Speaker 1: Pushkin. This is The Broken Constitution, a mini series for
Speaker 1: unknown history from quick and Dirty tips and deep background
Speaker 1: from Pushkin Industries. Over the course of these three episodes,
Speaker 1: I'm discussing Abraham Lincoln and how he needed to break
Speaker 1: the American Constitution in order to remake it. It's all
Speaker 1: based on my new book, The Broken Constitution, Lincoln, Slavery
Speaker 1: and the Refounding of America, out November second. In this episode,
Speaker 1: episode two, I'm going to turn to what happened to
Speaker 1: Lincoln when he became president and to the moment in
Speaker 1: which he was forced to break the Constitution in order
Speaker 1: to begin to think about how to save it. To
Speaker 1: do that, I'm going to ask you to transport yourself
Speaker 1: to March fourth, eighteen sixty one, the day that Lincoln
Speaker 1: was inaugurated. No other president in US history has ever
Speaker 1: faced a crisis even vaguely comparable to the one that
Speaker 1: was confronting Lincoln on that date. He had been elected
Speaker 1: four months earlier, defeating three rivals in a highly regionalized
Speaker 1: race that was and remains the most polarized in US history.
Speaker 1: And since he'd been elected, seven states had held special
Speaker 1: secession conventions and announced that they were withdrawing from what
Speaker 1: they referred to as the Compact entitled the US Constitution.
Speaker 1: In the aftermath, federal officials quit their jobs in all
Speaker 1: of those seven states, and the US government ceased to
Speaker 1: exist as a practical matter within them, with a minor
Speaker 1: exception of a handful of military bases that still remained
Speaker 1: in those states, the most famous of which was Fort Sumter,
Speaker 1: a fortification in the harbor of Charleston, South Carolina. And
Speaker 1: in the case of that fortification, the state of South
Speaker 1: Carolina had made it clear that it was going to
Speaker 1: blockade that fort, blocking supplies from coming in, and that
Speaker 1: it was demanding that the President of the United States
Speaker 1: removed the soldiers who were there. And the clock was
Speaker 1: ticking because the supplies that fed the soldiers at Fort
Speaker 1: Sumter were dwindling on a rapid day to day basis.
Speaker 1: Faced with this situation, Lincoln had to make a crucial choice.
Speaker 1: We all think we know what that choice was. Lincoln
Speaker 1: decided to confront the Confederacy. He sent ships to resupply
Speaker 1: the fort. Before they could arrive, Confederate forces fired on
Speaker 1: Fort Sumter, and in consequence, we believe we know, the
Speaker 1: war began in retrospect, this all seems inevitable to us,
Speaker 1: but a closer examination of Lincoln's constitutional thinking, and indeed
Speaker 1: that of everyone in the United States at the time,
Speaker 1: reveals that what looks to us as though it was
Speaker 1: inevitable was far from it. Remarkably, and mostly forgotten, Lincoln's
Speaker 1: predecessor as President, James Buchanan, had already considered what constitutional
Speaker 1: authority the president or Congress had to respond to the
Speaker 1: secession of the Southern States, and Buchanan had concluded the
Speaker 1: answer was nothing. If that sounds shocking, it is, and
Speaker 1: it requires a certain degree of depth to understand it. Essentially,
Speaker 1: Buchanan and his attorney general, a man called Jeremiah Black,
Speaker 1: had already concluded that under the Constitution of the United States,
Speaker 1: there was no option of secession. It followed, therefore, according
Speaker 1: to Black and Buchanan, that if the Southern States chose
Speaker 1: to secede, they were not acting lawfully under the Constitution,
Speaker 1: as they insisted, but were in fact engaged in an
Speaker 1: act of revolution. But that's where the similarity between Buchanan's
Speaker 1: views and those of Lincoln ends, because Buchanan, influenced by
Speaker 1: his attorney general, reached the conclusion that nothing in the
Speaker 1: Constitution authorized the present of the United States, or indeed
Speaker 1: Congress to go to war to coerce seceding states to
Speaker 1: remain in the Union. Why. The simple answer has to
Speaker 1: do with the core idea of democratic government in the
Speaker 1: United States, going back to the founders, namely the idea
Speaker 1: of the consent of the government. According to the basic
Speaker 1: ideas laid out by Thomas Jefferson in the Declaration of Independence,
Speaker 1: all men are created equal. They're endowed by their creator
Speaker 1: with certain and alienable rights, and if a government chose
Speaker 1: to violate those rights, it was up to the people
Speaker 1: themselves to make the determination of whether they wished to
Speaker 1: make a revolution and withdraw. This was American constitutional orthodoxy,
Speaker 1: as indeed it had to be, because it amounted to
Speaker 1: the rationale that Lincoln and the United States had used
Speaker 1: to form the country and withdraw from the United Kingdom.
