[Warning: Generally, it’s my intention to link key political and public policy questions of the Civil War era with those of today. However, I want to make clear that I do not consider Abraham Lincoln’s arrest and detention of members of the Maryland Legislature as appropriate precedent for how Colorado’s governors deal with the Joint Budget Committee and the Long Bill.]
My previous Civil War column closed with the Confederate attack on Fort Sumter and President Lincoln’s subsequent proclamation of April 15, 1861, calling for 75,000 troops to preserve the nation in the face of growing rebellion by the slave states.
That same Proclamation also called for Congress to convene in a special session beginning July 4, 1861. But calling Congress back into session was not without considerable debate and second guessing both within the White House and publicly, not only as to whether to call legislators back, but also when to call them back, and where to call them back to!
As to where Congress should be convened, Lincoln and his Cabinet recognized the nearly foregone conclusion of Virginia’s pending secession; likewise no one could be certain of Maryland’s intentions. Thus, Lincoln faced the very real possibility that Washington itself would be ensconced within enemy territory by the time Congress tried to meet.
Likewise, when to convene Congress was a matter of heated debate. Many within the Northern business community wanted Congress called into session immediately, in order to provide the revenue raising and spending authority relied upon by the financial markets in the face of imminent war. Within the Administration, the debate largely boiled down to whether to ask permission or forgiveness from Congress for the increasingly urgent and extraordinary measures necessary to preserve some semblance of the Union.
For example, could the President expend the public funding necessary to raise, train, and deploy troops? Beyond a defense of Washington, could he order them into southern territory to reclaim federal property such as forts and other installations?
Although the question whether to convene Congress was perhaps a given, concerns arose as to whether the currently elected Congress had any legal authority to act, rather than a new Congress anticipated to be elected for the next regular session scheduled to begin at the end of the year. Unlike today, at the outbreak of the Civil War there was no uniform election day for federal offices. Furthermore, the uncertainty as to who was qualified to sit as a Member of Congress was further confused by the secession of seven states up to that point (eventually, the Confederacy would include 11 states).
Perhaps most significantly, from a Constitutional perspective, how far could Lincoln go in exerting the authority and power of the federal government to quash secessionist activities by Virginia and by the teetering but still loyal border states of Maryland, Missouri, and Kentucky? (Delaware was safely within the Union sphere.)
For the past 150 years, numerous prominent historians and legal scholars have debated President Lincoln’s willingness to suspend the Writ of Habeas Corpus in circumstances where he deemed such action necessary to public safety and preservation of the Union. But Lincoln did suspend this sacred Constitutional guarantee, and he did subsequently ignore rather than obey the order from the Chief Justice of the U. S. Supreme Court’s overturning his decision to do so. He did so first in Maryland, where pro-secession sentiments were quite strong, particularly in Baltimore and the state capitol of Annapolis, and where the continued existence of Washington as the nation’s capitol hung in the balance.
As an explanation for his decision, Lincoln bestowed upon us yet another of his immortal common-sense quotations: “Are all the laws, but one, to go unexecuted and the government itself go to pieces, lest that one be violated?”
Coming back to the present day for the moment, here’s a “reality check” on our own perspective of current philosophical conflict. When today’s “progressives” get annoyed at Chief Justice Roberts, or Justice Thomas, or Justice Scalia for their alleged political biases, and likewise when “conservatives” rant about the past “left wing” judicial excesses of Justices Brennan, Douglas, Marshall, and others, take a moment to consider President Lincoln’s situation.
The Chief Justice he defied was none other than Roger B. Taney, the author of the shameful Dredd Scott decision of 1857. In other words, Lincoln faced opposition from a Chief Justice whose legal interpretations would hold that current Justice Thomas and former Justice Marshall were not citizens of the United States. In fact, he wrote in Dredd Scott that, by the time the U.S. Constitution had been originally adopted (1789), African Americans “had for more than a century before been regarded as beings of an inferior order… [and] that they had no rights which a white man was bound to respect.”
I’ll have more to say in future columns by way of comparing Taney to his fellow Marylanders, Frederick Douglass and Harriett Tubman. But for the time being, suffice it to say that I understand Lincoln’s reticence to follow the direction of the Chief Justice on how best to interpret his own constitutional authority and simultaneously keep Maryland within the Union. It’s also worth noting that Lincoln’s decisions in those perilous and uncertain early days of secession would prove vital to maintaining the very nation which could one day provide legal protections to the American Civil Liberties Union and others who might not have seen eye-to-eye with him at the time.
When we debate today’s executive branch authority vis a vis the legislative and judicial branches, Separation of Powers generally, and the President’s War Powers specifically, our nation’s history can provide some critical perspective and insight as to how seemingly clear cut principles can quickly fall into a “gray area.”
By the end of May 1861, the first shot at Fort Sumter was nearly two months in the past (April 12) and the first major battle of the Civil War, First Manassas/Bull Run (July 21), was still nearly two months into the future. Yet, in addition to the issues and conflicts discussed in this column, significant showdowns and conflict were occurring in Missouri, Kentucky, and western Virginia. In Missouri, federal troops would effectively depose a pro-secession governor and arrest his state militia; in Kentucky, more peaceful “persuasion” would succeed, and in Virginia, the federal government would support western Virginia’s “secession” from the secessionist state in order to remain with the Union.
For further reading on the Civil War and Abraham Lincoln, I will provide future recommendations because so many excellent sources are available. As a starting point, however, I suggest Battle Cry of Freedom, by James M. McPherson (1988), and Team of Rivals, the Political Genius of Abraham Lincoln, by Doris Kearns Goodwin (2005). Both are available in paperback, and are extremely well written for the general public.
Patrick Teegarden is an attorney and public policy consultant, based in Denver. His columns on the Civil War are part of a series for The Colorado Statesman.