WEBVTT - Deep Background Presents: The Broken Constitution Ep.2 0:00:15.396 --> 0:00:24.316 Pushkin. This is The Broken Constitution, a mini series for 0:00:24.436 --> 0:00:28.276 unknown history from quick and Dirty tips and deep background 0:00:28.356 --> 0:00:32.156 from Pushkin Industries. Over the course of these three episodes, 0:00:32.516 --> 0:00:35.996 I'm discussing Abraham Lincoln and how he needed to break 0:00:36.036 --> 0:00:39.836 the American Constitution in order to remake it. It's all 0:00:39.876 --> 0:00:44.316 based on my new book, The Broken Constitution, Lincoln, Slavery 0:00:44.396 --> 0:00:50.116 and the Refounding of America, out November second. In this episode, 0:00:50.476 --> 0:00:53.716 episode two, I'm going to turn to what happened to 0:00:53.756 --> 0:00:57.276 Lincoln when he became president and to the moment in 0:00:57.316 --> 0:01:01.796 which he was forced to break the Constitution in order 0:01:01.836 --> 0:01:06.996 to begin to think about how to save it. To 0:01:07.116 --> 0:01:09.716 do that, I'm going to ask you to transport yourself 0:01:09.996 --> 0:01:13.996 to March fourth, eighteen sixty one, the day that Lincoln 0:01:14.196 --> 0:01:19.636 was inaugurated. No other president in US history has ever 0:01:19.756 --> 0:01:24.036 faced a crisis even vaguely comparable to the one that 0:01:24.156 --> 0:01:28.516 was confronting Lincoln on that date. He had been elected 0:01:28.636 --> 0:01:33.236 four months earlier, defeating three rivals in a highly regionalized 0:01:33.356 --> 0:01:38.076 race that was and remains the most polarized in US history. 0:01:38.756 --> 0:01:42.596 And since he'd been elected, seven states had held special 0:01:42.756 --> 0:01:47.076 secession conventions and announced that they were withdrawing from what 0:01:47.116 --> 0:01:51.596 they referred to as the Compact entitled the US Constitution. 0:01:52.836 --> 0:01:57.396 In the aftermath, federal officials quit their jobs in all 0:01:57.476 --> 0:02:01.316 of those seven states, and the US government ceased to 0:02:01.396 --> 0:02:04.796 exist as a practical matter within them, with a minor 0:02:04.876 --> 0:02:08.916 exception of a handful of military bases that still remained 0:02:08.956 --> 0:02:12.876 in those states, the most famous of which was Fort Sumter, 0:02:13.356 --> 0:02:18.036 a fortification in the harbor of Charleston, South Carolina. And 0:02:18.156 --> 0:02:21.116 in the case of that fortification, the state of South 0:02:21.116 --> 0:02:23.636 Carolina had made it clear that it was going to 0:02:23.756 --> 0:02:28.556 blockade that fort, blocking supplies from coming in, and that 0:02:28.636 --> 0:02:31.476 it was demanding that the President of the United States 0:02:31.836 --> 0:02:35.796 removed the soldiers who were there. And the clock was 0:02:35.876 --> 0:02:39.596 ticking because the supplies that fed the soldiers at Fort 0:02:39.636 --> 0:02:43.876 Sumter were dwindling on a rapid day to day basis. 0:02:45.436 --> 0:02:49.556 Faced with this situation, Lincoln had to make a crucial choice. 0:02:50.436 --> 0:02:53.956 We all think we know what that choice was. Lincoln 0:02:53.996 --> 0:02:58.116 decided to confront the Confederacy. He sent ships to resupply 0:02:58.156 --> 0:03:03.156 the fort. Before they could arrive, Confederate forces fired on 0:03:03.236 --> 0:03:07.716 Fort Sumter, and in consequence, we believe we know, the 0:03:07.716 --> 0:03:12.276 war began in retrospect, this all seems inevitable to us, 0:03:12.876 --> 0:03:17.716 but a closer examination of Lincoln's constitutional thinking, and indeed 0:03:17.956 --> 0:03:20.236 that of everyone in the United States at the time, 0:03:20.676 --> 0:03:22.556 reveals that what looks to us as though