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A Legacy of Liberty
Dialogue on Lincoln
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A Legacy of Liberty
How to Do a dialogue on lincoln
If you are a lawyer or j udge interested in leading a Dialogue on Lincoln
at a school or in your community, p lease follow these steps to help
ensure a meaningful experience for you and your audience.
A note for educators: Please review these suggestions with legal professionals who you
invite into your classroom.
Step 1. Identify a school. Contact a school in your community or a school where you know members of the
teaching staff. Many educators contact their local bar associations looking for legal professionals who might come
into classrooms, so your local bar association might know teachers in your community with similar requests. Friends
and co-workers might also recommend a school that would like to participate in the Dialogue program.
Step 2. Set up an appointment for your visit. Contact the school principal or relevant department
head—i.e. social studies, history, government, political science, civics, or language arts. Explain the program to them
and offer a copy of the Dialogue materials. Ask if they or another teacher in their school would be willing to devote
a class session to the Dialogue and schedule a day and time. You will need 45-90 minutes to make the Dialogue a
meaningful experience.
Step 3. Discuss your visit with the teacher. Discuss the ages and experiences of the students.
Determine what part of the Dialogue you would like to focus on and provide the teacher with a copy of the materials
you wish to discuss. Also, consult with the teacher about additional background materials that might help the
students. Request that the teacher have name tags or tent cards printed with the students’ first names, and ask for
any other equipment you might need, such as a blackboard or flipchart.
Step 4. Prepare the class for your visit. Ask the teacher to distribute any materials or assign any
background readings you want the class to discuss at least one day before your visit.
Step 5. Prepare yourself for your day in class. Know your subject. Review the Dialogue materials
before you go to class and consider additional questions you think will help students explore the issues raised by the
Dialogue. Have a planned outline of where you would like the discussion to go, but prepare to be flexible. Personalize
the topic by thinking of examples and anecdotes from your own practice that you can relate to the students.
Step 6. Follow up after the Dialogue. Write a thank-you note to the teacher and class. Make yourself
available to answer questions the class may raise following the Dialogue.
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DI ALO GU E O N L IN C O L N : A L EGA CY OF L IB ERTY
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Ti m eline of Abra h a m
L incoln ’ s L ife
TABLE OF
CONTENTS
G etting S tarted
I .
(PAGE 4)
L incoln : O ur Greatest
President ? (PAGE 5)
1816
Family moved from Kentucky to Indiana, settling near
present-day Gentryville.
1818
Nancy Lincoln died of “milk sickness,” an illness caused
by the consumption of milk contaminated with the
white snakeroot poison tremetol.
1830
Family moved from Indiana to Illinois, settling near
present-day Decatur.
1831
Moved at age twenty-two to New Salem, Illinois, where
he worked as a store clerk and, later, postmaster.
1834Elected to the Illinois General Assembly, representing
Sangamon County for four terms, and began to study law.
B. Lincoln the Legislator
1836Licensed by the Illinois Supreme Court to practice law.
C. Lincoln the President
1839Traveled the Eighth Judicial Circuit, practicing law.
D. Lincoln the Memorialized
L incoln and the
C onstitution (PAGE
Born in log cabin in present-day Hodgenville, Kentucky, to
Thomas and Nancy Lincoln.
1819Thomas Lincoln remarried, to Sarah Johnston, who
adopted the Lincoln children as her own.
A. Lincoln the Lawyer
I I .
1809
1842Married Mary Todd.
1844
8)
A. Union and Secession
B. Lincoln and Slavery:
The Thirteenth Amendment
C. Civil Liberties During Wartime
1. Suspending the Writ of
Habeas Corpus
2. When Does Freedom of Speech
Threaten National Security?
1846Elected to the U.S. House of Representatives and served
only one term, during which he opposed the Mexican
War and proposed legislation abolishing slavery in
Washington, D.C.
1858Nominated by the Republican Party for the U.S. Senate
and eventually lost to Democratic incumbent Stephen
Douglas. Engaged in debates with Douglas during the
campaign; became a national political figure.
1860
Selected by the Republican National Convention in
Chicago as its candidate for president of the United
States. Won the election with running mate Hannibal
Hamlin.
1861
Inaugurated as president shortly before the Civil War
begins. By this time, seven (of the eventually eleven)
states seceded from the United States to form the
Confederate States of America.
