When Abraham Lincoln took office in March 1861, the executive branch was small and relatively limited in its power. By the time of his assassination, he had claimed more prerogatives than any president before him, and the executive branch had grown enormously.
Lincoln’s critics witnessed his expanding power with alarm. They accused him of becoming a tyrant and warned that his assertions of authority under the guise of “commander in chief” threatened the viability of a constitutional democracy.
Lincoln ignored his foes and kept moving. And, despite lingering discomfort with some of his actions – particularly around the issue of civil liberties – history has largely vindicated him. Why?
Lincoln was elected in November 1860 with no ambition to expand presidential powers. But after Confederates fired on Fort Sumter in April 1861, he quickly called for 75,000 militia troops and ordered a blockade of Southern ports, even though a blockade suggests a declaration of a state of war, which only Congress can declare. Then he issued a call for more than 40,000 three-year volunteers, even though Congress has the constitutional responsibility to raise armies.
When Union troops were assaulted in Baltimore on April 19 en route to Washington, Lincoln suspended habeas corpus along the Philadelphia to Washington line, the most dramatic of all his actions to that point. Besides the political problem connected with suspending one of the most hallowed concepts in Anglo-American law, Lincoln faced the legal question of whether he had the authority to do this. The founders placed the suspension of habeas corpus in Article I, the section that lays out Congressional powers, but muddied the waters by using the passive voice: “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.”
So who has the right to suspend, Congress or the president? Chief Justice Roger Taney ruled in Congress’s favor. Lincoln ignored Taney and expanded the area of suspension to Bangor, Me. Lincoln questioned whether the nation should be so attached to a law that “the government itself go to pieces, lest that one be violated”?
Lincoln believed that with the country in a state of rebellion, he had certain “war powers” – a concept not in the Constitution. Representative Clement Vallandigham of Ohio, Lincoln’s most vituperative critic, accused the president of “executive usurpation” and sought to censure Lincoln for “unconstitutional acts.” The effort failed.
Lincoln was willing to do anything he thought was right to win the war. He favored “the most vigorous and active measures to bring the war to a speedy close, and totally opposed … any compromise of any kind or character,” a friend said. Lincoln acted with certainty and was disinclined to reverse major decisions.
His process tended to be incremental, though, which kept him from overreaching or overreacting. He repeatedly expanded the suspension of habeas corpus, finally, in 1862, declaring martial law nationwide for the rest of the war. In 1863, Congress authorized the president to suspend habeas corpus in any case necessary.
Habeas corpus is, for many historians, a serious blemish on Lincoln’s record. Further complicating his reputation is an 1862 choice that cleared the way for military tribunals to hear cases involving civilians. After the war, the Supreme Court ruled that if civil courts were operational, civilians had to be tried there, not in military courts.
Still, the evidence suggests that Lincoln’s decisions were rational. In the most comprehensive study on the matter, the historian Mark Neely Jr. concludes that most of the arrests in which habeas corpus was suspended would have taken place even had those protections been in place. Very few detentions were politically motivated. Most cases involved fraudulent contracting, draft dodging, espionage or treason.
Most important, the vast majority of arrests and military trials were in the border states, where civilian loyalties were uncertain. There is a logic during a civil war to putting a defendant before a jury of uniformed loyalists rather than in a court where the judge and jury may rule against the government not on the evidence, but because they support the enemy.
Unlike Woodrow Wilson and Franklin D. Roosevelt, Lincoln did not invoke war powers to target specific groups of people in a wholesale fashion, including political enemies. The level of his response was proportional to the situation that confronted him.
Lincoln’s willingness to expand the limits of executive power also led him to issue the Emancipation Proclamation. Lincoln knew that his critics would quickly attack this as unconstitutional, so he wrote the proclamation as a legal argument, emphasizing that he was taking this step out of militarily necessity and could do so as commander in chief.
Again, this was one of a series of steps, the last being the 13th Amendment. In the first year or so of the war, two generals had tried to emancipate slaves in their areas of command. Lincoln overturned each. He acted as he did partly because he was a moderate by nature, partly because he did not think he had the constitutional power to emancipate and partly because he worried about keeping the border states in the Union.
In the spring and early summer of 1862, Lincoln spent considerable time meeting with Kentuckians, urging them to agree to compensated emancipation. Their resistance led Lincoln to write the preliminary proclamation in July. Only after the nominal victory at Antietam in September did Lincoln make it public.