it was 0:03:22.596 --> 0:03:29.876 inevitable was far from it. Remarkably, and mostly forgotten, Lincoln's 0:03:29.876 --> 0:03:36.076 predecessor as President, James Buchanan, had already considered what constitutional 0:03:36.116 --> 0:03:40.436 authority the president or Congress had to respond to the 0:03:40.516 --> 0:03:44.996 secession of the Southern States, and Buchanan had concluded the 0:03:45.076 --> 0:03:50.876 answer was nothing. If that sounds shocking, it is, and 0:03:50.956 --> 0:03:56.396 it requires a certain degree of depth to understand it. Essentially, 0:03:56.996 --> 0:04:00.756 Buchanan and his attorney general, a man called Jeremiah Black, 0:04:01.116 --> 0:04:04.516 had already concluded that under the Constitution of the United States, 0:04:04.756 --> 0:04:09.756 there was no option of secession. It followed, therefore, according 0:04:09.796 --> 0:04:13.236 to Black and Buchanan, that if the Southern States chose 0:04:13.276 --> 0:04:17.276 to secede, they were not acting lawfully under the Constitution, 0:04:17.636 --> 0:04:21.516 as they insisted, but were in fact engaged in an 0:04:21.516 --> 0:04:25.956 act of revolution. But that's where the similarity between Buchanan's 0:04:25.996 --> 0:04:30.796 views and those of Lincoln ends, because Buchanan, influenced by 0:04:30.796 --> 0:04:35.036 his attorney general, reached the conclusion that nothing in the 0:04:35.156 --> 0:04:40.516 Constitution authorized the present of the United States, or indeed 0:04:40.516 --> 0:04:45.676 Congress to go to war to coerce seceding states to 0:04:45.796 --> 0:04:51.236 remain in the Union. Why. The simple answer has to 0:04:51.236 --> 0:04:54.276 do with the core idea of democratic government in the 0:04:54.356 --> 0:04:58.236 United States, going back to the founders, namely the idea 0:04:58.396 --> 0:05:02.076 of the consent of the government. According to the basic 0:05:02.196 --> 0:05:05.676 ideas laid out by Thomas Jefferson in the Declaration of Independence, 0:05:06.396 --> 0:05:09.476 all men are created equal. They're endowed by their creator 0:05:09.516 --> 0:05:13.596 with certain and alienable rights, and if a government chose 0:05:13.636 --> 0:05:16.476 to violate those rights, it was up to the people 0:05:16.516 --> 0:05:19.796 themselves to make the determination of whether they wished to 0:05:19.836 --> 0:05:25.756 make a revolution and withdraw. This was American constitutional orthodoxy, 0:05:26.036 --> 0:05:28.716 as indeed it had to be, because it amounted to 0:05:28.756 --> 0:05:31.676 the rationale that Lincoln and the United States had used 0:05:31.836 --> 0:05:36.116 to form the country and withdraw from the United Kingdom. 0:05:37.436 --> 0:05:39.956 Notice that at the core of this notion is that 0:05:40.036 --> 0:05:44.316 a group of human beings have the authority themselves to 0:05:44.356 --> 0:05:48.396 give their consent to participate in government, or to withdraw 0:05:48.516 --> 0:05:52.876 that consent. Once that consent was withdrawn. According to that view, 0:05:53.236 --> 0:05:56.836 it would be illegitimate for the government that claimed sovereignty 0:05:56.876 --> 0:06:01.036 over them to use military force to demand that those 0:06:01.036 --> 0:06:06.596 people stay inside of the government. President Buchanan explained all 0:06:06.676 --> 0:06:09.436 this to the country and to the world in his 0:06:09.516 --> 0:06:12.796 final State of the Union address, Basing himself on an 0:06:12.836 --> 0:06:16.956 official opinion by his Attorney general, he explained that once 0:06:17.596 --> 0:06:21.396 secession had occurred, it followed from that that there was 0:06:21.556 --> 0:06:25.396 nothing the central government, including the president or even Congress, 