1 00:00:15,396 --> 00:00:24,316 Speaker 1: Pushkin. This is The Broken Constitution, a mini series for 2 00:00:24,436 --> 00:00:28,276 Speaker 1: unknown history from quick and Dirty tips and deep background 3 00:00:28,356 --> 00:00:32,156 Speaker 1: from Pushkin Industries. Over the course of these three episodes, 4 00:00:32,516 --> 00:00:35,996 Speaker 1: I'm discussing Abraham Lincoln and how he needed to break 5 00:00:36,036 --> 00:00:39,836 Speaker 1: the American Constitution in order to remake it. It's all 6 00:00:39,876 --> 00:00:44,316 Speaker 1: based on my new book, The Broken Constitution, Lincoln, Slavery 7 00:00:44,396 --> 00:00:50,116 Speaker 1: and the Refounding of America, out November second. In this episode, 8 00:00:50,476 --> 00:00:53,716 Speaker 1: episode two, I'm going to turn to what happened to 9 00:00:53,756 --> 00:00:57,276 Speaker 1: Lincoln when he became president and to the moment in 10 00:00:57,316 --> 00:01:01,796 Speaker 1: which he was forced to break the Constitution in order 11 00:01:01,836 --> 00:01:06,996 Speaker 1: to begin to think about how to save it. To 12 00:01:07,116 --> 00:01:09,716 Speaker 1: do that, I'm going to ask you to transport yourself 13 00:01:09,996 --> 00:01:13,996 Speaker 1: to March fourth, eighteen sixty one, the day that Lincoln 14 00:01:14,196 --> 00:01:19,636 Speaker 1: was inaugurated. No other president in US history has ever 15 00:01:19,756 --> 00:01:24,036 Speaker 1: faced a crisis even vaguely comparable to the one that 16 00:01:24,156 --> 00:01:28,516 Speaker 1: was confronting Lincoln on that date. He had been elected 17 00:01:28,636 --> 00:01:33,236 Speaker 1: four months earlier, defeating three rivals in a highly regionalized 18 00:01:33,356 --> 00:01:38,076 Speaker 1: race that was and remains the most polarized in US history. 19 00:01:38,756 --> 00:01:42,596 Speaker 1: And since he'd been elected, seven states had held special 20 00:01:42,756 --> 00:01:47,076 Speaker 1: secession conventions and announced that they were withdrawing from what 21 00:01:47,116 --> 00:01:51,596 Speaker 1: they referred to as the Compact entitled the US Constitution. 22 00:01:52,836 --> 00:01:57,396 Speaker 1: In the aftermath, federal officials quit their jobs in all 23 00:01:57,476 --> 00:02:01,316 Speaker 1: of those seven states, and the US government ceased to 24 00:02:01,396 --> 00:02:04,796 Speaker 1: exist as a practical matter within them, with a minor 25 00:02:04,876 --> 00:02:08,916 Speaker 1: exception of a handful of military bases that still remained 26 00:02:08,956 --> 00:02:12,876 Speaker 1: in those states, the most famous of which was Fort Sumter, 27 00:02:13,356 --> 00:02:18,036 Speaker 1: a fortification in the harbor of Charleston, South Carolina. And 28 00:02:18,156 --> 00:02:21,116 Speaker 1: in the case of that fortification, the state of South 29 00:02:21,116 --> 00:02:23,636 Speaker 1: Carolina had made it clear that it was going to 30 00:02:23,756 --> 00:02:28,556 Speaker 1: blockade that fort, blocking supplies from coming in, and that 31 00:02:28,636 --> 00:02:31,476 Speaker 1: it was demanding that the President of the United States 32 00:02:31,836 --> 00:02:35,796 Speaker 1: removed the soldiers who were there. And the clock was 33 00:02:35,876 --> 00:02:39,596 Speaker 1: ticking because the supplies that fed the soldiers at Fort 34 00:02:39,636 --> 00:02:43,876 Speaker 1: Sumter were dwindling on a rapid day to day basis. 35 00:02:45,436 --> 00:02:49,556 Speaker 1: Faced with this situation, Lincoln had to make a crucial choice. 36 00:02:50,436 --> 00:02:53,956 Speaker 1: We all think we know what that choice was. Lincoln 37 00:02:53,996 --> 00:02:58,116 Speaker 1: decided to confront the Confederacy. He sent ships to resupply 38 00:02:58,156 --> 00:03:03,156 Speaker 1: the fort. Before they could arrive, Confederate forces fired on 39 00:03:03,236 --> 00:03:07,716 Speaker 1: Fort Sumter, and in consequence, we believe we know, the 40 00:03:07,716 --> 00:03:12,276 Speaker 1: war began in retrospect, this all seems inevitable to us, 41 00:03:12,876 --> 00:03:17,716 Speaker 1: but a closer examination of Lincoln's constitutional thinking, and indeed 42 00:03:17,956 --> 00:03:20,236 Speaker 1: that of everyone in the United States at the time, 43 00:03:20,676 --> 00:03:22,556 Speaker 1: reveals that what looks to us as though it was 44 00:03:22,596 --> 00:03:29,876 Speaker 1: inevitable was far from it. Remarkably, and mostly forgotten, Lincoln's 45 00:03:29,876 --> 00:03:36,076 Speaker 1: predecessor as President, James Buchanan, had already considered what constitutional 46 00:03:36,116 --> 00:03:40,436 Speaker 1: authority the president or Congress had to respond to the 47 00:03:40,516 --> 00:03:44,996 Speaker 1: secession of the Southern States, and Buchanan had concluded the 48 00:03:45,076 --> 00:03:50,876 Speaker 1: answer was nothing. If that sounds shocking, it is, and 49 00:03:50,956 --> 00:03:56,396 Speaker 1: it requires a certain degree of depth to understand it. Essentially, 50 00:03:56,996 --> 00:04:00,756 Speaker 1: Buchanan and his attorney general, a man called Jeremiah Black, 51 00:04:01,116 --> 00:04:04,516 Speaker 1: had already concluded that under the Constitution of the United States, 52 00:04:04,756 --> 00:04:09,756 Speaker 1: there was no option of secession. It followed, therefore, according 53 00:04:09,796 --> 00:04:13,236 Speaker 1: to Black and Buchanan, that if the Southern States chose 54 00:04:13,276 --> 00:04:17,276 Speaker 1: to secede, they were not acting lawfully under the Constitution, 55 00:04:17,636 --> 00:04:21,516 Speaker 1: as they insisted, but were in fact engaged in an 56 00:04:21,516 --> 00:04:25,956 Speaker 1: act of revolution. But that's where the similarity between Buchanan's 57 00:04:25,996 --> 00:04:30,796 Speaker 1: views and those of Lincoln ends, because Buchanan, influenced by 58 00:04:30,796 --> 00:04:35,036 Speaker 1: his attorney general, reached the conclusion that nothing in the 59 00:04:35,156 --> 00:04:40,516 Speaker 1: Constitution authorized the present of the United States, or indeed 60 00:04:40,516 --> 00:04:45,676 Speaker 1: Congress to go to war to coerce seceding states to 61 00:04:45,796 --> 00:04:51,236 Speaker 1: remain in the Union. Why. The simple answer has to 62 00:04:51,236 --> 00:04:54,276 Speaker 1: do with the core idea of democratic government in the 63 00:04:54,356 --> 00:04:58,236 Speaker 1: United States, going back to the founders, namely the idea 64 00:04:58,396 --> 00:05:02,076 Speaker 1: of the consent of the government. According to the basic 65 00:05:02,196 --> 00:05:05,676 Speaker 1: ideas laid out by Thomas Jefferson in the Declaration of Independence, 66 00:05:06,396 --> 00:05:09,476 Speaker 1: all men are created equal. They're endowed by their creator 67 00:05:09,516 --> 00:05:13,596 Speaker 1: with certain and alienable rights, and if a government chose 68 00:05:13,636 --> 00:05:16,476 Speaker 1: to violate those rights, it was up to the people 69 00:05:16,516 --> 00:05:19,796 Speaker 1: themselves to make the determination of whether they wished to 70 00:05:19,836 --> 00:05:25,756 Speaker 1: make a revolution and withdraw. This was American constitutional orthodoxy, 71 00:05:26,036 --> 00:05:28,716 Speaker 1: as indeed it had to be, because it amounted to 72 00:05:28,756 --> 00:05:31,676 Speaker 1: the rationale that Lincoln and the United States had used 73 00:05:31,836 --> 00:05:36,116 Speaker 1: to form the country and withdraw from the United Kingdom. 74 00:05:37,436 --> 00:05:39,956 Speaker 1: Notice that at the core of this notion is that 75 00:05:40,036 --> 00:05:44,316 Speaker 1: a group of human beings have the authority themselves to 76 00:05:44,356 --> 00:05:48,396 Speaker 1: give their consent to participate in government, or to withdraw 77 00:05:48,516 --> 00:05:52,876 Speaker 1: that consent. Once that consent was withdrawn. According to that view, 78 00:05:53,236 --> 00:05:56,836 Speaker 1: it would be illegitimate for the government that claimed sovereignty 79 00:05:56,876 --> 00:06:01,036 Speaker 1: over them to use military force to demand that those 80 00:06:01,036 --> 00:06:06,596 Speaker 1: people stay inside of the government. President Buchanan explained all 81 00:06:06,676 --> 00:06:09,436 Speaker 1: this to the country and to the world in his 82 00:06:09,516 --> 00:06:12,796 Speaker 1: final State of the Union address, Basing himself on an 83 00:06:12,836 --> 00:06:16,956 Speaker 1: official opinion by his Attorney general, he explained that once 84 00:06:17,596 --> 00:06:21,396 Speaker 1: secession had occurred, it followed from that that there was 85 00:06:21,556 --> 00:06:25,396 Speaker 1: nothing the central government, including the president or even Congress, 86 00:06:25,756 --> 00:06:29,636 Speaker 1: could do about it. The most Buchanan was willing to 87 00:06:29,676 --> 00:06:32,796 Speaker 1: concede was that when there were federal officials who were 88 00:06:32,836 --> 00:06:35,516 Speaker 1: trying to enforce the law in a place in the 89 00:06:35,556 --> 00:06:39,116 Speaker 1: country and were blocked from doing so, the federal government 90 00:06:39,116 --> 00:06:42,436 Speaker 1: could send troops to help them do so. But Buchanan 91 00:06:42,476 --> 00:06:45,716 Speaker 1: made clear the only way that that was permitted was 92 00:06:45,716 --> 00:06:49,716 Speaker 1: if there actually were federal officials civilian officials in those 93 00:06:49,716 --> 00:06:52,596 Speaker 1: states who were trying to enforce the law, and that 94 00:06:52,716 --> 00:06:55,316 Speaker 1: was not the case in the seceding states, where all 95 00:06:55,396 --> 00:07:00,756 Speaker 1: of the federal officials had already quit and resigned. Thus, 96 00:07:01,036 --> 00:07:03,996 Speaker 1: on this very first day in office, Abraham Lincoln had 97 00:07:04,036 --> 00:07:08,156 Speaker 1: to begin considering whether he would repudiate the basic theory 98 00:07:08,156 --> 00:07:12,796 Speaker 1: of the constitution that had been articulated by his predecessor 99 00:07:13,276 --> 00:07:18,316 Speaker 1: and deploy force to attempt to make the Southern States 100 00:07:18,636 --> 00:07:23,076 Speaker 1: re enter the Union. Put another way, Lincoln would have 101 00:07:23,116 --> 00:07:27,116 Speaker 1: to break the Constitution as introduced by his predecessor in 102 00:07:27,236 --> 00:07:33,156 Speaker 1: order to begin the process of preserving the Constitution. In 103 00:07:33,196 --> 00:07:36,596 Speaker 1: his first inaugural address, to which we will return in 104 00:07:36,676 --> 00:07:40,996 Speaker 1: our next episode, episode three, Lincoln began in a tentative 105 00:07:40,996 --> 00:07:44,916 Speaker 1: way to lay down his account of why it would 106 00:07:44,916 --> 00:07:49,476 Speaker 1: be permissible to force the Southern States back into the Union, 107 00:07:49,716 --> 00:07:55,556 Speaker 1: even against their democratically expressed will to do so. Lincoln 108 00:07:55,636 --> 00:07:59,236 Speaker 1: first insisted that, in contemplation of universal law and of 109 00:07:59,316 --> 00:08:04,356 Speaker 1: the Constitution, the union of these states is perpetual. Nowhere 110 00:08:04,356 --> 00:08:07,596 Speaker 1: in the Constitution did it say explicitly that the union 111 00:08:07,716 --> 00:08:10,436 Speaker 1: needed to last forever and could ever be broken, but 112 00:08:10,596 --> 00:08:15,316 Speaker 1: Lincoln insisted on it. Nevertheless, the principle would be that 113 00:08:15,436 --> 00:08:18,796 Speaker 1: in order to enforce federal law in the seceding states, 114 00:08:18,916 --> 00:08:22,476 Speaker 1: he would send troops as needed to force the people 115 00:08:22,516 --> 00:08:25,956 Speaker 1: in those states to administer and obey the laws from 116 00:08:25,996 --> 00:08:32,756 Speaker 1: which they had chosen to withdraw. Lincoln introduced a conceptual 117 00:08:33,076 --> 00:08:35,676 Speaker 1: argument for why he had to do this that was 118 00:08:35,876 --> 00:08:40,876 Speaker 1: entirely his own. He told the Southern states, you have 119 00:08:41,076 --> 00:08:45,036 Speaker 1: no oath registered in heaven to destroy the government, while 120 00:08:45,116 --> 00:08:48,996 Speaker 1: I shall have the most solemn one to preserve, protect, 121 00:08:49,196 --> 00:08:53,556 Speaker 1: and defend it. Notice that nowhere in this address, or 122 00:08:53,596 --> 00:08:59,316 Speaker 1: indeed subsequently, did Lincoln say that the Constitution itself was moral. 