Power accrued not only to Lincoln, but also to the executive branch. In March 1863, for instance, Congress imposed the first draft in American history and created a new agency, the Provost Marshal General’s Bureau, to enforce and administer it. The bureau had unprecedented power. By law, it was in every Congressional district in the North, and in practice it had agents and spies reaching farther into the countryside than any government agency ever had before. Although its main role was to raise men for the Army, it kept tabs on anything or anyone it identified who might interfere with that mission. In hindsight, we would say that the bureau was the nation’s first domestic intelligence agency.
The Civil War ended with a more powerful and centralized government than the country had ever known. Lincoln always maintained that the powers he claimed were war measures, and as soon as the war was over he would relinquish them. And he and his successor, Andrew Johnson did, along with much of the state apparatus that had developed to support Lincoln’s expanded authority.
The United States would not fight another major war for more than 50 years. In 1917 Wilson established the Committee on Public Information. Initially a propaganda organization to build support for American participation in World War I, by 1918 it was encouraging civilians to report anyone they suspected of undermining the war effort. Immigrants were often targets. The Espionage, Sabotage and Sedition Acts allowed the administration to crack down on anyone who wrote or said anything against the government, the flag, the military or the Constitution. Dissidents went to prison. Though he tried to block some legislation he deemed too repressive, Wilson stood by while the authorities and even mobs targeted such groups as the Socialist Party and the Industrial Workers of the World. Free speech was an empty letter. Unlike Lincoln, Wilson did not respond proportionally to the challenge, and many historians believe his decisions were too heavy-handed for the circumstances.
Roosevelt was responsible for the most egregious incursions on civil liberties, however. His Executive Order 9066, issued three months after the Japanese attacked Pearl Harbor, forced nearly 130,000 Japanese-Americans living on the West Coast into internment camps. There were no investigations into disloyalty, much less trials. The Supreme Court upheld Executive Order 9066 while the war was still raging but later shifted slightly, ruling that the government had the right to evacuate Japanese-Americans but had overstepped that right when it detained them with no evidence of wrongdoing.
Lincoln’s reputation is less marred because his accrual of power was equal to the threat facing the nation. His authority grew incrementally and his administration tended not to overreach. The obvious exceptions are a handful of high-profile cases involving politicians and newspapermen. Still, we should keep some perspective. Neely concludes that most of the arrests and detainments involved people who were actually breaking the law, not those merely speaking out against the government.
By contrast, Wilson’s administration systematically pursued leftists, immigrants and political dissidents not because of their actions but because of their political beliefs. Roosevelt incarcerated an entire class of people based on their ethnicity. Like Wilson, Roosevelt’s action was methodical.
The closest the Lincoln administration came to a systematic abuse of power was in its reliance on military courts. The Supreme Court struck down this practice after the war was over, but there is an argument to be made that using military courts in border states was a sensible alternative to civil courts that were unreliable in their loyalty to the government. Lincoln’s fundamental moderation and his go-slow approach saved him from the embarrassing excesses of his successors and spared his reputation the stains that mar their legacies.
By GERARD N. MAGLIOCCA September 17, 2013, 12:29 pm
In September 1863, the Ohio politician John Bingham was at the lowest point of his career. He had once been among the fastest-rising stars in American politics. Nine years earlier, he was among the first group of Republicans elected to the House of Representatives. Shortly after arriving in Washington, he established himself as one of the leading congressional voices against slavery. He was one of the new President Lincoln’s most steadfast supporters and a key member of the House’s pro-war caucus.
But things soon turned difficult. Bingham’s Ohio district was redrawn after the 1860 census. Meanwhile, support for the war was flagging in the North, and soldiers at the front were not allowed to vote with absentee ballots. As a result, Bingham was drummed out of Congress during the 1862 elections.
Despite this personal and professional setback, Bingham remained confident about his future and of Union victory. The political views he espoused in Congress, he believed, would triumph; though currently unpopular, they would return to public favor in time – and with them, his own career. He told Treasury Secretary Salmon P. Chase that the “limitations of the Constitution upon the States in favor of the personal liberty of all of the citizens of Republic black & white [are] soon to become a great question before the people.”