I I I . L incoln in Me moriam
(PAGE 16)
A. The Lincoln Memorial
B. Lincoln and Obama
1. Abraham Obama
2. High Five
DialogueOnLincolnPart1.indd 3
Established law practice with partner, William
Herndon, in Springfield, Illinois.
1863Issued the Emancipation Proclamation. Delivered the
Gettysburg Address.
1864
Re-elected to the presidency, defeating Democratic
candidate George McClellan.
1865
Assassinated just days after the end of the Civil War
and months before the ratification of the Thirteenth
Amendment to the U.S. Constitution.
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I
G e t t i n g S ta rt e d
P r o g r a m O v e rv i e w
Dialogue on Lincoln: A Legacy of Liberty is designed for
use by lawyers, judges, and teachers in school classrooms
and with community groups. The Dialogue offers
numerous perspectives on Abraham Lincoln, from
lawyer to president to his legacy, giving you different
options for different audiences or classrooms. Part I
presents an overview of Lincoln’s life, career, and legacy.
Part II looks at Lincoln and the U.S. Constitution—
focusing on secession, the Thirteenth Amendment,
and civil liberties during wartime. It offers historical
background and connections to the present day. Finally,
Part III considers the impact of Abraham Lincoln on
American culture, examining the Lincoln Memorial,
and recent political advertising and cartoons. All three
parts provide options for discussion with students and
adult audiences. We encourage you to be open to the
new directions that the Dialogue may take you and your
group celebrate Law Day, Lincoln’s Bicentennial, and
the legacy of America’s quintessential lawyer-president.
T h e A B A D ia l o g u e P r o g r a m
The Dialogue on Lincoln: A Legacy of Liberty is the
seventh installment in the ABA Dialogue Program.
The Dialogue Program provides lawyers and judges with
the resources they need to engage high school students
and community groups in discussion of fundamental
American legal principles and civic traditions. Supreme
Court Justice Anthony Kennedy introduced the first
Dialogue program, the Dialogue on Freedom, at the
2002 ABA Midyear Meeting in Philadelphia. In 2003,
the ABA introduced the Dialogue on Brown v. Board of
Education to commemorate the 50th anniversary of the
Supreme Court’s landmark ruling. In 2005, the Dialogue
on the American Jury complemented the ABA’s
American Jury Initiative. In 2006, the Dialogue on the
Separation of Powers was introduced, followed by the
Dialogue on Youth and Justice in 2007 and the Dialogue
on the Rule of Law in 2008. For more information on
these Dialogues, visit http://www.abanet.org/publiced/
features/dialogues.html.
Additional copies of Dialogue on Lincoln may be
ordered from the ABA Division for Public Education
by calling (312) 988-5735; or emailing abapubed@
abanet.org. The Dialogue on Lincoln is also available
for free download in PDF format from the Law Day
website, www.LawDay.org. Please contact the ABA
Division for Public Education for permissions and
photocopying information.
Cover: Abraham Lincoln, photograph by Alexander Gardner,
February 5, 1865. Print courtesy of the National Portrait Gallery.
Right: Lawyer Lincoln defending Colonel Matthew Rogers. Print
courtesy of the National Archives and Records Administration.
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I Lincoln
O ur G reatest President ?
L
incoln’s legacy is more enduring than that of
any other president in American history. He
consistently ranks as one of our greatest leaders,
guiding the nation through its greatest crisis. As a young
lawyer, he ably represented his clients. As president,
he authored some of our nation’s foremost documents
of freedom, including the Gettysburg Address and
the Emancipation Proclamation. These documents
help fulfill the political promise of the Declaration of
Independence, in which “all men are created equal.”
Abraham Lincoln was an unlikely presidential candidate.
He was tall and awkward, with a shrill, nasally voice,
and seemingly nothing like the noble statesmen of the
founding era. Born in rural Kentucky to a carpenter
and his wife, Lincoln received only one year of formal
education. He worked on the family farm and famously
split rails, but all the while cultivated a love for books.
Lincoln read everything he could, eventually teaching
himself the law. Politically, he seemed to come from
nowhere. Lincoln had served four terms in the Illinois
state legislature and only one term in Congress. He
was truly a self-made American, proud of the freedoms
availed to him from his country, and determined to
guarantee the same liberties to his clients and the public
he served.
BELOW: Abraham Lincoln, photograph by Alexander Hesler, June
3, 1860. Image courtesy of the National Archives and Records
Administration.
ABOVE: Inauguration of Abraham Lincoln as President of the United
States, 1861. Photo courtesy of the Library of Congress.
