November 1, 2021 • 35 mins
The Broken Constitution is a miniseries by Unknown History from Quick and Dirty Tips and Pushkin Industries. In this second of three bonus episodes, Noah Feldman explains the decisions Lincoln made when he took office that effectively broke the US Constitution in hopes of preserving the nation.
Noah’s forthcoming book, The Broken Constitution: Lincoln, Slavery, and the Refounding of America, is out November 2.
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Speaker 1 (00:15):
Pushkin. This is The Broken Constitution, a mini series for
unknown history from quick and Dirty tips and deep background
from Pushkin Industries. Over the course of these three episodes,
I'm discussing Abraham Lincoln and how he needed to break
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the American Constitution in order to remake it. It's all
based on my new book, The Broken Constitution, Lincoln, Slavery
and the Refounding of America, out November second. In this episode,
episode two, I'm going to turn to what happened to
Lincoln when he became president and to the moment in
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which he was forced to break the Constitution in order
to begin to think about how to save it. To
do that, I'm going to ask you to transport yourself
to March fourth, eighteen sixty one, the day that Lincoln
was inaugurated. No other president in US history has ever
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faced a crisis even vaguely comparable to the one that
was confronting Lincoln on that date. He had been elected
four months earlier, defeating three rivals in a highly regionalized
race that was and remains the most polarized in US history.
And since he'd been elected, seven states had held special
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secession conventions and announced that they were withdrawing from what
they referred to as the Compact entitled the US Constitution.
In the aftermath, federal officials quit their jobs in all
of those seven states, and the US government ceased to
exist as a practical matter within them, with a minor
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exception of a handful of military bases that still remained
in those states, the most famous of which was Fort Sumter,
a fortification in the harbor of Charleston, South Carolina. And
in the case of that fortification, the state of South
Carolina had made it clear that it was going to
blockade that fort, blocking supplies from coming in, and that
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it was demanding that the President of the United States
removed the soldiers who were there. And the clock was
ticking because the supplies that fed the soldiers at Fort
Sumter were dwindling on a rapid day to day basis.
Faced with this situation, Lincoln had to make a crucial choice.
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We all think we know what that choice was. Lincoln
decided to confront the Confederacy. He sent ships to resupply
the fort. Before they could arrive, Confederate forces fired on
Fort Sumter, and in consequence, we believe we know, the
war began in retrospect, this all seems inevitable to us,
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but a closer examination of Lincoln's constitutional thinking, and indeed
that of everyone in the United States at the time,
reveals that what looks to us as though it was
inevitable was far from it. Remarkably, and mostly forgotten, Lincoln's
predecessor as President, James Buchanan, had already considered what constitutional
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authority the president or Congress had to respond to the
secession of the Southern States, and Buchanan had concluded the
answer was nothing. If that sounds shocking, it is, and
it requires a certain degree of depth to understand it. Essentially,
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Buchanan and his attorney general, a man called Jeremiah Black,
had already concluded that under the Constitution of the United States,
there was no option of secession. It followed, therefore, according
to Black and Buchanan, that if the Southern States chose
to secede, they were not acting lawfully under the Constitution,
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as they insisted, but were in fact engaged in an
act of revolution. But that's where the similarity between Buchanan's
views and those of Lincoln ends, because Buchanan, influenced by
his attorney general, reached the conclusion that nothing in the
Constitution authorized the present of the United States, or indeed
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Congress to go to war to coerce seceding states to
remain in the Union. Why. The simple answer has to
do with the core idea of democratic government in the
United States, going back to the founders, namely the idea
of the consent of the government. According to the basic
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ideas laid out by Thomas Jefferson in the Declaration of Independence,
all men are created equal. They're endowed by their creator
with certain and alienable rights, and if a government chose
to violate those rights, it was up to the people
themselves to make the determination of whether they wished to
make a revolution and withdraw. This was American constitutional orthodoxy,
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as indeed it had to be, because it amounted to
the rationale that Lincoln and the United States had used
to form the country and withdraw from the United Kingdom.
Notice that at the core of this notion is that
a group of human beings have the authority themselves to
give their consent to participate in government, or to withdraw
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that consent. Once that consent was withdrawn. According to that view,
it would be illegitimate for the government that claimed sovereignty
over them to use military force to demand that those
people stay inside of the government. President Buchanan explained all
this to the country and to the world in his
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final State of the Union address, Basing himself on an
official opinion by his Attorney general, he explained that once
secession had occurred, it followed from that that there was
nothing the central government, including the president or even Congress,
could do about it. The most Buchanan was willing to
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concede was that when there were federal officials who were
trying to enforce the law in a place in the
country and were blocked from doing so, the federal government
could send troops to help them do so. But Buchanan
made clear the only way that that was permitted was
if there actually were federal officials civilian officials in those
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states who were trying to enforce the law, and that
was not the case in the seceding states, where all
of the federal officials had already quit and resigned. Thus,
on this very first day in office, Abraham Lincoln had
to begin considering whether he would repudiate the basic theory
of the constitution that had been articulated by his predecessor
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and deploy force to attempt to make the Southern States
re enter the Union. Put another way, Lincoln would have
to break the Constitution as introduced by his predecessor in
order to begin the process of preserving the Constitution. In
his first inaugural address, to which we will return in
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our next episode, episode three, Lincoln began in a tentative
way to lay down his account of why it would
be permissible to force the Southern States back into the Union,
even against their democratically expressed will to do so. Lincoln
first insisted that, in contemplation of universal law and of
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the Constitution, the union of these states is perpetual. Nowhere
in the Constitution did it say explicitly that the union
needed to last forever and could ever be broken, but
Lincoln insisted on it. Nevertheless, the principle would be that
in order to enforce federal law in the seceding states,
he would send troops as needed to force the people
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in those states to administer and obey the laws from
which they had chosen to withdraw. Lincoln introduced a conceptual
argument for why he had to do this that was
entirely his own. He told the Southern states, you have
no oath registered in heaven to destroy the government, while
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I shall have the most solemn one to preserve, protect,
and defend it. Notice that nowhere in this address, or
indeed subsequently, did Lincoln say that the Constitution itself was moral.
