Download Lincoln and the Constitution

II Lincoln
A N D T H E C O N S T I TUT I O N
Union and Secession
Lincoln is the only president in American history who
was forced to grapple with the fundamental Constitutional
question of national union, as eleven states seceded from
the United States at the beginning of the Civil War. His
response to the Civil War secession crisis ultimately formed
the nation as we know it today. More broadly, the secession
crisis raised significant questions about federalism, states’
rights, and national sovereignty.
Li n c o l n a n d S l av e r y :
T h e T h i rt e e n t h A m e n d m e n t
While every U.S. president before Lincoln wrestled with
questions about slavery, Lincoln was the only one to
offer an answer: emancipation. On this question, it took
time—and circumstances—to enable Lincoln to align his
political decision-making with his moral values. In 1863,
Lincoln issued the Emancipation Proclamation, which
freed four million slaves. He set in motion legislation
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that would become the Thirteenth Amendment to
the U.S. Constitution, which forever abolished the
institution of slavery in the nation.
Ci v i l Lib e r ti e s D u r i n g
Wa r ti m e
President Lincoln recognized the importance of
preserving the Constitution and rule of law during
the Civil War. He was also keenly aware of the need
to maintain the sometimes delicate balance between
preserving civil liberties and ensuring national security.
Still, Lincoln took action, necessary in his view, to meet
the national crisis of rebellion by suspending the writ
of habeas corpus, and arresting approximately 38,000
American citizens as threats to national security.
BELOW: Members of the 2nd New York Artillery, outside Fort Smith,
near Washington, D.C., 1864. Photo courtesy of the National Archives
and Records Administration.
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Union and Secession
When President Lincoln was inaugurated on March
4, 1861, he inherited a crisis in the United States: a
nation on the brink of dissolution. Eleven individual
Southern slave states would declare independence
from the United States of America and ally to form the
Confederate States of America. Leaders of the seceding
states viewed Lincoln’s election—Republican leadership
that wanted to strengthen the federal government,
restrict slavery, increase taxes, advance industrialization,
and implement tariffs—as a threat to their states, their
agrarian economies, and their plantation lifestyles. As
the nation’s founders nearly a century earlier had fought
for independence from Britain, claiming rights to “life,
liberty, and the pursuit of happiness,” the secessionists
claimed they were protecting their rights.
The Confederate states were invoking what they
believed to be their rights to sovereignty, or the
authority to govern themselves as states free and
independent of federal control. Tensions intensified
for decades prior to 1860 between free and slave state
representatives over the congressional balance of power.
The seceding states were no longer certain that they
should consent to government under the United States.
Georgian John Cochran explained, “We hold to the
principle among others that this government is not solely
the government of a majority but that the minority have
rights that must be respected … we will not submit to
having our rights taken from us.” Such was the basis of
secessionist state resolutions claiming to protect natural
rights guaranteed by the Declaration of Independence
and U.S. Constitution. In doing so, however, the
Confederacy threatened the national union that was the
United States of America.
President Lincoln resisted the Confederate States’
secession from the Union. On August 16, 1861, he
declared them to be in rebellion against the United
States. He called their actions “an insidious debauching of
the public mind,” and simply unlawful. He rejected their
claims to independent sovereignty, believing that:
While the Constitution of the United States neither
explicitly prohibits nor denies states’ rights to secede from
the larger United States, its absence from the document
RIGHT: Charleston Mercury
extra, printed December 20,
1860, minutes after the South
Carolina delegation voted in
favor of secession. Broadside
courtesy of the Library
of Congress.