123 00:09:00,156 --> 00:09:03,236 Speaker 1: As I described in Episode one, Lincoln could not say 124 00:09:03,236 --> 00:09:05,876 Speaker 1: that the Constitution was moral, because he knew that it 125 00:09:05,956 --> 00:09:10,356 Speaker 1: was not. The Constitution was a compromise with slave slavery 126 00:09:10,516 --> 00:09:14,556 Speaker 1: was immoral. Morality therefore could only come into the picture 127 00:09:14,876 --> 00:09:18,556 Speaker 1: as a basis for requiring Lincoln to do what he 128 00:09:18,636 --> 00:09:21,356 Speaker 1: had promised. What he had promised to do was to 129 00:09:21,396 --> 00:09:24,556 Speaker 1: preserve the Union, and in order to preserve the Union, 130 00:09:24,956 --> 00:09:30,236 Speaker 1: he would have to use force against the South. From 131 00:09:30,276 --> 00:09:33,916 Speaker 1: the perspective of the South, war was by no means inevitable. 132 00:09:34,516 --> 00:09:37,956 Speaker 1: The Southern states, in fact, hoped precisely to avoid any 133 00:09:37,996 --> 00:09:41,196 Speaker 1: conflict with the North. They expected that, as a matter 134 00:09:41,436 --> 00:09:44,996 Speaker 1: of constitutional principle, and indeed also as a matter of 135 00:09:44,996 --> 00:09:48,716 Speaker 1: practical reality, they would be little that the North could 136 00:09:48,756 --> 00:09:53,356 Speaker 1: do to stop their secession. And the Confederacy insisted that 137 00:09:53,436 --> 00:09:56,396 Speaker 1: it was actually obeying the Constitution of the United States 138 00:09:56,476 --> 00:10:00,236 Speaker 1: when it's seceded and forming a new constitution. The new 139 00:10:00,236 --> 00:10:05,596 Speaker 1: Southern Constitution mimicked in most of its particulars the Northern Constitution. 140 00:10:06,476 --> 00:10:10,836 Speaker 1: The one major difference, explained Alexandra Hamilton Stevens, the Vice 141 00:10:10,876 --> 00:10:14,676 Speaker 1: President of the Confederacy, had to do with race and slavery. 142 00:10:15,316 --> 00:10:18,836 Speaker 1: All the essentials of the old Constitution have been preserved 143 00:10:18,876 --> 00:10:23,836 Speaker 1: and perpetuated, said Stephens. But he said the prevailing idea 144 00:10:23,916 --> 00:10:27,476 Speaker 1: of the framers had been that slavery was wrong and 145 00:10:27,516 --> 00:10:33,156 Speaker 1: would eventually pass away. That Stephens said was fundamentally wrong. 146 00:10:33,676 --> 00:10:37,676 Speaker 1: It rested upon the assumption of the equality of the races. 147 00:10:37,716 --> 00:10:42,996 Speaker 1: Stephens said this was an error. He then explicitly stated 148 00:10:43,156 --> 00:10:47,316 Speaker 1: the purpose of the Southern Constitution. Our new government, he said, 149 00:10:47,476 --> 00:10:51,876 Speaker 1: is founded upon exactly the opposite idea. Its foundations are laid, 150 00:10:51,996 --> 00:10:55,756 Speaker 1: its cornerstone rests upon the great truth that the negro 151 00:10:55,916 --> 00:10:59,996 Speaker 1: is not equal to the white man, that slavery, subordination 152 00:11:00,076 --> 00:11:04,676 Speaker 1: to the superior race is his natural and normal condition. This, 153 00:11:04,916 --> 00:11:07,596 Speaker 1: our new government, is the first in the history of 154 00:11:07,636 --> 00:11:12,356 Speaker 1: the world based upon this great physical, philosophical, and moral truth. 155 00:11:13,476 --> 00:11:16,396 Speaker 1: It's worth pausing for a moment to take on board 156 00:11:16,676 --> 00:11:20,796 Speaker 1: the enormity of that description of the Southern Constitution by 157 00:11:21,076 --> 00:11:25,516 Speaker 1: the Vice President of the Confederacy, Alexander Hamilton Stevens, was 158 00:11:25,556 --> 00:11:32,276 Speaker 1: saying explicitly that the Confederacy's constitution was based fundamentally on 159 00:11:32,396 --> 00:11:37,116 Speaker 1: the principle of white supremacy and what he called the 160 00:11:37,316 --> 00:11:41,876 Speaker 1: moral idea that slavery was that quote natural and normal 161 00:11:42,236 --> 00:11:47,836 Speaker 1: condition of people of African descent. What's so shocking about this, 162 00:11:48,036 --> 00:11:52,476 Speaker 1: stated in retrospect, is that the Confederacy simply made no 163 00:11:52,716 --> 00:11:58,076 Speaker 1: bones about the idea that their constitutional commitment, their foundational commitment, 164 00:11:58,196 --> 00:12:03,196 Speaker 1: the cornerstone of their entire government, was the perpetuation of 165 00:12:03,236 --> 00:12:08,516 Speaker 1: slavery and its commitment to racial subordination. Now consider Lincoln's 166 00:12:08,556 --> 00:12:11,516 Speaker 1: perspective in terms of the question not of what he 167 00:12:11,636 --> 00:12:15,556 Speaker 1: was authorized to do, but what he actually practically could 168 00:12:15,636 --> 00:12:19,516 Speaker 1: do to force the South to return. What he sought 169 00:12:19,556 --> 00:12:23,596 Speaker 1: to do was to provoke a Southern military attack on 170 00:12:23,636 --> 00:12:25,716 Speaker 1: the North so he would be able to say that 171 00:12:25,756 --> 00:12:28,876 Speaker 1: the war was started by the South, to call up 172 00:12:29,356 --> 00:12:32,596 Speaker 1: tens of thousands of militia in the hopes of creating 173 00:12:32,596 --> 00:12:35,796 Speaker 1: conditions that would convince the South that a war was coming, 174 00:12:36,476 --> 00:12:40,196 Speaker 1: and simultaneously to try to lure the South back by 175 00:12:40,276 --> 00:12:44,436 Speaker 1: telling them that he was still fully prepared to guarantee 176 00:12:44,636 --> 00:12:49,236 Speaker 1: slavery in the Union as provided by the compromised Constitution. 177 00:12:49,996 --> 00:12:53,996 Speaker 1: At the same time, Lincoln introduced a crucial argument that 178 00:12:54,036 --> 00:12:56,276 Speaker 1: he laid out to the country in a special address 179 00:12:56,316 --> 00:13:01,436 Speaker 1: to Congress on July fourth, eighteen sixty one. In that address, 180 00:13:02,156 --> 00:13:06,716 Speaker 1: he said that the Southern states were engaged in rebellion, 181 00:13:07,556 --> 00:13:10,796 Speaker 1: they were rebels and their for traders, and it was 182 00:13:10,836 --> 00:13:15,716 Speaker 1: therefore justifiable to seek to coerce them back into the Union. 