If Lincoln had not died

[Linda Anderson]

(01-09-2013 05:27 PM)Gene C Wrote:  If anyone has access to Gideon Welles diary, that is refereced frequently by the authors. (Welles didn't like Stanton)

You can download the Diary of Gideon Welles here:

http://hdl.handle.net/10111/UIUCOCA:diar...nwel00well

[Rob Wick]

According to Eric Foner:

"Reconstruction emerged as the central problem confronting the nation. But, as James G. Blaine later remarked, Lincoln did not turn to peacetime with a "fixed plan" of Reconstruction. Different approaches had operated simultaneously in different parts of the South. Lincoln had approved the lenient polcies of General Banks in Louisiana and the far more proscriptive acts of Andrew Johnson in Tennessee, all in an attempt to quicken Union victory and secure the abolition of slavery, rather than to fashion a blueprint for the postwar South" (pg. 73) That said, I still think the 10 percent plan would have formed the basis for Lincoln's actions.

Kenneth Stampp points out a few salient facts regarding why. First, the Constitution, since it doesn't provide for how a state could legally secede, it was also quiet on what might happen should one try and fail. It also didn't make clear who would actually oversee such an operation. Lincoln believed he had the authority since he only believed the states were in rebellion and given that he was commander in chief of the militia which could be called out if such a rebellion occurred, he could also guide a state which rebelled back into place, since in his mind, if had never left the Union to begin with. Congress, on the other hand, believed it had the power to oversee restoration because many members believed that the South did indeed form its own government and left the Union, so since the Constitution promised every state a republican form of government, and Congress enforced that provision (almost like a territory which wished to enter the Union), it would take control.

While Lincoln was certainly magnanimous and kind-hearted, Stampp points out that just as important was the political force of the issue. Stampp argues that Lincoln, as a loyal Republican, wanted to make sure his party had influence in the prostrate South, since the Republicans would soon make up a large part of the region. When the Whigs collapsed in the 1850s, those in the South refused to join the Republicans given the party's anti-slavery position, so they migrated to the Democrats or various third parties.

"But it was clear that when the Civil War was over and the Union restored, at least 40 percent of the white voters in the southern states would be men without a party--in a state of political flux," Stampp writes. "Where they would go was still an open question, for the solid Democratic South had not yet emerged. To Lincoln, the Republican party was the true heir of the Whig tradition; and with the slavery issue removed, why should not these politically homeless Southerners find a refuge in his party? Lincoln most emphatically did not intend that the Republicans should remain permanently a sectional organization; nor would he surrender to the Democrats his one-time Whig allies in the South." (pg. 32 The Era of Reconstruction).

I have to say, as crass as it may sound, it makes sense. Lincoln wanted a lenient Reconstruction because he did not believe the South ever had seceded, and that all which was needed was restoration. Plus, as a loyal party man, bringing new voters into the Republican camp would be far easier if they were treated more humanely than the Radicals in Congress had wanted.

Gene, as for Stanton's plan, Lincoln didn't reject it, but also stopped short of acceptance. As Thomas and Hyman point out, he wanted it revised and brought back to the next cabinet meeting. Of course, John Wilkes Booth threw a wrench into those plans.

Best
Rob

[Laurie Verge]

Question for Tom - or actually a request for clarification: Did the legislative branch actually vote on the suspension of the writ of habeas corpus? I have always been under the impression that the suspension was one of the "executive orders" that Lincoln frequently used.

[Rob Wick]

In 1863 Congress passed the Habeas Corpus Suspension Act which basically allowed Lincoln to suspend the act for the lifetime of the rebellion.

Here's an article in the Journal of the Abraham Lincoln Association discussing Lincoln and Habeas Corpus.

Best
Rob

[Laurie Verge]

So, for two years, Lincoln had carte blanche to suspend the writ? I understand the necessity of the suspension (even though it went/goes clearly against the fundamental principles of our government), but it seems to me that Congress should have acted more quickly...

Since there appears to be a renewed surgence in "executive orders" today, I would hope that our legislative branch will be more alert to possible abuses.

[Rob Wick]

Since the Constitution provides for suspension of the writ, I don't see how it "goes clearly against the fundamental principles of our government." Also, most presidents would argue, as many on both sides of the fence have with the War Powers Act, that they have the right to suspend the writ as Lincoln did.

As for executive orders, they have been used since the 1700s by both sides of the political divide. The concern seems to come when it's something someone doesn't agree with.

Best
Rob

[Liz Rosenthal]

(01-10-2013 11:24 AM)Laurie Verge Wrote:  So, for two years, Lincoln had carte blanche to suspend the writ? I understand the necessity of the suspension (even though it went/goes clearly against the fundamental principles of our government), but it seems to me that Congress should have acted more quickly...

I'm doing this from memory, but I believe that Lincoln questioned in his 1863 letter to Erastus Corning (and possibly also in his 7/4/61 message to Congress) whether he should only honor one Constitutional provision (i.e., that concerning the writ of habeas corpus) and let the rest of the Constitution essentially go to hell (by allowing the United States of America literally fall apart), or whether he should allow one Constitutional provision to be stretched or even violated while he honors his Constitutional obligation to preserve the government.

I'm not necessarily arguing that all of his decisions regarding the writ of habeas corpus were wise or strictly "legal," but I am saying that he had a rather good point. The Devil's Advocate would say: "Let's have the President act meekly or not at all, lest he offend someone's idea of what the Constitution means, and thereby permit the South to go and the idea of a democratic form of government to fail, the failing of which would lead to the strong possibility that democracy will never succeed anywhere in the world." The Devil's Advocate's course is what Lincoln's predecessor, James Buchanan, chose, which is probably the reason he is widely considered to be America's worst president in history.

