Habeas Corpus / GWOT Essay

Pages: 5 (1450 words)  ·  Bibliography Sources: 7  ·  File: .docx  ·  Topic: American History

SAMPLE EXCERPT . . .
This may perhaps indicate that the problem of "rebellion" in Maryland was very much on Lincoln's mind -- to this day, Maryland remains the only state in the Union whose official state anthem ("Maryland, My Maryland") advocates violent overthrow of the federal government (with lyrics that refer to Abraham Lincoln himself as "despot," "tyrant," "vandal," and "Northern scum") -- especially considering that the bloodiest battles of the Civil War (like Antietam) were being fought on Maryland's territory. In other words, as the lyrics of "Maryland, My Maryland" make clear, the state may have technically remained in the Union but rebellion and violent opposition on the part of slaveowners made sabotage and mob violence a real possibility, then Lincoln invoked the Consitutional provision precisely as it was meant to be invoked. However, as Goodwin notes, the action also instantly raised an issue of balance of powers between the branches of the U.S. government: the Judiciary branch immediately ruled that the Constitution did not grant this right of suspension to the Executive but rather to the Legislative branch. Chief Justice Taney's ruling in Ex-Parte Merryman was correct on this point: Article I Section 9 of the Constitution overall discusses powers "vested in the Congress." After Taney's ruling, Congress immediately met to vote in approval of Lincoln's decision, but the legislation ran into partisan obstruction and was never made law. Meanwhile, Lincoln's administration continued with the suspension of habeas corpus in defiance of the Chief Justice's ruling, seemingly on the principle that if (to recall the earlier words of President Andrew Jackson) Taney had made such a decision in the midst of a Civil War, let him enforce it.

Essay on Habeas Corpus / GWOT the Assignment

This background is necessary for understanding the 21st century controversy with habeas corpus for two reasons. One, Lincoln seemed utterly justified according to Constitutional specifications for suspension of habeas corpus -- his only violation of the Constitutional provisions was to usurp from Congress the right to initiate such suspension. And two, Lincoln's actions took place in the context of a Civil War, in which most of the states south of the Mason-Dixon Line had seceded from the Union: if anything constituted the sort of "rebellion" or "invasion" that the Constitution had provide for, this was it. The question today is whether the actions of a small number of dedicated terrorists -- such as the perpetrators of the September 11 atrocities -- constitute any such circumstance under which habeas corpus might be suspended. And it is here that the history of habeas corpus provisions after the Civil War should come uppermost in our analysis, because the simple fact is that in the 20th century suspension of habeas corpus is more likely to be part of a strategy of authoritarian paranoia rather than Lincoln's reluctant role as tactician. Indeed, Justice Kennedy's majority opinion in Boumediene v. Bush seems aware of the recurrent nature of authoritarian power-grabs, and moreover contents the Framers of the Constitution were aware of them too, with a "view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power" which necessitated a Constiutional "design [that] serves not only to make Government accountable but also to secure individual liberty." (Kennedy 2008). However, the basic issue seems to be a kind of definitional seepage as to what actually constitutes the sort of "war" under which the principles of martial law could conceivably be deemed appropriate -- since martial law is the chief context in which suspension of habeas corpus actually takes place. Before becoming president, General Andrew Jackson, with no legal authority whatsoever, suspended habeas corpus in New Orleans after capturing the city during warfare; after the Japanese bombing of Pearl Harbor in 1941, the Governor-General of the Hawaiian Islands, which were not then a State of the Union, suspended habeas corpus and imposed martial law. But these are hardly precedents for what took place in the wake of September 11th. Instead, we must turn to the great paranoid power-grab of the 20th century, the Cold War and the recurrent "Red Scare," to see where the Bush Administration's ideas about habeas corpus derive. As Noam Chomsky noted, Republicans and Democrats during the Cold War actually vied with each other over which party would [END OF PREVIEW] . . . READ MORE

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