As I described in Episode one, Lincoln could not say
that the Constitution was moral, because he knew that it
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was not. The Constitution was a compromise with slave slavery
was immoral. Morality therefore could only come into the picture
as a basis for requiring Lincoln to do what he
had promised. What he had promised to do was to
preserve the Union, and in order to preserve the Union,
he would have to use force against the South. From
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the perspective of the South, war was by no means inevitable.
The Southern states, in fact, hoped precisely to avoid any
conflict with the North. They expected that, as a matter
of constitutional principle, and indeed also as a matter of
practical reality, they would be little that the North could
do to stop their secession. And the Confederacy insisted that
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it was actually obeying the Constitution of the United States
when it's seceded and forming a new constitution. The new
Southern Constitution mimicked in most of its particulars the Northern Constitution.
The one major difference, explained Alexandra Hamilton Stevens, the Vice
President of the Confederacy, had to do with race and slavery.
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All the essentials of the old Constitution have been preserved
and perpetuated, said Stephens. But he said the prevailing idea
of the framers had been that slavery was wrong and
would eventually pass away. That Stephens said was fundamentally wrong.
It rested upon the assumption of the equality of the races.
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Stephens said this was an error. He then explicitly stated
the purpose of the Southern Constitution. Our new government, he said,
is founded upon exactly the opposite idea. Its foundations are laid,
its cornerstone rests upon the great truth that the negro
is not equal to the white man, that slavery, subordination
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to the superior race is his natural and normal condition. This,
our new government, is the first in the history of
the world based upon this great physical, philosophical, and moral truth.
It's worth pausing for a moment to take on board
the enormity of that description of the Southern Constitution by
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the Vice President of the Confederacy, Alexander Hamilton Stevens, was
saying explicitly that the Confederacy's constitution was based fundamentally on
the principle of white supremacy and what he called the
moral idea that slavery was that quote natural and normal
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condition of people of African descent. What's so shocking about this,
stated in retrospect, is that the Confederacy simply made no
bones about the idea that their constitutional commitment, their foundational commitment,
the cornerstone of their entire government, was the perpetuation of
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slavery and its commitment to racial subordination. Now consider Lincoln's
perspective in terms of the question not of what he
was authorized to do, but what he actually practically could
do to force the South to return. What he sought
to do was to provoke a Southern military attack on
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the North so he would be able to say that
the war was started by the South, to call up
tens of thousands of militia in the hopes of creating
conditions that would convince the South that a war was coming,
and simultaneously to try to lure the South back by
telling them that he was still fully prepared to guarantee
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slavery in the Union as provided by the compromised Constitution.
At the same time, Lincoln introduced a crucial argument that
he laid out to the country in a special address
to Congress on July fourth, eighteen sixty one. In that address,
he said that the Southern states were engaged in rebellion,
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they were rebels and their for traders, and it was
therefore justifiable to seek to coerce them back into the Union.
In making this argument, Lincoln was heeding advice that he
had been given by William Seward, his Secretary of State.
Seward told Lincoln, we must change the question before the
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public from one upon slavery or about slavery, for a
question upon union or disunion. Seward was telling Lincoln that
he must define the war not as a war about slavery,
but as a war about disloyalty, rebellion, and disunion. The
reason Seward advised this is that he did not believe
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that public opinion in the North was interested in going
to war over the question of slavery. The emphasis on
disloyalty and disunion was designed to create a politically palatable
rationale for the war that would enable Lincoln to say
that he stood for the remise constitutions still and blamed
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the South for violating the compromise. The point would then
be to force the compromise back on the South. There was, however,
a tricky conceptual problem. The compromise constitution had always been
based on consent. Now Lincoln was arguing the compromise could
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be based on coercion. In order to reach this conclusion,
Lincoln developed a new theory of how the relationship between
the majority and the minority should work in a constitutional democracy. Historically,
the true nature of constitutional arrangements was always and had
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always been, that majorities compromised with minorities by giving the
minorities a good portion of what they wanted, even though
the majority had more people. The reason, if you don't
provise that sort of a compromise to a minority, minority
can always walk away. The minardi's capacity to walk away
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from a constitution, to engage in what today we call
spoiler behavior forces the majority to give the minority more
than it deserves under ordinary principles of majority government. Lincoln
now argued that that arrangement made no sense. He insisted
that minorities could then always exercise coercive power over majorities,
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and that majoritarian government would therefore not be sustainable. In
order to solve that problem, he said, the majority had
to have recourse to a new right that had never
been discussed by the Framers, namely, the right to use
force to compel the minority to stay in the Constitutional order.
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Lincoln had, in other words, imposed on the Constitutional Order
a theory that the Framers themselves had not believed, a
theory that would have been more suit the views of
the British monarchy and of Parliament in seventeen seventy six,
then to the views of the founders of the United
States of America. The upshot of that theory was that
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the president of the United States could go to war
even without waiting for Congress to force the Southern States
to remain, and Lincoln claimed this was somehow under the
authority of the Constitution. Here, Lincoln was breaking the Constitution
as it had been understood by his predecessors, and indeed
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as it had been conceptualized by the Founders and the Framers,
in order to justify his choice to go to war.
What happened next, Well, Remember that Lincoln had only sixteen
thousand troops in the regular US Army. Just to defend
the capital in Washington, d C. He would need at
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least thirty five thousand troops. That meant the only place
Lincoln could get troops was from state militia volunteers who
had to be called up and mustered into service essentially
immediately and transported to Washington, d C. To protect the capital.
If he didn't, the war could be over almost before
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it began. Consequently, on April fifteenth, eighteen sixty one, Lincoln
called up seventy five thousand volunteer militiamen. Massachusetts, which had
been preparing for this moment already, immediately sent eleven companies
of volunteers to go and help defend the city of Washington,
d C. They were sent from Massachusetts with great fanfare.
