The Suspension of Habeas Corpus During the Civil War: Anomaly or Dangerous Precedent?

Abstract

With the American government currently fighting a "new kind of war," debate concerning the curtailing of civil liberties while the war is being fought is not without historical precedent. Examples include the internment of Japanese-Americans during the Second World War and the arrests of anti-war radicals such as Socialist leader Eugene Debs during the First World War. In those examples, the Supreme Court acquiesced with the policies implemented by the other two branches of the government. During the Civil War, however, the high court ruled against the Lincoln Administration's most egregious violation of civil liberties: the suspension of the writ of habeas corpus. Regardless of the Supreme Court's opposition, and the opposition of a large number of private citizens, the writ's suspension remained in effect throughout the war's course. The suspension of the writ during the Civil War proves that during a time of war, the Judiciary's powers are subjugated, particularly, to those of the Executive branch, but also to those of the Legislative body, as well. As scholar Joseph Gambone writes, "During wartime, military leaders have to make fast and drastic decisions; the American judicial system operates too slowly to be effective under such circumstances."¹