Chief Justice of the US Roger Taney,
sitting as a judge of the United States Circuit Court for the District
of Maryland, ruled that Lincoln had violated the US Constitution when he
illegally suspended the Writ of Habeas Corpus.
After hearing this Lincoln signed an arrest warrant to have the Chief Justice of the US arrested.
Article IV, Section 3 of the U.S. Constitution says:
"New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
Article I, Section 10 places important restrictions on powers states might otherwise exercise. The third paragraph of that section in particular commands that:
"no state shall, without the consent of Congress...enter into any agreement or compact with another state."
In other words, states may enter into an "agreement" or a "compact" the other states, but only with the consent of Congress. Some states may find it useful, economically, socially, or otherwise, to make certain agreements with others regarding the use of a common river or mineral rights for adjacent lands, but the requirement that Congress consent to such agreements ensures that they are not designed to injure the common good or the integrity of the Union. Any agreement between individual states must be authorized by a constitutional majority of Americans as represented in Congress.
The first paragraph of Article I, Section 10 is even more prohibitory:
"No state shall enter into any treaty, alliance, or confederation."
Further, Article IV, Section 4 of the Constitution authorizes the national government to:
"guarantee to every state in the union a republican form of government", meaning that the national government has the constitutional power to oppose any monarchial or any other non-republican form of government that one or several of the states might attempt to implement."
Section VIII of Article 1 of the Constitution gives Congress the power to call forth the militia to suppress insurrections.
The President has the legal right to send U.S. troops into battle on his or her own authority by virtue of Article II, Section 2, in the Constitution, which deems the President the Commander-in-chief of the Armed Forces of the United States.
The suspension of the writ of habeas corpus is justified by the Constitution for the United States of America. The United States Constitution says in Article I, Section 9, Clause 2, that the writ of habeas corpus may be suspended in time of a foreign invasion or a domestic rebellion if the public safety requires it.
If the Southern states of the United States of America possessed the legal and constitutional right to secede peacefully, then indeed virtually all of President Lincoln's actions in defense of the United States of America were constitutionally illegitimate. However, secession cannot be squared with either the conditions necessary for constitutional government (free elections, majority rule, government by consent, and equal protection of equal rights) or the textual provisions of the United States Constitution. What some Southerners called "secession" was, in light of the U.S. Constitution and the social contract principles of the American Founding, a rebellion.
If the purpose of secession is to protect a minority from an oppressive majority, then any argument for a state to secede legally and peacefully from the Union must be an argument for counties to secede from states. And any argument for counties to secede from states must be an argument for towns to secede from counties, neighborhoods from towns, families from neighborhoods, and so on. The ultimate and irreducible minority is the individual citizen. Again, if the purpose of secession is to protect a minority against the majority, why may not a individual citizen secede whenever he or she is displeased by the laws or policies under which he or she lives? And after individuals become convinced that they have a legal right to secede, and that each individual has the legal right to reject the outcome of any election with which he or she happens to disagree with, does not civil society under law become impossible?
In principle, secession implies that no law can be truly binding, and that anyone who dislikes a law has the right to declare himself or herself exempt from it's reach. This is why President Lincoln argued in his first inaugural address that "the central idea of secession is the essence of anarchy."
A state of anarchy, or a state of lawlessness is characterized by the rule of might, or brute force. President Lincoln understood clearly that secession represents nothing less then a movement away from civil society back towards the state of nature and anarchy, as well as a movement away from freedom under law toward slavery without law.
Once it is agreed that the states did not possess a legal right of secession, the questions becomes very different: if the states had waged an armed rebellion against the Federal Government, to what extent under the U.S. Constitution, could the Federal Government use it's power to suppress it?
In the case of the American Civil War, the Confederate strategy for victory differed from that of the U.S.A. For the Confederacy, it was mainly a war of attrition. In principle, the C.S.A. did not need to win a single battle to secure victory: it needed only for the U.S. Military to tire and go home.
For the U.S.A., victory, that is, complete suppression of the rebellion, required nothing less then completely vanquishing the hostile rebel forces. How far would the Union go--how far *should* they go--to accomplish this goal?
