Lincoln's Unconstitutional Actions

[My Name Is Kate]

I found this article online, which contains a list of what the author (a Pittsburgh native) says are some of Lincoln's unconstitutional actions. I would like to know how much of it is true.

http://www.thomaslegion.net/presidentabr...ident.html

* Started a war without the consent of Congress
* Illegally declared martial law
* Illegally blockaded Southern ports
* Illegally suspended habeas corpus and arrested tens of thousands of political opponents
* Illegally orchestrated the secession of West Virginia
* Shut down hundreds of opposition newspapers and imprisoned their editors and owners
* Ignored the Ninth and Tenth amendments
* Orchestrated the rigging of Northern elections
* Introduced the slavery of conscription and income taxation
* Waged war on Southern civilians
* Created an enormous political patronage system that survives today

[Gene C]

The author of the article you mentioned makes the following statements

"I was quickly reminded how blindly we Yankees revere Lincoln last week after I referred in my Magazines column to an interview with libertarian economist/historian Thomas DiLorenzo in Southern Partisan magazine"

"DiLorenzo, a modern Jeffersonian, argues that the historical record clearly shows that Lincoln was a white supremacist, an enemy of free-market capitalism and a political opportunist in the pocket of the North's big banks, railroads and industries"

I tend to ignore much of what DiLorenzo writes or says as he has a biased point of view I just don't agree with.
In my opinion, he takes incidents in history and twists their meaning to meet his personal agenda and to draw attention to himself.

[RJNorton]

Here is another opinion on how many newspapers were actually shut down. Dr. Mark Neely writes that there was only one newspaper that Lincoln himself signed an order for suppression. This was the New York World and the date was May 18, 1864.

Neely writes, "On May 18 the New York World and the New York Journal of Commerce, both Democratic newspapers, published what purported to be a presidential proclamation calling for a day of fasting and prayer and for a draft of 400,000 men. The proclamation was an ingenious forgery written by newspapermen Joseph Howard and Francis A. Mallison. Howard imitated Lincoln's style, and the two distributed the bogus proclamation on Associated Press paper at 4 a.m. when the sharper editors were not at work. Even so, only the two papers fell for the ruse; the others in the city found fault with the handwriting. When news of the proclamation reached Washington, Secretary of State William H. Seward immediately sent out an explanation. Apparently at Seward's urging, Lincoln signed an order for the military arrest of the editors, proprietors, and publishers of the two papers on the 18th. Secretary of the Navy Gideon Welles immediately assumed that the bogus proclamation was a plot of rebels and gold speculators (the price of gold quickly rose 10 percent). Several arrests were made, but Manton Marble, editor of the World, could not be located. The offices of the papers were closed and occupied by soldiers.

General John A Dix, commanding the Department of the East, conducted a speedy and thorough investigation which quickly proved that the two unfortunate Democratic newspapers were dupes of a scheme got up by Howard and Mallison to raise the price of gold. The perpetrators bought gold on Tuesday and planned to sell on Wednesday the 18th when the bogus proclamations caused the price to rise. With arrests made and confessions procured by the 21st, the War Department allowed the newspapers to resume publication.

Howard, ironically was a Republican. He remained under military arrest at Fort Lafayette until his minister, Henry Ward Beecher, asked the President to intervene. On August 23, !864, Lincoln ordered Howard to be released."

Dr. Neely also writes (about censorship in general), "The President himself had no active role in censorship, but the suspension of the privilege of the writ of habeas corpus permitted arrests of editors (like other citizens) without the preferring of charges. Lincoln himself rarely took a direct hand in muzzling the press. He revoked the military suppression of the Chicago Times in 1863, a little reluctantly...For the most part, however, the President tolerated any political abuse of the administration in the press."

[AussieMick]

If I may as an Australian stick my bib in here ... Lincoln's primary justification ( I believe) for the various actions mentioned was that he was Commander-in-Chief and could take those actions in emergency situations in the expectation that they would be later ratified by Congress (otherwise presumably he would face the consequences). Habeas Corpus (suspension of) was justified, he thought, because the nation was dealing with a rebellion by some individuals primarily located in some States (which still came under his jurisdiction as President).

