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Abraham Lincoln and Habeas Corpus

50 min
  • Did President Abraham Lincoln have the constitutional power to suspend habeas corpus during the Civil War?

Students will:

  • Explore the events that led to President Lincoln’s suspension of habeas corpus.
  • Understand the Supreme Court cases ex parte Merryman and ex parte Milligan.
  • Assess the constitutionality of Lincoln’s actions.
  • Evaluate Lincoln’s attempt to balance liberty and security during the Civil War with his suspension of habeas corpus in certain areas and eventually the entire nation.

  • Handout A: Abraham Lincoln and Habeas Corpus
  • Handout B: A Proclamation
  • Handout C: Sections of the United States Constitution
  • Handout D: Case Briefing Sheet
  • Handout E: The Ruling

To create a context for this lesson, have students complete Constitutional Connection: War and the Constitution.

Have students read Handout A: Abraham Lincoln and Habeas Corpus and answer the questions.

Project Handout B: A Proclamation. Point out the questions, and have students listen for the answers as you read it aloud. Then go over the answers as a large group.

Point out to students that in 1861, Lincoln suspended habeas corpus in some areas. This 1862 suspension of habeas corpus covers the entire nation.

Tell students they will now “try” the case of “Mr. Milligan.” Distribute Handout C: Sections of the United States Constitution. Read aloud the scenario of Mr. Milligan, who has been sentenced to death for disloyalty by a military court. Divide the class into groups of appropriate size for: attorneys for Mr. Milligan, attorneys for the US, and the Justices of Supreme Court.

Give each group a copy of Handout D: Case Briefing Sheet. Have groups complete Handout D using Handouts A, B, and C.

With about twenty minutes remaining, allow attorneys for the government to make their case, followed by attorneys from Mr. Milligan.

Supreme Court members should then deliberate and announce their verdict.

Tell students that they were debating an actual Supreme Court case from 1866. Using an overhead of Handout E: The Ruling, go over the information and ask students if they agree with the Court. Was Lincoln’s action constitutional?

Ask students how they would assess Lincoln’s attempt to balance the “strength” of the government with the “liberties of its people”?

Have students make a Venn diagram comparing and contrasting the constitutional issues in ex parte Merryman (1861) and ex parte Milligan (1866).

Issues of habeas corpus have emerged with the wars in Afghanistan, Iraq, and the War on Terror. Have students research Supreme Court cases involving habeas corpus such as Hamdi v. Rumsfeld (2004); Hamdan v. Rumsfeld, (2006); and Boumediene v. Bush (2008).

Have students read President Barack Obama’s executive order closing Guantanamo Bay. What does Obama say about habeas corpus? Do you agree with him? The order can be found at: fas.org/irp/offdocs/eo/eo-13492.htm.