Many Southerners, those who remained in the South, were numb and incoherent by the war's end in April of 1865, filled with terror, anxiety, hatred, gloom and depression, Yet, as commander in chief, President Lincoln had a duty to ask hard questions of war strategy. What must the Union Army do to win?
Consider also the precedent being set. If a nation of people agrees to settle their political disputes through free elections and ballots, and then some who cannot win decide to resort instead to bullets in order to achieve the results they desire, may a president use bullets to vindicate free elections and ballots?
If a president does not defend the results of a free election, does that not set the precedent that whatever cannot be attained through free elections may be attained by threats and physical violence?
And if that becomes the accepted standard for settling political disputes, why will anyone place any stock in importance or value elections? If physical violence becomes the standard, is it not wiser to invest in bullets and pay no attention to ballots?
It is a hard truth for many modern critics to accept, but in the face of violent rebellion, violent force on the part of the Federal Government may be the necessary response. As President Lincoln's law partner, William Herndon, asked rhetorically, "Does Lincoln suppose he can crush--squelch out this huge rebellion by pop guns filled with rose water?"
President Lincoln argued that secession ultimately represents a rejection of constitutional government and government by free election. He characterized American constitutionalism as that process through which political disputes are decided by ballots instead of bullets.
"Our popular Government has often been called an experiment. Two points in it our people have already settled--the successful establishing and the successful administering of it. One still remains--it's successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets, and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves at succeeding elections. Such will be a great lesson of peace, teaching men that what they cannot take by an election neither can they take it by a war; teaching all the folly of being the beginners of a war." - President Lincoln
President Lincoln here described free government operating by majority rule at the ballot box. But the majority rule presupposes the equal rights of all those who will compose the majority and the minority. The rights of some can never be the legitimate object of political dispute; they cannot be put up for vote in an election because they are the very ground of free elections. Free government results from a voluntary compact between each individual and the whole and between the whole and each individual, and the purpose of government will be to protect the equal rights of all who have agreed to the compact, whether they belong to the majority, or a minority. With the guarantee that their rights will be secure regardless of the outcome of an election, the recourse for a losing minority is the next election in which they can try to become the new majority. But the ones who do not win the election must accept its results for the sake of peace and wait to try again.
The Southern argument for secession was based precisely on a refusal to accept the result of a free, legal, and legitimate election.
Now contested, President Lincoln explained, was "the position that secession is consistent with the Constitution--is lawful, and peaceful." But he quickly showed the injustice of secession as the United States, as one union, had accepted certain debts and responsibilities.
"The nation purchased, with money, the countries out of which several of these States were formed. Is it just that they shall go off without leave, and without refunding? The nation paid very large sums, (in the aggregate, I believe, nearly a hundred millions) to relieve Florida of the aboriginal tribes. Is it just that she shall now be off without consent, or without making any return? The nation is now in debt for money applied to the benefit of these so-called seceding States, in common with the rest. Is it just, either that creditors shall go unpaid, or the remaining States pay the whole? A part of the present national debt was contracted to pay the old debts of Texas. Is it just that she shall leave, and pay no part of this herself?"
President Lincoln also reminded Americas that the presented themselves as union bound together by a government when they sought loans from foreign countries.
"Again, if one State may secede, so may another; and when all shall have seceded, none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours, when we borrowed their money? If we now recognize this doctrine, by allowing the seceders to go in peace, it is difficult to see what we can do, if others choose to go, or to extort terms upon which they will promise to remain."
President Lincoln then inquired about the national constitution the Confederates had already ratified and whether they had incarnated secession as a legal feature of their constitution.
"The seceders insist that our Constitution admits of secession. They have assumed to make a National Constitution of their own, in which, of necessity, they have either discarded, or retained, the right of secession, as they insist, it exists in ours. If they have discarded it, they thereby admit that, on principle, it ought not to be in ours. If they have retained it, by their own construction of ours they show that to be consistent they must secede from one another, whenever they shall find it the easiest way of settling their debts, or effecting any other selfish, or unjust object. The principle itself is one of disintegration, and upon which no government can possibly endure. "
President Lincoln here repeated a prediction that he had offered in his first inaugural address:
"If a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present Union now claim to secede from it?"
