That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now

148 years ago today

Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection. Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.

Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.

ABRAHAM LINCOLN. By the President.

WILLIAM H. SEWARD, Secretary of State.

but arguably necessary to preserve the Constitution he swore to uphold. If the nation fell or divided, so would the Constitution. He swore to uphold and defend the Constitution. In the case of Civil War, some extra-constitutional measures were required to have a Constitution survive.

If the Constitution is a document that keeps us from being safe, or being one nation, then what good is it? Why have it at all?

Maybe the Constitution is just "happy talk" that we like to point to as proof of our "exceptionalism" but as soon as we have a crisis, we are more than eager to disregard it.

Until we as a nation face up to that question we will continue to have this absurdly illogical reasoning on our Constitution.

He argued that without taking those measures, there would be no country or Constitution left. And, he was probably right.

Faced with losing the country altogether, or temporarily limiting the Constitution, he chose the latter. Probably the better of the two choices he faced.

that can essentially WEAKEN our nation, again we must ask "why have it at all?" This is not a rhetorical question on my part. I am very serious about this. It seems that "temporarily limiting the Constitution" is done pretty regularly, whenever our leaders say it needs to be done.

Tell me, where in the Constitution does it say that it can be temporarily suspended? Changed, yes, through the amendment process, but you will be hard pressed to find a section that sanctions temporary suspension.

And, the bush administration suspended without good reason. However, the Constitution is not infallible. It could not protect against a Civil War.

Not suspending aspects of it would have lost the country. Which is more important preserving the Union or adhering to the Constitution? You could argue they are one in the same.

In hindsight I think Lincoln did the right thing, even though it was illegal and not a moment of pride.

Constitution in case of rebellion. I thought it was not mentioned, but I was wrong. It is there. I suppose the founders were very concerned about rebellion breaking up the Union. Given that, President Lincoln was acting under the letter of the Constitution.

Oh wait...scratch that...passage of the Patriot Act, the passage of the Military Commission Act...those rank up there too!

And he paid the price with a bullet in his head.....

unlike our last pResident.

Here's an excerpt of an excellent paper on this subject by Craig R. Smith:

Lincoln's assertion of power was not to go unchallenged. Less than a month after his suspension of the writ, a case began wending its way through the courts. The Merryman case was brought to bar to determine whether the President or the Congress had the power to suspend the writ of habeascorpus. It began on May 25, 1861, when John Merryman, a southern sympathizer and secessionist from Maryland, was taken into military custody. He immediately asked to be released under a writ of habeascorpus. In one of the oddities of history, the Chief Justice of the Supreme Court Roger B. Taney, a Democrat appointed by President Jackson, sat in judgment on the case as the circuit judge. Taney had penned the infamous Dred Scott decision of 1857 which Lincoln had consistently attacked. Now Taney and Lincoln crossed swords again.

In arguing for the President's power to suspend the writ, Attorney General Bates contended that the three great branches of the Government are coordinate; the executive cannot rightly be subjected to the judiciary. The President, he maintained, is in a peculiar manner their preserver and protector as the defender of the Constitution. (13) Moreover, it is the President's duty to put down a rebellion because the courts are too weak to do so. Bates pointed out that the power of the Presidency does open the way for possible abuse; however, it is just as true that a legislature may be factious or a court corrupt. The President cannot be required to appear before a judge to answer for his official acts because the court would be usurping the authority of Executive Branch. (14) Bates contended that for any breach of trust the President is answerable before the high court of impeachment and no other tribunal.

In filing his opinion, Taney responded that the President had no lawful power to issue such an order and that a writ of habeascorpus should preside. In Ex parte Merryman Taney claimed that only Congress could suspend the privilege of the writ and that the President, though sworn to "take care that the laws be faithfully executed," had broken the laws himself. In a clever rhetorical ploy, Taney used a hermeneutic argument invoking the rule of construction according to context. He pointed out that the provision regarding habeascorpus appears in that portion of the Constitution which pertains to legislative powers; therefore, its suspension was a legislative, not executive prerogative. Taney argued further that the military authorities should reveal the day and cause of the capture of Merryman and explain the reasons for his detention of Merryman. (15) Such requirements were, of course, usual in civil affairs, but not in military ones.

In a message to Congress on July 4, 1861, Lincoln answered Taney. He began by pointing out that he was reluctant to suspend the writ, but that dire threats to the nation in general and the military in particular required such action:

Read the rest here: http://www.csulb.edu/~crsmith/lincoln.html

wouldn't you think a Democratic President, House and Senate would have restored the Constitution by now?

restored habeas corpus in Ex Parte Milligan, 1866. Justice Taney wrote that only Congress can suspend the Great Writ - not the executive.