THE GREAT EXTREMIST
Universal Press Syndicate
September 1, 1999
Joe Sobran
WASHINGTON -- Here's a trivia question you can ask at your next dinner party: Which American president authorized the arrest of the chief justice of the United States?
Your companions, remembering Watergate, are sure to guess, "Richard Nixon?" Some, recalling the New Deal's problems with the Supreme Court, may venture, "Franklin Roosevelt?" Others, out of ignorant desperation, may suggest, "Millard Fillmore?"
No, the correct answer is ... the Great Emancipator, Abraham Lincoln! At the outset of the Civil War in the spring of 1861, Lincoln had a problem: Lots of Americans, while wanting to remain in the Union, believed in the right of secession and didn't want his war.
Maryland posed this problem in an acute way. Virginia had been driven to secede by the war; if Maryland seceded too, Washington, D.C., would be surrounded by hostile states. Maryland's legislature resolved that the state would remain in the Union, but opposed the use of force to prevent other states from seceding. In other words, Maryland endorsed the right of secession while choosing not to exercise it. This was a severe blow to the legitimacy of Lincoln's war.
Lincoln took strong measures. He suspended the right of habeas corpus and had thousands of suspected "traitors" (those who rejected his interpretation of the Constitution) jailed without formal charges, trials or contact with attorneys. He even arrested dozens of Maryland legislators and the mayor of Baltimore. Such was "government of the people, by the people, for the people."
Just for good measure, Lincoln sent federal troops to Maryland to make sure the state elected the right kind of legislature next time. They did. Yet the myth persists that Lincoln was making war for the Constitution and "self-government."
One man who strongly objected to these high-handed war measures was Chief Justice Roger Taney. Taney held that Lincoln had acted unconstitutionally in several respects. The president, he argued, had no authority to suspend the privilege of the writ of habeas corpus; only Congress could do that, and even Congress couldn't authorize the president to do it.
Yet Lincoln refused to honor Taney's writ for the release of an arrestee named John Merryman. So the president and the chief justice were locked in mutual defiance. But the president had the real power. In an unusual move, Taney appeared in public before a large crowd to dramatize the issue, announcing that he himself might be arrested before nightfall.
Some thought this was paranoia or melodrama on Taney's part. But he may have caught wind of Lincoln's plan to have him arrested. Lincoln had in fact authorized Ward Hill Lamon, marshal for the District of Columbia, to arrest Taney.
The order was never served. Nobody knows why. But it wouldn't have looked good. Taney was 83 years old, very courageous, and ready to fight for principle. And he was venerable: He'd been appointed to the court by Andrew Jackson nearly 30 years earlier. Lincoln quietly backed down, perhaps reflecting that he'd already stretched the laws perilously -- and arresting the chief justice would have cast a strange light on his claim to be "preserving the Constitution."
Lincoln's celebrants rarely mention this illuminating episode. But it tells us a great deal about our most revered president that he would even contemplate such a blow at the independence of the judicial branch. And it supports the view of those, North and South, who charged him with acting as a "dictator." The Maryland legislature had accused him of "gross usurpation" and "unjust, tyrannical acts." There were many more to come.
Why are Lincoln's apologists so silent about this assault on the Supreme Court? During the 1960s, the John Birch Society campaigned for the impeachment of Chief Justice Earl Warren. This was widely viewed as "extremism," though the Birchers asked only that Warren be removed from office -- not imprisoned. What are we to say of a man who sought the arbitrary arrest of a chief justice?
It's a hell of a way to "preserve the Union" and "defend the Constitution." Yet few Americans are aware of it, as the presses continue to pour forth books in praise of the saintly "Honest Abe." Maybe the Great Emancipator should be called the Great Extremist.