The Gilder Lehrman Institute of American History

Overview

The tension between individual rights and a government’s need to preserve and protect national security during times of war has represented a constant theme throughout American history.

During the John Adams administration, the conflict with France resulted in passage of the Alien and Sedition Acts, laws which violated the First Amendment by limiting people’s freedom to criticize the government, and encouraged fear of foreigners living in the United States. James Madison and Thomas Jefferson famously responded with the Virginia and Kentucky Resolves which would later become the foundation for the nullification movement of the 1820s and 1830s and, more tragically, the secessionist spirit of the 1850s and 1860s.

Congress passed the Sedition and Espionage Acts during World War I. Both laws dramatically curtailed the constitutional protection afforded citizens. During World War II, Japanese Americans were sent to internment camps, and, more recently, Congress passed the Patriot Act which broadened the authority of the federal government to monitor suspicious communications.

One of the most famous examples of the federal government exercising increased power at the expense of constitutional protections occurred during the Civil War. President Lincoln unilaterally suspended the writ of habeas corpus in April 1861 and a Maryland military officer, John Merryman, was arrested. Chief Justice Roger would issue a famous opinion challenging the authority of the President to suspend habeas corpus.

Many students are unaware of President Lincoln's handling of constitutional issues during the Civil War. The issue raises a number of important questions, including:

• What branch of government (executive or legislative or neither) possesses the authority to suspend the writ of habeas corpus?
• Was the Civil War actually a "war", or was it really a "rebellion" as defined by President Lincoln?
• Is the system of checks and balances threatened when one branch of government assumes extraordinary powers, even if only for a short period?
• Do President Lincoln's actions affect the consensus of his stature of one of our greatest presidents?

Through the reading of essential primary and secondary sources, group discussion, presentation of an informational power point, a Socratic Seminar and, finally, a take home essay, students will develop an appreciation and understanding of this vital (and controversial) issue.

Objectives

1. Students will develop a comprehensive understanding of the constitutional issues surrounding President Lincoln's decision to suspend habeas corpus during the Civil War.
2. Students will study and critically analyze a variety of primary and secondary sources.
3. Students will discuss the relationship between Congress and the President and the more global issues of the role of political dissent during periods of crisis.
4. Students will apply their knowledge and articulate their thoughts on the subject by participating in a Socratic Seminar.
5. Students will conclude the lesson by completing a five paragraph essay on President Lincoln's suspension of the writ of habeas corpus during the Civil War.

Day One

1. Teacher will present to the whole class information on the issue of President Abraham Lincoln's suspension of habeas corpus (please see Powerpoint presentation, "Lincoln and the Constitution: Suspending the Writ of Habeas Corpus")
   
2. Teacher will distribute copies of the following to all students (for links to these documents, see the Online Resources section below):
   
   a) Excerpts from President Lincoln's First Inaugural Address
   b) Abraham Lincoln to Winfield Scott, Thursday, April 25, 1861 (Arrest of Maryland Legislature). In this letter, President Lincoln authorizes General Winfield Scott to suspend the writ of habeas corpus (if necessary) and disband the Maryland legislature
   c) Ex Parte Merryman and Debates on Civil Liberties During the Civil War: A Short Narrative (a summary of the issues leading up to the arrest of John Merryman).
   d) Excerpts from Chief Roger Taney's opinion in Ex Parte Merryman
   
3. Teacher will also distribute a sheet of discussion questions pertaining to the above primary and secondary sources (please see attached, "Discussion Questions")
4. Students will read and analyze the material for homework and take notes on the discussion questions in preparation for day two of the lesson

