Maryland constitutional questions after Fort Sumter

[David Lockmiller]

Shortly after the fall of Fort Sumter, what were the two constitutional questions that President Abraham Lincoln was forced to address? And, what were the results of his decisions as President?

[RJNorton]

I am not sure if what I am about to say is what you are looking for, David. The Constitution says the President has this power: "he may, on extraordinary occasions, convene both houses..." The fall of Ft. Sumter was an extraordinary occasion. BUT, President Lincoln did not immediately call Congress into session. He set the date for that months in the future - July 4th. Even though the power to "raise armies" belongs to Congress, he called for 75,000 troops to put down the rebellion. It seems he expected Congress, once convened in July, to retroactively approve all war measures he would take between April and July.

I think Lincoln felt it was necessary to bypass a strict interpretation of the Constitution during a time of conflict in order to get things done fast. He felt it necessary to enlarge the Constitutional powers of the President in order to save the Union.

[David Lockmiller]

(08-20-2020 04:06 AM)RJNorton Wrote:  I am not sure if what I am about to say is what you are looking for, David.

Your answer is not what I was looking for, Roger. One constitutional issue had to do with an imminent vote in the Maryland legislature and the second constitutional issue had to do with the threat to the railroad line in Maryland, running north to south to Washington, D. C.

[David Lockmiller]

(08-20-2020 11:04 AM)David Lockmiller Wrote:  

(08-20-2020 04:06 AM)RJNorton Wrote:  I am not sure if what I am about to say is what you are looking for, David.

Your answer is not what I was looking for, Roger. One constitutional issue had to do with an imminent vote in the Maryland legislature and the second constitutional issue had to do with the threat to the railroad line in Maryland, running north to south to Washington, D. C.

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."

[RJNorton]

Thanks, David. I think preserving the Union was more important to the President than the Constitution.

[David Lockmiller]

(08-21-2020 01:14 PM)RJNorton Wrote:  Thanks, David. I think preserving the Union was more important to the President than the Constitution.

"The paramount idea of the constitution is the preservation of the Union. It may not be specified in so many words, but that this was the idea of its founders is evident; for, without the Union, the constitution would be worthless." (Six Months at the White House, F.B. Carpenter, Chapter XXIV, p. 76 (1879), quoting first-hand from a statement President Lincoln made to Mr. George Thompson, the English anti-slavery orator, on the morning of April 7, 1864 at the White House, following Mr. Thompson’s address in the House of Representatives the previous day to a large audience with President Lincoln in attendance.)

[David Lockmiller]

Thanks, Roger, for all that you do for this Lincoln forum!

[Steve]

About the second issue, the suspension of habeas corpus, the Constitution specifically says it can be suspended in such situations.

From the U.S. Constitution, Article I, Section 9:

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.

and Congress passed an act on July 29, 1861 empowering the President to "suppress such rebellion":

https://www.loc.gov/law/help/statutes-at...s1ch25.pdf

Here's a good article about the issue for those of you who are interested:

https://quod.lib.umich.edu/j/jala/262986...w=fulltext

[David Lockmiller]

(08-22-2020 02:49 PM)Steve Wrote:  U.S. Constitution, Article I, Section 9:

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.

Here's a good article about the issue for those of you who are interested:

https://quod.lib.umich.edu/j/jala/262986...w=fulltext

The following is Lincoln's response to criticism on the issue according to the referenced article:

Lincoln's Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis
By JAMES A. DUEHOLM

Volume 29, Issue 2, Summer 2008, pp. 47-66

On July 4, Lincoln delivered a message to the special session of Congress. He referred to his suspensions of the writ, quoted the suspension clause, and justified the suspensions on the ground that "we have a case of rebellion, and the public safety does require" suspension of the writ.

He then went on: "Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that, in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented ... by the rebellion. No more extended argument is now offered . . . .