183 00:13:16,996 --> 00:13:20,396 Speaker 1: In making this argument, Lincoln was heeding advice that he 184 00:13:20,396 --> 00:13:23,876 Speaker 1: had been given by William Seward, his Secretary of State. 185 00:13:24,756 --> 00:13:28,436 Speaker 1: Seward told Lincoln, we must change the question before the 186 00:13:28,476 --> 00:13:32,396 Speaker 1: public from one upon slavery or about slavery, for a 187 00:13:32,516 --> 00:13:37,556 Speaker 1: question upon union or disunion. Seward was telling Lincoln that 188 00:13:37,636 --> 00:13:41,876 Speaker 1: he must define the war not as a war about slavery, 189 00:13:42,436 --> 00:13:47,716 Speaker 1: but as a war about disloyalty, rebellion, and disunion. The 190 00:13:47,876 --> 00:13:50,956 Speaker 1: reason Seward advised this is that he did not believe 191 00:13:51,236 --> 00:13:54,196 Speaker 1: that public opinion in the North was interested in going 192 00:13:54,236 --> 00:13:58,356 Speaker 1: to war over the question of slavery. The emphasis on 193 00:13:58,676 --> 00:14:03,556 Speaker 1: disloyalty and disunion was designed to create a politically palatable 194 00:14:03,676 --> 00:14:07,516 Speaker 1: rationale for the war that would enable Lincoln to say 195 00:14:07,836 --> 00:14:11,836 Speaker 1: that he stood for the remise constitutions still and blamed 196 00:14:11,916 --> 00:14:15,556 Speaker 1: the South for violating the compromise. The point would then 197 00:14:15,636 --> 00:14:20,956 Speaker 1: be to force the compromise back on the South. There was, however, 198 00:14:21,356 --> 00:14:27,196 Speaker 1: a tricky conceptual problem. The compromise constitution had always been 199 00:14:27,236 --> 00:14:32,556 Speaker 1: based on consent. Now Lincoln was arguing the compromise could 200 00:14:32,596 --> 00:14:36,396 Speaker 1: be based on coercion. In order to reach this conclusion, 201 00:14:36,836 --> 00:14:41,996 Speaker 1: Lincoln developed a new theory of how the relationship between 202 00:14:41,996 --> 00:14:48,196 Speaker 1: the majority and the minority should work in a constitutional democracy. Historically, 203 00:14:48,636 --> 00:14:52,756 Speaker 1: the true nature of constitutional arrangements was always and had 204 00:14:52,836 --> 00:14:57,476 Speaker 1: always been, that majorities compromised with minorities by giving the 205 00:14:57,516 --> 00:15:01,916 Speaker 1: minorities a good portion of what they wanted, even though 206 00:15:02,236 --> 00:15:06,476 Speaker 1: the majority had more people. The reason, if you don't 207 00:15:06,516 --> 00:15:09,556 Speaker 1: provise that sort of a compromise to a minority, minority 208 00:15:09,716 --> 00:15:13,876 Speaker 1: can always walk away. The minardi's capacity to walk away 209 00:15:13,876 --> 00:15:16,676 Speaker 1: from a constitution, to engage in what today we call 210 00:15:16,956 --> 00:15:21,996 Speaker 1: spoiler behavior forces the majority to give the minority more 211 00:15:22,156 --> 00:15:27,276 Speaker 1: than it deserves under ordinary principles of majority government. Lincoln 212 00:15:27,276 --> 00:15:31,436 Speaker 1: now argued that that arrangement made no sense. He insisted 213 00:15:31,636 --> 00:15:36,116 Speaker 1: that minorities could then always exercise coercive power over majorities, 214 00:15:36,316 --> 00:15:40,636 Speaker 1: and that majoritarian government would therefore not be sustainable. In 215 00:15:40,716 --> 00:15:43,836 Speaker 1: order to solve that problem, he said, the majority had 216 00:15:43,876 --> 00:15:47,796 Speaker 1: to have recourse to a new right that had never 217 00:15:47,836 --> 00:15:51,556 Speaker 1: been discussed by the Framers, namely, the right to use 218 00:15:51,716 --> 00:15:57,636 Speaker 1: force to compel the minority to stay in the Constitutional order. 219 00:15:58,716 --> 00:16:02,916 Speaker 1: Lincoln had, in other words, imposed on the Constitutional Order 220 00:16:03,396 --> 00:16:07,676 Speaker 1: a theory that the Framers themselves had not believed, a 221 00:16:07,676 --> 00:16:10,156 Speaker 1: theory that would have been more suit the views of 222 00:16:10,196 --> 00:16:14,036 Speaker 1: the British monarchy and of Parliament in seventeen seventy six, 223 00:16:14,476 --> 00:16:17,276 Speaker 1: then to the views of the founders of the United 224 00:16:17,276 --> 00:16:21,716 Speaker 1: States of America. The upshot of that theory was that 225 00:16:21,876 --> 00:16:24,556 Speaker 1: the president of the United States could go to war 226 00:16:25,076 --> 00:16:28,756 Speaker 1: even without waiting for Congress to force the Southern States 227 00:16:28,796 --> 00:16:33,476 Speaker 1: to remain, and Lincoln claimed this was somehow under the 228 00:16:33,556 --> 00:16:39,236 Speaker 1: authority of the Constitution. Here, Lincoln was breaking the Constitution 229 00:16:39,516 --> 00:16:42,716 Speaker 1: as it had been understood by his predecessors, and indeed 230 00:16:42,716 --> 00:16:46,676 Speaker 1: as it had been conceptualized by the Founders and the Framers, 231 00:16:46,756 --> 00:16:50,916 Speaker 1: in order to justify his choice to go to war. 232 00:16:52,356 --> 00:16:57,156 Speaker 1: What happened next, Well, Remember that Lincoln had only sixteen 233 00:16:57,196 --> 00:17:01,396 Speaker 1: thousand troops in the regular US Army. Just to defend 234 00:17:01,436 --> 00:17:04,676 Speaker 1: the capital in Washington, d C. He would need at 235 00:17:04,716 --> 00:17:08,436 Speaker 1: least thirty five thousand troops. That meant the only place 236 00:17:08,476 --> 00:17:13,276 Speaker 1: Lincoln could get troops was from state militia volunteers who 237 00:17:13,356 --> 00:17:16,836 Speaker 1: had to be called up and mustered into service essentially 238 00:17:16,916 --> 00:17:22,036 Speaker 1: immediately and transported to Washington, d C. To protect the capital. 239 00:17:22,476 --> 00:17:25,356 Speaker 1: If he didn't, the war could be over almost before 240 00:17:25,436 --> 00:17:31,356 Speaker 1: it began. Consequently, on April fifteenth, eighteen sixty one, Lincoln 241 00:17:31,356 --> 00:17:36,516 Speaker 1: called up seventy five thousand volunteer militiamen. Massachusetts, which had 242 00:17:36,556 --> 00:17:40,396 Speaker 1: been preparing for this moment already, immediately sent eleven companies 243 00:17:40,396 --> 00:17:44,716 Speaker 1: of volunteers to go and help defend the city of Washington, 244 00:17:44,796 --> 00:17:49,036 Speaker 1: d C. They were sent from Massachusetts with great fanfare. 