Crisis and the Constitution

Darren Micah Lewis – August 1, 2020

May 23, 1863 dawned with hope as President Lincoln signed the Habeas Corpus Suspension Act. The first years of the American Civil War were fraught with frustration on many fronts. The President and Union Army struggled to find the right General to lead them. The war was taking longer than many military strategists suggested. December of 1862 brought news of a Union victory at Stone’s River. It came at a very high cost, 23,000 total casualties. In early May of 1863, Robert E. Lee and his army won a great victory at Chancellorsville, VA, only 62 miles from the White House. The back in forth swing of battles made for tough times in Washington.

While the Union army had success far from Washington, closer to home proved more of a struggle. Only the day before US troops won a great victory at Vicksburg, MS. The enemy literally surrounded the city. Washington DC sits between two slave states, Virginia, with the Confederate capital at Richmond, and Maryland, which did not secede. Southern sympathizers were everywhere. Safely getting messages in and out of Washington was easier said than done.

Lincoln needed to take a bold stand against those seeking to thwart the US government and the Union Army. The President took up his pen and signed 12 Stat. 755 (1863), the suspension of the writ of Habeas Corpus, specifically between the cities of Washington DC and Philadelphia, PA. Habeas Corpus is defined as, “a writ (court order[1]) requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention.” In other words, Lincoln gave the Union Army the authority to silence dissenters and rebels, denying them their right to go before a judge.

Lincoln hoped, and possibly assumed, that a time of war allowed him the power to suspend this portion of the US Constitution. After all Article One, Section 9, clause 2, demands that “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.”[2] It would certainly seem that there was open rebellion during the American Civil War.

On May 25th a secessionist by the name of John Merryman, was arrested in Cockeysville, MD. The Federal Circuit Judge presiding over that district was Chief Justice Roger B Taney. He issued a ruling on this case stating, only Congress has the power to suspend Habeas Corpus. Essentially, Taney granted Merryman the writ of Habeas Corpus. Lincoln rebutted, “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?”[3] Merryman was turned over to local authorities where he posted bail in July of 1863. All charges of treason were dropped two years later.

Though in a time of crisis, the Chief Justice ruled that a President may not set aside a portion of the Constitution. Our system of governance has prevailed these 244 years, because our Constitution protects us in times of War as in times of peace.

Some years later, President Woodrow Wilson attempted a different approach. As a progressive, Wilson believed the Constitution to be more flued, needing to make allowance for modern events. This is still held as a tenant of progressivism today. To put it another way, the Constitution is a living breathing document that can adapt to any situation as needed…that may have a note of hyperbole, but essentially this is true.

Wilson’s opinion can be seen throughout his book, “The State”. “From the dim morning hours of history until now, the law of coherence and continuity in political development has suffered no serious breach. Human choice has in all stages of the great world-processes of politics had its part in the shaping of institutions; but it has never been within its power to proceed by leaps and bounds : it has been confined to adaption, altogether shut out from raw invention.”[4]

Author Christopher Wolf states “Wilson has not one but three overlapping and somewhat contradictory views of the Constitution in Congressional Government.”[5] Congressional Government is a book written by Wilson originally published in 1885. Here his theme is the challenges between the US Constitution’s separation of powers (executive and legislative).  This was Wilson’s doctoral dissertation and served as the foundation of his future governance.

Wilson approached the Constitution with, in many ways, a balanced opinion. He certainly espoused the problems stemming from over reliance of the government, but also warned that there must be a strong Federal System, one that adapts to the needs of its people. While that sounds great on paper, if the suggestion is that the Constitution is adaptable in different situations, how do we also maintain the liberties guaranteed therein. This is an age old problem for classical progressives.

In his opinion piece dated May 30, 2018, Randolph May states of Wilson, “At a time when there is a real focus on the rising power of the administrative state, it’s worth recalling President Woodrow Wilson’s argument that our traditional understanding of the U.S. Constitution should give way to what he considered the new realities of modern government…As far as I know, Wilson never stated his intent to remake the American system of government in exactly those terms. But he exhibited remarkably little reticence regarding his objective — and the need, in his view, to alter the then-prevailing understanding of the Constitution’s dictates.”[6] 

In reality, this system is a slippery slope. It rests on the moral nature of the chief executive. We have been blessed in our nation that our Presidents (1776-1951), except Franklin Roosevelt, sought to limit themselves to two terms. The 22nd Amendment was not ratified until February 27, 1951, after FDR’s four elections.

In 1937, President Franklin Roosevelt took a different approach to the Great Depression Crisis. Following the striking down of many New Deal programs by the “Four-horseman” (conservative supreme court justices), FDR sought to add to the “Three-Musketeers” (liberal supreme court justices) with the addition of up to six new justices. The purpose was to stack the court with pro-New Deal judges that would approve his expansion of social programs.  The Judicial Procedures Reform Bill did not pass in the House or the Senate. In fact, the bill was held in committee for 165 days by Senate Judiciary committee chair Henry F. Ashurst (D-AZ). He famously stated, “No haste, no hurry, no waste, no worry—that is the motto of this committee.”[7] It should be noted that in a short time, due to retirements and death, FDR got his pro-New Deal court. It was accomplished by the system set forth in our Constitution.

Multiple times in our history the Constitution has been challenged during a time of crisis. Yet, the core of our Democratic-Republic is that nothing sets asides the rights of our people; not the Civil War, the Great War (WWI), the Great Depression, and not a Pandemic. While, we the people, support a lawful, reasonable, and scientific approach to a world-wide pandemic, we cannot allow the Constitution to be set aside or altered in a time of crisis. To do so, sets a precedent for the future. One in which any president, by executive order, could claim a crisis for any reason.

Today as we move to reopen our economy, we the people, must evaluate the response of our government, especially that of local governments. We must determine if there was equal application of the law, if there was a hindrance to the free practice of religion (any religion), or even a violation of the right to assemble. We, the American people, have the power and ability to use reason in times of crisis. We cannot allow our government, local, state, or nation, to restrict our rights or we like many other civilizations will reap the consequences in the future.

We are a resilient nation. One that rises to any occasion, whether war or pandemic. We are willing and capable of using wisdom in time of crisis. We are willing to follow the suggestions of our national leaders. It is our hope that we see actions to protect us from disease while upholding the fundamental rights that make us American!

[1] Definition from…Parentheses mine

[2]…italics mine


[4] Woodrow Wilson, D. C. Heath Co., Boston, 1911, pg 555

[5] Christopher Wolfe, The Review of Politics, Vol. 41, No. 1 (Jan., 1979), pp. 121-142


[7] Baker, Richard Allan (1999). “Ashurst, Henry Fountain”. In Garraty, John A.; Carnes, Mark C. (eds.). American National Biography. 1. New York: Oxford University Press. pp. 686–687


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