An "Unconstitutional" Act? The Suspension of the Writ of Habeas Corpus
by Wendy Schanberger

Background:

At the beginning of the Civil War, the number of dead increased daily, much to the public’s dismay. A force of opposition to the war efforts began to intensify in the Congress and in the voices of the American people. Abraham Lincoln, in an effort to silence the southern sympathizers, or “Copperheads,” suspended the writ of Habeas Corpus, a clause of the Constitution that forbids unlawful imprisonment. The suspension of this clause was first mandated only in the state of Maryland due to its proximity to the capital, but in September of 1861, Lincoln ordered the suspension within all the Union states. With the suspension of this clause, it was now ordered that Union officials should jail anyone considered to be an enemy of the United States. One of the first to be arrested due to the suspension was John Merryman, a prominent Baltimore businessman and farmer. Merryman’s attorneys called on Chief Justice Roger B. Taney to hear the case and free Merryman from the prison at Fort McHenry. The details of Merryman’s case were well-documented by the Baltimore Sun newspaper.

Essential Question: Based on the rights guaranteed in the Constitution, did Lincoln commit an unconstitutional act by suspending the writ of Habeas Corpus?

Materials:

Overview Day One:
 Students will become familiar with the details of the problems in Maryland at the start of the Civil War by using information from the Sun newspaper collection and records from the U.S. War Department. The students will analyze the documents, identify the problem(s) for the Union government and determine if the Constitution provides information concerning how this problem can be handled.

Motivation:

  • Divide students into pairs. Give each student pair the first part of the “Problems in Maryland” document packet (see Materials list.)
  • While reading the document, students should complete the “Five Ws” worksheet.
  • Once the pairs have finished examining the documents, have them share the information they have gathered, adding to their own worksheets where necessary.
  • Pose the question: how might the situation in Maryland be handled by the government? Record possible responses on the board or overhead. Note: The last entry in the document recommends “martial law.”

Activity:

  • Give students time to analyze the Constitution to determine if any of their recommended solutions could be enacted based on laws outlined in the document. Could any recommendations be eliminated?
  • Read part two of the “Problems in Maryland” Document Packet. How did the government attempt to settle the problems in central Maryland? Based on the information in the article, what do you think was the public reaction?
  • Point out the term “habeas corpus” at the start of the article. Give the definition. How does this term deal with our situation?
  • Share with students, Article 1, Section 9, Clause 2 of the Constitution (you may want to write this out or project it on an overhead):
    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

Have students paraphrase the meaning of this clause. Could it be a possible solution to the situation? What would have to happen to put the suspension into effect? What might the reaction of the public be to this decision?

Overview Day Two:
 Students will identify the arguments about the suspension of the writ of Habeas Corpus from Abraham Lincoln and Roger B. Taney {see materials list}. Students will analyze each individual’s support for his argument in regards to the U.S. Constitution and decide if Lincoln’s actions were unconstitutional.

Activity :

  • Explain to students that in May 1861, Abraham Lincoln decided to suspend the Writ of Habeas Corpus. Many, including Chief Justice Roger B. Taney, felt that it was unconstitutional for Lincoln to suspend this clause. Have students discuss this issue. Take a class vote by show of hands determining if Lincoln had committed an “unconstitutional act.” Have some students justify their position.
  • Divide the class into two groups; half the class will examine Lincoln’s response to Congress concerning the suspension of the writ of Habeas Corpus and the other half of the class will examine Chief Justice Taney’s opinion of the suspension. As students examine the documents, they should complete the “My Side” worksheet (see materials list) for their person.
  • Have students share the arguments and key points concerning the suspension of habeas corpus. Record key points from both individuals on the board or overhead.
  • Was Lincoln’s decision unconstitutional? Take a new vote of students concerning this question. Did students’ opinions change based on the arguments presented?

Assessment:
Have students create a political cartoon offering support to either Lincoln or Taney concerning the suspension of habeas corpus. The illustration and caption should reference details from the arguments as stated by the individual.

Enrichment:
Have students research wars of the twentieth century (World War I/II, Korea, Vietnam, the Persian Gulf War, and the current war in Iraq) and determine whether or not the sitting President or Congress has suspended the writ of Habeas Corpus. Compare the situation to that during Lincoln’s presidency.
© The Gilder Lehrman Institute of American History, 2007. All Rights Reserved.