was significant. He believed that the historic union of states
under girds Constitutional law, and that since neither the
Confederacy nor its constituent states enjoyed sovereign
status prior to their inclusion in the United States,
they were not in positions to [re]claim it. In his Second
Inaugural Address, Lincoln explained:
We find the proposition that, in legal contemplation, the Union is perpetual as confirmed
by the history of the Union itself. The Union is
much older than the Constitution. It was formed,
in fact, by the Articles of Association in 1774. It
was matured and continued by the Declaration of
Independence in 1776. It was further matured, and
the faith of all thirteen States expressly plighted,
and engaged that it should be perpetual, by the
Articles of Confederation in 1778. And, finally, in
1787, one of the declared objects for ordaining and
establishing the Constitution was “to form a more
perfect Union.” (March 4, 1861)
Lincoln, a lawyer with respect for the rule of law,
compared the Confederate States’ secession to anarchy,
a fundamental disordering of American government. He
argued that a “minority rule” among the secessionists,
making decisions for residents of their states, and the
“minority rule” of the Confederacy making decisions
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for the rest of the United States, was tyranny. Lincoln
acknowledged the “most sacred right” of citizens to
“rise up, and shake off the existing government,
and form a new one that suits them better.” He
refused to believe, however, that a majority of voters
in the Confederacy supported secession, where
formal declarations “could scarcely be considered as
demonstrating popular sentiment.”
Lincoln argued that secession was incompatible with
the republican form of government. The Declaration
of Independence and the Constitution provided legal
outlets for governmental change: revolution, or
elections and constitutional amendments, respectively.
Lincoln believed such mechanisms made secession
unconstitutional and prohibitive.
Finally, Lincoln feared that if the Southern States were
allowed to secede, the United States would no longer
serve as an example of law, order, and liberty for the
world. He felt the whole American experiment that was
democracy—deliberately and self-consciously creating
a government “of the people, by the people, for the
people”—would be destroyed.
ABOVE: “Signing of the Constitution,” by Howard Chandler Christy,
1940. Image courtesy of the Architect of the Capitol.
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ABOVE: Abraham Lincoln, photograph by Alexander Gardner, 1863.
Photo courtesy of the National Archives and Records Admnistration.
Join the Dialogue
1. Were the Confederate states constitutionally
justified in seceding from the Union in 1861? Why
or why not? Do you think states today should be able
to secede? Why or why not? If so, could they do so
democratically? How?
2. Lincoln believed that accepting secession would
violate the “perpetual union” of the United States
established by the nation’s founders. Do you believe
that we are truly one nation today? Why or why not?
3. Why was the Civil War a national crisis? What
other crises has our country faced? How did we
address them? What do you think has been our
greatest crisis? Why?
4. Inherent to our federal system of government—in
which political power is shared—is a tension
between the powers of the federal and state
governments. Do you think the federal government
has too much or too little power today? Why? Do
you think the federal government should have
greater power in times of national crisis? Why or
why not?
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L incoln and S lav ery:
Th e T h irteent h A m endment
Slavery in the United States had never been more
protected than it was on the eve of the Civil War. The
U.S. Constitution outlined protections for slavery, most
notably in Article I, where the Three-Fifths Clause
allowed slave states to gain enhanced congressional
representation by counting each slave as three-fifths
of one person. Although Thomas Jefferson outlawed
the African slave trade in 1808, those slaves who were
imported prior to that date, and their descendants,
remained enslaved.
In the decades leading up to the Civil War, slave
states lobbied for stronger fugitive slave laws, as
protections outlined in the Constitution were largely
unenforced. The Fugitive Slave Act of 1850 provided
stronger property protections to slaveholders and
strict punishments to violators. It mandated that
every American, including those in free states, protect
slaveholder property rights by aiding in the return of
runaway slaves. It also threatened the safety of free
blacks who could be mistaken for slaves. Northern
abolitionists were faced with the immediate choice of
breaking the law or violating their own values. Persons
found guilty of aiding fugitive slaves were subject to six
months imprisonment and a $1,000 fine.
Ending slavery, however, was not President Lincoln’s
priority at the beginning of the Civil War. He saw the
primary struggle as a fight to preserve the Union. In an
1862 letter to Horace Greeley, he explained:
If I could save the Union without freeing any
slave I would do it, and if I could save it by
freeing all the slaves I would do it; and if I
could save it by freeing some and leaving others
alone I would also do that. (August 22, 1862)
Early on, Lincoln was reluctant to make the Civil
War about emancipation of the slaves. He wanted to
preserve the slaveholding border states’—Kentucky,
Missouri, Maryland, and Tennessee—allegiance to the
Union. As the war dragged on, however, Lincoln came
to realize that emancipation was indeed essential to
preserving the Union, for both moral and practical
reasons. Lincoln maintained that emancipation was
part of the Union military strategy, meant to stymie
the Confederate war effort.