245 00:17:49,516 --> 00:17:53,556 Speaker 1: As the trains carrying the soldiers came through Springfield, Hartford, 246 00:17:53,636 --> 00:17:58,956 Speaker 1: New York, Trenton, and Philadelphia, bells rang bands played, and 247 00:17:59,076 --> 00:18:03,836 Speaker 1: supportive onlookers expressed their pride in the troops, and then 248 00:18:03,876 --> 00:18:08,676 Speaker 1: they got to Baltimore. To pass through Baltimore in those days, 249 00:18:09,156 --> 00:18:12,196 Speaker 1: train cars had to be decoupled at the President Street 250 00:18:12,236 --> 00:18:16,356 Speaker 1: station and then pulled on rails by horses along Pratt 251 00:18:16,396 --> 00:18:19,876 Speaker 1: Street and across a bridge to Camden Station, where they 252 00:18:19,876 --> 00:18:23,036 Speaker 1: could then be reattached to steam engines and sent further 253 00:18:23,116 --> 00:18:27,396 Speaker 1: south to Washington, d C. As the train cars carrying 254 00:18:27,396 --> 00:18:31,476 Speaker 1: the Massachusetts volunteers were dragged across town by the horses, 255 00:18:32,116 --> 00:18:38,396 Speaker 1: a hostile mob of thousands of people formed to stop them. 256 00:18:38,636 --> 00:18:41,956 Speaker 1: Seven of the companies made it through, but four companies, 257 00:18:42,196 --> 00:18:45,316 Speaker 1: consisting of two hundred and twenty men, were stuck at 258 00:18:45,356 --> 00:18:48,876 Speaker 1: President Street. The only way they could make it across 259 00:18:48,956 --> 00:18:51,716 Speaker 1: town and get into train cars in order to go 260 00:18:51,796 --> 00:18:54,796 Speaker 1: down to Washington, d C. Was to march a mile 261 00:18:55,076 --> 00:19:00,436 Speaker 1: across town through the mob itself. Under orders from their officers, 262 00:19:00,716 --> 00:19:05,556 Speaker 1: the soldiers began their march with guns drawn. Somebody we 263 00:19:05,596 --> 00:19:08,836 Speaker 1: still don't know who fired the first shot, and an 264 00:19:08,836 --> 00:19:13,356 Speaker 1: ex change of gunfire occurred between the crowd and the soldiers. 265 00:19:14,636 --> 00:19:18,916 Speaker 1: Twelve civilians and four soldiers were killed. It was only 266 00:19:18,956 --> 00:19:22,356 Speaker 1: with the intervention of the Baltimore police that the soldiers 267 00:19:22,396 --> 00:19:26,076 Speaker 1: managed to make it to their trains and head for Washington, 268 00:19:26,156 --> 00:19:31,156 Speaker 1: d C. These events were little short of disastrous seen 269 00:19:31,276 --> 00:19:36,196 Speaker 1: from the standpoint of the Union. In response, Abraham Lincoln 270 00:19:36,196 --> 00:19:40,116 Speaker 1: and the Union had no choice they had to hold Baltimore. 271 00:19:40,876 --> 00:19:44,556 Speaker 1: Acting on his own initiative, a Lowell, Massachusetts mill owner 272 00:19:44,676 --> 00:19:47,876 Speaker 1: named Benjamin Butler, who had just lobbied to get himself 273 00:19:47,876 --> 00:19:53,276 Speaker 1: appointed brigadier general by the state of Massachusetts, decided to 274 00:19:53,316 --> 00:19:56,556 Speaker 1: take over Baltimore with the troops that he had an 275 00:19:56,716 --> 00:20:02,836 Speaker 1: established military rule there. In both word. Indeed, General Butler 276 00:20:02,956 --> 00:20:06,996 Speaker 1: was occupying the city of Baltimore, a city in an 277 00:20:07,116 --> 00:20:11,596 Speaker 1: unceceded state named the mar Maryland, and claiming to exercise 278 00:20:12,196 --> 00:20:17,876 Speaker 1: full martial law in the city. Lincoln knew that the 279 00:20:17,996 --> 00:20:22,076 Speaker 1: risk of alienating the citizens of Maryland and pushing them 280 00:20:22,116 --> 00:20:27,676 Speaker 1: into secession was extraordinarily high. He also knew that there 281 00:20:27,716 --> 00:20:30,756 Speaker 1: was no practical choice but to seek control over Baltimore 282 00:20:30,876 --> 00:20:33,836 Speaker 1: if troops were going to be brought to Washington, d c. 283 00:20:34,316 --> 00:20:39,196 Speaker 1: And eventually further south. Faced with these circumstances, Lincoln took 284 00:20:39,236 --> 00:20:43,036 Speaker 1: an extraordinary and a decisive step. In a letter to 285 00:20:43,076 --> 00:20:48,196 Speaker 1: Winfield Scott, he officially authorized the suspension of the writ 286 00:20:48,356 --> 00:20:52,636 Speaker 1: of habeas corpus anywhere in the vicinity of any military 287 00:20:52,676 --> 00:20:58,196 Speaker 1: line between Philadelphia and Washington. What was the writ of 288 00:20:58,196 --> 00:21:01,556 Speaker 1: habeas corpus and why did its suspension matter? So much 289 00:21:01,676 --> 00:21:06,156 Speaker 1: to Lincoln in that moment. The Writ of habeas Corpus 290 00:21:06,396 --> 00:21:09,716 Speaker 1: was a legal mechanism embodied in a fund mental right. 291 00:21:10,476 --> 00:21:14,076 Speaker 1: What it said, in essence, was the guarantee that the 292 00:21:14,196 --> 00:21:18,476 Speaker 1: government could never detain you and hold you without legal 293 00:21:18,516 --> 00:21:23,156 Speaker 1: grounds and without a criminal trial. Suspending the Writ of 294 00:21:23,156 --> 00:21:27,476 Speaker 1: habeas corpus therefore had the effect of turning whoever was 295 00:21:27,516 --> 00:21:32,196 Speaker 1: running the government into an all powerful ruler who could 296 00:21:32,276 --> 00:21:37,956 Speaker 1: grab up anybody he chose for any purposes without having 297 00:21:38,036 --> 00:21:41,796 Speaker 1: to subject that detention or arrest to the rule of law. 298 00:21:43,556 --> 00:21:46,236 Speaker 1: You can see, therefore, why the Writ of habeas corpus 299 00:21:46,476 --> 00:21:49,956 Speaker 1: was so important to the fundamental structure of the rule 300 00:21:49,996 --> 00:21:53,316 Speaker 1: of law and of order. Now, the Constitution of the 301 00:21:53,396 --> 00:21:57,396 Speaker 1: United States did indeed contemplate suspension of the Writ of 302 00:21:57,436 --> 00:22:02,596 Speaker 1: habeas corpus in cases of rebellion where it should be necessary. 