Thursday, February 15, 2007

Abraham Lincoln and the First Amendment

This will be another long one - the story of Abraham Lincoln, habeas corpus, and Clement L. Vallandigham.

It is 2:30 a.m., and everyone in the darkened house is asleep. Suddenly, there are loud voices outside the house and a heavy banging at the door.

A man opens an upstairs window and looks down on the scene unfolding in his front yard. Unbelieving, he sees soldiers carrying rifles with fixed bayonets surrounding his house and an army officer at his door, shouting that he is under arrest.

The shocked citizen refuses to admit the soldiers into his home. The officer orders his men to break down the door. After forcing their way into the house, the soldiers rush upstairs and break apart two bedroom doors before finding the man they have come to arrest.

The arrested man is secretly taken aboard a special train and transported to another city where he is locked up in a military barracks. The prisoner never sees a judge and is not even formally charged with a crime. Instead, within 24 hours after his arrest, he is brought before eight army officers who put him on trial for making disloyal speeches against the government.

This incident sounds like it might have happened in Nazi Germany But it occurred in the United States and involved a former Ohio congressman named Clement L. Vallandigham. Even more surprising, the army men who arrested Vallandigham and put him on trial were given the authority to do so by one of Americas greatest presidents: Abraham Lincoln....

The authority of judges to free prisoners held without legal reason is based on a right that existed in America long before either the Constitution or the Bill of Rights were written. This is the right of habeas corpus. This Latin phrase literally means "produce the body." It is an ancient English legal concept that empowers judges to order imprisoned persons to be brought into court to determine if they are being legally held....

The only mention of the writ of habeas corpus in the Constitution relates to when it can be taken away from judges. In a section limiting the powers of Congress (Art. I, Sec. 9), the Constitution states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it."...

In response to widespread criticism of his suspension of the writ of habeas corpus and the banishment of Vallandigham, Lincoln wrote a long letter to Democratic Party leaders defending his actions. Lincoln declared that the regular civilian courts were inadequate during a rebellion. He claimed that those opposing the Unions cause endangered "the public safety." Ordinarily, he wrote, such people could not be arrested since criticizing the government was not a criminal offense. If such persons were arrested, they would undoubtedly be released on a writ of habeas corpus by a civilian court judge. The necessary solution, Lincoln argued, was to suspend the writ and lock up the troublemakers until the war ended.

As for Vallandigham, Lincoln charged that he was encouraging desertions from the Union army. "Must I shoot a simpleminded soldier boy who deserts," Lincoln asked, "while I must not touch a hair of a wily agitator who induces him to desert?"

Well, I'm glad they don't do that today.


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