Bingham was right. Three years later, he was back in the House, elected in the wave of pro-Lincoln sentiment that swept the country in the fall of 1864. Once there, Bingham went to work. He took the lead in framing the 14th Amendment of the Constitution, and he authored its guarantee that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” More than any man except Abraham Lincoln, John Bingham was responsible for establishing what the Civil War meant for America’s future.
Bingham was born in Pennsylvania in 1815. His mother died when he was 12 years old, and he was sent to Ohio to live with his uncle. In 1835, he enrolled at nearby Franklin College, a haven for abolitionists led by a member of the Underground Railroad. One of Bingham’s classmates at Franklin was Titus Basfield, an ex-slave who was one of the first African-Americans to receive a college degree in Ohio. Bingham and Basfield became friends and corresponded regularly for the next 40 years. It was highly unusual to attend a racially integrated school in the 1830s, and Bingham’s relationship with Basfield almost certainly influenced his opposition to slavery and his belief in racial equality.
Prior to his election to Congress, Bingham practiced law in eastern Ohio and was active in the Whig Party. In 1848 he served as a delegate at the Whig National Convention and became a lightning rod by attempting to introduce a platform plank that would commit Whig candidates to resist any extension of slavery to the territories. While Bingham was not yet an out-and-out abolitionist – he supported the Compromise of 1850 – he forged bonds with other leaders who would play a pivotal role in winning the Civil War. Edwin M. Stanton, a Democratic lawyer who became Lincoln’s secretary of war, was one of Bingham’s business competitors and a friendly political opponent. Salmon Chase, part of Lincoln’s “Team of Rivals,” was Bingham’s mentor in the antislavery cause in Ohio. These three men would be at the center of the impeachment trial of President Andrew Johnson in 1868, with Chief Justice Chase presiding over the Senate, Bingham giving the closing argument for the House and War Secretary Stanton’s dismissal by the president serving as the focus of the trial.
When the Kansas-Nebraska Act destroyed the Whig Party in 1854, Bingham seized his chance and was elected to Congress as a member of the new Republican Party. He rose to national attention during the debate over the statehood application of “Bleeding Kansas,” displaying the talent that led many of his colleagues to describe him as the most eloquent member of the House. In a series of speeches over the next few years, Bingham laid out his view that the Constitution was “based upon the equality of the human race. Its primal object must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights.” In a different speech, he said: “You will search in vain in the Constitution of the United States … for that word white, it is not there . . . The omission of this word — this phrase of caste — from our national charter, was not accidental, but intentional.” He added, “Black men … helped to make the Constitution, as well as to achieve the independence of the country by the terrible trial of battle.”
Bingham backed Chase for the Republican presidential nod in 1860, but he became one of Lincoln’s most loyal supporters. He called the president “the saddest man I ever met,” but said “few men could illustrate a point better than Lincoln by a homely story. There was always playful humor about him which seemed to be thoroughly incorporated in his nature, as a kind of offset against his constitutional sorrow and sadness.”
When the secession crisis began, Bingham worried that Lincoln would not stand firm, as “the press is full of everything for compromise and carefully excludes every word said against compromise” under the slogan “compromise the Constitution, betray Liberty, and lose the African.” As he told the House, “What just cause of complaint has the South, or any portion of her people, against this Government? There is none.” The only injustice that could justify a revolt was that “wrong which dooms four million men and their descendants forever to abject servitude.”
The Civil War transformed Bingham from a dissenter into a legislator. In the 37th Congress, from 1861 to 1863, he was instrumental in drafting bills to support the war effort, including the muster of the state militias, the admission of West Virginia and the suspension of habeas corpus. He made an impassioned plea for the successful abolition of slavery in the District of Columbia, commenting that the legislation “illustrates the great principle that this day shakes the throne of every despot upon the globe, and that is, whether man was made for government or government made for man.”
While Bingham was a civil libertarian who argued after the war that the entire Bill of Rights should be extended to the acts of state governments, during the war he argued that the First Amendment did not protect any man who “encourages armed rebellion against the Constitution and laws of the Republic.” Likewise, he said that the Fifth Amendment’s guarantee that “no person shall be deprived of life, liberty, and property, without due process of law” was the “law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded.”