Li n c o l n t h e Law y e r
Lincoln accepted a variety of legal cases. Divorces,
rapes, wills, patents, debt collection, railroads’ right-ofway, fugitive slaves, and murders were all part of lawyer
Lincoln’s caseload. The most money he ever made
from a case was $5,000, earned from representing the
Illinois Central Railroad in a right-of-way case. One of
his cases, Bailey v. Cromwell (1841), involved a fugitive
slave, Nance, whom Lincoln represented in a suit for
her freedom. He won the case, and Nance effectively
became the first slave Lincoln freed prior to the
Emancipation Proclamation. In perhaps his biggest case,
Lincoln defended William “Duff” Armstrong, accused
of murder, in 1857. When the prosecution’s witness
claimed to have seen Armstrong at the crime scene in
the moonlight, Lincoln produced an almanac showing
that, on that particular night, there was no moonlight,
thus discrediting the witness. Lawyer Lincoln gained a
reputation for honesty, logic, precision, and integrity.
Colleagues described him as having “courtroom finesse
to an extraordinary degree.” Another warned, “Any man
who took Lincoln for a simple-minded man would very
soon wake [up] with his back in a ditch.”
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Li n c o l n t h e L e g i s l at o r
During his term in Congress (1846-48), Lincoln spoke
out against the Mexican-American War as an unjustified
abuse of power and warmongering and proposed
legislation abolishing slavery in Washington, D.C. As
a state legislator in Illinois, he fought for improved
infrastructure and building a strong state capital in
Springfield. He also supported suffrage rights for all
tax-paying Illinois immigrants in the face of nativist
attitudes from some of his colleagues.
Li n c o l n t h e P r e s id e n t
Above: “The
First Reading of
the Emancipation
Proclamation of
President Lincoln,
1862,” by Francis
Bicknell Carpenter,
1864. Print courtesy
of the U.S. Senate.
RIGHT: Reward poster
seeking Lincoln’s
assassin. Facsimile
courtesy of the National
Archives and Records
Administration.
Lincoln was president during our nation’s most serious
crisis, the Civil War. The U.S. Constitution, Lincoln
argued, did not allow for secession of individual states
from the Union. He vowed to preserve the union that
the founders worked to establish nearly a century earlier.
In doing so, he redefined the roles of president as chief
executive and commander in chief. To guarantee what he
regarded as matters of national security, he issued orders
to suspend the writ of habeas corpus, restrict free speech,
and control the free press, while still mindful of the
importance of protecting individual personal freedoms
and civil liberties during wartime. Lincoln looked to
end the institution of slavery, which had divided the
country since its establishment. With the Emancipation
Proclamation, Lincoln freed an enslaved population four
million strong. With the Gettysburg Address, he “[resolved]
that this nation, under God, shall have a new birth of
freedom,” alluding to emancipation, but also setting forth a
broader vision of national unity that has truly become part
of Lincoln’s legacy of American liberty.
Li n c o l n m e m o r ia l i z e d
When Lincoln was assassinated in 1865, just days after the
end of the Civil War, his life was tragically cut short. He
was unable to lead the nation in “the new birth of freedom.”
People began honoring him immediately following his
death. The memorialization of Lincoln has only grown
stronger since. He was the first American president to be
assassinated. Lincoln was widely seen as a political martyr,
sacrificing his own life for the nation he fought to preserve.
Lincoln has since become the subject of myth and legend,
portrayed in movies, featured in television, and lauded in
poetry. He is also the subject of monuments. The Lincoln
Memorial opened in 1922 as a testament to his life’s work
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and has since evolved into both a national gathering place
and an American icon. The legend of Lincoln continues to
evolve, undoubtedly affecting our perceptions of him as an
historic lawyer-president.
Join the Dialogue
1. Lincoln often serves as a role model for lawyers and
politicians. How did Lincoln’s career as a lawyer
and legislator prepare him for the presidency?
2. In 1909, Americans celebrated the centennial of
Lincoln’s birth. The author Leo Tolstoy wrote on
that occasion:
The greatness of Napoleon, Caesar, or
Washington is only moonlight by the sun of
Lincoln. His example is universal and will
last thousands of years … He was bigger than
his country—bigger than all the Presidents
together … and as [a] great character he will
live as long as the world lives.
A century later, is Tolstoy’s quote still applicable
as we celebrate Lincoln’s bicentennial? There
have been twenty-eight presidents since
Lincoln. Compared to them, do you think
Lincoln is still our greatest president? What
does it mean to be great? What does it mean to
be a great president?
