Lincoln's Crimes and Constitutional Violations

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.