Season 1, Episode 4 | Lincoln Saved the Union. Did He Violate the Constitution?

Lincoln Saved the Union. Did He Violate the Constitution? 

Did Abraham Lincoln really have to break the very rules he swore to uphold to save the nation? It’s a tough question, isn’t it? As the Civil War raged on, Lincoln faced a monumental dilemma: how far should a leader go to protect the country when the Constitution seemed to get in the way? He made some bold and controversial choices—suspending habeas corpus, expanding executive powers, and even issuing the Emancipation Proclamation. But were these actions truly necessary for winning the war, or did he step over the line?

In this episode of This Constitution, hosts Savannah Eccles Johnston and Matthew Brogdon dive into the challenging decisions Lincoln had to make during this turbulent time. They explore his suspension of habeas corpus and his decision to raise troops without congressional approval, all while trying to keep the nation together. Lincoln believed that extraordinary times called for extraordinary measures, and he thought the Constitution allowed for that. But how do we reconcile that with the importance of constitutional limits?

Join Savannah and Matthew as they discuss the tension between executive power and constitutional boundaries, revealing the complexities of Lincoln’s thinking during a national crisis. This isn’t just about history; it’s about understanding what leadership means when the stakes are high and the rules feel like they might hold us back.

In This Episode:

• (00:27) Introduction to the episode  
• (00:57) Lincoln's justification for actions  
• (01:16) Suspension of habeas corpus  
• (02:23) Lincoln's political background  
• (03:49) Lincoln's election context  
• (04:35) Lincoln's stance on slavery  
• (05:42) Emancipation Proclamation justification  
• (06:05) Constitutional authority for actions  
• (07:41) Lincoln's executive power  
• (08:14) Congressional session and justifications  
• (09:47) Lincoln's argument for emergency powers  
• (10:01) Constitutional powers and rebellion  
• (11:01) Military necessity and emancipation  
• (11:46) Habeas Corpus historical context  
• (13:11) Judicial challenge to habeas corpus  
• (15:07) Lincoln's defiance of the court  
• (15:19) Lincoln's newspaper strategy  
• (15:52) Arrest of Mr. V  
• (16:11) Democrats' declaration  
• (17:30) Lincoln's justification  
• (18:29) Harmful agitation  
• (19:10) Geographic scope of rebellion  
• (20:19) Distinction from martial law  
• (22:19) Lincoln's constitutional defense  
• (23:00) Declaration of war debate  
• (24:34) Supreme Court's take  
• (25:18) Extraordinary powers debate  
• (26:40) Constitutional integrity 

Transcript

Various Voices [00:00:04]:

We the people. We the people. We the people do ordain and establish this constitution for the United States of America.

Matthew Brogdon [00:00:15]:

The Constitution isn't just a historical document. It's a blueprint for American self-government that shapes our past, guides our present, and defines the future of our country.

Savannah Eccles Johnston [00:00:27]:

In every episode of this Constitution, we dive into the decisions, debates, and stories that are still unfolding at the center of American Civic life. Welcome to This Constitution. I'm Savannah Eccles Johnston.

Matthew Brogdon [00:00:40]:

And I'm Matthew Brogdon.

Savannah Eccles Johnston [00:00:42]:

Does Lincoln have to step outside the Constitution to win the Civil War? Well, his answer to this is no. The question today is, was that a good answer? So, give us some background on this argument from Lincoln.

Matthew Brogdon [00:00:58]:

Well, I mean, a popular line is that Lincoln just argued he'd do whatever's necessary to win, which he did do what was necessary to win. But Lincoln was quite careful to couch most of his powers, most of his more controversial actions during the Civil War in constitutional terms. So it might be helpful to point out a few of the things he did that are considered to be possibly extra or unconstitutional. So he suspends habeas corpus, which means you can arrest people without charging them with a crime or taking them to trial. He raises additional troops while Congress is not in session. And without any additional appropriations, he declares war. As part of that blockade southern ports, instituted a naval blockade, and confiscated ships that tried to run the blockade. He arrested a number of individuals pursuant to the suspension of habeas corpus that apparently didn't commit any crimes, but he expected to aid the rebellion. So those are just some of the things that Lincoln did even early in his presidency in response to the secession of southern states that people look at and say, gosh, the Constitution doesn't seem to provide any power to do that stuff. So is Lincoln just saying, I can do whatever I have to do?