3. Research what other American presidents, after
Lincoln, were assassinated. How was Lincoln
protected? How are contemporary American
presidents protected? What are possible drawbacks
that result from the need to ensure the safety and
security of our presidents?
4. Read “The Martyred Patriot” poster depicted
above. What is a martyr? Do you think it is proper
to regard Lincoln as a martyr? Can you think of
other examples of martyrs in our country’s history?
above: “The Martyred Patriot
Grand Funeral March,”
composed by J.W. Porter,
1865, sheet music facsimile
courtesy of the Library of
Congress. RIGHT: Abraham
Lincoln, photograph by
Alexander Gardner, February
5, 1864. Photo courtesy of the
National Archives and Records
Administration. Back page:
Abraham Lincoln statue inside
the Lincoln Memorial, by
Daniel Chester French, 1922,
image ABA stock photo.
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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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III
Lincoln
IN MEMORIAM
sitting, with one hand clenched and the other relaxed. Inside
the memorial’s columned walls, there are no references to
the divisive Civil War, race, slavery, or other controversial
policies of Lincoln’s administration. On one side of the
memorial is the Second Inaugural, and, on the other side, the
Gettysburg Address.
In his Second Inaugural Address, on March 4, 1865, Lincoln
spoke of mutual forgiveness in the face of the Civil War:
With malice toward none; with charity for all; with
firmness in the right, as God gives us to see the right,
let us strive on to finish the work we are in; to bind up
the nation’s wounds; to care for him who shall have
borne the battle, and for his widow, and his orphan
— to do all which may achieve and cherish a just and
lasting peace, among ourselves, and with all nations.
The Second Inaugural Address is remembered as one of the
greatest speeches in American history. Historian Ronald
White called it Lincoln’s “Last Will and Testament” to the
nation, calling for reconciliation and rebuilding after the
Civil War.
ABOVE: Lincoln sculptor Daniel Chester French assembles the Lincoln
statue inside the Lincoln Memorial, prior to its dedication in 1922.
Photo courtesy of the National Park Service.
A
braham Lincoln’s image remains widely visible
across America, from Mount Rushmore to
television ads to the Lincoln penny. There
are towns and cities named after him in many states,
monuments depicting every stage of his life, photographs,
paintings, sculptures, and the list goes on.
T h e Lincoln Me m orial
One of the reasons the Lincoln Memorial is so iconic
has to do with the symbolism within the monument
itself. The Memorial, designed by Henry Bacon, is
190 feet long, 119 feet wide, and 100 feet tall. It is
surrounded by columns that represent citizens from the
states. The Lincoln sculpture inside was sculpted by Daniel
Chester French. It is 19 feet tall and weighs 175 tons. French
intended for Lincoln to represent “one of the people.” He is
16
The Gettysburg Address is also regarded as one of the
most important speeches in American history. Lincoln
gave his Gettysburg Address on November 19, 1863, at
the dedication of the National Cemetery at what is now
Gettysburg National Park, in Gettysburg, Pennsylvania.
Lincoln was not the featured speaker that day, but followed
a two-hour speech from former Secretary of State Edward
Everett. The Gettysburg Address lasted just two minutes,
and called upon Americans to contribute to “a new birth of
freedom” in the wake of emancipation. Lincoln harkened
back to the fundamental values espoused in the Declaration
of Independence, asking Americans to preserve a government
“of the people, by the people, and for the people” lest it
“perish from the earth.”
Historian Gabor Boritt has described the Gettysburg
Address as a modern “secular gospel:”
It sums up for Americans who we are; it has a
sacred quality to it. It is the good news of America.
It is America at its best. It’s America as it hopes
to be—not quite what it is but what it hopes to
be—and Lincoln expressed it beautifully.
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The tradition of gathering at the Lincoln Memorial began
in 1939, when First Lady Eleanor Roosevelt offered African
American opera star Marian Anderson the steps of the
Lincoln Memorial as a public concert venue. Anderson
had been denied the right to perform at Constitution Hall
because of her race. The concert drew a live audience of
75,000 people, and was broadcast to millions of Americans
through radio. In 1963, the Lincoln Memorial was the site
of Martin Luther King’s “I Have a Dream” speech during
the historic March on Washington, when 300,000 people
converged on Washington, D.C., rallying for equality, civil
rights, and racial harmony. Demonstrators gathered again at
the Lincoln Memorial in 1970 to protest the Vietnam War.
