Issue In what circumstances should we consider suspending or limiting civil liberties? Starter [Chief Justice Rehnquist's remarks to the Norfolk and Portsmouth Bar Association focused on civil liberty in time of war. One of his topics was President Lincoln's suspension of the writ of habeas corpus during the Civil War. As the Chief Justice explains, "the writ of habeas corpus . . . was the means by which one who was arrested or confined by governmental authority could ask a court to require the person holding him in custody to show cause why he was being held. . . .The United States Constitution provides that the writ of habeas corpus shall not be suspended, except when in time of war or rebellion the public safety shall require it." Lincoln's suspension of the writ was provoked by the need to protect a vital rail line from Philadelphia to Washington, which was sabotaged in the early days of the war. The suspension gave federal authorities greater power to arrest and hold anyone suspected of conspiring to sabotage the line. After the first arrest of a suspected saboteur, Chief Justice Taney issued an opinion declaring that the President alone did not have the authority to suspend the writ, and that only an act of Congress would suffice. There was, of course, no way for Taney to enforce his order, and it was ignored, but Lincoln referred to it in an address to a special session of Congress on July 4, 1861. Chief Justice Rehnquist quotes from President Lincoln's speech, as follows.] "Must [the laws] be allowed to finally fail of execution even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?" Excerpts from Remarks of Chief Justice William H. Rehnquist at the 100th Anniversary Celebration of the Norfolk and Portsmouth Bar Association, Norfolk, Virginia, May 3, 2000 Focus Questions In his address to Congress, President Lincoln refers to a law that, in practice, "relieves more of the guilty than of the innocent." Our criminal justice system has numerous laws protecting the rights of the accused, and many of those protected by these laws may in fact be guilty of the crime of which they have been accused. Should we be willing to suspend such laws in times of crisis if we are able to convict more individuals who are guilty of crimes that threaten our national security? How would the possibility that some, perhaps only a few, innocent individuals might be falsely convicted affect your opinion? It is commonly stated that our political system represents "a government of laws, not of men." What does this statement mean to you? Did President Lincoln's action in suspending the writ of habeas corpus violate notions of "a government of laws, not of men"? What do you think President Lincoln meant to suggest when he asked "are all the laws but one to go unexecuted, and the government itself go to pieces less that one be violated?" Article I, Section 9, of the U.S. Constitution provides that the writ of habeas corpus can be suspended "when in Cases of Rebellion or Invasion the public Safety may require it." The Constitution gives this power to the Congress, not to the executive branch, as Chief Justice Taney noted in his opinion responding to Lincoln's suspension of the writ. Why do you think the Constitution's drafters entrusted Congress with the power to suspend the writ, which gives detained or imprisoned citizens the right to demand that the government show cause for their detention? Do you agree with the drafters' decision? America at War Pathway: 1  2  3  4  5  6  All (.pdf) Note: The views expressed here have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association, nor do they represent the official position or policies of the ABA Standing Committee on Public Education.