Habeas Corpus: A Constitutional Battleground

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Habeas Corpus: A Constitutional Battleground


This activity highlights several of the constitutional challenges raised by the outbreak of the war in 1861, notably over the powers and responsibilities of each branch of government. President Abraham Lincoln, often working with Congress, revoked the writ of habeas corpus eight times during his presidency. While some of Lincoln’s political opponents conceded the rationale for the revocation of habeas corpus, many thought it unconstitutional for the president to take such an action without the consent of Congress. Other opponents, conversely, viewed any revocation of habeas corpus as a direct assault on the legal protections provided by the Constitution and saw Lincoln’s action as despotic and illegal.

Philadelphia was a center of much of the debate over some of Lincoln’s controversial actions during the Civil War. Both the legal and constitutional issues raised by these decisions received considerable attention from Philadelphia’s legal community. The fact that many of these lawyers were powerful Democrats and political opponents of the president led many to be quite critical of Lincoln’s actions.

Essential Questions

How has social disagreement and collaboration been beneficial to American society?
What role does analysis have in historical construction?


  • Students will be able to explain the historical importance of Habeas Corpus during the Civil War.
  • Students will compare and contrast multiple views on the suspension of Habeas Corpus during the Civil War.
  • Students will use critical thinking skills to analyze the relationship between Habeas Corpus and military action.

Other Materials

Suggested Instructional Procedures

1. Ask students how habeas corpus impacts schools and students. Have students decide if this writ complies with the rules in student handbooks and explain how inclusion of the writ would change schools and student rights.

2. Students should first consult a copy of the United States Constitution and take note of what is stated about the writ of habeas corpus, in addition to comparing the war powers of the president and Congress. (U.S. Constitution, Article II, Section 9: “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.”)

3. Provide the students with the scenario faced by President Lincoln in the State of Maryland in April of 1861, and have each student determine an appropriate course of action based on their interpretation of the Constitution. Students will then outline, summarize, and compare the arguments for and against the president’s action related to habeas corpus, and determine which perspective that they support.

4. Students should answer the following questions in groups or individuallyWhat freedoms and liberties are protected by the Writ of Habeas Corpus?

  • What does the Constitution say about this writ?
  • Why did Abraham Lincoln revoke this writ during the American Civil War? Was this action necessary? Why was this opposed?
  • To what extent should the president and Congress share war powers?
  • Why is Habeas Corpus still a controversial legal and constitutional issue today, especially when applied to challenges raised by the War on Terror?

Expansion Activities

The passage of time has not eliminated controversies relating to habeas corpus and the separation of powers in a time of war. The War on Terror and the military actions in Afghanistan and Iraq have raised many of the same questions of governance and constitutional law. Despite the passage of the War Powers Resolution in 1972, many still feel that the president holds too much power in times of war and have considered different ways to return some of these powers to Congress. Similarly, the courts have struggled in determining the habeas corpus rights of foreign nationals held indefinitely as prisoners at Guantanamo Bay, Cuba.

1. Compare the Civil War-era debate over habeas corpus and the president’s war powers with the recent report of the National War Powers Commission from the University of Virginia’s Miller Center for Public Affairs. Did the modern War Powers Commission consider issues of presidential power that are similar or different those debated during the Civil War?

2. Use www.oyez.org or findlaw.com to examine the following U.S. Supreme Court cases, pertaining mostly to habeas corpus petitions of identified enemy combatants at Guantanamo Bay, Cuba. How are the legal and constitutional issues addressed by these cases similar or different to the issues considered by the courts during the Civil War?

  • al Odah v. U.S. – 542 U.S. 466 (2004)
  • Hamdan v. Rumsfeld – 548 U.S. 577 (2006)
  • Boumedine v. Bush – 553 U.S. 723 (2008)


  • Civil Liberties: the freedom of a citizen to exercise customary rights, as of speech or assembly, without unwarranted or arbitrary interference by the government.
  • Writ: a formal order under seal, issued in the name of a sovereign, government, court, or other competent authority, enjoining the officer or other person to whom it is issued or addressed to do or refrain from some specified act.
  • Habeas Corpus: legal actions determining if detention is lawful
  • Tribunal: A court of justice
  • Conscription:  a compulsory contribution of money to a government during a time of war.
  • Despot: a king or other ruler with absolute, unlimited power; autocrat, tyrant, or oppressor.
  • 1972 War Powers Resolution: US federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress.
  • Copperheads: Also called, “Peace Democrats,” they were Northern Democrats who vocally opposed the Civil War and favored an immediate peace agreement with the Confederate states.

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