[Bill Richter]

Where in the US Constitution are the individual rights? Then read the CSA Constitution Article VI, Sections V and VI. The Confeds copied almost everything in the US Constit and the 12 Amendments verbatim but placed it in the body of the document often under different headings. But what do I know?

[Laurie Verge]

Since the words "law" and "legal" can send me into dithering spasms, I should probably keep my fingers off the keyboard and let this topic die. However, if the Cornell University Law School's Legal Information Institute is correct, "Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ."

Why then did Lincoln have the right to suspend it in 1861? Why did Congress wait several years to do their job? Why did Chief Justice Taney overturn the use on Merryman only to have Lincoln ignore it?

I also found that the writ has only been suspended twice in the history of our government - Lincoln's suspensions and Grant's suspension in response to civil rights violations by the KKK in nine counties of South Carolina.

As for the use of executive orders, I think the seemingly overuse that is occurring now is what is a matter of concern - more so than whether people agree with individual actions or not. But, as I have stated before, I tilt right.

[RJNorton]

Laurie, your questions are excellent, and I cannot answer all of them. But here is how Lincoln explained his reasoning behind suspending the writ of habeas corpus:

"To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that '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,' is equivalent to a provision---is a provision---that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made."

.....Lincoln's Message to Congress in Special Session, July 4, 1861

I might add that the meeting times for Congress were different then than they are now. Congress was not in session when the war began. Also, in 1865, when Lincoln was assassinated, Congress was not scheduled to reconvene until December. As far as a specific Reconstruction plan goes, this may at least partially explain why we don't have specific knowledge of Lincoln's plans. He may have been thinking he had the next 7 or more months to develop proposals.

[Liz Rosenthal]

(01-10-2013 12:47 PM)william l. richter Wrote:  Where in the US Constitution are the individual rights? Then read the CSA Constitution Article VI, Sections V and VI. The Confeds copied almost everything in the US Constit and the 12 Amendments verbatim but placed it in the body of the document often under different headings. But what do I know?

You're right - the Confederate Bill of Rights was basically copied from the U.S. Constitution. I was actually thinking of the Preamble, which would be very important in construing the meaning of the rest of the Constitution, and I'm sorry I wasn't more clear. The Confederate Preamble speaks of the Confederacy being brought together by the states rather than by the people. Here is the Confederate Preamble
(I'm bolding the notable difference from the U.S. Constitution):

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.

[Bill Richter]

Liz, thank you very much for your clarification. Now we can proceed. . . .

We have several things to think about. First, the direct reference to Almighty God--1860 people were more outspokenly religious than the Founders, although many Conservatives nowadays would challenge this statement.

Second, the Confederate Constitution was distinctly a states rights document and the states were responsible for individual rights and shielding the citizens from the transgressions of the central government; and the Confederate Constitution follows more closely the Articles of Confederation and the Treaty of Paris of 1783 in which the states were recognized as the preeminent power of government--indeed the Treaty of Paris which ends our Revolutionary war is between the King of England (Geo III) and the 13 individual nations (once colonies and now called states) by name. Read the treaty's preamble.

This all goes to the debates between Webster, Hayne and Calhoun in the 1830s, and challenges Lincoln's (Webster's and, I believe, Henry Clay"s) assumption that the nation existed before the states through the Declaration of Independence.

Third, the US Bill of Rights, as I said above, were placed in several sections (mostly Article I, Section IX and the sections referred to above in my first post) of the body of the Confed Constit, and disappear to the casual reader.

[Laurie Verge]

Thanks, Roger. Lincoln's words make sense to me and I also understand that the different schedule of Congress created a problem in the immediate moment of the emergency. However, I would think that the President would call Congress back in session given the emergency and that the railroads could have brought a significant amount of them back within a week or so. Why wait two years to get the nod from Congress. As a friend of my father used to say, "It just don't make sense, Sarge."

I knew I should have stayed awake in those poli sci courses!

[Liz Rosenthal]

(01-10-2013 04:45 PM)Laurie Verge Wrote:  However, I would think that the President would call Congress back in session given the emergency and that the railroads could have brought a significant amount of them back within a week or so.

Easier said than done, Laurie! We still didn't have a transcontinental railroad in 1861, which meant that representatives from California and Oregon would have had quite a problem getting to Washington. Also, from what I can remember, for several weeks after Lincoln first put out a call for 75,000 volunteers, the railroad routes through the state of Maryland, and especially through Baltimore, were damaged or destroyed by Maryland secessionists and had to be repaired. Moreover, Lincoln had to work out an agreement with Maryland officials to allow troops to go through their state. Baltimore was out of the question - that city especially was a hotbed of hostility to the North's cause - and a route had to be worked out for the troops involving a lot of marching and then taking a boat to Annapolis, from whence they could get to Washington.

[Rob Wick]

Quote:As for the use of executive orders, I think the seemingly overuse that is occurring now is what is a matter of concern - more so than whether people agree with individual actions or not. But, as I have stated before, I tilt right.

Actually, the facts don't bear that out.

As of September, according to the American Presidency Project, Obama had issued 144 executive orders.

Preceding him:
George W. Bush--291
Bill Clinton--364
George H.W. Bush--166
Ronald Reagan--381
Jimmy Carter--320

At the end of his presidency, Theodore Roosevelt had issued 1,081 executive orders while FDR in 12 years issued 3,522.

Abraham Lincoln issued 48.

Best
Rob