asked, must I shoot a simple minded soldier boy who deserts, while I must not touch the hair of a wily agitator who induces him to desert?

[Jim Oakes]

Yes. So there you see, Lincoln is saying, this is not a free speech issue. This is an action that Millennium took. His fomenting violations of the law that are going to took, you know, for everyone he prevents from registering for the draft or joining the Union army or urges them. For every person, he urges them to desert. He is causing the death of a Union soldier, of another Union soldier as much as if he had been shot in battle. He's saying, this is not a free speech issue.

[Martin DeCaro]

Yeah. Several enrollment officers had actually been murdered by draft resistors. So Lincoln is operating in that context as well. You know, these are always. These are always tough questions, especially trying to put yourself in the climate of what's happening 150something years ago. We're so detached from it now. You know, I consider myself a civil libertarian, too. And, you know, what good are our laws and our principles if we throw them out the window as soon as we're under pressure? But this was a different kind of pressure. I don't know. This is not so much a question as it is a ramble. I guess what I'm trying to get at these are. These are difficult. Difficult. You know, Van Landingham gave a speech and he got arrested. That does not seem fair.

[Jim Oakes]

Right. And that's why I say, you know, for the critics, he was arrested for speech, and you can't arrest people for speech. But Lincoln, as I said, is trying to shift the basis of his arrest from speech to action. That is, he is fomenting insurrection in the sense that he is. He is urging people to disobey the draft and to violate the law.

[Martin DeCaro]

So Lincoln does order a blockade of southern ports. That's an act of war. Only Congress can declare war. Lincoln basically declares war. Doing that, he raises an army. Only Congress is supposed to do that. You alluded to it earlier. He spent money. He ordered Salmon Chase to pay private citizens to buy weapons to avoid Confederate sympathizers who Lincoln believed were inside the federal bureaucracy and would not be loyal.

[Jim Oakes]

What he does is go to Congress and say these were temporary and necessary. These are indeed congressional responsibilities. And I am therefore asking for retroactive authorization to do them. And Congress gives him that. He is acknowledging that he did something that is temporarily outside the law until Congress could come and put it within the law. Article two does say, you know, require him to uphold the Constitution and ensure that the laws be faithfully executed. And that's not so much a higher law as the direct constitutional responsibility that vest upon him as president.

[Martin DeCaro]

When it came to habeas corpus, he said, it cannot be believed that the framers of the government intended that in every case the danger should run its course until Congress should be called together, the very assembling of which might be prevented, as was intended in this case by the rebellion. And again, that's specifically about habeas corpus. So what's the enduring significance of Lincoln's actions here? Does he permanently change our notion, notions of what a president can do in certain circumstances?

[Jim Oakes]

I would sort of reverse that formulation and say that in the decades after the Civil War, especially in the 20th century, our notions of civil liberties expanded and our sense of what the government could and could not do, the kinds of speech it could and could not regulate, kinds of private behavior it could and could not interfere with, have expanded. Right. And so we now sense that. That he was doing something that we don't think he should have been doing, given our current understanding, which is much broader, of what, what civil liberties means and what. What the government can and can't do to suppress speech, to arrest dissenters and things like that.

[Martin DeCaro]

That's a good way to.

[Jim Oakes]

Which is why right now, where we're living, the period we're living in right now is. Is so fraught, because it seems like. Like what had been understood, what had come to be understood as rights are being tossed out the window.

[Martin DeCaro]

Yeah. We're not at war and we're not being invaded. There is no rebellion internally. A street gang is not invading the United States from Venezuela. So when Stephen Miller and Kristi Noem or whoever talks publicly about suspending habeas corpus, you know, the issue of whether it's Congress or the executive aside, that type of decision cannot just be, oh, maybe we'll do this, maybe we won't. That's a pretty. It's only been done four times before, and I would hope that Congress would have a say in that. But who knows?

[Jim Oakes]

You know, they like to use the language of invasion. It doesn't jive very easily with the boast that you have, in fact, sealed the borders and we are no longer have significant numbers of migrants coming into the United States legally or illegally. And it doesn't jibe with the justifications that you hear from the President. He's saying we have to deport these people and we have to close the borders because they're criminals. Because they're murderers and rapists. Well, if they're criminals, that's exactly when habeas corpus becomes salient. You have to charge them with a crime. If they've committed crimes, charge them with a crime and give them their due process rights. Let them have their day in court. If they are being deported for the reasons the President is giving, then all the more reason to uphold the principles that of civil liberty that are most fundamentally embodied in the privilege of habeas corpus.