When President Lincoln argued in speech, the Confederacy proved in practice. By 1864, leading Georgians, including Confederate vice president Alexander Stephens and Georgia governor Joseph E. Brown, both of whom vehemently opposed conscription, the suspension of habeas corpus, and the general centralization of confederate governmental power, were leading a movement for Georgia to secede from the Confederacy.
Had the C.S.A. endured any longer then it actually did, it is highly likely that the Confederacy would have been dissolved by multiple internal secessions.
In principle, secession stands opposed to the very idea of government A government posses the power to govern, to command, to rule. To say that a state (or any other group) posses the legal right of secession is to say that the government over it is not truly a government, that those who want to secede can ignore it's laws. In principle, the difference between government and secession is truly the difference between government and anarchy, as President Lincoln argues. If secession is right, then government is impossible.
If government is impossible, only anarchy (or despotism) remains. But President Lincoln believed government--good government, at least--was both desirable and possible. And he believed he was conserving the principled arguments of the Founders regarding the ends and means of our government.
I think that the first and most important thing to understand about the American Founders political project is that the United States of America was founded upon an idea. While most countries throughout history trace their origins and their claim to rule to some ethnic or sectarian religious tradition, the American Founders proposed to form a new political society upon an abstract idea: That all humans are born free and equal and that the purpose of any legitimate government is to protect the equal natural rights of all the people who live under it.
But that still leaves an important question: If all humans possess equal rights by nature, what means should be employed to protect those rights? The Founders looked to human nature for an answer. James Madison famously asked in "Federalist 51",
"What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary."
If men were angels, that is, if men were wholly good and wholly reasonable, there would be no need for government because every man would naturally respect the rights of others without government or law.
But men are not angels. In addition to his reason, man possess selfish passions and appetites; sometimes men follow these passions and violate the rights of others. Thus, there is a need for some way to restrain the baser and often destructive elements of human nature. Government meets that need.
The same human nature that indicates the need for government also indicates the need that the government's foundation be legitimate, that is be based on the consent of the governed. Traditionally, most governments in human history have operated without the consent. Pharaohs, kings, and emperors have claimed special dispensation from God that supposedly authorized them to rule over other humans without their sanction. In the United States of America, these traditions were rejected.
From the simple observation that human beings are not angels, it follows that absolute, or unlimited, government is unsuitable for human beings.
The only form of government appropriate for beings of limited wisdom and limited goodness is government of limited power. When governments become too large and too powerful, governments represents a threat to, rather then a protector of, the rights and happiness of the people. This underlies Madison's famous statement in "Federalist 51":
"If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
To limit the powers of the government, the Founders defined and distributed those powers in a written constitution.
The United States Constitution aims to keep the separate powers in separate "hands", making it difficult to combine and exercise political power for tyrannical purposes. Further, the Constitution provides a fairly specific list of what government can and cannot do.
......But one cannot honestly read the United States Constitution and fail to notice it *does* establish a national government, one that is more then a mere confederacy of states.
He was shot from behind by a self-admitted coward. In regards of Maryland -
To remind ourselves of the dangers confronting President Lincoln and the United States Government in early 1861, I would like, if I may please, to recall Mr. Lincoln's trip to Washington D.C., Maryland, prior to his inauguration and the first days of his presidency.
President Lincoln departed from his hometown of Springfield, Illinois, on February 11th, 1861, traveling by train on a meandering route to Washington D.C., Maryland, with multiple stops along the way. At that time, six southern states had already passed ordinances of secession. (Texas would soon become the seventh on February 23), and rumors were spreading that Southern sympathizers might attempt to harm President Lincoln and prevent his inauguration.