Speaker 1: Notice that at the core of this notion is that
Speaker 1: a group of human beings have the authority themselves to
Speaker 1: give their consent to participate in government, or to withdraw
Speaker 1: that consent. Once that consent was withdrawn. According to that view,
Speaker 1: it would be illegitimate for the government that claimed sovereignty
Speaker 1: over them to use military force to demand that those
Speaker 1: people stay inside of the government. President Buchanan explained all
Speaker 1: this to the country and to the world in his
Speaker 1: final State of the Union address, Basing himself on an
Speaker 1: official opinion by his Attorney general, he explained that once
Speaker 1: secession had occurred, it followed from that that there was
Speaker 1: nothing the central government, including the president or even Congress,
Speaker 1: could do about it. The most Buchanan was willing to
Speaker 1: concede was that when there were federal officials who were
Speaker 1: trying to enforce the law in a place in the
Speaker 1: country and were blocked from doing so, the federal government
Speaker 1: could send troops to help them do so. But Buchanan
Speaker 1: made clear the only way that that was permitted was
Speaker 1: if there actually were federal officials civilian officials in those
Speaker 1: states who were trying to enforce the law, and that
Speaker 1: was not the case in the seceding states, where all
Speaker 1: of the federal officials had already quit and resigned. Thus,
Speaker 1: on this very first day in office, Abraham Lincoln had
Speaker 1: to begin considering whether he would repudiate the basic theory
Speaker 1: of the constitution that had been articulated by his predecessor
Speaker 1: and deploy force to attempt to make the Southern States
Speaker 1: re enter the Union. Put another way, Lincoln would have
Speaker 1: to break the Constitution as introduced by his predecessor in
Speaker 1: order to begin the process of preserving the Constitution. In
Speaker 1: his first inaugural address, to which we will return in
Speaker 1: our next episode, episode three, Lincoln began in a tentative
Speaker 1: way to lay down his account of why it would
Speaker 1: be permissible to force the Southern States back into the Union,
Speaker 1: even against their democratically expressed will to do so. Lincoln
Speaker 1: first insisted that, in contemplation of universal law and of
Speaker 1: the Constitution, the union of these states is perpetual. Nowhere
Speaker 1: in the Constitution did it say explicitly that the union
Speaker 1: needed to last forever and could ever be broken, but
Speaker 1: Lincoln insisted on it. Nevertheless, the principle would be that
Speaker 1: in order to enforce federal law in the seceding states,
Speaker 1: he would send troops as needed to force the people
Speaker 1: in those states to administer and obey the laws from
Speaker 1: which they had chosen to withdraw. Lincoln introduced a conceptual
Speaker 1: argument for why he had to do this that was
Speaker 1: entirely his own. He told the Southern states, you have
Speaker 1: no oath registered in heaven to destroy the government, while
Speaker 1: I shall have the most solemn one to preserve, protect,
Speaker 1: and defend it. Notice that nowhere in this address, or
Speaker 1: indeed subsequently, did Lincoln say that the Constitution itself was moral.