[Martin DeCaro]

So we avoid deporting people who do not deserve to be deported, who even had a court order protecting them in this country, and are sent away, never to be seen again. Anyway, the problem here, and we can all see through this, of course, is that they're having issues deporting more people faster, so they want to speed up that process, the law be damned. So.

[Jim Oakes]

Right. Plus the. The seeming willingness to violate court orders. The one thing that Lincoln did that I think is absolutely indefensible. In fact, you know, shortly after Lincoln gave his justification for suspending habeas corpus, Merriman was released and tried in a civilian court, and eventually the charges were dropped. Even in the case where Lincoln does justify the suspension of habeas corpus, the person is eventually tried properly, you know, and charged with treason, actually.

[Martin DeCaro]

Yeah. I mean, that's why there is a process. Do not fear the process, because if you're doing things right, in the end you'll be proven correct. The process will show that, yeah, these people actually were deserving of the punishment you want to give them. But, you know, I don't like to get hyperbolic on here. We'll wrap up with this, but, you know, it is scary. It is dangerous to think of what would happen if habeas corpus were suspended nationwide or if the President tried to do that and Congress objected. We could really have a legal constitutional crisis on our hand, to say nothing of the effect on people who get swept up in the dragnet.

[Jim Oakes]

If you stack the courts and stack the bureaucracy and party offices with people who have persuaded themselves that the theory of the unit executive allows the President to do anything, anything he wants. You interviewed Sean Wilentz a while back about the Supreme Court ruling that basically held that the President could not be tried for anything he did as the President, We've created a legal subculture that justifies, you know, virtually anything.

[Martin DeCaro]

It's not rule of law. It's not rule of law. It's rule of whoever happens to be in power.

[Jim Oakes]

You know, yes, you. You very often hear that people say the presidency is one of the co. Equal branches, branches of the government. Right. Which means it. It has to operate within the. With some due respect for the other branches. But the founders didn't talk that way about the. The branches. The founders talked about the executive and the judiciary as subordinate branches. They established the principle of legislative supremacy. And it's. It's the failure of Congress, it's the manifest failure of Congress to do what it's supposed to do. In this case and leave it to the executive to behave this way. That is part of the problem right now. When the theory of the unitary executive metastasizes into this kind of these kinds of claims that the president can do just about anything in violation of standard basic fundamental freedoms, then we're in a lot of trouble.

[Martin DeCaro]

So during the Reconstruction period, habeas corpus was suspended again.

[Jim Oakes]

Once Congress reduced, through the Reconstruction Acts, reduced the south into five military. Military districts, then military law is sort of re established. And you do get the, I mean, the Freedmen's Bureau courts, which were designed to protect freed people from a court system that was not protecting them. Right. Those are military commissions that were designed to protect freedom in circumstances where the courts were not functioning properly. Right. So that happens after the war for a while. But you know, know the freedmen's courts don't last. You know, nobody wants to maintain a permanent military occupation of the South. You know, those kinds of things go against the grain and should.

[Martin DeCaro]

And Lincoln stood for reelection during the war, so.

[Jim Oakes]

Yeah, he didn't.

[Martin DeCaro]

That's not what a dictator does.

[Jim Oakes]

Do you remember after 9 11? Well, 911 happened, if you remember, on election day.

[Martin DeCaro]

That's right.

[Jim Oakes]

Right. And Giuliani suggested that he stay on as mayor, given the emergency. Right. And it's like, no, no.

[Martin DeCaro]

Yeah, that was the primary day in New York. Or that was the mayoral election. Or was the primary. I can't remember.

[Jim Oakes]

It was September. It was a mayoral election.

[Martin DeCaro]

Mayoral election. That's right.

[Jim Oakes]

Bloomberg was elected.

[Martin DeCaro]

That is right. Bloomberg was elected. And Rudy Giuliani did not get to keep being the mayor just because there was a major emergency. On the next episode of History, History as it happens, D Day, June 6, 1944.

[Groucho Marx]

You are about to embark upon the great crusade toward which we have striven these many months. The eyes of the world are upon you.

[Martin DeCaro]

Think of all the great D Day or World War II movies you've seen. What explains the fascination with that invasion, the invasion of Normandy and World War II in popular memory? That is next as we report history as it Happens. New episodes every Tuesday and Friday. My newsletter every Friday. Sign up at History as it happens dot com.