The Constitution of the United States divides the authority to conduct war between the Congress in Article I and the Executive in Article II. In Article I has the powers granted to Congress carefully delineated. In Section 8, .11, Congress is granted the power to declare war. In Section 8,12 Congress is granted the power to raise and support armies provided that no grant of appropriations exceeds two years. Section 8 follows with granting Congress the power to raise and maintain a navy (.13), “To make rules for the government and government of the land and naval forces;” (.14), “To provide for calling forth the militia to execute the laws of the Un ion; to suppress insurrections and repel invasions;”(.15) and “To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority for training the militia according to the discipline described by Congress; (.16). Article I appears to give Congress only, the power to declare war, raise, regulate and support armies, a navy and militias called to enforce the laws of the Union and suppress rebellion. Congress has the power to decide what chess pieces to place on the Board and where to place them but not the power to move them. Article I states that Congress can suspend the writ of habeas corpus. In Section Nine the Constitution reads,” The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Article II of the Constitution grants the Executive command of the armed forces. “Military Powers. The President shall be the commander-in chief of the Army and Navy of the United States, and of the militias of the several states, when called into the actual service of the United States;” It is clear that the President shall command but the extent of his or her command is not clear. The President’s authority extends to all matters military but there is little explanation as to what is considered the boundary between military and civilian affairs. Abuse of the military powers by the executive would be subject to impeachment by the Congress. There is a tension between Congressional funding of a war and Presidential conducting of a war that is prescribed by the Constitution. President Lincoln used Section 3 of Article Two to justify his exercise of executive authority using the phrase, “he shall take care that the laws be faithfully executed.”
During the 1850s, events occurred in that were the markers as America drifted towards its own Armageddon. States rights, sectional differences and the expansion or restriction of slavery were the issues that framed the political and social discourse of that time. When Congress accepted California as a free state in 1850 in exchange for a national fugitive slave law the balance between the slave and free states was lost. Florida and Texas were the last two slave states added to the Union in 1845. The admission of Iowa in 1846 and Wisconsin in 1848 restored the balance in the Senate before the admission of California shattered the carefully preserved illusion of equity. For most of the 1850s the margin was a thin one but with the addition of Minnesota in 1858 and Oregon in 1859 any Southern hope of return to equity between slave and free states was lost. The election of the Republican and free soil candidate in the election of 1860 without the support of any state in the southern United States signaled to the South that the possibility of its future retention of national political power was waning.
Lincoln was elected with the commitment to limit any further spread of slavery. If South Carolina had decided to remain in the Union Lincoln may have been forced to accept that self imposed limitation. The secession of eleven of the fifteen slave states in 1861 hastened Lincoln’s move towards emancipation. By placing themselves as enemies of the United States, the Confederate States they exposed the economic vulnerability that was so powerfully linked to the institution of slavery. Without the economic power of King Cotton the Southern economy was not independently sustainable.
All of the above factors hastened the war and secession but it was the reality of armed insurrection that confronted the new President. He faced a rebellion of states that were located very near to the capital of Washington DC and a border state in Maryland that had so many active supporters of Southern independence that he feared that the capital could be cut off from the rest of the Union. Lincoln had a very small regular army at the onset of the war. With practically no military forces the new Commander in Chief faced Robert E. Lee and the Army of Northern Virginia, countless agitators and guerrillas in the border states (all slave holding states) of Delaware, Kentucky, Maryland and Missouri, and a hostile new enemy in the collective might of the Confederate States of America. Lincoln saw the Confederates as insurrectionists against the Union while the Confederacy regarded itself as a new and sovereign country; separate and distinct from the Union its states were once a part of.
Lincoln immediately moved to raise an army. He called for 75,000 volunteers without any authorization from Congress. He ordered the Navy to begin a blockade of all Southern ports and there had not been any declaration of war. He asked the states to raise their own militias to contribute to the armed forces of the United States. He did all of this while delaying calling Congress back into session until July 4
. The country was angry and anxious to face the threat from the Confederates and Congress was not ready to confront Lincoln on the suitability from a Constitutional perspective of these aggressive moves. It was here, at the very beginning of the war where Abraham Lincoln established his own precedent for later actions that were taken by him without clear Constitutional authority. Lincoln was the Commander in Chief and he was empowered to name his generals and direct them in the conduct of the war with the Southern states in the Confederacy. It was not apparent to the general population that Lincoln was readily assuming other authority that had been vested in the Congress by the Constitution.
