The curriculum unit will focus on the importance of the writ of habeas corpus in protecting Americans from unlawful imprisonment (even in time of war) and the choices that Abraham Lincoln faced at the beginning of the Civil War and how he dealt with them as the war evolved. Lincoln was the first President to face a threat to the survival of the United States after the Constitution was adopted. In addition to closely examining what challenges Lincoln faced I intend to prepare a curriculum that will refer to the Constitutional origins of key legal questions that confronted Lincoln and encourage the students to compare Lincoln’s decisions to those made by President Bush during the ongoing War in Iraq and the simultaneous War on Terror. The curriculum will focus on the suspension of the writs of habeas corpus.
After establishing an understanding of the legal basis of the challenges Lincoln faced the curriculum will spend three fifths of its time describing the situation in the first two years of the Civil War. The Confederacy was militarily successful and the threat to the survival of the Union was palpable to even the most fervent radicals. Lincoln had to raise and maintain an army and that objective was not anticipated in the Constitution. Militias would not last indefinitely even if they were “well-regulated”. President Lincoln also instituted a naval blockade without any Congressional funding and he suspended the writ of habeas corpus in Maryland and other places by executive order. Lincoln did not hesitate to challenge the First Amendment by closing down newspapers that offered criticism of his actions or support of the Confederacy. The curriculum will also examine the role of the military in carrying out many of Lincoln’s orders and the delay in bringing people that had been arrested to trial. Martial law was used to establish order where the citizenry was unsettled. The mix of military and civilian authority is another aspect of Lincoln’s time that is applicable to today.
There are two major issues that will be examined as tangential to President Lincoln’s willingness to operate by expanding his executive authority. The first is the Emancipation Proclamation itself that Lincoln issued as the exercise of his role as commander in chief of the military. It was controversial at the time because of its limitations to ending slavery only where the Confederacy was in control. There is a decision to be made whether the issue of slavery should be more of a key component of the curriculum. There were Military tribunals authorized by the Supreme Court in
Ex Parte Vallandingham
(1864) and that precedent may be directly applicable to the detention of prisoners at Guantanamo Bay.
The most interesting aspect of this period may be the ongoing resistance to Lincoln’s Executive Authority by Chief Justice Roger Taney of Maryland. Taney opposed Lincoln’s assumption of the power to suspend Habeas Corpus. He was particularly interested in the fate of a Southern supporter named Merryman who challenged his imprisonment in Maryland. Later, the Supreme Court held that Lincoln exceeded his authority in the resolution of another case (Milligan’s case) in 1867 after Lincoln’s death and the end of the Civil War. There had been tension between Lincoln and Taney for years over the issue of slavery and the Dred Scott Decision. The conflict between the two men should stimulate student interest because both Lincoln and Taney were passionate and articulate.
The unit on Lincoln’s actions that helped define the role of the Commander in Chief in times of war will end by looking at what occurred from two different perspectives. The first perspective will assess the necessity of the decisions made and the alternate options not chosen by Lincoln. The political climate was often chaotic and Lincoln’s executive branch was not the only branch willing to bend the rules. Congress passed three bills that sanctioned some of Lincoln’s moves. They were: The Seditious Conspiracy Act of 1861, The Confiscation Act of 1862 and the Habeas Corpus Act of 1863. Congress approved the 13
amendment without the necessary two-thirds vote. Lincoln never wanted to acknowledge that the Confederacy was a separate state and he considered the southern states still part of the Union. The number of states still on the roles, inactive or not, indicated that there should be 27 affirmative votes and there were only 25 but the Senate affirmed anyway The second perspective will examine his actions as precedents for Presidential authority in times of war. The unit will end with specific reference to the current political situation and the abridgement of rights due to the War on Terror in particular and the current climate of fear. We will focus on the failure to bring those accused of being terrorists to trial and the excesses of the Patriot Act.
The goal of this curriculum is to teach students about some of the legal foundations of this country and the complexity that waging war can bring to the separation of powers and the exercise of checks and balances. The writ of habeas corpus and President Lincoln’s dual role as Commander in Chief and aggressive advocator of the preservation of the Union at the expense of its citizens’ rights will be the focus. The expectation of Lincoln’s heroism will be tempered by his willingness to do what he believed to be right whether it was constitutional or not.