The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[In 1863, Clement Vallandigham—a prominent Democratic politician and former Congressman—was arrested for making an anti-Civil-War speech, and tried before a military court on the charge of: "Publicly expressing, in violation of General Orders No. 38 … sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion." Lincoln defended the arrest in part on the grounds that such measures during wartime were so obviously unpleasant to the general public as to be self-limiting, and to resist slippage:]
Nor am I able to appreciate the danger … that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceable future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.
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