ABOVE: Fugitive slaves fording the Rappahannock River, Rappahannock, Virginia, 1862. Photo courtesy of the National Archives and Records
Administration.
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On January 1, 1863, the Emancipation Proclamation
took effect, issued by Lincoln under his constitutional
authority as commander-in-chief. Lincoln biographer
Allen Guelzo has called it “the single greatest social
revolutionary document in American history.” It
freed “all persons held as slaves within any State or
designated part of a State … in rebellion against the
United States … thenceforward and forever.”
Lincoln’s policy position on emancipation developed
over time. He evolved into the Great Emancipator.
While Lincoln was long morally opposed to slavery, he
initially believed, that, as long as it was contained, it
would eventually grow extinct. As tensions increased
before the Civil War, however, he came to believe that
slavery would not simply wither away, but rather would
require active abolition. He explained his complex
views about slavery in an 1864 letter to Albert Hodges:
I am naturally anti-slavery. If slavery is not
wrong, nothing is wrong. I can not remember
when I did not so think, and feel. And yet I have
never understood that the Presidency conferred
upon me an unrestricted right to act officially
upon this judgment and feeling. (April 4, 1864)
Lincoln was concerned that, as an executive order,
the Emancipation Proclamation might be viewed as a
temporary wartime measure. In order to permanently
abolish the institution of American slavery, Lincoln
pushed for congressional approval of a proposed
constitutional amendment. It was not an easy fight, but,
in January 1865, Congress passed what would become
the Thirteenth Amendment. Lincoln would not live
to see it ratified by the states and become incorporated
into the U.S. Constitution:
Neither slavery not involuntary servitude, except
as punishment for crime whereof the party shall
have been duly convicted, shall exist within
the United States, or any place subject to their
jurisdiction.
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ABOVE: Harriet Tubman with former slaves. Photo courtesy of the
National Archives and Records Administration.
JO IN T HE DIALO GUE
1. President Lincoln used his executive power as
commander-in-chief to issue the Emancipation
Proclamation. What is the source of this power?
Do you think Lincoln appropriately exercised
his presidential powers to take this action? What
checks and balances does the Constitution provide
to restrain the exercise of executive power? Can
you think of recent examples where this has
occurred?
2. Lincoln was morally opposed to slavery, but long
felt it his obligation to enforce pro-slavery laws and
policies. Why do you think he felt this way? Do
you think it is sometimes important for political
leaders to separate their moral values from their
political and legal positions? Why? Can you think
of situations where this has happened?
3. It took the crisis and upheaval of the Civil War
to bring a dramatic end to the legally sanctioned
institution of race slavery in the United States. Do
you think the Civil War was required to accomplish
this? Might the institution of American slavery
have simply disappeared over time? Is it better for
political change to happen quickly or slowly? Why?
4. Did the abolition of slavery resolve the issues of
race and racism in American society? Why or
why not?
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Ex Part e Merryman, 1861
Many people responded to Lincoln’s suspension of the
writ of habeas corpus with protest. The New York Tribune
C i vil Liberties During Warti me
called it “lawless despotism.” One person particularly
incensed was Chief Justice Roger Taney, who in 1861,
had an opportunity to express his opinion with the
The Civil War presented President Lincoln with the
difficult challenge of how to balance national security
concerns during a time of extreme national crisis with the
preservation of civil liberties. In a civil war, Americans
were not fighting external enemies, but rather one another.
Inflammatory editorials and speeches were fueling support
and opposition on both sides of the Mason-Dixon Line:
the imaginary demarcation between the Northern and
Southern states. In this climate, Lincoln took actions that
unquestionably resulted in restrictions on Americans’
civil liberties. Such actions were not new. Prior to the
American Revolution, New York printer John Peter Zenger
made headlines when he was charged with seditious libel
and assailing the royal governor of New York, who he had
declared corrupt. In 1798, President John Adams signed the
Sedition Act during the Quasi-War with France, making
it a crime to publish “false, scandalous, and malicious
writing” against the government or its officials. Lincoln
was following a line of historic decisions as commanderin-chief. Moreover, he understood himself to be fighting
an unprecedented Civil War, which he claimed called for
unprecedented presidential war powers.