Lincoln was very concerned that the border-states would slip away from the Union too. Their importance to both sides, but particularly to the Confederacy, was clear. In the book,
Battle Cry of Freedom
, James McPherson says this about the border states of Missouri, Kentucky and Maryland. “The three states would have added 45% to the white population and military manpower of the Confederacy, 80% to its manufacturing capacity, and nearly 40% to its supply of horses and mules.”(1) Maryland was the first place where Lincoln suspended the writ of habeas corpus. The authorities detained a Southern sympathizer named, Merryman. Merryman sued and the United States Supreme Court under Chief Justice Roger Taney agreed with his suit that Lincoln did not have the authority to suspend habeas corpus. In the Constitution, Article I, habeas corpus is not to be suspended by Congress unless the public safety is threatened by rebellion or invasion. The only mention of habeas corpus is in Article I in the injunction for Congress not to suspend the privilege except in the above two circumstances, there is no mention of habeas corpus in the description of Presidential powers in Article II. Regardless, Lincoln felt compelled to exercise the authority to suspend the writ of Habeas Corpus and he acknowledged to Congress later that he might have been on shaky Constitutional grounds in doing just that. Eventually, the United States Congress granted Lincoln the power to suspend the writ of habeas Corpus during the war going forward and retroactively back to the beginning of the war. His argument was basically that abusing this one provision of the Constitution was worth it if the Union’s very existence was at stake. Lincoln’s view was that the protections traditionally granted to all citizens were subject to question when a part of the citizenry was in rebellion against the Union.
There are specific events that should be studied in order to better understand what happened in the first years of the Lincoln Administration. These events each will have a lesson plan that will be part of the overall curriculum unit. They are three legal cases centered on the arrest and detainment of critics of Lincoln’s policies and the Emancipation Proclamation that Lincoln made by military order not subject to direct congressional oversight.
John Merryman was a prominent and vociferous opponent of the Union cause in Maryland during the first months of the Civil War. Federal troops suspected that he had actively participated in cutting off Washington’s telegraph and rail links with the Union states to the North. During the first suspension of the writ of habeas corpus issued by Lincoln, Merryman was arrested and detained as an agitator. His lawyers petitioned the Supreme Court for immediate review and Chief Justice Taney ordered the Federal officer that arrested Merryman to show up in his court to explain why he had arrested Merryman for treason and detained him unlawfully during the period of the suspension of the writ of habeas corpus in parts of Maryland. Chief Justice Taney believed that Lincoln was operating in ways that exceeded his executive authority.
When the military officer that had arrested Merryman did not show at the hearing requested by Taney the Chief Justice, serving in this instance as a Federal Circuit Judge, issued this response when the government failed to produce its prisoner, Merryman, under the order issued by Taney. In his written response, Taney said, “That the President, under the Constitution and laws of the United States, can not suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.” (2) Lincoln ignored the opinion of Taney believing that he had the emergency power to suspend the writ of habeas corpus in such dire situations as rebellion or invasion. He would continue to do so until 1863 when Congress voted to authorize the President’s power to suspend the writ of habeas corpus when deemed necessary for the protection of the public. Lincoln’s defiance of the law and the courts illustrates a key weakness of the writ of habeas corpus. If the responsible person cited in the granting of the writ does not comply there may be little that the courts can do except order federal marshals to arrest them. If the person defying the issuance of the writ is backed by superior force, the writ may be rendered powerless. The person doing the imprisoning must accede to the power of the court in order for the writ to be effective.
The second case questioning the exercise of authority by President Lincoln arose when the military commander in Ohio, General Ambrose Burnside arrested a prominent Democratic politician, James Vallandigham because of his remarks that could be construed as advocating the avoidance of conscription. The question became, should he have been arrested at all and if so, what was he arrested for, advocating resistance to the government in times of war or exercising his right to free speech in criticizing the government. This case is a complicated one because of the debate over exactly why Vallandigham was arrested and it will be examined more completely in the lesson plan being developed for the curriculum unit.