Savannah Eccles Johnston [00:02:23]:

And we almost can't address his actions until we've looked back at Lincoln and realized Lincoln was a wig and the Whigs were anti-jacksonian presidential power and…

Matthew Brogdon [00:02:36]:

Didn't actually wear wigs, interestingly.

Savannah Eccles Johnston [00:02:38]:

But unfortunately, yes. Right. It's just a stupid name taken from the British. So he was a Whig, and then he became potentially the most powerful president in our history.

Matthew Brogdon [00:02:50]:

And maybe help me out. What do you take American whigs to be? Because I know, like, whigs in England were, you know, anti-monarchy, pro-parliament.

Savannah Eccles Johnston [00:02:58]:

Right. Well, but it's very similar in the US. It's pro congress as the political body and anti Jacksonian presidential power. And I. And also later free soil. And so Lincoln is deeply, deeply entrenched in congressional power, anti Jacksonian power, especially on, later on, the war front with Polk. So that's the same Lincoln. And I don't think he changes significantly by the time he becomes president, or at least he'll argue it's the same Lincoln. He's believing the exact same thing all the way through. So in the lead-up to the civil war, first he has to win the election, and he does. As a minority president, he wins less than 40% of the direct national vote, which I guess is one of those times. Yay for the Electoral College. So he's a minority president.

Matthew Brogdon [00:03:53]:

If you like Lincoln, you should like the Electoral College.

Savannah Eccles Johnston [00:03:55]:

Exactly.

Matthew Brogdon [00:03:56]:

Argument for the Electoral College.

Savannah Eccles Johnston [00:03:57]:

Right. So Lincoln became president, and even before he has been inaugurated, seven states have seceded from the union for fear of what he will do with presidential power. But he's made it very clear in his speeches leading up to the presidency, I am not going to end slavery in the south. I don't believe I have the constitutional power to do so, nor do I think Congress has the constitutional power to do so. Right now, I'm only trying to prohibit the expansion of slavery into the territories. They don't believe him, that he's serious about the limits of presidential power here.

Matthew Brogdon [00:04:34]:

But, I mean, he does have in mind doing some things in terms of policy that are hostile to slavery.

Savannah Eccles Johnston [00:04:40]:

Oh, sure.

Matthew Brogdon [00:04:41]:

Lincoln's. The republican platform includes possibly banning slavery in Washington, DC, in the national capital, forbidding its expansion of the territories, treating free blacks as citizens, giving passports and other things, including. Republicans also thought that free people of color who are accused of being escaped slaves should be afforded all the due process rights described in the Bill of Rights, so that the fugitive slave law is at least procedurally unconstitutional. That's some pretty significant stuff. But you're right, he says, I don't think we can actually abolish slavery where it exists. And in the first inaugural, he argues this, and maybe this is a good place to start. How in the world does he come around to justifying the emancipation proclamation then? Because he eventually does not, even with a congressional statute, just presidential proclamation, says, this group of enslaved people shall henceforth and forever be free.

Savannah Eccles Johnston [00:05:42]:

Right. But he does so strictly on the basis of military power. He can do this because the nation is in crisis, and in order to bring domestic tranquility, he has to take certain actions. And so it's only in southern states that have not yet been occupied that the slaves are freed, and this will swell the union ranks et cetera, et cetera. So he actually really limits what the emancipation proclamation can do and vetoes, or at least overturns, two similar proclamations from generals under him who are liberating enslaved persons in occupied territories. And he says, no, we don't have the power to do that. It's only in currently unoccupied confederate territories. So even here, he's limiting it.

Matthew Brogdon [00:06:27]:

Right. Because in those emancipating slaves, in places the union already controlled, you couldn't argue, served any military purpose, certainly served the purposes of justice. Lincoln says there's no constitutional power in Congress or the president to pursue emancipation on account of justice, but we can pursue it as a matter of military necessity. So that rubs people the wrong way quite often. But it is because Lincoln is insistent that he can only do what the Constitution authorizes him to do, and Congress can only do what the Constitution authorizes them to do. We sometimes forget, I mean, Lincoln had a very expansive power, or expansive view of executive power under the Constitution, but his view of federal legislative power was actually quite limited. He thought you'd have to be very careful to justify, in constitutional terms, anything Congress did. So there's a really broad view of executive power that sort of combined with an insistence that the enumeration of powers in the constitution mean something, federalism means something. The federal government can't just do anything they think is a good idea. That can sometimes be hard to hold those two things together. But I do think that, in fact, seems to be his position.