Speaker 1: As I described in Episode one, Lincoln could not say
Speaker 1: that the Constitution was moral, because he knew that it
Speaker 1: was not. The Constitution was a compromise with slave slavery
Speaker 1: was immoral. Morality therefore could only come into the picture
Speaker 1: as a basis for requiring Lincoln to do what he
Speaker 1: had promised. What he had promised to do was to
Speaker 1: preserve the Union, and in order to preserve the Union,
Speaker 1: he would have to use force against the South. From
Speaker 1: the perspective of the South, war was by no means inevitable.
Speaker 1: The Southern states, in fact, hoped precisely to avoid any
Speaker 1: conflict with the North. They expected that, as a matter
Speaker 1: of constitutional principle, and indeed also as a matter of
Speaker 1: practical reality, they would be little that the North could
Speaker 1: do to stop their secession. And the Confederacy insisted that
Speaker 1: it was actually obeying the Constitution of the United States
Speaker 1: when it's seceded and forming a new constitution. The new
Speaker 1: Southern Constitution mimicked in most of its particulars the Northern Constitution.
Speaker 1: The one major difference, explained Alexandra Hamilton Stevens, the Vice
Speaker 1: President of the Confederacy, had to do with race and slavery.
Speaker 1: All the essentials of the old Constitution have been preserved
Speaker 1: and perpetuated, said Stephens. But he said the prevailing idea
Speaker 1: of the framers had been that slavery was wrong and
Speaker 1: would eventually pass away. That Stephens said was fundamentally wrong.
Speaker 1: It rested upon the assumption of the equality of the races.
Speaker 1: Stephens said this was an error. He then explicitly stated
Speaker 1: the purpose of the Southern Constitution. Our new government, he said,
Speaker 1: is founded upon exactly the opposite idea. Its foundations are laid,
Speaker 1: its cornerstone rests upon the great truth that the negro
Speaker 1: is not equal to the white man, that slavery, subordination
Speaker 1: to the superior race is his natural and normal condition. This,
Speaker 1: our new government, is the first in the history of
Speaker 1: the world based upon this great physical, philosophical, and moral truth.
Speaker 1: It's worth pausing for a moment to take on board
Speaker 1: the enormity of that description of the Southern Constitution by
Speaker 1: the Vice President of the Confederacy, Alexander Hamilton Stevens, was
Speaker 1: saying explicitly that the Confederacy's constitution was based fundamentally on
Speaker 1: the principle of white supremacy and what he called the
Speaker 1: moral idea that slavery was that quote natural and normal
Speaker 1: condition of people of African descent. What's so shocking about this,
Speaker 1: stated in retrospect, is that the Confederacy simply made no
Speaker 1: bones about the idea that their constitutional commitment, their foundational commitment,
Speaker 1: the cornerstone of their entire government, was the perpetuation of
Speaker 1: slavery and its commitment to racial subordination. Now consider Lincoln's
Speaker 1: perspective in terms of the question not of what he
Speaker 1: was authorized to do, but what he actually practically could
Speaker 1: do to force the South to return. What he sought
Speaker 1: to do was to provoke a Southern military attack on
Speaker 1: the North so he would be able to say that
Speaker 1: the war was started by the South, to call up
Speaker 1: tens of thousands of militia in the hopes of creating
Speaker 1: conditions that would convince the South that a war was coming,
Speaker 1: and simultaneously to try to lure the South back by
Speaker 1: telling them that he was still fully prepared to guarantee
Speaker 1: slavery in the Union as provided by the compromised Constitution.
Speaker 1: At the same time, Lincoln introduced a crucial argument that
Speaker 1: he laid out to the country in a special address
Speaker 1: to Congress on July fourth, eighteen sixty one. In that address,
Speaker 1: he said that the Southern states were engaged in rebellion,
Speaker 1: they were rebels and their for traders, and it was
Speaker 1: therefore justifiable to seek to coerce them back into the Union.
Speaker 1: In making this argument, Lincoln was heeding advice that he
Speaker 1: had been given by William Seward, his Secretary of State.