decision in the federal case Ex Parte Merryman. John
Merryman was a wealthy Maryland landowner and
lieutenant in a secessionist cavalry company, which had
destroyed telegraph lines outside of Baltimore. Arrested
and detained at Fort McHenry, he petitioned the federal
court for a writ of habeas corpus. At that time, Supreme
Court justices still traveled to federal circuit courts
to hear cases, and the justice stationed in Merryman’s
circuit happened to be none other than Chief Justice
Taney. He ordered the commanding officer at Fort
McHenry to show cause for Merryman’s detention. The
officer refused, citing the president’s suspension of the
writ of habeas corpus. Taney immediately issued a ruling
denying the president’s authority to do so. He insisted
that only Congress, not the president, had the power to
suspend the writ, since the suspension clause in Article
I of the Constitution delegated powers to the legislative
branch of government, not the executive branch. Taking
direct aim at Lincoln in his ruling, Taney declared that
“the President, under the Constitution and laws of the
United States, cannot suspend the privilege of the writ
of habeas corpus, nor authorize any military officers to do
so.” In his capacity as federal circuit court judge, Chief
Suspending the Writ of Habeas Corpus. Lincoln
suspended the writ of habeas corpus during the Civil War.
Habeas corpus is a Latin term, “meaning you have the
body.” The right to habeas corpus allows a person who
has been arrested to appear before a court, hear why they
were arrested, and seek relief from unlawful detention. It is
often celebrated as the most effective safeguard of freedom
against arbitrary state actions. Lincoln was not the first
president to suspend the writ. It was also suspended during
Shays’ Rebellion in 1787 and again during the War of
1812. Lincoln was, however, the first president to suspend
the writ of habeas corpus without prior congressional
approval. Article I of the U.S. Constitution affirms
habeas corpus protection, but allows for its suspension in
extraordinary situations:
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.
Under the suspension, any U.S. citizen, soldier, or
civilian, can be arrested “for giving aid and comfort in
Justice Taney had little power to enforce his decision,
so Lincoln essentially ignored it. In 1863, Congress
subsequently passed the Habeas Corpus Act, which
finally gave Lincoln legislative sanction for suspensions.
various ways to the insurrection,” and subject to “martial
law, and liable to trial and punishment by courts-martial
or military commission.”
Though the Constitution authorizes such actions, it does
not, however, outline specific procedures for suspending
the writ. Every instance prior to Lincoln’s had been
authorized by state or federal legislatures. Many of Lincoln’s
contemporaries thought him a tyrant, but he defended
his actions before Congress, citing his inaugural pledge to
protect the country.
In the twenty-first century, President George W. Bush
issued a presidential military order in November 2001,
shortly after the September 11 terrorist attacks against
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the United States. This order concerned the “Detention,
Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.” During the ensuing years of the Bush
Administration, a number of legal and judicial challenges
were brought against their policies and practices in fighting
the “war against terrorism.” Central to many of them was
the constitutionality of efforts to effectively suspend the use
of the writ of habeas corpus by suspected terrorists, especially
those detained at the Guantanamo Bay facility in Cuba (see
Boumediene summary on this page). Some have compared
President Bush’s actions, resulting in an effort to suspend
habeas corpus rights, to Lincoln’s. Both presidents cited
wartime crises as justifications for suspension. Both sought
to preclude only those being tried in military, not civilian,
courts, from challenging the lawfulness of their detention
through habeas corpus appeals. Both were challenged by
the federal courts. In American history, suspension of the
writ of habeas corpus has been an extraordinary action,
typically reserved only for extraordinary circumstances.
The Civil War and September 11, 2001, terrorist attacks
have been regarded by the executive as serious emergencies.
The question, however, of whether one or both of them
warranted the suspension of habeas corpus is open to debate
and has been the subject of much controversy.