303 00:22:03,436 --> 00:22:06,956 Speaker 1: But and here was the butt upon which an enormous 304 00:22:06,956 --> 00:22:11,436 Speaker 1: controversy would turn. The Constitution also made it extremely clear 305 00:22:11,756 --> 00:22:14,836 Speaker 1: that it was Congress that it had the authority to 306 00:22:14,836 --> 00:22:18,956 Speaker 1: suspend the Writ of habeas Corpus, not the President. The 307 00:22:19,036 --> 00:22:22,036 Speaker 1: suspension of the Writ of habeas Corpus was contained in 308 00:22:22,076 --> 00:22:25,796 Speaker 1: the provision of the Constitution in Article one, Section nine, 309 00:22:25,836 --> 00:22:28,676 Speaker 1: where all of the powers of Congress are laid out. 310 00:22:29,316 --> 00:22:32,116 Speaker 1: The whole of Article one is about the powers of Congress, 311 00:22:32,316 --> 00:22:34,436 Speaker 1: and the President doesn't even come into the picture in 312 00:22:34,476 --> 00:22:39,716 Speaker 1: the Constitution until Article two. Thus, the Constitution made it 313 00:22:39,796 --> 00:22:42,556 Speaker 1: about as clear as it could have been that in 314 00:22:42,676 --> 00:22:45,836 Speaker 1: cases of war or rebellion, it would be Congress's job 315 00:22:46,076 --> 00:22:48,876 Speaker 1: to suspend the writ of habeas corpus, and Congress that 316 00:22:48,916 --> 00:22:52,876 Speaker 1: would therefore have the capacity to reverse that suspension. It 317 00:22:52,956 --> 00:22:56,116 Speaker 1: did not contemplate that the president could do this himself, 318 00:22:56,796 --> 00:23:01,436 Speaker 1: nor had any president in US history heretofore ever imagined 319 00:23:01,796 --> 00:23:05,676 Speaker 1: that he had such a right. Lincoln, on the other hand, 320 00:23:05,956 --> 00:23:09,716 Speaker 1: suspended the writ of habeas corpus in April eighteen sixty one, 321 00:23:09,996 --> 00:23:15,396 Speaker 1: when Congress was not even in session. He was acting unilaterally, 322 00:23:15,756 --> 00:23:19,156 Speaker 1: and he was acting in violation of the clear and 323 00:23:19,316 --> 00:23:24,916 Speaker 1: obvious meaning of the Constitution. In the weeks and months 324 00:23:24,996 --> 00:23:28,676 Speaker 1: that followed, the fact that Lincoln had broken the Constitution 325 00:23:29,076 --> 00:23:33,916 Speaker 1: became evident and absolutely clear. It took place in the 326 00:23:33,956 --> 00:23:38,876 Speaker 1: context of an extraordinary, historic confrontation between the President of 327 00:23:38,876 --> 00:23:42,236 Speaker 1: the United States and the Chief Justice of the United 328 00:23:42,276 --> 00:23:46,076 Speaker 1: States in the case that came to be known as 329 00:23:46,516 --> 00:23:51,116 Speaker 1: Ex Party Merriman. The case got its name from one 330 00:23:51,476 --> 00:23:55,716 Speaker 1: John Merriman, who was a Maryland farmer and militiaman who 331 00:23:55,876 --> 00:24:01,236 Speaker 1: was deeply sympathetic to the secessionist South. Along with his 332 00:24:01,276 --> 00:24:05,636 Speaker 1: militia company, and probably under orders from higher up Maryland officials, 333 00:24:05,796 --> 00:24:09,956 Speaker 1: including maybe even the governor of the state, Ariman burned 334 00:24:10,036 --> 00:24:14,156 Speaker 1: a series of railroad bridges, making it even harder for 335 00:24:14,516 --> 00:24:18,996 Speaker 1: Union troops to come through Baltimore. In response, at two 336 00:24:19,036 --> 00:24:21,796 Speaker 1: in the morning on May twenty fifth, eighteen sixty one, 337 00:24:22,356 --> 00:24:26,556 Speaker 1: federal troops seized Merriman at his farm and imprisoned him 338 00:24:26,716 --> 00:24:31,316 Speaker 1: at Fort McHenry in Baltimore. The arrest was a military arrest, 339 00:24:31,636 --> 00:24:35,676 Speaker 1: not a civilian arrest. Merriman would not be put on trial, 340 00:24:36,076 --> 00:24:38,876 Speaker 1: and he would not be charged with a crime. Instead, 341 00:24:39,116 --> 00:24:42,236 Speaker 1: he would be held as long as the government chose 342 00:24:42,396 --> 00:24:46,556 Speaker 1: to hold him. Now. Merriman had a lawyer who thought 343 00:24:46,636 --> 00:24:49,436 Speaker 1: fast and immediately went to the Chief Justice of the 344 00:24:49,516 --> 00:24:54,636 Speaker 1: United States, Roger Tawney, himself a pro Union Maryland man, 345 00:24:55,036 --> 00:24:58,876 Speaker 1: and asked Tawny to issue a writ of habeas corpus 346 00:24:58,916 --> 00:25:02,276 Speaker 1: that would require the government to produce the body of 347 00:25:02,396 --> 00:25:05,236 Speaker 1: John Merriman, that's what the words habeas corpus mean in 348 00:25:05,276 --> 00:25:09,356 Speaker 1: Latin produced the body and by so doing tell the 349 00:25:09,396 --> 00:25:12,676 Speaker 1: world that it was not within the authority of the 350 00:25:12,756 --> 00:25:16,076 Speaker 1: President of United States or the US military to grab 351 00:25:16,156 --> 00:25:19,836 Speaker 1: up a citizen of the United States living in Maryland, 352 00:25:20,036 --> 00:25:23,236 Speaker 1: a state that was part of the Union, and hold 353 00:25:23,316 --> 00:25:29,796 Speaker 1: him indefinitely without trial. Tawny responded, the way you would 354 00:25:29,836 --> 00:25:35,196 Speaker 1: hope and expect a good judge would. He issued an 355 00:25:35,316 --> 00:25:39,356 Speaker 1: order directing the person in charge of Fort McHenry to 356 00:25:39,516 --> 00:25:42,676 Speaker 1: bring the body of John Merriman with him into court 357 00:25:42,996 --> 00:25:46,036 Speaker 1: and show cause why it was lawful for him to 358 00:25:46,116 --> 00:25:51,156 Speaker 1: be detained. In a dramatic confrontation in the Federal courtroom 359 00:25:51,436 --> 00:25:55,116 Speaker 1: in Baltimore, a delegate of the officer in charge of 360 00:25:55,156 --> 00:25:58,916 Speaker 1: Fort McHenry appeared and announced that the body of John 361 00:25:58,956 --> 00:26:03,716 Speaker 1: Merriman would not be produced. The US military, under the 362 00:26:03,756 --> 00:26:07,036 Speaker 1: authority of the President, was going to defy the authority 363 00:26:07,236 --> 00:26:11,556 Speaker 1: of a constitutional judiciary created by Article three of the Constitution, 364 00:26:12,116 --> 00:26:16,396 Speaker 1: and was going to claim the authority to suspend habeas corpus. 