Some of the issues bulletted above involve duplication and overlap. Some are simply obviously spurious. I leave it to others to address them ... but frankly I think many of them are too silly to waste time on.

Frankly (in my Australian opinion) only a few of the points could be debated with any strength against Lincoln. I very much doubt that any US court made of unbiased individuals would find him , as President, guilty of any constitutional crime.

[LincolnMan]

(01-04-2018 05:37 AM)Gene C Wrote:  The author of the article you mentioned makes the following statements

"I was quickly reminded how blindly we Yankees revere Lincoln last week after I referred in my Magazines column to an interview with libertarian economist/historian Thomas DiLorenzo in Southern Partisan magazine"

"DiLorenzo, a modern Jeffersonian, argues that the historical record clearly shows that Lincoln was a white supremacist, an enemy of free-market capitalism and a political opportunist in the pocket of the North's big banks, railroads and industries"

I tend to ignore much of what DiLorenzo writes or says as he has a biased point of view I just don't agree with.
In my opinion, he takes incidents in history and twists their meaning to meet his personal agenda and to draw attention to himself.

Well said Gene.

[Angela]

Is this just me or does this article seem incredibly ignorant of the specific challenges of the nature of this particular conflict and the laws that should apply to the conduct of hostilities and the treatment of criminal citizens vs. enemy combatants?

After all, the Lincoln administration carefully avoided – for an incredibly long time – any act that might accord even the smallest degree of legitimacy to the governments of the rebellious states and thus international laws of war could not be applied. As the transition can certainly be called fluent, should not the arguments presented in the article more precise and specific?

Considering only the political theory and ignoring the military factual situation takes away credibility and makes the statements presented sound a bit superficial. It also doesn’t take into account the conclusions that resulted in the Lieber Code on civil and military conduct in a rebellion/war or its lengthy debate on “military necessity”.

If find these statements, from the point of knowledge that this forum possesses, rather difficult to debate; they seem to be directed at an audience that has yet to gain a more full understanding of the roles of government, military, international law of war and political science.

[L Verge]

Angela - I have often used your argument with upper grade students at our museum, pointing out that things change in times of crisis. In the Mary Surratt movie, The Conspirator, I believe that it is Mary's respected lawyer who quoted the following: "In times of war, the law falls silent." This is derived from a Latin phrase, Inter arma enim silent lēgēs meaning "for among [times of] arms, the laws fall mute." It is credited to Cicero.

Abraham Lincoln's request for an opinion on the suspension of the right to habeas corpus during the American Civil War resulted eventually in the following decision, in Ex parte Merryman (1861), of Chief Justice Roger B. Taney, as a judge of the United States circuit court for the District of Maryland:

1. That the president... cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control.

Please note that Taney wrote the majority opinion; this was not his exclusive decision - even though modern folks seem to want to make Taney a "dictator" of sorts as far as the Supreme Court is concerned. He is actually considered one of the best jurists, especially in Constitutional matters, that our country has ever seen.

The United States' government explicitly referred to this maxim within its argument in the case Ex parte Milligan, when it remarked (with an additional reference to Cicero) that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law." The same principle was upheld during WWII in reference to "enemy belligerents."

I have told some members of this forum about my receiving a phone call in 2001 from the U.S. Department of Justice wanting to know where they could find complete transcripts of everything pertaining to the 1865 trial of the Lincoln conspirators. They were working with that term of "enemy belligerents" also as they were arresting the folks destined for Gitmo prisons. Abraham Lincoln is not the only leader who has had to face this issue.

[AussieMick]

I'd like to add to my previous Post. It is a strength of any country that it is willing to discuss and debate the validity of various actions and decisions of its leaders.

The suspension of Habeas Corpus is obviously an extremely concerning act. Dictators and corrupt leaders carry out it out as part of their daily lives with no care whatsoever. That Lincoln and his Cabinet (and the US people thereafter) have struggled with the legality of suspension is an indication of the strength of the US democracy.

To add to Laurie's post, I think FDR (and Churchill ) also suspended Habeas Corpus in WW2... oh, reading her Post again, I see she mentions WW2.