Speaker 1: Seward told Lincoln, we must change the question before the
Speaker 1: public from one upon slavery or about slavery, for a
Speaker 1: question upon union or disunion. Seward was telling Lincoln that
Speaker 1: he must define the war not as a war about slavery,
Speaker 1: but as a war about disloyalty, rebellion, and disunion. The
Speaker 1: reason Seward advised this is that he did not believe
Speaker 1: that public opinion in the North was interested in going
Speaker 1: to war over the question of slavery. The emphasis on
Speaker 1: disloyalty and disunion was designed to create a politically palatable
Speaker 1: rationale for the war that would enable Lincoln to say
Speaker 1: that he stood for the remise constitutions still and blamed
Speaker 1: the South for violating the compromise. The point would then
Speaker 1: be to force the compromise back on the South. There was, however,
Speaker 1: a tricky conceptual problem. The compromise constitution had always been
Speaker 1: based on consent. Now Lincoln was arguing the compromise could
Speaker 1: be based on coercion. In order to reach this conclusion,
Speaker 1: Lincoln developed a new theory of how the relationship between
Speaker 1: the majority and the minority should work in a constitutional democracy. Historically,
Speaker 1: the true nature of constitutional arrangements was always and had
Speaker 1: always been, that majorities compromised with minorities by giving the
Speaker 1: minorities a good portion of what they wanted, even though
Speaker 1: the majority had more people. The reason, if you don't
Speaker 1: provise that sort of a compromise to a minority, minority
Speaker 1: can always walk away. The minardi's capacity to walk away
Speaker 1: from a constitution, to engage in what today we call
Speaker 1: spoiler behavior forces the majority to give the minority more
Speaker 1: than it deserves under ordinary principles of majority government. Lincoln
Speaker 1: now argued that that arrangement made no sense. He insisted
Speaker 1: that minorities could then always exercise coercive power over majorities,
Speaker 1: and that majoritarian government would therefore not be sustainable. In
Speaker 1: order to solve that problem, he said, the majority had
Speaker 1: to have recourse to a new right that had never
Speaker 1: been discussed by the Framers, namely, the right to use
Speaker 1: force to compel the minority to stay in the Constitutional order.
Speaker 1: Lincoln had, in other words, imposed on the Constitutional Order
Speaker 1: a theory that the Framers themselves had not believed, a
Speaker 1: theory that would have been more suit the views of
Speaker 1: the British monarchy and of Parliament in seventeen seventy six,
Speaker 1: then to the views of the founders of the United
Speaker 1: States of America. The upshot of that theory was that
Speaker 1: the president of the United States could go to war
Speaker 1: even without waiting for Congress to force the Southern States
Speaker 1: to remain, and Lincoln claimed this was somehow under the
Speaker 1: authority of the Constitution. Here, Lincoln was breaking the Constitution
Speaker 1: as it had been understood by his predecessors, and indeed
Speaker 1: as it had been conceptualized by the Founders and the Framers,
Speaker 1: in order to justify his choice to go to war.
Speaker 1: What happened next, Well, Remember that Lincoln had only sixteen
Speaker 1: thousand troops in the regular US Army. Just to defend
Speaker 1: the capital in Washington, d C. He would need at
Speaker 1: least thirty five thousand troops. That meant the only place
Speaker 1: Lincoln could get troops was from state militia volunteers who
Speaker 1: had to be called up and mustered into service essentially
Speaker 1: immediately and transported to Washington, d C. To protect the capital.
Speaker 1: If he didn't, the war could be over almost before
Speaker 1: it began. Consequently, on April fifteenth, eighteen sixty one, Lincoln
Speaker 1: called up seventy five thousand volunteer militiamen. Massachusetts, which had
Speaker 1: been preparing for this moment already, immediately sent eleven companies
Speaker 1: of volunteers to go and help defend the city of Washington,
Speaker 1: d C. They were sent from Massachusetts with great fanfare.