365 00:26:17,716 --> 00:26:22,476 Speaker 1: Tanny understood what he had to do. On June fourth, 366 00:26:22,476 --> 00:26:26,396 Speaker 1: eighteen sixty one, he issued a written judgment known as 367 00:26:26,636 --> 00:26:31,996 Speaker 1: X Party Merriman, which explained the legal circumstances in the document. 368 00:26:32,436 --> 00:26:36,916 Speaker 1: Tanny explained that the Constitution did not authorize the President 369 00:26:37,036 --> 00:26:39,916 Speaker 1: of the United States to suspend the writ of habeas corpus. 370 00:26:40,316 --> 00:26:44,156 Speaker 1: It authorized only Congress to do so. He pointed out 371 00:26:44,556 --> 00:26:47,236 Speaker 1: that no president had ever claimed such an authority before. 372 00:26:47,716 --> 00:26:50,716 Speaker 1: Tanny went further. He said that no argument could be 373 00:26:50,796 --> 00:26:54,116 Speaker 1: drawn from the nature of sovereignty or the necessity of 374 00:26:54,156 --> 00:26:57,836 Speaker 1: government for self defense in times of tumult and danger. 375 00:26:58,556 --> 00:27:01,036 Speaker 1: The reason that the government could not rely on a 376 00:27:01,076 --> 00:27:05,196 Speaker 1: pure argument from necessity, said Tanny, was that the US 377 00:27:05,276 --> 00:27:10,516 Speaker 1: Constitution is a government of limited powers. It does not 378 00:27:10,636 --> 00:27:15,596 Speaker 1: confer absolute power or absolute sovereignty on anyone in the system, 379 00:27:15,676 --> 00:27:19,636 Speaker 1: not on Congress, not on the president. Sovereignty resides in 380 00:27:19,756 --> 00:27:24,436 Speaker 1: the people. By violating the Constitution's conferral of the right 381 00:27:24,476 --> 00:27:28,356 Speaker 1: to suspend habeas corpus on Congress, the president was therefore 382 00:27:28,756 --> 00:27:32,596 Speaker 1: usurping the power of the people, and doing so was 383 00:27:32,636 --> 00:27:38,556 Speaker 1: fundamentally illegitimate. Tany understood that he was taking an enormous 384 00:27:38,676 --> 00:27:41,756 Speaker 1: risk in confronting the President of the United States. It 385 00:27:41,796 --> 00:27:44,596 Speaker 1: was rumored at the time that he himself, the Chief 386 00:27:44,676 --> 00:27:49,076 Speaker 1: Justice might be arrested for his active resistance. In the 387 00:27:49,116 --> 00:27:53,156 Speaker 1: concluding words of his written the judgment, he explained that 388 00:27:53,236 --> 00:27:57,276 Speaker 1: he could not do anything about the suspension of Habeas corpus. 389 00:27:58,476 --> 00:28:01,796 Speaker 1: He explained that these great and fundamental laws had been 390 00:28:01,836 --> 00:28:06,116 Speaker 1: disregarded and suspended by a military order supported by the 391 00:28:06,156 --> 00:28:09,676 Speaker 1: force of arms. All he could do, he said, was 392 00:28:09,996 --> 00:28:15,196 Speaker 1: his duty. Tony's message to Lincoln was devastating. Lincoln was 393 00:28:15,356 --> 00:28:19,476 Speaker 1: claiming to be going to war in fulfillment of his 394 00:28:19,596 --> 00:28:23,996 Speaker 1: constitutional oath to take care that the laws be faithfully executed. 395 00:28:24,636 --> 00:28:28,796 Speaker 1: But by suspending Habeas corpus, Lincoln was doing the opposite 396 00:28:28,956 --> 00:28:32,676 Speaker 1: of taking care that the laws be faithfully executed. To 397 00:28:32,756 --> 00:28:37,356 Speaker 1: the contrary, Lincoln was violating that very oath of office. 398 00:28:38,836 --> 00:28:42,996 Speaker 1: Lincoln could not take this argument lying down, and on 399 00:28:43,076 --> 00:28:46,916 Speaker 1: July fourth, eighteen sixty one, in his address to Congress, 400 00:28:47,476 --> 00:28:52,076 Speaker 1: he offered a series of attempted justifications for why the 401 00:28:52,116 --> 00:28:57,276 Speaker 1: suspension of Habeas corpus was legitimate. If you want a 402 00:28:57,316 --> 00:29:00,636 Speaker 1: close analysis of what he argued, I hope you'll look 403 00:29:00,796 --> 00:29:04,316 Speaker 1: at the book itself. I'll tell you now that the 404 00:29:04,436 --> 00:29:08,236 Speaker 1: essence of his argument was that in practice, he had 405 00:29:08,276 --> 00:29:11,516 Speaker 1: no choice but to suspend Habeas Corpus because Congress was 406 00:29:11,556 --> 00:29:14,836 Speaker 1: not in session, and if he did not suspend this law, 407 00:29:15,316 --> 00:29:19,916 Speaker 1: all the other laws were going to be unenforced. This 408 00:29:20,036 --> 00:29:23,716 Speaker 1: came very, very close to an explicit argument that it 409 00:29:23,756 --> 00:29:27,636 Speaker 1: was within his own power to break the Constitution in 410 00:29:27,756 --> 00:29:32,596 Speaker 1: order to save the Constitution. Ultimately, he was saying the 411 00:29:32,836 --> 00:29:38,156 Speaker 1: ends justified the means. What history has forgotten to a 412 00:29:38,196 --> 00:29:43,636 Speaker 1: remarkable degree is what Lincoln then did when Congress refused 413 00:29:44,076 --> 00:29:50,236 Speaker 1: ultimately to suspend Habeas corpus itself. The short answer is 414 00:29:50,236 --> 00:29:52,996 Speaker 1: that over the next two and a half years, in 415 00:29:53,076 --> 00:29:57,596 Speaker 1: the time until Congress ultimately authorized suspension and continued his policies, 416 00:29:58,556 --> 00:30:04,516 Speaker 1: Lincoln allowed the military to shut down newspapers all over 417 00:30:04,556 --> 00:30:09,476 Speaker 1: the country that were critical of his war policies. He 418 00:30:09,876 --> 00:30:15,396 Speaker 1: authorized the arrest and detention of thousands and thousands of 419 00:30:15,516 --> 00:30:19,716 Speaker 1: critics of the war. It's hard to know with certainty 420 00:30:19,796 --> 00:30:23,276 Speaker 1: exactly how many people were arrested and detained because records 421 00:30:23,276 --> 00:30:27,236 Speaker 1: were not systematically kept, but the best estimate suggests that 422 00:30:27,356 --> 00:30:31,836 Speaker 1: at least fourteen thousand, four hundred and conceivably as many 423 00:30:31,876 --> 00:30:36,996 Speaker 1: as thirty eight thousand people were arrested and held without 424 00:30:37,076 --> 00:30:39,716 Speaker 1: trial in the United States over the course of the 425 00:30:39,796 --> 00:30:44,796 Speaker 1: Civil War, hundreds of newspapers were shut down. At no 426 00:30:45,076 --> 00:30:48,676 Speaker 1: other time in the history of the United States as 427 00:30:48,716 --> 00:30:53,756 