Matthew Brogdon [00:07:42]:

Let's, ironically, is the reverse of the Whig position. Whigs thought the federal government can do all sorts of stuff. Right. This is the party of Daniel Webster and Henry Clay. They thought that they inherited the hamiltonian view that the federal government could just promote the public interest, by and large, especially economically, while they were quite hostile to independent executive power. Lincoln, by the time he becomes president, almost flips that on his head. He's got a very expansive view of executive power, but wants to really preserve limits on congressional power.

Savannah Eccles Johnston [00:08:14]:

Right. And looking in 2024, people tend to say Lincoln was both dictatorial as a president in anti states rights, neither of which are correct interpretations of Lincoln. So let's. Let's jump back. He's inaugurated in January, in April, the civil war begins, and it's not until July that Congress is called back into session by Lincoln to basically ratify all the things you spoke about before his suspension of habeas corpus, the blockading of southern ports, calling up troops, et cetera, et cetera. So he has to justify to Congress everything he's done by pure executive order before Congress can come in and actually ratify these things. And here's what he says about it, why he feels that he can do this. It presents the question whether discontented individuals, too few in numbers to control administration according to organic law, in any case, can always, upon the pretenses made in this case or any other pretenses, or arbitrarily, without any pretense, break up their government and thus practically put an end to free government upon the earth. It forces us to ask, is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its own people or too weak to maintain its own existence? In other words, does the Constitution not grant Lincoln the necessary emergency powers to handle an insurrection, a rebellion in the southeast, even when Congress is not in session? And he says, that's absurd. That's absurd. Any government that cannot sustain itself is no government at all.

Matthew Brogdon [00:09:53]:

But if that's the argument, is he really pointing to anything in the constitution or he's just saying that this power is inherent in any government?

Savannah Eccles Johnston [00:10:01]:

Yes, he does. He consistently points to the president's duty to put down insurrections and rebellions to, well, in the oath of office, preserve, protect, and defend the us constitution. Later, habeas corpus can be suspended during times of civil disobedience. What is the language?

Matthew Brogdon [00:10:18]:

Civil disobedience or invasion or rebellion.

Savannah Eccles Johnston [00:10:21]:

Invasion or rebellion. There we go. And he says, this is rebellion. Check. That counts. So everything he's actually pinpointing to a specific power in the constitution, whether that's the oath of office or whether that is the ability to suspend habeas corpus, which is actually in article one, which he says, though it doesn't specify if it's Congress or the president. So he's pinning these to constitutional powers, and he says, because it's rebellion, these powers are triggered.

Matthew Brogdon [00:10:47]:

So, I mean, your argument is it's extraordinary circumstances that occasions the exercise of power, but the constitution itself acknowledges those occasions and those needs.

Savannah Eccles Johnston [00:11:00]:

That's Lincoln's argument.

Matthew Brogdon [00:11:01]:

Right? So maybe it helped to walk through some of those. We've already talked about emancipation, military necessities, and the commander in chief. You can confiscate property as a military. You can do all sorts of things if it's necessary to win in a theater of war, but that only applies in a theater of war and not other places. But maybe some of the others. Maybe. I'm kind of interested in how he actually uses the text of the constitution to justify some of this stuff. So habeas corpus, I think, is a pretty good one, partly because Lincoln has to face up to a federal court decision that actually says what he has done is unconstitutional.

Savannah Eccles Johnston [00:11:41]:

Right.

Matthew Brogdon [00:11:42]:

So do you want to start with the story on habeas corpus?

Savannah Eccles Johnston [00:11:46]:

No, you start with it because then I want to follow up with his letter to Erastus Corning explaining himself.