When Does Freedom of Speech Threaten National
Security? Clement Vallandigham, a former congressman
from Ohio, delivered an antiwar speech in Mount Vernon,
Ohio, on May 1, 1863. He described the Civil War as
“wicked, cruel and unnecessary,” and encouraged soldiers
to desert their posts and citizens to abandon the Union
war effort. Following the speech, Vallandigham was
arrested, charged with making “treasonable utterances” and
B o ume dien e v. Bu sh, 2008
In June 2008, the Supreme Court declared portions of the
Military Commissions Act of 2006 unconstitutional in
Boumediene v. Bush. Lakhdar Boumediene was arrested
in October 2001 by local Bosnian police on suspicion
of plotting to attack the U.S. embassy in Sarajevo after
American intelligence agents became suspicious of
“increased chatter” between Boumediene and five other
Bosnian nationals and the al Qaeda terrorist group. He was
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promptly tried and convicted by a military commission, which
sentenced him to prison for the remainder of the war. Mass
demonstrations against Vallandigham’s detainment erupted
across Northern U.S. cities. President Lincoln faced a dilemma:
allow Vallandigham to exercise his First Amendment right to
free speech, or risk undermining the Union war effort. Lincoln
justified the arrest in a letter to protest leader Erastus Corning as
necessary for national security during war:
Mr. Vallandigham … was laboring, with some effect, to
prevent the raising of troops, to encourage desertions
from the army, and to leave the rebellion without an
adequate military force to suppress it. (June 12, 1863)
This was not the first time, nor would it be the last time, that a
president restricted speech in the interest of national security.
In 1798, during war with France, President John Adams issued
the Sedition Act, which punished any person writing, printing,
BELOW: Lincoln’s Executive
Order suspending habeas
corpus, May 15, 1863.
Facsimile courtesy of the
Library of Congress.
taken to Guantanamo Bay, detained in the American prison
there, and never formally charged with a crime. Boumediene
petitioned the United States government for a writ of
habeas corpus to determine why he was being detained, and
if his detention was lawful. The Supreme Court ruled that
Boumediene’s detention, as it stood, without rights to habeas
corpus, was unconstitutional. The Court ruled that enemy
detainees in the custody of the United States were entitled
to habeas corpus rights and that if Congress were going to
suspend the writ, as they did with the Military Commissions
Act of 2006, they must supply an adequate substitute.
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ABOVE: Sedition Act of 1798. Facsimile courtesy of the Library of Congress.
uttering, or publishing “false, scandalous, and malicious
writing or writings against the government of the United
States,” with a fine of up to $2,000 and a prison term of up
to two years. Alexander Hamilton called the legislation
“tyranny.” The Sedition Act was expanded during World
War I to include prohibition of language intended to bring
the United States “into contempt, scorn, contumely, or
disrepute.” President Wilson declared disloyal Americans
worthy of arrest, and supporters of the act warned of “even
greater evils” if it were not adopted. The House Committee
on Un-American Activities continued similar efforts during
World War II and the Cold War. During the Vietnam War,
questions about the meaning of “speech” arose as young men
burned their draft cards as a form of anti-war protest. More
recently during the war against terrorism, Congress passed
legislation that established guidelines for wire-tapping and
email monitoring to detect “suspicious” behavior patterns
among American citizens. One legislator criticized the
policy as “a chilling threat to civil liberties.”
LEFT: Allan Pinkerton.
Abraham Lincoln, and
General John McClellan
at Antietam, October 3,
1862. Photo courtesy of
the Library of Congress.
JO IN T HE DIALO GUE
1. In a July 1861 speech to Congress concerning his
suspension of habeas corpus, Lincoln asked, “Are
all the laws, but one, to go unexecuted, and the
government itself to go to pieces, lest that one be
violated?” Do you agree with his argument? What
circumstances, if any, would make it necessary? Do
you think Lincoln’s position is consistent with the
rule of law? What does the “rule of law” mean?
2. Should presidents, acting alone, have the power
to suspend the writ of habeas corpus or should such
powers be exercised with the approval of Congress?
Why? Do you think it is sometimes necessary and
appropriate to suspend the writ of habeas corpus
and detain certain individuals without giving them
an opportunity to challenge their detentions in
court? When and why?
3. Do you think the arrest of Vallandigham during
the Civil War was justified? What about the
actions of draft-card burners during the Vietnam
War? Can you think of recent actions involving
the war against terrorism when speech has been
restricted by the government? Do you think the
government should have the right to restrict speech
in the interests of national security? Under what
circumstances?
4. Some people claim that Americans have a duty
to protect freedoms and maintain a patriotic
vigilance. How do we as individuals protect liberty
in our schools, communities, and in the nation?
What are some of the challenges to exercising a
“patriotic vigilance?”
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