When President Lincoln's train stopped in Philadelphia, Pennsylvania, he received credible reports of a plot to assassinate him. This persuaded him to take precautions during the reminder of the trip. Mr. Lincoln arrived in Washington, D.C., safely under the cover of the night, but his troubles only grew worse.
The day after his inauguration on March 4th, he received word from Major Robert Anderson, the commanding officer of the Federal garrison at Fort Sumter located in the harbor of Charleston, South Carolina, that the provisions for troops there would last no more then four weeks. The fort was badly in need of resupply. After agonizing about whether to send provisions, and unaware that Secretary of State, William Seward had already promised emissaries to the Confederacy, without presidential authorization, that the fort be abandoned, President Lincoln finally decided to send supplies by ship. But before they could reach Fort Sumter, early in the morning of April 12th, General P.G.T. Beauregard of the Confederate forces in Charleston, South Carolina opened fire, bombarding the garrison until Anderson surrendered on the morning of April 14th.
President Lincoln had said in his inaugural address that the Federal Government would not assail anyone of the South, stating clearly to the Southerners, "You can have no conflict without being yourselves the aggressors."
With the bombardment of Fort Sumter, the South became the aggressor, and Mr. Lincoln quickly begin to prepare the U.S. Government to defend itself.
President Lincoln called for seventy-five thousand volunteer troops. (Mr. Lincoln's old political nemesis, Mr. Stephen Douglas, spoke with him the night before and supported his decision to raise an army, but Mr. Douglas thought it would be wiser to call for two-hundred thousand volunteer troops.)
Soon, however, President Lincoln learned the extent of Confederate sympathy in places far removed from the Deep South, including Maryland, a slave state that bordered Washington, D.C., to the north. Maryland was critical for moving United States troops from Northern states to Washington, D.C., because the rail lines from New York City, Philadelphia, and Harrisburg went through Baltimore.
When the first numbers of U.S. troops arrived in Baltimore, Maryland on April 18th, 1861, Southern-sympathizing Marylanders stoned and harassed them. The following day, a full-scale riot broke out in the streets of Baltimore, Maryland.
In his book on President Lincoln and civil liberties, the late Chief Justice William Rehnquist describes what happened when the next wave of troops attempted to pass through Baltimore, alarming the administration:
"Four days after Lincoln issued his call for volunteers, a Massachusetts regiment arrived from Philadelphia at Baltimore's President Street Station....The ninth car stopped momentarily, and in a trice all of it's windows were broken by rocks and stones....The mob placed rocks and sand on the horse-car tracks, and the solider's alighted and fell back to the station whence they had come....
[In front of them] was a mob of twenty-thousand Confederate sympathizers. The troops decided to fight their way through on foot, and the mob closed in behind as they marched...Soon the crowd loosed a volley of stones at the soldiers, who finally turned and fired their rifles into the crowd. In the final tally, sixteen people were killed, four soldiers and twelve civilians."
After that, Confederate sympathizers burned railroad bridges leading into Baltimore, effectively cutting off rail transportation into and through the city, and cut the telegraph lines between Baltimore and Washington to prevent further troops from entering the state.
On April 22, 1861, President Lincoln responded to a Baltimore committee that had requested he secure peace in Baltimore by stopping all U.S. troop movement through the city. Mr. Lincoln's frustration is manifested in his language:
"You, gentlemen, come here to me and ask for peace on any terms, and yet have no word of condemnation for those who are making war on us.
You express great horror of bloodshed, and yet would not lay a straw in the way of those who are organizing in Virginia and elsewhere to capture this city.
The rebels attack Fort Sumter, and your citizens attack troops sent to the defense of the Government, and the lives and property in Washington, and yet you would have me break my oath and surrender the Government without a blow.
There is no Washington in that – no Jackson in that – no manhood, nor honor in that. I have no desire to invade the South; but I must have troops to defend this Capital. Geographically it lies surrounded by the soil of Maryland; and mathematically the necessity exists that they should come over her territory.
Our men are not moles, and can't dig under the earth; they are not birds, and can't fly through the air. There is no way but to march across, and that they must do. But in doing this there is no need of collision.