Matthew Brogdon [00:11:50]:

Okay. All right, all right. So habeas corpus is an old right contained in Magna Carta. Right. Right there on the wall. There's King John signing Magna Carta behind you, your shoulder, said that no person could be deprived of their life, liberty, or property without due process of law, but they had to be afforded habeas corpus, which means produce the body. So if you receive a writ of habeas corpus, so you're an executive, you've detained some person you think is being obnoxious or harmed to the community, that person can. Can ask for a writ of habeas corpus from a courthouse. You have to take them into court and explain why you've detained them, why the law of the land authorizes you to detain this person of their liberty. Lincoln had suspended habeas corpus, and there is a provision in the Constitution that talks about habeas corpus shall not be suspended unless in times of insurrection or invasion, the public safety may require it. So clearly the constitution acknowledges you can suspend it, and Lincoln does so. And then he arrests some people, including a man named Merriman in Maryland. That's confusing. Merriman in Maryland. And Merriam goes, or someone goes on his behalf to the federal circuit court meeting in Maryland, which is at that time Supreme Court justices go out into the country and ride circuit. So Chief Justice Roger Taney, the same guy who wrote the Dred Scott to, is sitting on circuit in Maryland. And this petition for writ of habeas corpus comes. He actually issues the writ of habeas corpus and explains that the administration's suspension of the writ is unconstitutional. And he's got a pretty straightforward constitutional argument for this. It says, if we read the provision by habeas corpus is an article one, section nine of the Constitution that comes right after the powers of Congress in article one, section eight. And if article one, section eight, is a list of things that Congress may do, article one, section nine is a list of things Congress may not do. Prohibitions on congressional power. It's in article one, the article that deals with legislative power. So Taney concludes from that. It obviously is the case. He says that the intention of this language about suspending habeas corpus is to be exercised by Congress, not by the president alone. And of course, as you pointed out, Congress is not even in session. In fact, Lincoln could call Congress into session. He hasn't. He's not going to until I love this. July 4, 1861. He deliberately does not call Congress into session and ask for this. He just does it on his own. And Taney says it's clearly unconstitutional. You should produce this man and explain what law he's broken and why he's being detained or let him go. And the administration, of course, ignores him. So the question is, how does Lincoln go about it? Well, he's defying a federal court decision by refusing to answer this charge. But if habeas corpus is suspended, that means you don't have to explain anything to a court. That's what it means to suspend habeas corpus. So he's got to somehow explain how it is that the president's got unilateral authority to suspend habeas corpus, even though, according to Taney, the text of the constitution seems to point in the other direction.

Savannah Eccles Johnston [00:15:07]:

Right. And he's going to explain this very eloquently in a letter to Erastus Corning, which will come a little bit later.

Matthew Brogdon [00:15:15]:

Why are we reading a letter that Lincoln just wrote to this guy? Erastus Corning?

Savannah Eccles Johnston [00:15:18]:

Ah, okay.

Matthew Brogdon [00:15:18]:

Goofy name.

Savannah Eccles Johnston [00:15:19]:

Yes, because it's published in newspapers all over the country, intentionally by Lincoln, to basically end this argument. Right. And this is one of his standard practices, is instead of going out and giving a speech on it, he just casually allows his response to an individual to be published in a newspaper all over the country. So there's something like 10 million people reading this or something. Just ridiculous numbers. So it's concerning the arrest of a man named, actually, I can't say his last name, so I'm just gonna call him Mister V, who is a landingham. Oh, is that how you say it? The landingham? All right, sure. Mister V. So, Mister V. I mean.

Matthew Brogdon [00:15:58]:

I'm boldly saying that with certainty, but.

Savannah Eccles Johnston [00:16:01]:

I just don't want someone to.

Matthew Brogdon [00:16:02]:

Well, the truth is, this is what I've said in classes for the last 15 years, so we'll just hope it's right.

Savannah Eccles Johnston [00:16:09]:

Okay, sure.

Matthew Brogdon [00:16:10]:

I've deceived a whole generation.

Savannah Eccles Johnston [00:16:11]:

The landingham. All right, sure. He is a pro southern sympathizer. And he's not just pro southern sympathizer. He's going around trying to convince people to, one, not enlist in the Union army, and two, to desert the army. And so a general arrests the guy and throws him in a hole, basically. And you have a group of Democrats who meet together and who say, publish a declaration saying, one, we support Lincoln's right to win the war, but it has to be constitutional. And suspending the right of habeas corpus for Lincoln isn't constitutional. Therefore, he needs to produce this man and release him. And Lincoln is going to respond to this declaration from these Democrats and say, one, I don't agree that it's only a congressional power simply because it's an article one, it's never specified that only Congress can, uh, suspend habeas corpus. And then he clarifies and says, this qualifies as a legitimate occasion to suspend habeas corpus because it's during a rebellion. So, one, it never says that it's just Congress, and two, it's a rebellion. So I can suspend habeas corpus on.