President Nixon famously met with the protestors before
sunrise, and explained that he was “trying to build a world
where people do not have to die for what they believe in.”
The Lincoln Memorial was also the site of the 1995 Million
Man March, where approximately one million AfricanAmerican men pledged responsibility to their families,
communities, and nation in an effort to solve community
and national crises. In 2004, American workers met at the
Lincoln Memorial to protest Bush administration policies.
The Lincoln Memorial was also the site of pre-inaugural
celebrations in 2009 to honor Barack Obama.
A NAT IO NAL GAT HERING P L A CE
LEFT: Marian Anderson
performing at the Lincoln
Memorial, 1939. Photo
courtesy of the National
Archives and Records
Administration.
LEFT: March on
Washington, 1963. Photo
courtesy of the Library of
Congress.
L I N C OLN A N D OBA MA
During the recent presidential campaign, many people
made comparisons between Abraham Lincoln and Barack
Obama. Both presidents came from Illinois, grew up from
humble beginnings, were lawyers, had relatively little
national political experience prior to moving into the
White House, and were considered improbable winners of
their presidential campaigns. President Obama, during his
campaign, made numerous references to Abraham Lincoln.
A professed Lincoln enthusiast, Barack Obama used
historic imagery, quotes, and themes in all of his speeches
throughout his campaign. He began his presidential
campaign in February 2007 in front of the Old State
Capitol Building in Springfield, Illinois, just as Lincoln
did in 1858. He retraced Lincoln’s route to the White
House before his inauguration, traveling from Philadelphia
to Maryland via train, and took the oath of office for the
Presidency on the same Bible that Lincoln used over one
century ago. Both President Lincoln and Obama used
LEFT: Protestors speak
against the Vietnam War
at the Lincoln Memorial,
1970. Photo courtesy
of the National Park
Service.
LEFT: Americans
celebrate Barack Obama’s
inauguration at the
Lincoln Memorial, 2009.
Photo courtesy of the
National Park Service.
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LINCO LN IN T ELEVISIO N A ND
MO VIES
Abraham Lincoln appears as a character in many episodes of
television shows and in many Hollywood films:
Young Mr. Lincoln (1939)
This classic film by John Ford, and starring Henry Fonda,
chronicles Lincoln’s life as a young lawyer in Illinois. In the
movie, Lincoln agrees to represent two brothers accused of
murder. When the townspeople riot and threaten to lynch his
clients, Lincoln intercedes, faces down the crowd, and calms
the mob with his words and his commitment to the rule of
law. The film ends with lawyer Lincoln walking away into the
sunset, presumably to fulfill some hidden potential or destiny.
ABOVE: Abraham Obama installed in Boston, 2008. Image used with
permission from the artist.
the power of media and images to communicate with
Americans during their campaigns.
Abraham Obama. In the summer of 2008, New Yorkbased street artist Ron English was commissioned to do a
mural in downtown Boston. He produced Abraham Obama,
a fusion of the faces of Abraham Lincoln and Barack
Obama. He enlarged the image into thirteen-feet tall
frames, and lined the image along a city block in a series
of rainbow rectangles. English, an Illinois native known
for his controversial creations, intended for the portrait to
inspire dialogue, which it did. One city resident claimed
that Abraham Obama was not art, but propaganda. Other
city residents filed vandalism complaints after enthusiastic
supporters began plastering miniature Abraham Obama
prints on public and private property. English defended his
art as his contribution to the conversation around President
Obama’s presidential campaign: “I believe Obama will take
up Lincoln’s challenge of uniting the country … This is the
most excited I’ve ever been about a presidential candidate
and I’m looking for ways that I can contribute as an artist
and a citizen.”
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Dick Van Dyke Show, “The Great Petrie Fortune”
Original air date October 27, 1965
In this episode, Rob Petrie inherits an old roll-top desk
and a clue from his great-uncle that leads him to look
inside. He finds an old photograph in the desk of his
great-uncle as a baby, with Abraham Lincoln from the
back, purportedly taken by Matthew Brady in 1863 at
Gettysburg. Rob realizes that his great-uncle left him
something of great value, but not monetarily. Rather,
the inheritance conveys a sense that Lincoln and his
photographic image are something to be greatly treasured,
an icon and representative of America at its best.
Star Trek, “The Savage Curtain”
Original air date March 7, 1969
Lincoln appears in this episode of Star Trek as a symbol of
“good” prepared to struggle with “evil” with Captain James
Kirk and Mr. Spock. He materializes in space, and then
sacrifices his life to help Kirk and Spock win the battle.