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As the trains carrying the soldiers came through Springfield, Hartford,
New York, Trenton, and Philadelphia, bells rang bands played, and
supportive onlookers expressed their pride in the troops, and then
they got to Baltimore. To pass through Baltimore in those days,
train cars had to be decoupled at the President Street
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station and then pulled on rails by horses along Pratt
Street and across a bridge to Camden Station, where they
could then be reattached to steam engines and sent further
south to Washington, d C. As the train cars carrying
the Massachusetts volunteers were dragged across town by the horses,
a hostile mob of thousands of people formed to stop them.
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Seven of the companies made it through, but four companies,
consisting of two hundred and twenty men, were stuck at
President Street. The only way they could make it across
town and get into train cars in order to go
down to Washington, d C. Was to march a mile
across town through the mob itself. Under orders from their officers,
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the soldiers began their march with guns drawn. Somebody we
still don't know who fired the first shot, and an
ex change of gunfire occurred between the crowd and the soldiers.
Twelve civilians and four soldiers were killed. It was only
with the intervention of the Baltimore police that the soldiers
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managed to make it to their trains and head for Washington,
d C. These events were little short of disastrous seen
from the standpoint of the Union. In response, Abraham Lincoln
and the Union had no choice they had to hold Baltimore.
Acting on his own initiative, a Lowell, Massachusetts mill owner
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named Benjamin Butler, who had just lobbied to get himself
appointed brigadier general by the state of Massachusetts, decided to
take over Baltimore with the troops that he had an
established military rule there. In both word. Indeed, General Butler
was occupying the city of Baltimore, a city in an
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unceceded state named the mar Maryland, and claiming to exercise
full martial law in the city. Lincoln knew that the
risk of alienating the citizens of Maryland and pushing them
into secession was extraordinarily high. He also knew that there
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was no practical choice but to seek control over Baltimore
if troops were going to be brought to Washington, d c.
And eventually further south. Faced with these circumstances, Lincoln took
an extraordinary and a decisive step. In a letter to
Winfield Scott, he officially authorized the suspension of the writ
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of habeas corpus anywhere in the vicinity of any military
line between Philadelphia and Washington. What was the writ of
habeas corpus and why did its suspension matter? So much
to Lincoln in that moment. The Writ of habeas Corpus
was a legal mechanism embodied in a fund mental right.
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What it said, in essence, was the guarantee that the
government could never detain you and hold you without legal
grounds and without a criminal trial. Suspending the Writ of
habeas corpus therefore had the effect of turning whoever was
running the government into an all powerful ruler who could
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grab up anybody he chose for any purposes without having
to subject that detention or arrest to the rule of law.
You can see, therefore, why the Writ of habeas corpus
was so important to the fundamental structure of the rule
of law and of order. Now, the Constitution of the
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United States did indeed contemplate suspension of the Writ of
habeas corpus in cases of rebellion where it should be necessary.
But and here was the butt upon which an enormous
controversy would turn. The Constitution also made it extremely clear
that it was Congress that it had the authority to
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suspend the Writ of habeas Corpus, not the President. The
suspension of the Writ of habeas Corpus was contained in
the provision of the Constitution in Article one, Section nine,
where all of the powers of Congress are laid out.
The whole of Article one is about the powers of Congress,
and the President doesn't even come into the picture in
the Constitution until Article two. Thus, the Constitution made it
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about as clear as it could have been that in
cases of war or rebellion, it would be Congress's job
to suspend the writ of habeas corpus, and Congress that
would therefore have the capacity to reverse that suspension. It
did not contemplate that the president could do this himself,
nor had any president in US history heretofore ever imagined
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that he had such a right. Lincoln, on the other hand,
suspended the writ of habeas corpus in April eighteen sixty one,
when Congress was not even in session. He was acting unilaterally,
and he was acting in violation of the clear and
obvious meaning of the Constitution. In the weeks and months
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that followed, the fact that Lincoln had broken the Constitution
became evident and absolutely clear. It took place in the
context of an extraordinary, historic confrontation between the President of
the United States and the Chief Justice of the United
States in the case that came to be known as
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Ex Party Merriman. The case got its name from one
John Merriman, who was a Maryland farmer and militiaman who
was deeply sympathetic to the secessionist South. Along with his
militia company, and probably under orders from higher up Maryland officials,
including maybe even the governor of the state, Ariman burned
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a series of railroad bridges, making it even harder for
Union troops to come through Baltimore. In response, at two
in the morning on May twenty fifth, eighteen sixty one,
federal troops seized Merriman at his farm and imprisoned him
at Fort McHenry in Baltimore. The arrest was a military arrest,
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not a civilian arrest. Merriman would not be put on trial,
and he would not be charged with a crime. Instead,
he would be held as long as the government chose
to hold him. Now. Merriman had a lawyer who thought
fast and immediately went to the Chief Justice of the
United States, Roger Tawney, himself a pro Union Maryland man,
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and asked Tawny to issue a writ of habeas corpus
that would require the government to produce the body of
John Merriman, that's what the words habeas corpus mean in
Latin produced the body and by so doing tell the
world that it was not within the authority of the
President of United States or the US military to grab
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up a citizen of the United States living in Maryland,
a state that was part of the Union, and hold
him indefinitely without trial. Tawny responded, the way you would
hope and expect a good judge would. He issued an
order directing the person in charge of Fort McHenry to
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bring the body of John Merriman with him into court
and show cause why it was lawful for him to
be detained. In a dramatic confrontation in the Federal courtroom
in Baltimore, a delegate of the officer in charge of
Fort McHenry appeared and announced that the body of John
Merriman would not be produced. The US military, under the
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authority of the President, was going to defy the authority
of a constitutional judiciary created by Article three of the Constitution,
and was going to claim the authority to suspend habeas corpus.
Tanny understood what he had to do. On June fourth,
eighteen sixty one, he issued a written judgment known as
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X Party Merriman, which explained the legal circumstances in the document.