Speaker 1: any president suppressed the freedom of expression anything like as 428 00:30:53,836 --> 00:30:57,876 Speaker 1: unilaterally or in anything as extreme a way as Lincoln 429 00:30:57,916 --> 00:31:01,596 Speaker 1: did over the course of the Civil War. Seen in 430 00:31:01,636 --> 00:31:06,676 Speaker 1: the terms of our contemporary world, Lincoln effectively suspended the 431 00:31:06,796 --> 00:31:10,716 Speaker 1: First Amendment for most of the direction of the Civil War. 432 00:31:12,316 --> 00:31:17,196 Speaker 1: Criticism of his war policies was tolerated only at the margins, 433 00:31:17,756 --> 00:31:21,596 Speaker 1: and essentially not tolerated at all if anyone argued that 434 00:31:21,636 --> 00:31:24,356 Speaker 1: the United States should make peace with the Southern States 435 00:31:24,556 --> 00:31:30,236 Speaker 1: and let them depart in the Broken Constitution. I lay 436 00:31:30,276 --> 00:31:33,356 Speaker 1: out in a lot of detail the reasons to understand 437 00:31:33,396 --> 00:31:37,836 Speaker 1: that Lincoln himself was directly involved here, but I also 438 00:31:37,916 --> 00:31:43,436 Speaker 1: discuss a more philosophical question, namely, was Lincoln a dictator 439 00:31:43,836 --> 00:31:47,356 Speaker 1: during the period of time in which he unilaterally suspended 440 00:31:47,436 --> 00:31:51,756 Speaker 1: habeas corpus and suspended the freedom of speech. The short 441 00:31:51,756 --> 00:31:54,956 Speaker 1: answer is that Lincoln did function as a dictator of 442 00:31:54,996 --> 00:32:00,156 Speaker 1: some kind. He was what is sometimes called a constitutional dictator, 443 00:32:00,996 --> 00:32:04,996 Speaker 1: someone who claims to be fulfilling of the Constitution, not 444 00:32:05,276 --> 00:32:08,556 Speaker 1: as it then exists, but as it would soon be 445 00:32:08,596 --> 00:32:12,756 Speaker 1: embraced by the population to be. In order to justify 446 00:32:13,236 --> 00:32:18,476 Speaker 1: his actions by developing his theory of necessity and his 447 00:32:18,596 --> 00:32:22,436 Speaker 1: view that he had no choice but to suspend habeas 448 00:32:22,476 --> 00:32:26,516 Speaker 1: corpus and ultimately to suspend free speech and the free press, 449 00:32:27,076 --> 00:32:31,436 Speaker 1: Lincoln was gambling that history would eventually say that what 450 00:32:31,596 --> 00:32:38,796 Speaker 1: he did was justified. Remarkably enough, history has not reached 451 00:32:38,996 --> 00:32:44,316 Speaker 1: that conclusion. Today, Lincoln's suspension of free speech is largely 452 00:32:44,356 --> 00:32:52,556 Speaker 1: ignored rather than celebrated. No subsequent president has undertaken similar action, 453 00:32:53,316 --> 00:32:56,436 Speaker 1: and indeed, the Supreme Court of the United States after 454 00:32:56,596 --> 00:32:59,516 Speaker 1: the Civil War, in a case called X Party Milligan, 455 00:33:00,076 --> 00:33:03,796 Speaker 1: rejected the idea that it was permissible for the government 456 00:33:03,836 --> 00:33:08,516 Speaker 1: of United States to hold civilians by military detention without 457 00:33:08,556 --> 00:33:12,316 Speaker 1: trial without the writ of habeas corpus in any place 458 00:33:12,556 --> 00:33:15,756 Speaker 1: where the courts of the United States were open and functioning, 459 00:33:16,156 --> 00:33:19,956 Speaker 1: as they were throughout the Union throughout the period of 460 00:33:19,996 --> 00:33:24,396 Speaker 1: the Civil War. This principle, which is still good law 461 00:33:24,676 --> 00:33:26,996 Speaker 1: under the Constitution of the United States, as interpreted by 462 00:33:26,996 --> 00:33:32,196 Speaker 1: the Supreme Court, amounted to a genuine repudiation of Lincoln's 463 00:33:32,196 --> 00:33:37,756 Speaker 1: constitutional theories. Although Lincoln's decision to break the Constitution as 464 00:33:37,756 --> 00:33:40,316 Speaker 1: it was then understood by going to war has been 465 00:33:40,396 --> 00:33:44,916 Speaker 1: validated by history. Lincoln's decision to suspend habeas corpus in 466 00:33:44,916 --> 00:33:48,516 Speaker 1: the North and his decision to suspend their freedom of 467 00:33:48,556 --> 00:33:54,996 Speaker 1: speech are not part of our constitutional order today. In 468 00:33:55,076 --> 00:33:57,916 Speaker 1: the third and final episode of this podcast, which you'll 469 00:33:57,956 --> 00:34:00,636 Speaker 1: have a chance to hear next week, I will turn 470 00:34:00,876 --> 00:34:04,676 Speaker 1: to Lincoln's most famous violation of the Constitution as it 471 00:34:04,716 --> 00:34:10,116 Speaker 1: was then understood, namely the emancipation of the laved people 472 00:34:10,476 --> 00:34:14,516 Speaker 1: of the South. And that act of emancipation, I will 473 00:34:14,556 --> 00:34:18,436 Speaker 1: show was the violation of the Constitution, the breaking of 474 00:34:18,436 --> 00:34:24,436 Speaker 1: the Constitution that was profoundly validated by history, that vindicated 475 00:34:24,516 --> 00:34:29,276 Speaker 1: Lincoln's actions more generally, and the transformed not only the 476 00:34:29,316 --> 00:34:33,276 Speaker 1: meaning of the war, but the future of the Constitution 477 00:34:33,876 --> 00:34:43,276 Speaker 1: of the United States. To hear more about that, listen 478 00:34:43,316 --> 00:34:47,036 Speaker 1: to the next episode of this podcast, The Broken Constitution, 479 00:34:47,476 --> 00:34:50,676 Speaker 1: coming to you in one week. If you can't wait, 480 00:34:51,036 --> 00:34:53,436 Speaker 1: you can listen to the next episode a few days 481 00:34:53,436 --> 00:34:57,236 Speaker 1: early on the Unknown History podcast from Quick and Dirty Tips. 482 00:34:57,796 --> 00:35:01,316 Speaker 1: Find it in the show notes or your favorite podcast app, 483 00:35:02,156 --> 00:35:05,596 Speaker 1: and go ahead and pre order or by The Broken 484 00:35:05,636 --> 00:35:10,876 Speaker 1: Constitution from your favorite local bookstore. It's out on November second. 485 00:35:12,196 --> 00:35:16,236 Speaker 1: The Broken Constitution was produced by Nathan SAMs and Quick 486 00:35:16,276 --> 00:35:19,636 Speaker 1: and Dirty Tips, a proud part of McMillan publisher's home 487 00:35:19,756 --> 00:35:22,996 Speaker 1: of Farrar, Straus and Jeru, who are publishing my book