Habeas Corpus Except
The Constitution is not a Suicide Pact
Eight score and four years ago, the President of the United States, Abraham Lincoln, ordered that anyone in Maryland who might threaten the flow of supplies on railroads through that state into the national capital in Washington, D.C., should be arrested and held without being taken before a judge. The Supreme Court, led by Chief Justice Roger Taney, challenged this action and ordered in Ex Parte Merryman that Lincoln had to grant everyone habeas corpus.
A bit of history and geography is helpful here. The year was 1861, and the Civil War, or as many Marylanders wanted to call it, “The War between the States,” had begun. Geography was a significant problem for Lincoln. The national capital sits on land carved out of Maryland and bordering Virginia. They were both slave states. Virginia joined the Confederacy, and its capital, Richmond, was the capital of the Confederacy.
There had been riots in Baltimore, and the state wanted to leave the Union. Lincoln couldn’t allow that because it would surround the Union capital with Confederate states. Keeping Maryland in the Union was so unpopular that a state anthem was written as a protest. “Maryland, My Maryland” begins with the words, “The despot’s heel is on thy shores.” Lincoln is that despot.
Chief Justice Taney wrote the court’s opinion in the Dred Scott decision. Lincoln argued against that in the Lincoln-Douglas debates.
In Article I, section 9, the Constitution mentions habeas corpus and allows for its suspension.
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.
Scott Bomboy of the Constitution Center has an excellent discussion of the controversy and the arguments. He notes that Lincoln did not respond directly but waited until he addressed Congress on July 4th, 1861. His remarks included the following:
Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly.
Are all the laws but one to go unexecuted, and the government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the government should be overthrown when it was believed that disregarding the single law would tend to preserve it?
Taney argued that since the exception was in Article I, Congress had to grant the President the authority to suspend the writ. Lincoln argued:
Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.
Congress did not formally grant Lincoln that authority until March 1863.
Now, let us turn to 2025. Another Republican President has determined there is a need to suspend habeas corpus. The question is obvious. Is there a rebellion, invasion, or both?
Throughout Western civilization today, the definition of invasion seems to vary by class. Immigration is a “pick your facts” story. The worst case is England, where a disturbingly large number of English girls were “groomed” and raped, and the men were not prosecuted. In the U.S., reports of Tren de Aragua or MS-13 gangs controlling areas of a city are denied. The wealthy don’t care. Fancy lawyers and judges and their families aren’t impacted unless, or until, their kids die from fentanyl.
Vice President Vance recently spoke to European leaders in Munich about efforts to restrict the ability of the public to express concerns about immigration. In our last three presidential elections, many voters have tried to express their opposition to the volume and nature of immigration.
Multiple “angel parents” have lost children to violent actions committed by immigrants. Those who the immigrants have directly harmed are angry that the media lies by omission by refusing to cover these stories. Donald Trump was clear about his position during the election campaign. He saw the large number of illegal immigrants – specifically gang members – as an invasion and said he would do something about it.
On the other hand, both here and in Europe, some see many immigrants as beneficial. In this country, they have created “sanctuaries” of various types and passed laws ordering their local law enforcement to refuse to cooperate with the federal government. These actions fit the definition of rebellion.
To force every case to undergo extended court review would make the process futile. Those who refuse to protect our country by making the border porous want to keep it dangerous for the average citizen by using elaborate procedures to make it impossible to efficiently remove those who threaten our safety.
I’m an old man. Sixty years ago, I was an undergraduate majoring in political science. I saw signs calling for the Impeachment of Earl Warren and thought those people were foolish. Now I see courts used to block elections in Europe and convict Marine LePen, so she can’t run. In England, violent criminals are released to make room for people who post the wrong thing on the internet.
I am like a jilted lover when I think about the courts. Something I once respected has become soiled. Last year, the “lawfare” against a presidential candidate was absurd. I recently bought a used car and realized I trusted the used car dealer more than the courts. I can’t tell you how sad that makes me.
The question is simple. The U.S. Supreme Court will have its say. They’ll have to live with their decision at their country clubs in a world where Donald Trump isn’t an ordinary person but some demon. Yet, for those who voted for him and live near the chaos caused by the gangs invading their communities, what he is doing is clear and necessary.
The justices will decide whether they help the President counter the invasion or join the rebellion of the fashionable. If they insist on being a roadblock, the President must decide. The Preamble to the Constitution lists several purposes including:
insure domestic Tranquility, provide for the common defence
Trump’s voters are surprisingly multi-racial and multi-ethnic. They voted for him because they were and are being harmed by the invasion. They know it is happening, and they want something done. Will our upper classes, represented by the courts, join Europe in refusing to protect the public? If they do, the President will have to decide whether he will work to meet the purposes of the Constitution or let those who want chaos have their way.