Tanny explained that the Constitution did not authorize the President
of the United States to suspend the writ of habeas corpus.
It authorized only Congress to do so. He pointed out
that no president had ever claimed such an authority before.
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Tanny went further. He said that no argument could be
drawn from the nature of sovereignty or the necessity of
government for self defense in times of tumult and danger.
The reason that the government could not rely on a
pure argument from necessity, said Tanny, was that the US
Constitution is a government of limited powers. It does not
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confer absolute power or absolute sovereignty on anyone in the system,
not on Congress, not on the president. Sovereignty resides in
the people. By violating the Constitution's conferral of the right
to suspend habeas corpus on Congress, the president was therefore
usurping the power of the people, and doing so was
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fundamentally illegitimate. Tany understood that he was taking an enormous
risk in confronting the President of the United States. It
was rumored at the time that he himself, the Chief
Justice might be arrested for his active resistance. In the
concluding words of his written the judgment, he explained that
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he could not do anything about the suspension of Habeas corpus.
He explained that these great and fundamental laws had been
disregarded and suspended by a military order supported by the
force of arms. All he could do, he said, was
his duty. Tony's message to Lincoln was devastating. Lincoln was
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claiming to be going to war in fulfillment of his
constitutional oath to take care that the laws be faithfully executed.
But by suspending Habeas corpus, Lincoln was doing the opposite
of taking care that the laws be faithfully executed. To
the contrary, Lincoln was violating that very oath of office.
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Lincoln could not take this argument lying down, and on
July fourth, eighteen sixty one, in his address to Congress,
he offered a series of attempted justifications for why the
suspension of Habeas corpus was legitimate. If you want a
close analysis of what he argued, I hope you'll look
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at the book itself. I'll tell you now that the
essence of his argument was that in practice, he had
no choice but to suspend Habeas Corpus because Congress was
not in session, and if he did not suspend this law,
all the other laws were going to be unenforced. This
came very, very close to an explicit argument that it
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was within his own power to break the Constitution in
order to save the Constitution. Ultimately, he was saying the
ends justified the means. What history has forgotten to a
remarkable degree is what Lincoln then did when Congress refused
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ultimately to suspend Habeas corpus itself. The short answer is
that over the next two and a half years, in
the time until Congress ultimately authorized suspension and continued his policies,
Lincoln allowed the military to shut down newspapers all over
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the country that were critical of his war policies. He
authorized the arrest and detention of thousands and thousands of
critics of the war. It's hard to know with certainty
exactly how many people were arrested and detained because records
were not systematically kept, but the best estimate suggests that
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at least fourteen thousand, four hundred and conceivably as many
as thirty eight thousand people were arrested and held without
trial in the United States over the course of the
Civil War, hundreds of newspapers were shut down. At no
other time in the history of the United States as
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any president suppressed the freedom of expression anything like as
unilaterally or in anything as extreme a way as Lincoln
did over the course of the Civil War. Seen in
the terms of our contemporary world, Lincoln effectively suspended the
First Amendment for most of the direction of the Civil War.
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Criticism of his war policies was tolerated only at the margins,
and essentially not tolerated at all if anyone argued that
the United States should make peace with the Southern States
and let them depart in the Broken Constitution. I lay
out in a lot of detail the reasons to understand
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that Lincoln himself was directly involved here, but I also
discuss a more philosophical question, namely, was Lincoln a dictator
during the period of time in which he unilaterally suspended
habeas corpus and suspended the freedom of speech. The short
answer is that Lincoln did function as a dictator of
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some kind. He was what is sometimes called a constitutional dictator,
someone who claims to be fulfilling of the Constitution, not
as it then exists, but as it would soon be
embraced by the population to be. In order to justify
his actions by developing his theory of necessity and his
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view that he had no choice but to suspend habeas
corpus and ultimately to suspend free speech and the free press,
Lincoln was gambling that history would eventually say that what
he did was justified. Remarkably enough, history has not reached
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that conclusion. Today, Lincoln's suspension of free speech is largely
ignored rather than celebrated. No subsequent president has undertaken similar action,
and indeed, the Supreme Court of the United States after
the Civil War, in a case called X Party Milligan,
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rejected the idea that it was permissible for the government
of United States to hold civilians by military detention without
trial without the writ of habeas corpus in any place
where the courts of the United States were open and functioning,
as they were throughout the Union throughout the period of
the Civil War. This principle, which is still good law
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under the Constitution of the United States, as interpreted by
the Supreme Court, amounted to a genuine repudiation of Lincoln's
constitutional theories. Although Lincoln's decision to break the Constitution as
it was then understood by going to war has been
validated by history. Lincoln's decision to suspend habeas corpus in
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the North and his decision to suspend their freedom of
speech are not part of our constitutional order today. In
the third and final episode of this podcast, which you'll
have a chance to hear next week, I will turn
to Lincoln's most famous violation of the Constitution as it
was then understood, namely the emancipation of the laved people
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of the South. And that act of emancipation, I will
show was the violation of the Constitution, the breaking of
the Constitution that was profoundly validated by history, that vindicated
Lincoln's actions more generally, and the transformed not only the
meaning of the war, but the future of the Constitution
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of the United States. To hear more about that, listen
to the next episode of this podcast, The Broken Constitution,
coming to you in one week. If you can't wait,
you can listen to the next episode a few days
early on the Unknown History podcast from Quick and Dirty Tips.
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Find it in the show notes or your favorite podcast app,
and go ahead and pre order or by The Broken
Constitution from your favorite local bookstore. It's out on November second.