[Angela]

(01-04-2018 02:12 PM)L Verge Wrote:  Angela - I have often used your argument with upper grade students at our museum, pointing out that things change in times of crisis. In the Mary Surratt movie, The Conspirator, I believe that it is Mary's respected lawyer who quoted the following: "In times of war, the law falls silent." This is derived from a Latin phrase, Inter arma enim silent lēgēs meaning "for among [times of] arms, the laws fall mute." It is credited to Cicero.

Abraham Lincoln's request for an opinion on the suspension of the right to habeas corpus during the American Civil War resulted eventually in the following decision, in Ex parte Merryman (1861), of Chief Justice Roger B. Taney, as a judge of the United States circuit court for the District of Maryland:

1. That the president... cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control.

Please note that Taney wrote the majority opinion; this was not his exclusive decision - even though modern folks seem to want to make Taney a "dictator" of sorts as far as the Supreme Court is concerned. He is actually considered one of the best jurists, especially in Constitutional matters, that our country has ever seen.

The United States' government explicitly referred to this maxim within its argument in the case Ex parte Milligan, when it remarked (with an additional reference to Cicero) that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law." The same principle was upheld during WWII in reference to "enemy belligerents."

I have told some members of this forum about my receiving a phone call in 2001 from the U.S. Department of Justice wanting to know where they could find complete transcripts of everything pertaining to the 1865 trial of the Lincoln conspirators. They were working with that term of "enemy belligerents" also as they were arresting the folks destined for Gitmo prisons. Abraham Lincoln is not the only leader who has had to face this issue.

Laurie, thank you for your thoughts!

Is there a particular reason you only refer to a United States Circuit Court of Maryland decision from 1861, when Congress in the Habeas Corpus Suspension Act of 1863 clearly authorized the president of the United States to suspend the privilege of the writ of habeas corpus in response to the United States Civil War?

I am sure that Abraham Lincoln would have loved to ask Congress for permission to suspend Habeas Corpus – had Congress been able to be in session, which it wasn’t only because of the reason why it was suspended in the first place.

It wasn’t an illegal usurpation of executive power by any stretch of the imagination.

However, your reply clearly shows the complexity of the topic and I thank you for it.

As for the phone call you received 17 years ago – I am not sure what you are trying to say. But I am sure it was a lovely experience.

[L Verge]

I remember teaching 8th graders outside of D.C. in the late-1960s, a turbulent time for civil rights movements, forced busing in my county, etc. Along came a magazine article (I think in Ebony) about Lincoln being a white supremacist. The author was someone I had never heard of - Lerone Bennett. It got a lot of attention at first, and then Mr. Bennett appeared to have slipped off of radar, probably because he had dared criticize Lincoln's views on race.

The next time I heard the name Lerone Bennett was in the early-2000s when I was now in the "Lincoln field" and on the Board of Advisers for The Lincoln Forum. Mr. Bennett would be a featured speaker at that year's annual conference in Gettysburg. I have to admit that he was an impressive speaker, and he now had a book on the market, Forced into Glory, that was creating quite a stir for its anti-Lincoln content.

Then, shortly thereafter, we started hearing about another anti-Lincoln author and book with Thomas DiLorenzo and The Real Lincoln. It appeared to me that DiLorenzo and his book created more of a fuss than Bennett had - perhaps because he was a white man finding fault with Lincoln, and Bennett had the race card protecting him (personal opinion here). I also found out that DiLorenzo was not a historian; he was/is an economist and based his criticisms on a wider variety of issues than Bennett. Unfortunately, after attempting to read both of these authors' books, I decided I wasn't smart enough to make sense of it all!

That said, here's a link to a C-Span/Brian Lamb interview with DiLorenzo, if you are interested: https://www.c-span.org/video/?204650-1/q...-dilorenzo

[L Verge]

(01-04-2018 02:57 PM)Angela Wrote:  

(01-04-2018 02:12 PM)L Verge Wrote:  Angela - I have often used your argument with upper grade students at our museum, pointing out that things change in times of crisis. In the Mary Surratt movie, The Conspirator, I believe that it is Mary's respected lawyer who quoted the following: "In times of war, the law falls silent." This is derived from a Latin phrase, Inter arma enim silent lēgēs meaning "for among [times of] arms, the laws fall mute." It is credited to Cicero.

