It’s a Free Country. For How Much Longer?

[David Lockmiller]

The following is from a post that I made on August 21, 2020.

Thread title: RE: Maryland constitutional questions after Fort Sumter

The first constitutional issue was whether the federal government could intercede and prohibit a vote in the state legislature of Maryland on the question of whether or not that state would secede from the Union.

Team of Rivals, page 354:

For days, the rioting in Baltimore continued. Fears multiplied that the Maryland legislature, which had convened in Annapolis, was intending to vote for secession. The cabinet debated whether the president should bring in the army "to arrest , or disperse the members of that body." Lincoln decided that "it would not be justifiable." It was a wise determination, for in the end, though secessionist mobs continued to disrupt the peace of Maryland for weeks, the state never joined the Confederacy, and eventually became, as Lincoln predicted, "the first of the redeemed."

The second constitutional issue was whether the president had the constitutional right to rescind the basic constitutional protection against arbitrary arrest.

Team of Rivals, page 354-55:

Receiving word that the mobs intended to destroy the train tracks between Annapolis and Philadelphia in order to prevent the long-awaited troops from reaching the beleaguered capital, Lincoln made the controversial decision. If resistance along the military line between Washington and Philadelphia made it "necessary to suspend the writ of Habeas Corpus for the public safety," Lincoln authorized General Scott to do so. In Lincoln's words, General Scott could "arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to public safety." Seward later claimed that he had urged a wavering Lincoln to take this step, convincing him that "perdition was the the sure penalty of further hesitation."

Lincoln had not issued a sweeping order but a directive confined to this single route. Still, by rescinding the basic constitutional protection against arbitrary arrest, he aroused the wrath of Chief Justice Taney, who . . . blasted Lincoln and maintained that only Congress could suspend the writ.

Lincoln later defended his decision in his first message to Congress. As chief executive, he was responsible for ensuring "that the laws be faithfully executed." An insurrection "in nearly one-third of the States" had subverted the "whole of the laws . . . are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" His logic was unanswerable, but as Supreme Court Justice Thurgood Marshall argued in another context many years later, the "grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."

The book reviewer wrote as follows:

In 1861, Guelzo writes, when rioters in Baltimore attempted to stop Union militia members from traveling to Washington, Lincoln authorized “his generals to arrest and imprison suspected saboteurs without trials or charges.”

As critics accused Lincoln of leading an unconstitutional dictatorship, he wondered whether free republics had a “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?” Lincoln erred on the side of governmental strength . . . .

I do not believe that this is a correct conclusion by the book reviewer.