The Broken Constitution was produced by Nathan SAMs and Quick
and Dirty Tips, a proud part of McMillan publisher's home
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of Farrar, Straus and Jeru, who are publishing my book
Pushkin. This is The Broken Constitution, a mini series for
unknown history from quick and Dirty tips and deep background
from Pushkin Industries. Over the course of these three episodes,
I'm discussing Abraham Lincoln and how he needed to break
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the American Constitution in order to remake it. It's all
based on my new book, The Broken Constitution, Lincoln, Slavery
and the Refounding of America, out November second. In this episode,
episode two, I'm going to turn to what happened to
Lincoln when he became president and to the moment in
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which he was forced to break the Constitution in order
to begin to think about how to save it. To
do that, I'm going to ask you to transport yourself
to March fourth, eighteen sixty one, the day that Lincoln
was inaugurated. No other president in US history has ever
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faced a crisis even vaguely comparable to the one that
was confronting Lincoln on that date. He had been elected
four months earlier, defeating three rivals in a highly regionalized
race that was and remains the most polarized in US history.
And since he'd been elected, seven states had held special
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secession conventions and announced that they were withdrawing from what
they referred to as the Compact entitled the US Constitution.
In the aftermath, federal officials quit their jobs in all
of those seven states, and the US government ceased to
exist as a practical matter within them, with a minor
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exception of a handful of military bases that still remained
in those states, the most famous of which was Fort Sumter,
a fortification in the harbor of Charleston, South Carolina. And
in the case of that fortification, the state of South
Carolina had made it clear that it was going to
blockade that fort, blocking supplies from coming in, and that
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it was demanding that the President of the United States
removed the soldiers who were there. And the clock was
ticking because the supplies that fed the soldiers at Fort
Sumter were dwindling on a rapid day to day basis.
Faced with this situation, Lincoln had to make a crucial choice.
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We all think we know what that choice was. Lincoln
decided to confront the Confederacy. He sent ships to resupply
the fort. Before they could arrive, Confederate forces fired on
Fort Sumter, and in consequence, we believe we know, the
war began in retrospect, this all seems inevitable to us,
(03:12):
but a closer examination of Lincoln's constitutional thinking, and indeed
that of everyone in the United States at the time,
reveals that what looks to us as though it was
inevitable was far from it. Remarkably, and mostly forgotten, Lincoln's
predecessor as President, James Buchanan, had already considered what constitutional
(03:36):
authority the president or Congress had to respond to the
secession of the Southern States, and Buchanan had concluded the
answer was nothing. If that sounds shocking, it is, and
it requires a certain degree of depth to understand it. Essentially,
(03:56):
Buchanan and his attorney general, a man called Jeremiah Black,
had already concluded that under the Constitution of the United States,
there was no option of secession. It followed, therefore, according
to Black and Buchanan, that if the Southern States chose
to secede, they were not acting lawfully under the Constitution,
(04:17):
as they insisted, but were in fact engaged in an
act of revolution. But that's where the similarity between Buchanan's
views and those of Lincoln ends, because Buchanan, influenced by
his attorney general, reached the conclusion that nothing in the
Constitution authorized the present of the United States, or indeed
(04:40):
Congress to go to war to coerce seceding states to
remain in the Union. Why. The simple answer has to
do with the core idea of democratic government in the
United States, going back to the founders, namely the idea
of the consent of the government. According to the basic
(05:02):
ideas laid out by Thomas Jefferson in the Declaration of Independence,
all men are created equal. They're endowed by their creator
with certain and alienable rights, and if a government chose
to violate those rights, it was up to the people
themselves to make the determination of whether they wished to
make a revolution and withdraw. This was American constitutional orthodoxy,
(05:26):
as indeed it had to be, because it amounted to
the rationale that Lincoln and the United States had used
to form the country and withdraw from the United Kingdom.
Notice that at the core of this notion is that
a group of human beings have the authority themselves to
give their consent to participate in government, or to withdraw
(05:48):
that consent. Once that consent was withdrawn. According to that view,
it would be illegitimate for the government that claimed sovereignty
over them to use military force to demand that those
people stay inside of the government. President Buchanan explained all
this to the country and to the world in his
(06:09):
final State of the Union address, Basing himself on an
official opinion by his Attorney general, he explained that once
secession had occurred, it followed from that that there was
nothing the central government, including the president or even Congress,
could do about it. The most Buchanan was willing to
(06:29):
concede was that when there were federal officials who were
trying to enforce the law in a place in the
country and were blocked from doing so, the federal government
could send troops to help them do so. But Buchanan
made clear the only way that that was permitted was
if there actually were federal officials civilian officials in those
(06:49):
states who were trying to enforce the law, and that
was not the case in the seceding states, where all
of the federal officials had already quit and resigned. Thus,
on this very first day in office, Abraham Lincoln had
to begin considering whether he would repudiate the basic theory
of the constitution that had been articulated by his predecessor
(07:13):
and deploy force to attempt to make the Southern States
re enter the Union. Put another way, Lincoln would have
to break the Constitution as introduced by his predecessor in
order to begin the process of preserving the Constitution. In
his first inaugural address, to which we will return in
(07:36):
our next episode, episode three, Lincoln began in a tentative
way to lay down his account of why it would
be permissible to force the Southern States back into the Union,
even against their democratically expressed will to do so. Lincoln
first insisted that, in contemplation of universal law and of
(07:59):
the Constitution, the union of these states is perpetual. Nowhere
in the Constitution did it say explicitly that the union
needed to last forever and could ever be broken, but
Lincoln insisted on it. Nevertheless, the principle would be that
in order to enforce federal law in the seceding states,
he would send troops as needed to force the people
(08:22):
in those states to administer and obey the laws from
which they had chosen to withdraw. Lincoln introduced a conceptual
argument for why he had to do this that was
entirely his own. He told the Southern states, you have
no oath registered in heaven to destroy the government, while
(08:45):
I shall have the most solemn one to preserve, protect,
and defend it. Notice that nowhere in this address, or
indeed subsequently, did Lincoln say that the Constitution itself was moral.
As I described in Episode one, Lincoln could not say
that the Constitution was moral, because he knew that it
(09:05):
was not. The Constitution was a compromise with slave slavery
was immoral. Morality therefore could only come into the picture
as a basis for requiring Lincoln to do what he
had promised. What he had promised to do was to
preserve the Union, and in order to preserve the Union,
he would have to use force against the South. From
(09:30):
the perspective of the South, war was by no means inevitable.