Speaker 1: As the trains carrying the soldiers came through Springfield, Hartford,
Speaker 1: New York, Trenton, and Philadelphia, bells rang bands played, and
Speaker 1: supportive onlookers expressed their pride in the troops, and then
Speaker 1: they got to Baltimore. To pass through Baltimore in those days,
Speaker 1: train cars had to be decoupled at the President Street
Speaker 1: station and then pulled on rails by horses along Pratt
Speaker 1: Street and across a bridge to Camden Station, where they
Speaker 1: could then be reattached to steam engines and sent further
Speaker 1: south to Washington, d C. As the train cars carrying
Speaker 1: the Massachusetts volunteers were dragged across town by the horses,
Speaker 1: a hostile mob of thousands of people formed to stop them.
Speaker 1: Seven of the companies made it through, but four companies,
Speaker 1: consisting of two hundred and twenty men, were stuck at
Speaker 1: President Street. The only way they could make it across
Speaker 1: town and get into train cars in order to go
Speaker 1: down to Washington, d C. Was to march a mile
Speaker 1: across town through the mob itself. Under orders from their officers,
Speaker 1: the soldiers began their march with guns drawn. Somebody we
Speaker 1: still don't know who fired the first shot, and an
Speaker 1: ex change of gunfire occurred between the crowd and the soldiers.
Speaker 1: Twelve civilians and four soldiers were killed. It was only
Speaker 1: with the intervention of the Baltimore police that the soldiers
Speaker 1: managed to make it to their trains and head for Washington,
Speaker 1: d C. These events were little short of disastrous seen
Speaker 1: from the standpoint of the Union. In response, Abraham Lincoln
Speaker 1: and the Union had no choice they had to hold Baltimore.
Speaker 1: Acting on his own initiative, a Lowell, Massachusetts mill owner
Speaker 1: named Benjamin Butler, who had just lobbied to get himself
Speaker 1: appointed brigadier general by the state of Massachusetts, decided to
Speaker 1: take over Baltimore with the troops that he had an
Speaker 1: established military rule there. In both word. Indeed, General Butler
Speaker 1: was occupying the city of Baltimore, a city in an
Speaker 1: unceceded state named the mar Maryland, and claiming to exercise
Speaker 1: full martial law in the city. Lincoln knew that the
Speaker 1: risk of alienating the citizens of Maryland and pushing them
Speaker 1: into secession was extraordinarily high. He also knew that there
Speaker 1: was no practical choice but to seek control over Baltimore
Speaker 1: if troops were going to be brought to Washington, d c.
Speaker 1: And eventually further south. Faced with these circumstances, Lincoln took
Speaker 1: an extraordinary and a decisive step. In a letter to
Speaker 1: Winfield Scott, he officially authorized the suspension of the writ
Speaker 1: of habeas corpus anywhere in the vicinity of any military
Speaker 1: line between Philadelphia and Washington. What was the writ of
Speaker 1: habeas corpus and why did its suspension matter? So much
Speaker 1: to Lincoln in that moment. The Writ of habeas Corpus
Speaker 1: was a legal mechanism embodied in a fund mental right.
Speaker 1: What it said, in essence, was the guarantee that the
Speaker 1: government could never detain you and hold you without legal
Speaker 1: grounds and without a criminal trial. Suspending the Writ of
Speaker 1: habeas corpus therefore had the effect of turning whoever was
Speaker 1: running the government into an all powerful ruler who could
Speaker 1: grab up anybody he chose for any purposes without having
Speaker 1: to subject that detention or arrest to the rule of law.
Speaker 1: You can see, therefore, why the Writ of habeas corpus
Speaker 1: was so important to the fundamental structure of the rule
Speaker 1: of law and of order. Now, the Constitution of the
Speaker 1: United States did indeed contemplate suspension of the Writ of
Speaker 1: habeas corpus in cases of rebellion where it should be necessary.