0:06:25.756 --> 0:06:29.636 could do about it. The most Buchanan was willing to 0:06:29.676 --> 0:06:32.796 concede was that when there were federal officials who were 0:06:32.836 --> 0:06:35.516 trying to enforce the law in a place in the 0:06:35.556 --> 0:06:39.116 country and were blocked from doing so, the federal government 0:06:39.116 --> 0:06:42.436 could send troops to help them do so. But Buchanan 0:06:42.476 --> 0:06:45.716 made clear the only way that that was permitted was 0:06:45.716 --> 0:06:49.716 if there actually were federal officials civilian officials in those 0:06:49.716 --> 0:06:52.596 states who were trying to enforce the law, and that 0:06:52.716 --> 0:06:55.316 was not the case in the seceding states, where all 0:06:55.396 --> 0:07:00.756 of the federal officials had already quit and resigned. Thus, 0:07:01.036 --> 0:07:03.996 on this very first day in office, Abraham Lincoln had 0:07:04.036 --> 0:07:08.156 to begin considering whether he would repudiate the basic theory 0:07:08.156 --> 0:07:12.796 of the constitution that had been articulated by his predecessor 0:07:13.276 --> 0:07:18.316 and deploy force to attempt to make the Southern States 0:07:18.636 --> 0:07:23.076 re enter the Union. Put another way, Lincoln would have 0:07:23.116 --> 0:07:27.116 to break the Constitution as introduced by his predecessor in 0:07:27.236 --> 0:07:33.156 order to begin the process of preserving the Constitution. In 0:07:33.196 --> 0:07:36.596 his first inaugural address, to which we will return in 0:07:36.676 --> 0:07:40.996 our next episode, episode three, Lincoln began in a tentative 0:07:40.996 --> 0:07:44.916 way to lay down his account of why it would 0:07:44.916 --> 0:07:49.476 be permissible to force the Southern States back into the Union, 0:07:49.716 --> 0:07:55.556 even against their democratically expressed will to do so. Lincoln 0:07:55.636 --> 0:07:59.236 first insisted that, in contemplation of universal law and of 0:07:59.316 --> 0:08:04.356 the Constitution, the union of these states is perpetual. Nowhere 0:08:04.356 --> 0:08:07.596 in the Constitution did it say explicitly that the union 0:08:07.716 --> 0:08:10.436 needed to last forever and could ever be broken, but 0:08:10.596 --> 0:08:15.316 Lincoln insisted on it. Nevertheless, the principle would be that 0:08:15.436 --> 0:08:18.796 in order to enforce federal law in the seceding states, 0:08:18.916 --> 0:08:22.476 he would send troops as needed to force the people 0:08:22.516 --> 0:08:25.956 in those states to administer and obey the laws from 0:08:25.996 --> 0:08:32.756 which they had chosen to withdraw. Lincoln introduced a conceptual 0:08:33.076 --> 0:08:35.676 argument for why he had to do this that was 0:08:35.876 --> 0:08:40.876 entirely his own. He told the Southern states, you have 0:08:41.076 --> 0:08:45.036 no oath registered in heaven to destroy the government, while 0:08:45.116 --> 0:08:48.996 I shall have the most solemn one to preserve, protect, 0:08:49.196 --> 0:08:53.556 and defend it. Notice that nowhere in this address, or 0:08:53.596 --> 0:08:59.316 indeed subsequently, did Lincoln say that the Constitution itself was moral. 0:09:00.156 --> 0:09:03.236 As I described in Episode one, Lincoln could not say 0:09:03.236 --> 0:09:05.876 that the Constitution was moral, because he knew that it 0:09:05.956 --> 0:09:10.356 was not. The Constitution was a compromise with slave slavery 0:09:10.516 --> 0:09:14.556 was immoral. Morality therefore could only come into the picture 0:09:14.876 --> 0:09:18.556 as a basis for requiring Lincoln to do what he 0:09:18.636 --> 0:09:21.356 had promised. What he had promised to do was to 0:09:21.396 --> 0:09:24.556 preserve the Union, and in order to preserve the Union, 0:09:24.956 --> 0:09:30.236 he would have to use force against the South. From 0:09:30.276 --> 0:09:33.916 the perspective of the South, war was by no means inevitable. 