The Southern states, in fact, hoped precisely to avoid any
conflict with the North. They expected that, as a matter
of constitutional principle, and indeed also as a matter of
practical reality, they would be little that the North could
do to stop their secession. And the Confederacy insisted that
(09:53):
it was actually obeying the Constitution of the United States
when it's seceded and forming a new constitution. The new
Southern Constitution mimicked in most of its particulars the Northern Constitution.
The one major difference, explained Alexandra Hamilton Stevens, the Vice
President of the Confederacy, had to do with race and slavery.
(10:15):
All the essentials of the old Constitution have been preserved
and perpetuated, said Stephens. But he said the prevailing idea
of the framers had been that slavery was wrong and
would eventually pass away. That Stephens said was fundamentally wrong.
It rested upon the assumption of the equality of the races.
(10:37):
Stephens said this was an error. He then explicitly stated
the purpose of the Southern Constitution. Our new government, he said,
is founded upon exactly the opposite idea. Its foundations are laid,
its cornerstone rests upon the great truth that the negro
is not equal to the white man, that slavery, subordination
(11:00):
to the superior race is his natural and normal condition. This,
our new government, is the first in the history of
the world based upon this great physical, philosophical, and moral truth.
It's worth pausing for a moment to take on board
the enormity of that description of the Southern Constitution by
(11:21):
the Vice President of the Confederacy, Alexander Hamilton Stevens, was
saying explicitly that the Confederacy's constitution was based fundamentally on
the principle of white supremacy and what he called the
moral idea that slavery was that quote natural and normal
(11:42):
condition of people of African descent. What's so shocking about this,
stated in retrospect, is that the Confederacy simply made no
bones about the idea that their constitutional commitment, their foundational commitment,
the cornerstone of their entire government, was the perpetuation of
(12:03):
slavery and its commitment to racial subordination. Now consider Lincoln's
perspective in terms of the question not of what he
was authorized to do, but what he actually practically could
do to force the South to return. What he sought
to do was to provoke a Southern military attack on
(12:23):
the North so he would be able to say that
the war was started by the South, to call up
tens of thousands of militia in the hopes of creating
conditions that would convince the South that a war was coming,
and simultaneously to try to lure the South back by
telling them that he was still fully prepared to guarantee
(12:44):
slavery in the Union as provided by the compromised Constitution.
At the same time, Lincoln introduced a crucial argument that
he laid out to the country in a special address
to Congress on July fourth, eighteen sixty one. In that address,
he said that the Southern states were engaged in rebellion,
(13:07):
they were rebels and their for traders, and it was
therefore justifiable to seek to coerce them back into the Union.
In making this argument, Lincoln was heeding advice that he
had been given by William Seward, his Secretary of State.
Seward told Lincoln, we must change the question before the
(13:28):
public from one upon slavery or about slavery, for a
question upon union or disunion. Seward was telling Lincoln that
he must define the war not as a war about slavery,
but as a war about disloyalty, rebellion, and disunion. The
reason Seward advised this is that he did not believe
(13:51):
that public opinion in the North was interested in going
to war over the question of slavery. The emphasis on
disloyalty and disunion was designed to create a politically palatable
rationale for the war that would enable Lincoln to say
that he stood for the remise constitutions still and blamed
(14:11):
the South for violating the compromise. The point would then
be to force the compromise back on the South. There was, however,
a tricky conceptual problem. The compromise constitution had always been
based on consent. Now Lincoln was arguing the compromise could
(14:32):
be based on coercion. In order to reach this conclusion,
Lincoln developed a new theory of how the relationship between
the majority and the minority should work in a constitutional democracy. Historically,
the true nature of constitutional arrangements was always and had
(14:52):
always been, that majorities compromised with minorities by giving the
minorities a good portion of what they wanted, even though
the majority had more people. The reason, if you don't
provise that sort of a compromise to a minority, minority
can always walk away. The minardi's capacity to walk away
(15:13):
from a constitution, to engage in what today we call
spoiler behavior forces the majority to give the minority more
than it deserves under ordinary principles of majority government. Lincoln
now argued that that arrangement made no sense. He insisted
that minorities could then always exercise coercive power over majorities,
(15:36):
and that majoritarian government would therefore not be sustainable. In
order to solve that problem, he said, the majority had
to have recourse to a new right that had never
been discussed by the Framers, namely, the right to use
force to compel the minority to stay in the Constitutional order.
(15:58):
Lincoln had, in other words, imposed on the Constitutional Order
a theory that the Framers themselves had not believed, a
theory that would have been more suit the views of
the British monarchy and of Parliament in seventeen seventy six,
then to the views of the founders of the United
States of America. The upshot of that theory was that
(16:21):
the president of the United States could go to war
even without waiting for Congress to force the Southern States
to remain, and Lincoln claimed this was somehow under the
authority of the Constitution. Here, Lincoln was breaking the Constitution
as it had been understood by his predecessors, and indeed
(16:42):
as it had been conceptualized by the Founders and the Framers,
in order to justify his choice to go to war.
What happened next, Well, Remember that Lincoln had only sixteen
thousand troops in the regular US Army. Just to defend
the capital in Washington, d C. He would need at
(17:04):
least thirty five thousand troops. That meant the only place
Lincoln could get troops was from state militia volunteers who
had to be called up and mustered into service essentially
immediately and transported to Washington, d C. To protect the capital.
If he didn't, the war could be over almost before
(17:25):
it began. Consequently, on April fifteenth, eighteen sixty one, Lincoln
called up seventy five thousand volunteer militiamen. Massachusetts, which had
been preparing for this moment already, immediately sent eleven companies
of volunteers to go and help defend the city of Washington,
d C. They were sent from Massachusetts with great fanfare.