Speaker 1: But and here was the butt upon which an enormous
Speaker 1: controversy would turn. The Constitution also made it extremely clear
Speaker 1: that it was Congress that it had the authority to
Speaker 1: suspend the Writ of habeas Corpus, not the President. The
Speaker 1: suspension of the Writ of habeas Corpus was contained in
Speaker 1: the provision of the Constitution in Article one, Section nine,
Speaker 1: where all of the powers of Congress are laid out.
Speaker 1: The whole of Article one is about the powers of Congress,
Speaker 1: and the President doesn't even come into the picture in
Speaker 1: the Constitution until Article two. Thus, the Constitution made it
Speaker 1: about as clear as it could have been that in
Speaker 1: cases of war or rebellion, it would be Congress's job
Speaker 1: to suspend the writ of habeas corpus, and Congress that
Speaker 1: would therefore have the capacity to reverse that suspension. It
Speaker 1: did not contemplate that the president could do this himself,
Speaker 1: nor had any president in US history heretofore ever imagined
Speaker 1: that he had such a right. Lincoln, on the other hand,
Speaker 1: suspended the writ of habeas corpus in April eighteen sixty one,
Speaker 1: when Congress was not even in session. He was acting unilaterally,
Speaker 1: and he was acting in violation of the clear and
Speaker 1: obvious meaning of the Constitution. In the weeks and months
Speaker 1: that followed, the fact that Lincoln had broken the Constitution
Speaker 1: became evident and absolutely clear. It took place in the
Speaker 1: context of an extraordinary, historic confrontation between the President of
Speaker 1: the United States and the Chief Justice of the United
Speaker 1: States in the case that came to be known as
Speaker 1: Ex Party Merriman. The case got its name from one
Speaker 1: John Merriman, who was a Maryland farmer and militiaman who
Speaker 1: was deeply sympathetic to the secessionist South. Along with his
Speaker 1: militia company, and probably under orders from higher up Maryland officials,
Speaker 1: including maybe even the governor of the state, Ariman burned
Speaker 1: a series of railroad bridges, making it even harder for
Speaker 1: Union troops to come through Baltimore. In response, at two
Speaker 1: in the morning on May twenty fifth, eighteen sixty one,
Speaker 1: federal troops seized Merriman at his farm and imprisoned him
Speaker 1: at Fort McHenry in Baltimore. The arrest was a military arrest,
Speaker 1: not a civilian arrest. Merriman would not be put on trial,
Speaker 1: and he would not be charged with a crime. Instead,
Speaker 1: he would be held as long as the government chose
Speaker 1: to hold him. Now. Merriman had a lawyer who thought
Speaker 1: fast and immediately went to the Chief Justice of the
Speaker 1: United States, Roger Tawney, himself a pro Union Maryland man,
Speaker 1: and asked Tawny to issue a writ of habeas corpus
Speaker 1: that would require the government to produce the body of
Speaker 1: John Merriman, that's what the words habeas corpus mean in
Speaker 1: Latin produced the body and by so doing tell the
Speaker 1: world that it was not within the authority of the
Speaker 1: President of United States or the US military to grab
Speaker 1: up a citizen of the United States living in Maryland,
Speaker 1: a state that was part of the Union, and hold
Speaker 1: him indefinitely without trial. Tawny responded, the way you would
Speaker 1: hope and expect a good judge would. He issued an
Speaker 1: order directing the person in charge of Fort McHenry to
Speaker 1: bring the body of John Merriman with him into court
Speaker 1: and show cause why it was lawful for him to
Speaker 1: be detained. In a dramatic confrontation in the Federal courtroom
Speaker 1: in Baltimore, a delegate of the officer in charge of
Speaker 1: Fort McHenry appeared and announced that the body of John
Speaker 1: Merriman would not be produced. The US military, under the
Speaker 1: authority of the President, was going to defy the authority
Speaker 1: of a constitutional judiciary created by Article three of the Constitution,
Speaker 1: and was going to claim the authority to suspend habeas corpus.