President Lincoln recognized Bingham’s ability and offered him several jobs after the congressman was defeated in 1862. Bingham turned down a judgeship in Florida and a post as the administration’s top lawyer at the Court of Claims, but Lincoln would not take no for an answer. In 1864, the president asked him to lead the prosecution of the surgeon general in a court martial. Bingham hesitated because he knew nothing about military law, but Lincoln convinced him by saying that no “common lawyer understands martial or military law, but I think that you can learn it as soon as any man I know.” When the president was assassinated, Bingham vindicated that faith by serving as one of the three military prosecutors of John Wilkes Booth’s co-conspirators, where he gave the closing argument in one of the most sensational trials of the 19th century.
Bingham won back his congressional seat in 1864, and a year later he received a coveted position on the Joint Committee on Reconstruction, which was charged with setting the conditions for the South’s return to the Union. In the 39th Congress he vied with Thaddeus Stevens for the leadership of the House and largely prevailed in his view that the rebel states should remain under military occupation until they agreed to ratify a new constitutional amendment.
Most significantly, Bingham drafted the crucial language of that 14th Amendment. It is Bingham who is responsible for the words: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This sentence would be the legal basis for the Supreme Court’s subsequent decisions desegregating the public schools, securing equality for women, and creating the right to sexual privacy. Bingham also said that his text would also extend all of the protections of the Bill of Rights to the actions of state governments, which is largely, though not completely, the law today.
When the ex-Confederate States refused to ratify the 14th Amendment, Bingham crafted a legislative compromise that ordered the Union Army to organize new elections across the South that would include African-Americans. He told the House that “unless you put [the South] in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they will defy your restricted legislative power when reconstructed.”
Sadly, of course, this kind of bitter resistance was the norm until The Rev. Dr. Martin Luther King Jr. led the civil rights movement to victory in the 1960s, but Bingham did his best to prevent that outcome. The new state elections organized under the Military Reconstruction Acts led to the ratification of the 14th Amendment in 1868, and Bingham played a central role in shaping the Ku Klux Klan Act of 1871, which was intended to stop racist vigilantes and is now a cornerstone of civil rights law.
Bingham remained in Congress until 1873, and then served as the American ambassador to Japan for 12 years before retiring to Ohio. He died in 1900, largely forgotten.
Bingham’s legacy is best summarized by a speech that he gave as a young man. In it, he said: “When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken . . . and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands — come.”
F6, two key points:1. "In December 2008, Pitcaithley gave a talk to public school educators in Mississippi, and used as part of his presentation this quotation from the Mississippi Declaration of Secession: “Our cause is thoroughly identified with the institution of slavery, the greatest material interest of the world.” That sentence is now prominently displayed on the wall of the National Park Service visitors’ center in Corinth, Mississippi, near the site of the battle of Shiloh. Pitcaithley took a picture of the display and used it in his presentation. After his talk, he was chatting with a thirty-four-year-old black school principal who had grown up in Mississippi, attended its public schools, and received his university education there. “I asked him if he’d ever seen that [quotation] and he said no—he’d never even heard of that.”"
that from the 2nd last paragraph in your article "The South still lies about the Civil War" .. yes .. that in the Mississippi Declaration of Secession is stark evidence, amongst all the rest, that slavery was the reason for the civil war ..
2 key points for me to take away from that post .. number 2. re the reason and meaning of the 2nd Amendment, in the 3rd link off the bottom of your post ..
The Second Amendment was Ratified to Preserve Slavery .. the last bit of first item ..
But the southern fears wouldn't go away.
Patrick Henry even argued that southerner's "property" (slaves) would be lost under the new Constitution, and the resulting slave uprising would be less than peaceful or tranquil:
"In this situation," Henry said to Madison, "I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone."
So Madison, who had (at Jefferson's insistence) already begun to prepare proposed amendments to the Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.
His first draft for what became the Second Amendment had said: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country [emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So Madison changed the word "country" to the word "state," and redrafted the Second Amendment into today's form:
"A well regulated Militia, being necessary to the security of a free State [emphasis mine], the right of the people to keep and bear Arms, shall not be infringed."
Little did Madison realize that one day in the future weapons-manufacturing corporations, newly defined as "persons" by a Supreme Court some have called dysfunctional, would use his slave patrol militia amendment to protect their "right" to manufacture and sell assault weapons used to murder schoolchildren.
.. slavery .. and the change of the word country to state in the 2nd amendment .. to preserve the independence of the slave patrol militias of the southern states ..
key facts for one to remember, i reckon .. remind me tomorrow please .. lolol .. night now .. have a relaxed day .. :)
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