(17:49):
As the trains carrying the soldiers came through Springfield, Hartford,
New York, Trenton, and Philadelphia, bells rang bands played, and
supportive onlookers expressed their pride in the troops, and then
they got to Baltimore. To pass through Baltimore in those days,
train cars had to be decoupled at the President Street
(18:12):
station and then pulled on rails by horses along Pratt
Street and across a bridge to Camden Station, where they
could then be reattached to steam engines and sent further
south to Washington, d C. As the train cars carrying
the Massachusetts volunteers were dragged across town by the horses,
a hostile mob of thousands of people formed to stop them.
(18:38):
Seven of the companies made it through, but four companies,
consisting of two hundred and twenty men, were stuck at
President Street. The only way they could make it across
town and get into train cars in order to go
down to Washington, d C. Was to march a mile
across town through the mob itself. Under orders from their officers,
(19:00):
the soldiers began their march with guns drawn. Somebody we
still don't know who fired the first shot, and an
ex change of gunfire occurred between the crowd and the soldiers.
Twelve civilians and four soldiers were killed. It was only
with the intervention of the Baltimore police that the soldiers
(19:22):
managed to make it to their trains and head for Washington,
d C. These events were little short of disastrous seen
from the standpoint of the Union. In response, Abraham Lincoln
and the Union had no choice they had to hold Baltimore.
Acting on his own initiative, a Lowell, Massachusetts mill owner
(19:44):
named Benjamin Butler, who had just lobbied to get himself
appointed brigadier general by the state of Massachusetts, decided to
take over Baltimore with the troops that he had an
established military rule there. In both word. Indeed, General Butler
was occupying the city of Baltimore, a city in an
(20:07):
unceceded state named the mar Maryland, and claiming to exercise
full martial law in the city. Lincoln knew that the
risk of alienating the citizens of Maryland and pushing them
into secession was extraordinarily high. He also knew that there
(20:27):
was no practical choice but to seek control over Baltimore
if troops were going to be brought to Washington, d c.
And eventually further south. Faced with these circumstances, Lincoln took
an extraordinary and a decisive step. In a letter to
Winfield Scott, he officially authorized the suspension of the writ
(20:48):
of habeas corpus anywhere in the vicinity of any military
line between Philadelphia and Washington. What was the writ of
habeas corpus and why did its suspension matter? So much
to Lincoln in that moment. The Writ of habeas Corpus
was a legal mechanism embodied in a fund mental right.
(21:10):
What it said, in essence, was the guarantee that the
government could never detain you and hold you without legal
grounds and without a criminal trial. Suspending the Writ of
habeas corpus therefore had the effect of turning whoever was
running the government into an all powerful ruler who could
(21:32):
grab up anybody he chose for any purposes without having
to subject that detention or arrest to the rule of law.
You can see, therefore, why the Writ of habeas corpus
was so important to the fundamental structure of the rule
of law and of order. Now, the Constitution of the
(21:53):
United States did indeed contemplate suspension of the Writ of
habeas corpus in cases of rebellion where it should be necessary.
But and here was the butt upon which an enormous
controversy would turn. The Constitution also made it extremely clear
that it was Congress that it had the authority to
(22:14):
suspend the Writ of habeas Corpus, not the President. The
suspension of the Writ of habeas Corpus was contained in
the provision of the Constitution in Article one, Section nine,
where all of the powers of Congress are laid out.
The whole of Article one is about the powers of Congress,
and the President doesn't even come into the picture in
the Constitution until Article two. Thus, the Constitution made it
(22:39):
about as clear as it could have been that in
cases of war or rebellion, it would be Congress's job
to suspend the writ of habeas corpus, and Congress that
would therefore have the capacity to reverse that suspension. It
did not contemplate that the president could do this himself,
nor had any president in US history heretofore ever imagined
(23:01):
that he had such a right. Lincoln, on the other hand,
suspended the writ of habeas corpus in April eighteen sixty one,
when Congress was not even in session. He was acting unilaterally,
and he was acting in violation of the clear and
obvious meaning of the Constitution. In the weeks and months
(23:24):
that followed, the fact that Lincoln had broken the Constitution
became evident and absolutely clear. It took place in the
context of an extraordinary, historic confrontation between the President of
the United States and the Chief Justice of the United
States in the case that came to be known as
(23:46):
Ex Party Merriman. The case got its name from one
John Merriman, who was a Maryland farmer and militiaman who
was deeply sympathetic to the secessionist South. Along with his
militia company, and probably under orders from higher up Maryland officials,
including maybe even the governor of the state, Ariman burned
(24:10):
a series of railroad bridges, making it even harder for
Union troops to come through Baltimore. In response, at two
in the morning on May twenty fifth, eighteen sixty one,
federal troops seized Merriman at his farm and imprisoned him
at Fort McHenry in Baltimore. The arrest was a military arrest,
(24:31):
not a civilian arrest. Merriman would not be put on trial,
and he would not be charged with a crime. Instead,
he would be held as long as the government chose
to hold him. Now. Merriman had a lawyer who thought
fast and immediately went to the Chief Justice of the
United States, Roger Tawney, himself a pro Union Maryland man,
(24:55):
and asked Tawny to issue a writ of habeas corpus
that would require the government to produce the body of
John Merriman, that's what the words habeas corpus mean in
Latin produced the body and by so doing tell the
world that it was not within the authority of the
President of United States or the US military to grab
(25:16):
up a citizen of the United States living in Maryland,
a state that was part of the Union, and hold
him indefinitely without trial. Tawny responded, the way you would
hope and expect a good judge would. He issued an
order directing the person in charge of Fort McHenry to
(25:39):
bring the body of John Merriman with him into court
and show cause why it was lawful for him to
be detained. In a dramatic confrontation in the Federal courtroom
in Baltimore, a delegate of the officer in charge of
Fort McHenry appeared and announced that the body of John
Merriman would not be produced. The US military, under the
(26:03):
authority of the President, was going to defy the authority
of a constitutional judiciary created by Article three of the Constitution,
and was going to claim the authority to suspend habeas corpus.
Tanny understood what he had to do. On June fourth,
eighteen sixty one, he issued a written judgment known as
(26:26):
X Party Merriman, which explained the legal circumstances in the document.