Speaker 1: Tanny understood what he had to do. On June fourth,
Speaker 1: eighteen sixty one, he issued a written judgment known as
Speaker 1: X Party Merriman, which explained the legal circumstances in the document.
Speaker 1: Tanny explained that the Constitution did not authorize the President
Speaker 1: of the United States to suspend the writ of habeas corpus.
Speaker 1: It authorized only Congress to do so. He pointed out
Speaker 1: that no president had ever claimed such an authority before.
Speaker 1: Tanny went further. He said that no argument could be
Speaker 1: drawn from the nature of sovereignty or the necessity of
Speaker 1: government for self defense in times of tumult and danger.
Speaker 1: The reason that the government could not rely on a
Speaker 1: pure argument from necessity, said Tanny, was that the US
Speaker 1: Constitution is a government of limited powers. It does not
Speaker 1: confer absolute power or absolute sovereignty on anyone in the system,
Speaker 1: not on Congress, not on the president. Sovereignty resides in
Speaker 1: the people. By violating the Constitution's conferral of the right
Speaker 1: to suspend habeas corpus on Congress, the president was therefore
Speaker 1: usurping the power of the people, and doing so was
Speaker 1: fundamentally illegitimate. Tany understood that he was taking an enormous
Speaker 1: risk in confronting the President of the United States. It
Speaker 1: was rumored at the time that he himself, the Chief
Speaker 1: Justice might be arrested for his active resistance. In the
Speaker 1: concluding words of his written the judgment, he explained that
Speaker 1: he could not do anything about the suspension of Habeas corpus.
Speaker 1: He explained that these great and fundamental laws had been
Speaker 1: disregarded and suspended by a military order supported by the
Speaker 1: force of arms. All he could do, he said, was
Speaker 1: his duty. Tony's message to Lincoln was devastating. Lincoln was
Speaker 1: claiming to be going to war in fulfillment of his
Speaker 1: constitutional oath to take care that the laws be faithfully executed.
Speaker 1: But by suspending Habeas corpus, Lincoln was doing the opposite
Speaker 1: of taking care that the laws be faithfully executed. To
Speaker 1: the contrary, Lincoln was violating that very oath of office.
Speaker 1: Lincoln could not take this argument lying down, and on
Speaker 1: July fourth, eighteen sixty one, in his address to Congress,
Speaker 1: he offered a series of attempted justifications for why the
Speaker 1: suspension of Habeas corpus was legitimate. If you want a
Speaker 1: close analysis of what he argued, I hope you'll look
Speaker 1: at the book itself. I'll tell you now that the
Speaker 1: essence of his argument was that in practice, he had
Speaker 1: no choice but to suspend Habeas Corpus because Congress was
Speaker 1: not in session, and if he did not suspend this law,
Speaker 1: all the other laws were going to be unenforced. This
Speaker 1: came very, very close to an explicit argument that it
Speaker 1: was within his own power to break the Constitution in
Speaker 1: order to save the Constitution. Ultimately, he was saying the
Speaker 1: ends justified the means. What history has forgotten to a
Speaker 1: remarkable degree is what Lincoln then did when Congress refused
Speaker 1: ultimately to suspend Habeas corpus itself. The short answer is
Speaker 1: that over the next two and a half years, in
Speaker 1: the time until Congress ultimately authorized suspension and continued his policies,
Speaker 1: Lincoln allowed the military to shut down newspapers all over
Speaker 1: the country that were critical of his war policies. He
Speaker 1: authorized the arrest and detention of thousands and thousands of
Speaker 1: critics of the war. It's hard to know with certainty
Speaker 1: exactly how many people were arrested and detained because records
Speaker 1: were not systematically kept, but the best estimate suggests that
Speaker 1: at least fourteen thousand, four hundred and conceivably as many
Speaker 1: as thirty eight thousand people were arrested and held without
Speaker 1: trial in the United States over the course of the
Speaker 1: Civil War, hundreds of newspapers were shut down. At no
Speaker 1: other time in the history of the United States as
Speaker 1: any president suppressed the freedom of expression anything like as
Speaker 1: unilaterally or in anything as extreme a way as Lincoln
Speaker 1: did over the course of the Civil War. Seen in
Speaker 1: the terms of our contemporary world, Lincoln effectively suspended the
Speaker 1: First Amendment for most of the direction of the Civil War.