0:09:34.516 --> 0:09:37.956 The Southern states, in fact, hoped precisely to avoid any 0:09:37.996 --> 0:09:41.196 conflict with the North. They expected that, as a matter 0:09:41.436 --> 0:09:44.996 of constitutional principle, and indeed also as a matter of 0:09:44.996 --> 0:09:48.716 practical reality, they would be little that the North could 0:09:48.756 --> 0:09:53.356 do to stop their secession. And the Confederacy insisted that 0:09:53.436 --> 0:09:56.396 it was actually obeying the Constitution of the United States 0:09:56.476 --> 0:10:00.236 when it's seceded and forming a new constitution. The new 0:10:00.236 --> 0:10:05.596 Southern Constitution mimicked in most of its particulars the Northern Constitution. 0:10:06.476 --> 0:10:10.836 The one major difference, explained Alexandra Hamilton Stevens, the Vice 0:10:10.876 --> 0:10:14.676 President of the Confederacy, had to do with race and slavery. 0:10:15.316 --> 0:10:18.836 All the essentials of the old Constitution have been preserved 0:10:18.876 --> 0:10:23.836 and perpetuated, said Stephens. But he said the prevailing idea 0:10:23.916 --> 0:10:27.476 of the framers had been that slavery was wrong and 0:10:27.516 --> 0:10:33.156 would eventually pass away. That Stephens said was fundamentally wrong. 0:10:33.676 --> 0:10:37.676 It rested upon the assumption of the equality of the races. 0:10:37.716 --> 0:10:42.996 Stephens said this was an error. He then explicitly stated 0:10:43.156 --> 0:10:47.316 the purpose of the Southern Constitution. Our new government, he said, 0:10:47.476 --> 0:10:51.876 is founded upon exactly the opposite idea. Its foundations are laid, 0:10:51.996 --> 0:10:55.756 its cornerstone rests upon the great truth that the negro 0:10:55.916 --> 0:10:59.996 is not equal to the white man, that slavery, subordination 0:11:00.076 --> 0:11:04.676 to the superior race is his natural and normal condition. This, 0:11:04.916 --> 0:11:07.596 our new government, is the first in the history of 0:11:07.636 --> 0:11:12.356 the world based upon this great physical, philosophical, and moral truth. 0:11:13.476 --> 0:11:16.396 It's worth pausing for a moment to take on board 0:11:16.676 --> 0:11:20.796 the enormity of that description of the Southern Constitution by 0:11:21.076 --> 0:11:25.516 the Vice President of the Confederacy, Alexander Hamilton Stevens, was 0:11:25.556 --> 0:11:32.276 saying explicitly that the Confederacy's constitution was based fundamentally on 0:11:32.396 --> 0:11:37.116 the principle of white supremacy and what he called the 0:11:37.316 --> 0:11:41.876 moral idea that slavery was that quote natural and normal 0:11:42.236 --> 0:11:47.836 condition of people of African descent. What's so shocking about this, 0:11:48.036 --> 0:11:52.476 stated in retrospect, is that the Confederacy simply made no 0:11:52.716 --> 0:11:58.076 bones about the idea that their constitutional commitment, their foundational commitment, 0:11:58.196 --> 0:12:03.196 the cornerstone of their entire government, was the perpetuation of 0:12:03.236 --> 0:12:08.516 slavery and its commitment to racial subordination. Now consider Lincoln's 0:12:08.556 --> 0:12:11.516 perspective in terms of the question not of what he 0:12:11.636 --> 0:12:15.556 was authorized to do, but what he actually practically could 0:12:15.636 --> 0:12:19.516 do to force the South to return. What he sought 0:12:19.556 --> 0:12:23.596 to do was to provoke a Southern military attack on 0:12:23.636 --> 0:12:25.716 the North so he would be able to say that 0:12:25.756 --> 0:12:28.876 the war was started by the South, to call up 0:12:29.356 --> 0:12:32.596 tens of thousands of militia in the hopes of creating 0:12:32.596 --> 0:12:35.796 conditions that would convince the South that a war was coming, 0:12:36.476 --> 0:12:40.196 and simultaneously to try to lure the South back by 0:12:40.276 --> 0:12:44.436 telling them that he was still fully prepared to guarantee 0:12:44.636 --> 0:12:49.236 slavery in the Union as provided by the compromised Constitution. 