Tanny explained that the Constitution did not authorize the President
of the United States to suspend the writ of habeas corpus.
It authorized only Congress to do so. He pointed out
that no president had ever claimed such an authority before.
(26:47):
Tanny went further. He said that no argument could be
drawn from the nature of sovereignty or the necessity of
government for self defense in times of tumult and danger.
The reason that the government could not rely on a
pure argument from necessity, said Tanny, was that the US
Constitution is a government of limited powers. It does not
(27:10):
confer absolute power or absolute sovereignty on anyone in the system,
not on Congress, not on the president. Sovereignty resides in
the people. By violating the Constitution's conferral of the right
to suspend habeas corpus on Congress, the president was therefore
usurping the power of the people, and doing so was
(27:32):
fundamentally illegitimate. Tany understood that he was taking an enormous
risk in confronting the President of the United States. It
was rumored at the time that he himself, the Chief
Justice might be arrested for his active resistance. In the
concluding words of his written the judgment, he explained that
(27:53):
he could not do anything about the suspension of Habeas corpus.
He explained that these great and fundamental laws had been
disregarded and suspended by a military order supported by the
force of arms. All he could do, he said, was
his duty. Tony's message to Lincoln was devastating. Lincoln was
(28:15):
claiming to be going to war in fulfillment of his
constitutional oath to take care that the laws be faithfully executed.
But by suspending Habeas corpus, Lincoln was doing the opposite
of taking care that the laws be faithfully executed. To
the contrary, Lincoln was violating that very oath of office.
(28:38):
Lincoln could not take this argument lying down, and on
July fourth, eighteen sixty one, in his address to Congress,
he offered a series of attempted justifications for why the
suspension of Habeas corpus was legitimate. If you want a
close analysis of what he argued, I hope you'll look
(29:00):
at the book itself. I'll tell you now that the
essence of his argument was that in practice, he had
no choice but to suspend Habeas Corpus because Congress was
not in session, and if he did not suspend this law,
all the other laws were going to be unenforced. This
came very, very close to an explicit argument that it
(29:23):
was within his own power to break the Constitution in
order to save the Constitution. Ultimately, he was saying the
ends justified the means. What history has forgotten to a
remarkable degree is what Lincoln then did when Congress refused
(29:44):
ultimately to suspend Habeas corpus itself. The short answer is
that over the next two and a half years, in
the time until Congress ultimately authorized suspension and continued his policies,
Lincoln allowed the military to shut down newspapers all over
(30:04):
the country that were critical of his war policies. He
authorized the arrest and detention of thousands and thousands of
critics of the war. It's hard to know with certainty
exactly how many people were arrested and detained because records
were not systematically kept, but the best estimate suggests that
(30:27):
at least fourteen thousand, four hundred and conceivably as many
as thirty eight thousand people were arrested and held without
trial in the United States over the course of the
Civil War, hundreds of newspapers were shut down. At no
other time in the history of the United States as
(30:48):
any president suppressed the freedom of expression anything like as
unilaterally or in anything as extreme a way as Lincoln
did over the course of the Civil War. Seen in
the terms of our contemporary world, Lincoln effectively suspended the
First Amendment for most of the direction of the Civil War.
(31:12):
Criticism of his war policies was tolerated only at the margins,
and essentially not tolerated at all if anyone argued that
the United States should make peace with the Southern States
and let them depart in the Broken Constitution. I lay
out in a lot of detail the reasons to understand
(31:33):
that Lincoln himself was directly involved here, but I also
discuss a more philosophical question, namely, was Lincoln a dictator
during the period of time in which he unilaterally suspended
habeas corpus and suspended the freedom of speech. The short
answer is that Lincoln did function as a dictator of
(31:54):
some kind. He was what is sometimes called a constitutional dictator,
someone who claims to be fulfilling of the Constitution, not
as it then exists, but as it would soon be
embraced by the population to be. In order to justify
his actions by developing his theory of necessity and his
(32:18):
view that he had no choice but to suspend habeas
corpus and ultimately to suspend free speech and the free press,
Lincoln was gambling that history would eventually say that what
he did was justified. Remarkably enough, history has not reached
(32:38):
that conclusion. Today, Lincoln's suspension of free speech is largely
ignored rather than celebrated. No subsequent president has undertaken similar action,
and indeed, the Supreme Court of the United States after
the Civil War, in a case called X Party Milligan,
(33:00):
rejected the idea that it was permissible for the government
of United States to hold civilians by military detention without
trial without the writ of habeas corpus in any place
where the courts of the United States were open and functioning,
as they were throughout the Union throughout the period of
the Civil War. This principle, which is still good law
(33:24):
under the Constitution of the United States, as interpreted by
the Supreme Court, amounted to a genuine repudiation of Lincoln's
constitutional theories. Although Lincoln's decision to break the Constitution as
it was then understood by going to war has been
validated by history. Lincoln's decision to suspend habeas corpus in
(33:44):
the North and his decision to suspend their freedom of
speech are not part of our constitutional order today. In
the third and final episode of this podcast, which you'll
have a chance to hear next week, I will turn
to Lincoln's most famous violation of the Constitution as it
was then understood, namely the emancipation of the laved people
(34:10):
of the South. And that act of emancipation, I will
show was the violation of the Constitution, the breaking of
the Constitution that was profoundly validated by history, that vindicated
Lincoln's actions more generally, and the transformed not only the
meaning of the war, but the future of the Constitution
(34:33):
of the United States. To hear more about that, listen
to the next episode of this podcast, The Broken Constitution,
coming to you in one week. If you can't wait,
you can listen to the next episode a few days
early on the Unknown History podcast from Quick and Dirty Tips.
(34:57):
Find it in the show notes or your favorite podcast app,
and go ahead and pre order or by The Broken
Constitution from your favorite local bookstore. It's out on November second.
The Broken Constitution was produced by Nathan SAMs and Quick
and Dirty Tips, a proud part of McMillan publisher's home
(35:19):
of Farrar, Straus and Jeru, who are publishing my book
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