Abraham Lincoln's request for an opinion on the suspension of the right to habeas corpus during the American Civil War resulted eventually in the following decision, in Ex parte Merryman (1861), of Chief Justice Roger B. Taney, as a judge of the United States circuit court for the District of Maryland:

1. That the president... cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it.
2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control.

Please note that Taney wrote the majority opinion; this was not his exclusive decision - even though modern folks seem to want to make Taney a "dictator" of sorts as far as the Supreme Court is concerned. He is actually considered one of the best jurists, especially in Constitutional matters, that our country has ever seen.

The United States' government explicitly referred to this maxim within its argument in the case Ex parte Milligan, when it remarked (with an additional reference to Cicero) that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law." The same principle was upheld during WWII in reference to "enemy belligerents."

I have told some members of this forum about my receiving a phone call in 2001 from the U.S. Department of Justice wanting to know where they could find complete transcripts of everything pertaining to the 1865 trial of the Lincoln conspirators. They were working with that term of "enemy belligerents" also as they were arresting the folks destined for Gitmo prisons. Abraham Lincoln is not the only leader who has had to face this issue.

Laurie, thank you for your thoughts!

Is there a particular reason you only refer to a United States Circuit Court of Maryland decision from 1861, when Congress in the Habeas Corpus Suspension Act of 1863 clearly authorized the president of the United States to suspend the privilege of the writ of habeas corpus in response to the United States Civil War?

I am sure that Abraham Lincoln would have loved to ask Congress for permission to suspend Habeas Corpus – had Congress been able to be in session, which it wasn’t only because of the reason why it was suspended in the first place.

It wasn’t an illegal usurpation of executive power by any stretch of the imagination.

However, your reply clearly shows the complexity of the topic and I thank you for it.

As for the phone call you received 17 years ago – I am not sure what you are trying to say. But I am sure it was a lovely experience.

Angela - As a native Marylander, I instinctively cited the Merryman case because it was a Maryland case and because it originated in April of 1861, shortly after the Baltimore Riots as Union troops were transported through that city. It is also usually overshadowed by the better known ex parte Milligan.

I hope I'm remembering the history correctly here, but John Merryman was a Marylander who participated in blowing up several rail bridges in his state when Lincoln refused the state's request to avoid bloodshed by not bringing Federal forces through Maryland en route to fortifying D.C. Lincoln answered by authorizing the military to suspend the writ of habeas corpus in cases like Merryman's - especially since he was being charged with treason.

The state officials appealed to Chief Justice Taney because, even though he was a justice of the Supreme Court, in those days, justices also served as circuit court judges. Note that the Merryman case was ruled a district court case. His case would set the tone for further cases involving the suspension of the writ -- and in Maryland, I can tell you that there were a large number of "political prisoners" who were being held for actions a lot less severe than blowing up bridges. And, they were ultimately released.

Taking this to a somewhat final conclusion was the 1866 decision on Milligan, which was chiefly about the use of military courts on civilian prisoners. This led to my comment about being contacted in 2001 by the U.S. Department of Justice because they were working on justifications for the treatment of terrorists following the attack on NY and D.C. Everything old is new again. That's a line from some musical, but I can't remember which one.

Those of you with a bend towards legal matters, please correct any errors I made in the above explanation to Angela. The law frankly scares me to death, so I can't blithely declare that I have crossed my t's and dotted my i's.

[kerry]

The issues are complex, but I think David Herbert Donald did a good explanation of a lot of this - he has an article about how Lincoln's conception of government powers stayed Whiggish his whole life, and that a lot of seeming inconsistencies can be explained by that; his conception fell outside the two-party structure. Lincoln's freedom of the press stuff is where there seems to be the most room for criticism; a president less principled than Lincoln could have done some real damage. The interpretations evolve so much over time that it is hard to answer anything definitively in my opinion, and I'm a non-practicing lawyer. It is certainly arguable Lincoln violated the Constitution, but it's also defensible. The martial law stuff seems inconsistent given Lincoln's position that the South had never left, and echoes today's debates over "enemy belligerents," as has been brought up. As for habeas corpus, it is one of the few things specifically mentioned in the Constitution.

There is but one sentence in the Constitution which mentions the writ of habeas corpus (art. 1, sec. 9, clause 2), which is in these words: “ 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.”