[David Lockmiller]

According to the work titled The Life and Public Services of Abraham Lincoln, Sixteenth President of the United States, by Henry J. Raymond, Derby and Miller Publishers, New York, (1865), at pages 191-92, President Lincoln addressed much more completely this constitutional issue in his message to the extra session of Congress on July 4, 1861 as follows:

Soon after the first call for militia, it was considered a duty to authorize the Commanding-General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has been purposely exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition, that one who has sworn to “take care that the laws be faithfully executed,” should not himself violate them. Of course, some consideration was given to the question of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted, and failing of execution in nearly one-third of the states. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated! 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 disregarding this 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 case of rebellion or invasion, the public safety does require it. It was decided that we had 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. Now, it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself is silent as to which or who is vested with this power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.

No more extended argument is now offered, as an opinion, at some length, will probably be presented by the Attorney-General. Whether there be any legislation on the subject, and, if any, what, is submitted entirely to the better judgment of Congress.

The forbearance of this Government had been so extraordinary, and so long continued, as to lead some foreign nations to shape their action as if they supposed the early destruction of the National Union was probable. While this, on discovery, gave the Executive some concern, he is now happy to say that the sovereignty and rights of the United States are now everywhere practically respected by foreign powers; and a general sympathy with the country is manifested throughout the world.

The reports of the Secretaries of the Treasury, War, and the Navy, will give the information in detail deemed necessary and convenient for your deliberation and action; while the Executive and all the Department will stand ready to supply omissions, or to communicate new facts considered important for you to know.

[David Lockmiller]

Doris Kearns Goodwin, in her book Team of Rivals, at page 365, wrote:

"Congress responded with alacrity [to President Lincoln's July 4, 1861 message to Congress]. Its members authorized more money and an even larger mobilization of troops than the president had requested. In addition, they provided retroactive authority for nearly all of Lincoln's executive actions taken before they convened, remaining silent only on his suspension of habeas corpus."

[RJNorton]

(08-25-2020 09:35 AM)David Lockmiller Wrote:  remaining silent only on his suspension of habeas corpus."

However, it did eventually pass the Habeas Corpus Suspension Act in 1863.

https://en.wikipedia.org/wiki/Habeas_Cor...Act_(1863)

[David Lockmiller]

(08-25-2020 09:57 AM)RJNorton Wrote:  

(08-25-2020 09:35 AM)David Lockmiller Wrote:  remaining silent only on his suspension of habeas corpus."

However, it did eventually pass the Habeas Corpus Suspension Act in 1863.

https://en.wikipedia.org/wiki/Habeas_Cor...Act_(1863)

Thanks Roger. Good Work!

(Source: Wikipedia on subject):

On February 27, the conference committee issued its report. The result was an entirely new bill authorizing the explicit suspension of habeas corpus.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That during the present rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon a certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner under the authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the writ so long as said suspension by the President shall remain in force and said rebellion continue."

President Lincoln "immediately signed the Habeas Corpus Suspension Act into law" shortly thereafter.

[David Lockmiller]

(08-21-2020 01:14 PM)RJNorton Wrote:  Thanks, David. I think preserving the Union was more important to the President than the Constitution.

Doris Kearns Goodwin's book, Team of Rivals, at page 356, reads:

To Lincoln's mind, the battle to save the Union contained an even larger purpose than ending slavery, which was after all sanctioned by the very Constitution he was sworn to uphold. "I consider the central idea pervading this struggle," he told Hay in early May [1861], "is the necessity that is upon us, of proving that popular government is not an absurdity. We must settle this question now, whether in a free government the minority have the right to break up the government whenever they choose. If we fail it will go far to prove the incapability of the people to govern themselves."

[David Lockmiller]

(08-21-2020 01:14 PM)RJNorton Wrote:  Thanks, David. I think preserving the Union was more important to the President than the Constitution.

Roger, Doris Kearns Goodwin agrees with you. In her book Team of Rivals at page 357, she writes:

In his Farewell Address, George Washington had given voice to this transcendent idea of Union. "It is of infinite moment," George Washington said, "that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity." Foreseeing the potential for dissension, Washington advised vigilance against "the first dawning of every attempt to alienate any portion of our country from the rest or to enfeeble the sacred ties which now link together the various parts." [emphasis added]

It was this mystical idea of popular government and democracy that propelled [President] Abraham Lincoln to call forth the thousands of soldiers who would rise up to defend the sacred Union created by the Founding Fathers.