September 28, 2012, 12:30 PM
Did President Lincoln violate civil liberties during the war?
In July, Lincoln revealed to his cabinet his intent to emancipate slaves; in September he announced the policy to the entire nation. The proclamation applied only to states in rebellion, and excluded areas occupied by Union forces. Such limitations disheartened those who hoped for the destruction of slavery altogether. But Lincoln insisted that emancipation could only be considered constitutional as a military measure, and therefore could be deployed only to areas actively in rebellion. In other words, he thought very carefully about his constitutional power before making his proclamation.
By contrast, Lincoln worried little about curbing civil liberties to protect the war effort. As president he sharply limited freedom by suspending the writ of habeas corpus. The “great writ” forbade authorities to hold citizens indefinitely without being charged. This protection against tyranny was one of few that appeared in the original constitution, prior to the Bill of Rights.
At first Lincoln seemed reluctant to wield this power. After the crisis at Fort Sumter, generals Benjamin Butler and Winfield Scott announced their intent to arrest Maryland legislators who advocated secession, but Lincoln overruled them. By June, Marylanders intensified their opposition to the new administration by attacking volunteers and destroying communication lines and bridges that connected Baltimore to the capital. Lincoln responded swiftly, imposing martial law on the route from Washington to Philadelphia and suspending the writ of habeas corpus throughout Maryland.
The public supported these measures to secure order in Maryland, but Chief Justice Roger Taney vehemently denied that Lincoln had the constitutional power do to so. For Taney, for the power to suspend the writ was the domain of Congress, not the president, for it appeared in Article I of the Constitution.
In response, Lincoln openly defied Taney. He argued that such a narrow ruling of presidential power was hopelessly inadequate to the crisis at hand. As he wrote, if the Union was dissolving , “are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Lincoln refused to believe that the framers would not have endorsed his efforts to restore the Union. After all, the Constitution did not specify which branch had the power to suspend the writ, only that it could be suspended “when in cases of rebellion or invasion the public safety may require it.” This was, above all, a case of rebellion.
The following summer it was not Lincoln, but Secretary of War Edwin Stanton, who vastly intensified a crackdown on disloyalty. On Aug. 8, 1862, Stanton issued a nationwide order that anyone “engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States,” would be subject to arrest and trial “before a military commission.” The vague order made it nearly impossible to distinguish between dissent and disloyalty, and widespread arrests followed.
In the 30 days after Stanton issued the order, more than 350 individuals were imprisoned on these charges, far more than had been arrested prior to that point. The majority of these were avoiding the draft, which was the administration’s primary justification. Yet by deputizing local authorities to enforce the order, Stanton created serious problems. Lincoln was all too frequently frustrated to discover that some of those arrested were speaking against the war rather than actively obstructing enlistments. The editor of the Dubuque Herald, for instance, was arrested for publishing material hostile to the draft. After being held without charges for three months, he was released, but as a result his opposition to the war—and especially to Lincoln—had immensely intensified.
Two days after Lincoln issued the Emancipation Proclamation in September 1862, he renewed the nationwide suspension of the writ. Once again, the administration justified the action as a measure to protect the draft passed by Congress in July. Arrests of civilians north of the border states increased dramatically that August and September. This unwittingly fueled the criticism of the administration at a perilous political moment, on the eve of the midterm elections.
In this period, Lincoln came under increasing fire from artists and cartoonists, but not all were unsympathetic to his plight. In his satirical painting “Lincoln Crushing the Dragon of Rebellion,” David Gilmour Blythe portrayed Lincoln as a hamstrung commander, simultaneously struggling against the “dragon of rebellion” and northern subversion. New York Democrats, including New York City Mayor Fernando Wood, are ridiculed for “using” the Constitution to invalidate not just the draft but the war effort generally.
Criticism of Lincoln intensified after Congress approved the draft in March 1863. The unsigned image “Abraham the Last” from August 1864 rendered Lincoln as a subhuman beast with kingly aspirations to power. He dangles the “joke of emancipation” in front of a small African-American soldier hoping to earn his freedom, and blithely tramples over the rights of citizens and the press. Secretary of State William H. Seward reportedly boasted that he could arrest citizens from New York to Ohio with the ring of a bell, powers not even the queen of England could claim.
The political opposition to these wartime measures did worry Lincoln, particularly as he approached reelection in 1864. But he was certain that these actions were constitutional. As he wrote in a public letter to New York Democrats, the use of military courts was absolutely necessary, and arrests of those protesting the draft was done to protect the military. In Lincoln’s mind these actions were temporary, and taken to advance a much larger cause. This must have been cold comfort to the thousands arrested and held without charges during the war.
The problem with Lincoln’s justification is that it was premised on the assumption that major threats to the Union cause existed throughout the north. There are certainly instances of individuals speaking out against Lincoln and the draft, and the persistence of a virulent anti-war press suggests that the administration did not widely prosecute speech. But there is little evidence of widespread insurrection in the Union.
After the war, the Supreme Court concurred, ruling in Ex parte Milligan (1866) that while the suspension of the writ was lawful, the use of military trials was unconstitutional where civilian courts were in operation. No longer alive to respond, Lincoln would likely have taken the ruling with a grain of salt. Yet he did worry that military emancipation might be reversed after the end of the war, and this led him to press Congress to enshrine emancipation in the 13th Amendment.
Lincoln’s reputation as the violator of civil liberties is far overshadowed — and rightly so — by his reputation for defending the Union and striking against slavery. But we should remember that these are in fact interdependent, and in Lincoln’s own mind one necessitated the other.