The arrest and imprisonment by the Military Governor of Ohio is equally disturbing to advocates of civil liberties. Lincoln’s reliance on the military to maintain order, often through martial law allowed military officers to expand their local authority without following precedent or the laws protecting the right of citizens. The military officers that exercised the authority granted them became the representative of his intentions to the people they governed. If they were fair, Lincoln was seen as a good and fair President. If they were capricious and arbitrary in their administration of authority then Lincoln could be perceived as a tyrant. The military was charged to maintain order but it had an entirely different system of justice than the civilian justice system. There is a presumption of guilt, not innocence and the jury is made up of military officers and it is not a jury of peers. The people charged by the military did not enjoy the protection of individual liberties that they would in civilian courts. When to apply military justice and martial law is the question that continues to this day.
Lambdin Milligan was a member of the Democratic Party and an advocate for peace in the state of Indiana. He was suspected of planning acts against the United States and arrested by the army. The military tribunal is Indiana tried him for treason with the penalty of death. His supporters appealed his arrest, conviction and death sentence on the grounds that there was a civilian court open and available to try him as a civilian in a state that was not threatening to secede or support the Confederacy. Lincoln was thought to be ready to commute Milligan’s sentence before Lincoln was assassinated. Milligan took his appeal to the Supreme Court because his right to habeas corpus protection had been ignored when a military tribunal tried him. The Supreme Court overturned his conviction after Lincoln’s death because there was a civilian alternative court open to conduct his trial and a military tribunal should not then have tried him. This case will be referred to when the curriculum unit compares the actions of Lincoln during the Civil War and the actions of President Bush during the War in Iraq and the War on Terror.
Daniel Farber makes the following analysis of Milligan and cases like it in his book,
"The best synthesis of the law on the general subject of martial law would probably
be something like this. In emergencies -- sudden attack or insurrection --the
president has the power to suspend the writ of habeas corpus and detain suspects
within the general zone of military conflict. Congress has the ultimate control over
suspension of habeas. The only apparent limitations on Congress are the existence
of an invasion or insurrection and of the requisite need to protect public safety.
Military trials, as opposed to preventive detentions, are also permissible in time of
war, but under narrower circumstances -- in the actual theater of war, in occupied
hostile territory, or for individuals connected with our own military or the
The tension between military jurisdiction and justice and civilian court jurisdiction is a vibrant one within a democracy. Farber’s analysis is equally relevant for events in Lincoln’s era and today.
Although Lincoln was initially committed to limiting the spread of slavery into new territory when he was elected his views hardened as he managed the course of the war against the Confederate States of America. The immorality of slavery and its importance to the economy of the Confederacy combined to convince him that slavery had to be dealt with before the former slave states could return to the Union. Lincoln determined that he must emancipate the slaves but he wondered how he could do it without antagonizing the slave owners in the border-states and the Unionists who were ambivalent about freeing the slaves because they might represent a threat to white laborers. He also wondered what the most appropriate exercise of presidential authority might be in order to insure the success of his efforts to emancipate the slaves in America.
Lincoln came to the conclusion that his unquestioned role of Commander in Chief would be the best vehicle to issue the Emancipation Proclamation. He would free the slaves in lands under the control of his enemy, the Confederacy, by military decree. He reasoned that slaves were the property of plantation owners who provided the only currency available to the South, cotton. If he could disrupt the production of cotton by offering the work force the alternative of freedom then that was the militarily prudent course to follow by military decree.
Lincoln used the military and emergency powers to protect the Union during an insurrection within the Union. It was a unique time in American history and his exercise of power should be viewed skeptically when applying his principles to modern times. After 9/11, the current administration has used fear and secrecy to extend its own executive power and it is very revealing when the actions of the Bush Administration are compared to Lincoln’s actions when the very existence of the Union was threatened by rebellion.
The curriculum will provide an overview before it concentrates on the applicable parts of the Constitution of the United States and their origin in the law. Habeas Corpus has been a part of English Common Law since before the Magna Carta. Its fundamental protection from the abuses of authority has protected nobles and the common man for centuries. The reference to the suspension of the writ of habeas corpus in Article I of the Constitution does state that the power to do so would belong to the Congress. Lincoln assumed that power without any authorization of Congress and many people were incarcerated without trial for up to two years. When Congress finally did approve the President’s actions suspending habeas corpus it also granted retroactive immunity to preserve the authority of President Lincoln during the war.