While defining rebellion and how far to go in using it causes controversy, in this case there was so clearly a rebellion that it seems completely justified. A lot of these issues were ripe for abuse, and I'm sure a lot of it occurred, not sanctioned by Lincoln.

The patronage and election rigged seemed almost accepted; that Lincoln was more involved in corruption than many like to admit is true; that corruption was at times the only way of advancing his agenda is probably also true. Because he had good objectives and a sense of proportion, it is hard for me to get very upset about it; as always, the problem is once another leader comes along, things can go bad fast if he's not a good one. Lincoln's presidency increased the power of the federal government and executive so much that it did lead to problems once Lincoln was gone. Whether he made the system better or worse is debatable; the system we ended up with was probably necessary to win the war, but certainly had its downsides.

I disagree that Lincoln was a white supremacist, although he can certainly be criticized for taking to long to question and act on certain commonly (though by no means universally) held racist beliefs and laws, and for playing to his audience's racial prejudices. I think that argument does a huge disservice to everything that was great about Lincoln - he may have mostly gone along with the social order, but he clearly believed or came to believe every person should be able to develop his or her talents, and that mattered a lot in his cumulative and ultimate decisions. To equate him with Douglas or many of the Confederacy's leaders on that point is a joke; they had totally different visions of the world and reveled in their supposed superiority and narrow perspective. A topic for another thread, but since it was mentioned I brought it up.

Donald's piece is here: https://books.google.com/books?id=_47AoF...cy&f=false (ch 10)
Lincoln and the Power of the Press also does a good job on this issue

[AussieMick]

I think that people who become successful politicians must expect to sometimes say and do things which conflict with their beliefs/principles ... maybe thats cynical but there you go.

Also, we cannot judge Lincoln by applying the morals and beliefs of our time. His ideas on racial attitudes and integration would clearly have been sourced on the mores and attitudes of his own time. Similarly to have expected him to operate effectively as a politician and President without meeting with and operating with corrupt people during those times is ludicrous.

Fighting a war or a rebellion or dealing with terrorists cannot be done with kid gloves. Obviously though any decent democracy will need to be constantly asking itself and its leaders, "Are we sure that this is reasonable ... how will History judge us if we do this?"

There have been debates about the morality of some decisions by the Allies during WW2. The bombing of Dresden in 1945 for example. Bad things do happen and it is right that we should constantly look back. It will happen that, with the benefit of hindsight, sometimes we will conclude "that was wrong."

However, it seems to me that the decisions and actions of Lincoln have been analysed and debated by many many people ... and nobody (as far as I know) has been able to prove conclusively that he deliberately did anything for which he could be reasonably criticized (bearing in mind the politics and the times).

[Gene C]

(01-04-2018 05:11 PM)L Verge Wrote:  Everything old is new again. That's a line from some musical, but I can't remember which one.

It's from "The Boy From Oz"
Since it's a bit cold and icy outside, the Winter Olympics are coming up, here's a short video that combines all that.
https://www.youtube.com/watch?v=Ctev1Yg9XWI

This guy is a class act.

[RJNorton]

As I look back upon the nation's history I am sometimes surprised at what the Supreme Court finds constitutional.

For example, during World War I, Congress passed and President Wilson signed the Sedition Act in 1918.

From the Sedition Act:

"SECTION 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, . . . or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct . . . the recruiting or enlistment service of the United States, or . . . shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States . . . or shall willfully display the flag of any foreign enemy, or shall willfully . . . urge, incite, or advocate any curtailment of production . . . or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both...."

In 1919 the Supreme Court upheld the Sedition Act by a vote of 7-2.

Another example came during World War II. On February 19, 1942, President Roosevelt signed Executive Order 9066, which resulted in the forcible internment of 120,000 people of Japanese ancestry. More than two-thirds of those interned under the Executive Order were citizens of the United States. The War Relocation Authority was created to administer the assembly centers, relocation centers, and internment camps, and relocation of Japanese-Americans began in April 1942. Internment camps were scattered all over the interior West, in isolated areas of Arizona, California, Utah, Idaho, Colorado, and Wyoming.

In 1944 the Supreme Court upheld the government by a vote of 6-3.