Matthew Brogdon [00:17:30]:

That is not just Congress's point. Yeah, I mean, one. One mark in his favor. Article one, section nine also says, you can't grant titles of nobility, right? I assume that means neither Congress nor the president nor anybody else can grant a title of nobility.

Savannah Eccles Johnston [00:17:44]:

Right? So he's got a point here. And then he takes it a step further, and he says, isn't it just as harmful to have someone going around and trying to convince people to desert or not join the Union army to the cause of the union, as it were? If he were to take up arms for the Confederates now, he would have committed a crime if he had actually tried to sabotage something. But there's not actually a crime that he's committed by just supporting the southern cause, which is why, during times of rebellion, when the law might not reach someone that would justify their arrest, the habeas corpus can be suspended, and you can be arrested without having necessarily broken an explicit law and thrown in a hole. And then he says something really interesting. He said, isn't it more merciful to arrest this man and throw him in a hole than to have to shoot some young deserter who's been convinced by this man?

Matthew Brogdon [00:18:39]:

Yeah, he actually has this very affecting example, right? He says this. People like Vallandigham get some elderly man into a meeting, some soldier's brother or father, and convinces him that the cause is unjust and that the thing to do is desert. And they write to their son on the front lines and say, you can't do this. This is wrong. And then the young man runs away, and here we have to shoot this young soldier. And isn't it easier just to lock up the agitator to begin with?

Savannah Eccles Johnston [00:19:09]:

Right? And more merciful and then he says, he pushes back, I guess this is the third or fourth time against the Democrats here, and says, they are saying that the suspension of habeas corpus is a congressional power and is okay during rebellion, but only in areas where there's actual fighting. And this is taking place in the midwest. And he says, no, but that's silly. It doesn't say in the constitution only where the rebellion is actually taking place. If a rebellion is taking place, it's your job to ensure peace across the entire country. And then he says, and this man is harming the union cause and is causing people to not sign up and then to desert. And that's leading us to having to kill them for desertion. So in all cases, what I'm doing is constitutional. And then he has this final master stroke. And he points out that the judge who upheld this arrest was a Democrat. He says, this is a good democrat who agrees with me and my interpretation of the constitution. So he points out, I think it's both the general and the judge who are Democrats in this case.

Matthew Brogdon [00:20:20]:

It's important to distinguish, too, the suspension of habeas corpus is not the same thing as martial law, actually. And this is one place where the folks he's responding to are a little confused because this is just a power to detain people, what we call detention, to keep them from aiding the enemy. And he uses examples of, like, confederate generals. He says Robert E. Lee was within the reach of the government when it was known that he was going to join the confederate cause. Why didn't someone lock him in a hotel room for the next four years? Like, wouldn't we all be better off including him? Like, Lee would have been better off if you'd done this to him anyway. But that's got to be distinguished from another controversy, which was in some cases, the union claimed martial law in areas famous case called ex parte Milligan. This guy, Lambdin P. Milligan, who had been engaged in what amounted to sabotage, trying to free confederate soldiers from a Union prison in Indiana. And they not only arrested him, but then they tried him in front of a military tribunal and sentenced him to be hanged. And in that case, the court actually says, no, you can't do that. You can detain him to keep him from helping the union cause. But once you've detained him, if you want to criminally prosecute him and you're not in a war zone, right. Indiana's, there's no ongoing conflict to Indiana. You're in a, you know, you're not out in the theater of war. So outside of the theater of war, if you want to try him, you've got to put him in front of a civilian court. So the civilian courts are open and operating. So the court does draw a line and say the suspension of habeas corpus doesn't mean you can both detain people and then execute them or put them in front of military tribunals. You can only do that in actual theater of war, where there's combat going on. So I think there are some limits here. Right. And it can sometimes be hard to explain this distinction between the suspension of habeas corpus and martial law, which is a much stronger medicine. That's military dictatorship.