Afterwards, Kirk asks Spock, “Why Lincoln?” Mr. Spock
explains that since Lincoln has always been a personal
hero to Kirk, he was an appropriate form to “titillate
[his] curiosity” and serve as a comrade during the battle.
Lincoln’s death at the end of the episode classifies him
as a martyr to a greater cause, similar to memorials
following his assassination at the end of the Civil War.
Bill and Ted’s Excellent Adventure (1989)
High school slackers and time travelers Bill Preston
and Ted Logan retrieve Abraham Lincoln and other
historical figures for a school assembly presentation in
this goofy but popular movie. At the assembly, Lincoln
is introduced as one of America’s greatest presidents,
then offers his own version of the Gettysburg Address,
and concludes with: “These two great gentlemen are
dedicated to a proposition which was true in my time,
just as it’s true today. Be excellent to each other. And …
party on, dudes!”
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High Five. On November
5, 2008, following the
2008 presidential election,
cartoonist Chris Britt, from
the Springfield JournalRegister, in Springfield,
Illinois, published this
cartoon of Abraham Lincoln
slapping hands with Martin
Luther King, Jr. The cartoon
joins two iconic figures
in American history in
celebration of an historic
election.
RIGHT: “High Five,”
by Chris Britt for
Springfield Journal
Register, November 5,
2008. Cartoon used with
permission from the artist.
J O I N THE DIA LOG U E
1. The Lincoln Memorial was dedicated in 1922.
When it was built, it was somewhat controversial.
Architect Frank Lloyd Wright called it “one of
the most ridiculous, most asinine miscarriages of
building material that ever happened.” When you
look at the Lincoln Memorial, what do you think?
What feelings does it evoke? Does the 1922 design
honor Lincoln’s legacy?
2. What do you think made the Lincoln Memorial
an appropriate site for Marian Anderson’s concert
in 1939? Why has it continued to serve as a public
gathering place?
3. Ron English wanted his painting, Abraham Obama,
to inspire discussion. Does it? What messages does
the painting convey? What does it tell us about the
vitality of the Lincoln myth, today, as we celebrate
the bicentennial of his birth?
4. Abraham Obama inspired much enthusiasm, some
of which resulted in complaints of vandalism. Some
people blamed the artist and the museum that
commissioned the painting. Should artists be held
responsible if their art inspires controversy?
5. President Lincoln was aware of the power of images
and media in communicating to the American
people, just as President Obama is today. How did
President Lincoln communicate to the American
people? How does President Obama communicate to
the American people? How have communications
media changed, or remained the same, since
Lincoln’s time?
6. Look at the political cartoon by Chris Britt. What
makes it a political cartoon? What do political
cartoons contribute to American culture? What
message is the artist trying to convey? What does
the cartoon suggest about Lincoln’s legacy?
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Dialogue onLincoln
Partici p ating in a
One of the hallmarks of a democracy is its citizens’ willingness to express, defend, and perhaps reexamine their
own opinions, while being respectful of the views of others. If you plan on leading a Dialogue in a high school
classroom, here are some ground rules for ensuring a civil conversation:
Show respect for the views expressed by others, even if you strongly disagree.
Be brief in your comments so that all who wish to speak have a chance to express their views.
Direct your comments to the group as a whole, rather than to any one individual.
Don’t let disagreements or conflicting views become personal. Name-calling and shouting are not
acceptable ways of conversing with others.
• Let others express their views without interruption. Your Dialogue leader will try to give everyone a
chance to speak or respond to someone else’s comments.
• Remember that a frank exchange of views can be fruitful as long as you observe the rules of civil
conversation.
•
•
•
•
Note to Dialogue leaders: Before beginning your Dialogue, distribute these ground rules and review them with
the students.
The ABA Division for Public Education provides national leadership for law-related and civic education efforts in the United States, stimulating
public awareness and dialogue about law and its role in society through our programs and resources and by fostering partnerships among bar
associations, educational institutions, civic organizations, and others.
The Dialogue on Lincoln: A Legacy of Liberty is available in PDF format on the ABA Division for Public Education website at http://www.abanet.
org/publiced/features/dialogues.html.
The views expressed in this document have not been approved by the House of Delegates or the Board of Governors of the American Bar
Association and, accordingly, should not be construed as representing the policy of the American Bar Association.
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