Speaker 1: Criticism of his war policies was tolerated only at the margins,
Speaker 1: and essentially not tolerated at all if anyone argued that
Speaker 1: the United States should make peace with the Southern States
Speaker 1: and let them depart in the Broken Constitution. I lay
Speaker 1: out in a lot of detail the reasons to understand
Speaker 1: that Lincoln himself was directly involved here, but I also
Speaker 1: discuss a more philosophical question, namely, was Lincoln a dictator
Speaker 1: during the period of time in which he unilaterally suspended
Speaker 1: habeas corpus and suspended the freedom of speech. The short
Speaker 1: answer is that Lincoln did function as a dictator of
Speaker 1: some kind. He was what is sometimes called a constitutional dictator,
Speaker 1: someone who claims to be fulfilling of the Constitution, not
Speaker 1: as it then exists, but as it would soon be
Speaker 1: embraced by the population to be. In order to justify
Speaker 1: his actions by developing his theory of necessity and his
Speaker 1: view that he had no choice but to suspend habeas
Speaker 1: corpus and ultimately to suspend free speech and the free press,
Speaker 1: Lincoln was gambling that history would eventually say that what
Speaker 1: he did was justified. Remarkably enough, history has not reached
Speaker 1: that conclusion. Today, Lincoln's suspension of free speech is largely
Speaker 1: ignored rather than celebrated. No subsequent president has undertaken similar action,
Speaker 1: and indeed, the Supreme Court of the United States after
Speaker 1: the Civil War, in a case called X Party Milligan,
Speaker 1: rejected the idea that it was permissible for the government
Speaker 1: of United States to hold civilians by military detention without
Speaker 1: trial without the writ of habeas corpus in any place
Speaker 1: where the courts of the United States were open and functioning,
Speaker 1: as they were throughout the Union throughout the period of
Speaker 1: the Civil War. This principle, which is still good law
Speaker 1: under the Constitution of the United States, as interpreted by
Speaker 1: the Supreme Court, amounted to a genuine repudiation of Lincoln's
Speaker 1: constitutional theories. Although Lincoln's decision to break the Constitution as
Speaker 1: it was then understood by going to war has been
Speaker 1: validated by history. Lincoln's decision to suspend habeas corpus in
Speaker 1: the North and his decision to suspend their freedom of
Speaker 1: speech are not part of our constitutional order today. In
Speaker 1: the third and final episode of this podcast, which you'll
Speaker 1: have a chance to hear next week, I will turn
Speaker 1: to Lincoln's most famous violation of the Constitution as it
Speaker 1: was then understood, namely the emancipation of the laved people
Speaker 1: of the South. And that act of emancipation, I will
Speaker 1: show was the violation of the Constitution, the breaking of
Speaker 1: the Constitution that was profoundly validated by history, that vindicated
Speaker 1: Lincoln's actions more generally, and the transformed not only the
Speaker 1: meaning of the war, but the future of the Constitution
Speaker 1: of the United States. To hear more about that, listen
Speaker 1: to the next episode of this podcast, The Broken Constitution,
Speaker 1: coming to you in one week. If you can't wait,
Speaker 1: you can listen to the next episode a few days
Speaker 1: early on the Unknown History podcast from Quick and Dirty Tips.
Speaker 1: Find it in the show notes or your favorite podcast app,
Speaker 1: and go ahead and pre order or by The Broken
Speaker 1: Constitution from your favorite local bookstore. It's out on November second.
Speaker 1: The Broken Constitution was produced by Nathan SAMs and Quick
Speaker 1: and Dirty Tips, a proud part of McMillan publisher's home
Speaker 1: of Farrar, Straus and Jeru, who are publishing my book