Online Resources:

http://www.fjc.gov/history/home.nsf (great information and background on Ex Parte Merryman)

http://lincolnconstitution.lincolnarchives.us/lincoln_
constitution_lincolnpapers_10a.htm (Lincoln's letter to Winfield Scott authorizing suspension of habeas corpus)

http://www.historyplace.com/lincoln/inaug-1.htm (Lincoln's First Inaugural Address)
http://facweb.furman.edu/~benson/docs/lincoln.htm (Lincoln's War Address to Congress, July 4, 1861)

http://lincolnconstitution.lincolnarchives.us/lincoln_constitution_
jmerryman_taneyopinion.htm (Taney's opinion in Ex Parte Merryman)

http://usconstitution.net/consttop_mlaw.html (Helpful description of martial law)

http://www.press.uchicago.edu/Misc/Chicago/237931in.html (Very interesting interview with Daniel Farber, the author of Lincoln's Constitution)

http://housedivided.dickinson.edu/video/cl.html (Outstanding six minute video interview with Mark Neely, author of The Fate of Liberty: Abraham Lincoln and Civil Liberties- Mr. Neely's book is also available online through Google Books)

Day Two

1. Teacher will arrange to use a school computer lab in advance—research will focus on preparing students for the Socratic Seminar on day three (see below).
2. With a partner, each student will find five reputable websites dealing with the issue of Lincoln's suspension of habeas corpus (please see "Suggestions for Using Historical Websites").
3. Students will complete a short worksheet for each of the five online resources (please see attached, "Computer Lab Worksheet").
4. For homework, students will complete the worksheet and develop five pertinent questions in preparation for the Socratic Seminar to be held on day three of the lesson.
5. Teacher will conduct a notebook check on the previous night's homework while students conduct their research.

Day Three

Socratic Seminar Preparation/Socratic Seminar

1. The purpose of the Seminar is to encourage a discussion of President Lincoln's suspension of habeas corpus during the Civil War.
2. A Socratic Seminar is not a debate (the differences between a debate and seminar are included in the attached handout, "Guidelines for Participants in a Socratic Seminar," and at http://www.studyguide.org/socratic_seminar.htm)
3. The teacher should review the guidelines before the actual seminar. There are various ways in which to set up the Seminar. Here are some suggestions:
   
   a) Ask for six volunteers to participate in the Seminar. These six students will be the only participants in the Seminar. The remainder of the students will observe, have the opportunity to sit in the "hot seat", and complete the Socratic Seminar Evaluation sheet.
   b) Divide the Seminar into different sessions, depending on the number of students in the class. For example, if there are twenty four students in the class, the teacher can organize four different Seminars (same topic: Lincoln and the Suspension of Habeas Corpus). If the class length is forty minutes, each seminar will comprise ten minutes.
   
4. The "hot seat" is very important. This is the seventh seat in the circle. Students not participating in the Seminar can sit in the seat and ask questions, offer opinions and participate in the Seminar for a short period of time.
5. If this is the first Seminar of the school year, it is a good idea for the teacher to serve as the moderator. As the year progresses, selected students can moderate.
6. Students may use all research materials as they discuss the issue within the Socratic circle.
7. Students are encouraged to use their homework questions to ask the other participants pertinent questions during the Seminar.
8. Teacher should begin the Seminar with a global question and then step back and allow the participants to discuss. It is crucial that students assume ownership of the Seminar.
9. Observing students are encouraged to use the hot seat and ask questions (particularly the questions they prepared for the Seminar).

Teacher should arrange seven desks in a circle with the remainder of the desks located in a close outer circle around the inner circle.

Assessment:

1. For observing students: completion of the Socratic Seminar Evaluation sheet.
2. For participants: They do not have to complete the Evaluation sheet. Instead, they will be graded based on the attached rubric (please see "Socratic Seminar Participant Grading Rubric")
   
   Day Four
   
   1) Wrap up discussion of the lesson.
   2) Teacher hands out five paragraph essay homework assignment.
   a) Topic: Based on your research and class discussion (and using President Lincoln's suspension of habeas corpus as a model), please consider the following question: In times of crisis, does the interest of the government in dealing with the crisis outweigh citizens' civil liberties?