Savannah Eccles Johnston [00:22:19]:

Right. And then. But in response to all of these controversies, Lincoln will argue, one, everything I did was according to my understanding of the strict letter of the constitution.

Matthew Brogdon [00:22:30]:

Not Roger Taney's.

Savannah Eccles Johnston [00:22:31]:

Not Roger Taney's, which I'm not sure anyone should take seriously. And then second, and this is very interesting, he will argue that his flaw may have been being too lenient and not too harsh in his war powers, in his actions as president. He says, looking back, people may say, why didn't you imprison Robert E. Lee when you had the chance and not why did you throw Mister V in jail?

Matthew Brogdon [00:23:00]:

So one other issue, because we're running short of time. But one other issue. Declaration of war. Lincoln blockades southern ports, including Charleston. Congress is not in session. States have declared they've seceded from the Union. He sends a naval blockade. A naval blockade is an act of war. It'd be considered so by any country. So Lincoln is engaging an act of war. He's confiscating ships that try to run the blockade as though war exists, allowing people to take prizes. This comes up in the prize cases in the Supreme Court. So the question is, how can a war exist if Congress hasn't declared one?

Savannah Eccles Johnston [00:23:35]:

And his answer is, this is a rebellion. This is a rebellion. And there's a really important distinction here. This is him putting down a southern rebellion. He never acknowledges them as a separate country. It's simply a rebellion. And it is the president's job to put down rebellions and to establish domestic tranquility.

Matthew Brogdon [00:23:53]:

But that's not the Supreme Court's explanation. I mean, I think Lincoln would prefer to treat rebellion as something different because he does want to maintain the Confederacy is not a real country. Right, but the Supreme Court says, well, you can wage war whether it's a rebellion or a foreign war. It's still a war. And normally, if it was an aggressive war, like a preemptive war. Yeah, you'd need to go to a declaration of war, but the court wants to justify it in the prize cases by saying if a state of war exists, the president can acknowledge that state of war and then exercise all the powers of the commander in chief as though war had been declared. Now, that also means the president can't just go start a war. But if the president finds that the government is in a state of war, then all the war powers attach, even if Congress hasn't declared it. So another one of those interesting situations where Lincoln insists that the constitution provides for extraordinary powers and the civil war, southern secession has triggered those powers. That doesn't mean stepping outside the constitution. And in fact, this is an old debate, right? Is Lincoln using, is he appealing to this notion of, like, prerogative powers, dictatorial powers, you know, from ancient Rome when they had to have dictators, or even from earlier presidents like Jefferson? Or is he taking a different view of the Constitution?

Savannah Eccles Johnston [00:25:18]:

It's distinct from Jefferson completely. And by the way, I think it is important to distinguish the Supreme Court's interpretation of the Constitution in Lincoln's, which is always, I think, a little different. So how is Lincoln answering this question? Does he have to step outside the Constitution to win the civil war? An answer Jefferson may have given is, yeah, and he thought he was stepping outside the Constitution on a couple of.

Matthew Brogdon [00:25:45]:

Occasions, or by land from the french right.

Savannah Eccles Johnston [00:25:47]:

Lincoln never believed that. And I think this is also consistent with his, his view of a limited executive power during peacetime and that which is illegal or unconstitutional being during peacetime, becoming constitutional and in fact, required by the Constitution during crisis time. That the Constitution provides emergency powers during very specific situations. For a president to handle a crisis, you never have to fundamentally break the law to save the law for Lincoln, and that is so consistent with his reverence for the law.

Matthew Brogdon [00:26:23]:

So maybe you can give me a way of capturing this notion that, like, there's extraordinary powers, because it seems like it's a little, a little subtle, right? There's extraordinary powers. Does it matter if we find them in the constitution or find them outside the constitution?

Savannah Eccles Johnston [00:26:40]:

Yes, I think it does matter. And it's this, the constitution never has to be broken to save the constitution. That's not required.

Matthew Brogdon [00:26:49]:

We're just beginning to explore the rich legacy of America's constitution. If today's discussion deepened your understanding, share this episode with a friend or student and subscribe to continue learning with us. For more insights and exclusive content, visit uvu.edu ccs thank you for joining us, and we look forward to exploring more with you on this constitution, brought to you by the UVU center for Constitutional Studies, home to Utah's civic Thought and leadership initiative.