Keep your rowdies in Baltimore, and there will be no bloodshed. Go home and tell your people that if they will not attack us, we will not attack them; but if they do attack us, we will return it, and that severely."
- President Abraham Lincoln
Believing that unless the mob violence in Baltimore was immediately contained, it might become impossible to transport troops to Washington, D.C. President Lincoln finally decided to suspend the writ of habeas corpus allowing rioters and those attacking troops and preventing their safe transportation through the city to be detained without approval from any court or judge.
On April 27, 1861, President Lincoln sent the following to General Winfield Scott, the commanding General of the Army of the United States.
"You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs are authorized to suspend that writ."
Text of Mr. Lincoln's order:
"Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection.
Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.
Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.
In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.
ABRAHAM LINCOLN. By the President.
WILLIAM H. SEWARD, Secretary of State."
President Lincoln offered the first full explanation of his emergency wartime measures and addressed publicly the question of whether he had violated the United States Constitution in his July 4, 1861, message to the United States Congress assembled in special session. The most potent charge against Mr. Lincoln held that he had no authority to suspend the write of habeas corpus and thereby allow the detainment of citizens without benefit of judicial process. The charge stemmed from the assumption that the authority to suspend habeas corpus belonged strictly to the United States Congress because the provision is found in Article I of the United States Constitution, which creates and enumerates the power of the U.S. Congress.
In response President Lincoln noted that "the attention of the country has been called to the proposition that one who is sworn to "take care that the laws he faithfully executed', should not himself violate them." Mr. Lincoln emphasized that the oath he had taken as president required him to ensure that the laws were executed in ALL states, yet they "were being resisted, and failing of execution, in nearly one-third of the States." He then asked -
"Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"
President Lincoln's question reveals the incredible dilemma of his situation as president. If a president faces the choice of violating one law or allowing all the laws of the U.S. Constitution and the constitutional union to go unenforced, what should he do? If he does nothing to resist the rebellion and allows the Union to fall, on the one hand, he fails to execute the laws and violates his oath of office.
On the other hand, if he suspends the writ of habeas corpus in order to detain those actively rebelling against the government or those offering assistance to the rebellion, he then will be accused of usurping constitutional powers assistance to the U.S. Congress, not the president.
President Lincoln believed that the United States Constitution was flexible enough to meet the extraordinary threats to it's own preservation.
In an 1864 letter to Albert Hodges, Mr. Lincoln explained:
"By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation."
In closing -
It is hard to imagine today, but in President Lincoln's time (when the United States government was much smaller and did much less then it does now) an entire session of Congress might last only a few months, or even only a few weeks. The Thirty-seventh Congress, which had been elected in November of 1860, was not slated to convene until more then a year later in December of 1861. With the bombing of Fort Sumter in April of 1861, President Lincoln had little choice but to begin fighting the war without approval from, or consultation with Congress. Exercising his power under Article III, Section 3 of the United States Constitution, he called for Congress to convene in special session scheduled for July 4th, 1861, in order to ask for congressional approval for his emergency actions (which Congress promptly granted) and to request additional funding for the war effort.
Mr. Johnny Reb - All I have read from your side is a bunch of personal opinions, and straw man arguments. However, I consider myself not only a proud Yankee, but also a good dipolmat, so I'd like to share this as well if I may please -
We could choose to re-fight (or continue fighting) our father's battles (or in this case, our grandfathers, great-grandfathers, great-great-grandfathers, and great-great-great grandfathers), but, taken to their logical conclusions, the mode of debate (and then warfare) would only escalate.
This sort of thing is known as the "problem of the fathers" and is something wrestled with by Shakespeare in several plays (notably Hamlet, Romeo and Juliet, and the Henry IV - Henry VI historical plays)... in popular culture, it's the Hatfield-and-McCoy scenario of endless rounds of retaliation. The only way to break the cycle is for first one side, and ultimately both sides, to stand down and swallow a bit of their pride.
I doubt a committed Confederate and a committed Unionist stand any more real chance of convincing the other of the rightness of their cause in 2012 anymore then they did in 1861.
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