0:12:49.996 --> 0:12:53.996 At the same time, Lincoln introduced a crucial argument that 0:12:54.036 --> 0:12:56.276 he laid out to the country in a special address 0:12:56.316 --> 0:13:01.436 to Congress on July fourth, eighteen sixty one. In that address, 0:13:02.156 --> 0:13:06.716 he said that the Southern states were engaged in rebellion, 0:13:07.556 --> 0:13:10.796 they were rebels and their for traders, and it was 0:13:10.836 --> 0:13:15.716 therefore justifiable to seek to coerce them back into the Union. 0:13:16.996 --> 0:13:20.396 In making this argument, Lincoln was heeding advice that he 0:13:20.396 --> 0:13:23.876 had been given by William Seward, his Secretary of State. 0:13:24.756 --> 0:13:28.436 Seward told Lincoln, we must change the question before the 0:13:28.476 --> 0:13:32.396 public from one upon slavery or about slavery, for a 0:13:32.516 --> 0:13:37.556 question upon union or disunion. Seward was telling Lincoln that 0:13:37.636 --> 0:13:41.876 he must define the war not as a war about slavery, 0:13:42.436 --> 0:13:47.716 but as a war about disloyalty, rebellion, and disunion. The 0:13:47.876 --> 0:13:50.956 reason Seward advised this is that he did not believe 0:13:51.236 --> 0:13:54.196 that public opinion in the North was interested in going 0:13:54.236 --> 0:13:58.356 to war over the question of slavery. The emphasis on 0:13:58.676 --> 0:14:03.556 disloyalty and disunion was designed to create a politically palatable 0:14:03.676 --> 0:14:07.516 rationale for the war that would enable Lincoln to say 0:14:07.836 --> 0:14:11.836 that he stood for the remise constitutions still and blamed 0:14:11.916 --> 0:14:15.556 the South for violating the compromise. The point would then 0:14:15.636 --> 0:14:20.956 be to force the compromise back on the South. There was, however, 0:14:21.356 --> 0:14:27.196 a tricky conceptual problem. The compromise constitution had always been 0:14:27.236 --> 0:14:32.556 based on consent. Now Lincoln was arguing the compromise could 0:14:32.596 --> 0:14:36.396 be based on coercion. In order to reach this conclusion, 0:14:36.836 --> 0:14:41.996 Lincoln developed a new theory of how the relationship between 0:14:41.996 --> 0:14:48.196 the majority and the minority should work in a constitutional democracy. Historically, 0:14:48.636 --> 0:14:52.756 the true nature of constitutional arrangements was always and had 0:14:52.836 --> 0:14:57.476 always been, that majorities compromised with minorities by giving the 0:14:57.516 --> 0:15:01.916 minorities a good portion of what they wanted, even though 0:15:02.236 --> 0:15:06.476 the majority had more people. The reason, if you don't 0:15:06.516 --> 0:15:09.556 provise that sort of a compromise to a minority, minority 0:15:09.716 --> 0:15:13.876 can always walk away. The minardi's capacity to walk away 0:15:13.876 --> 0:15:16.676 from a constitution, to engage in what today we call 0:15:16.956 --> 0:15:21.996 spoiler behavior forces the majority to give the minority more 0:15:22.156 --> 0:15:27.276 than it deserves under ordinary principles of majority government. Lincoln 0:15:27.276 --> 0:15:31.436 now argued that that arrangement made no sense. He insisted 0:15:31.636 --> 0:15:36.116 that minorities could then always exercise coercive power over majorities, 0:15:36.316 --> 0:15:40.636 and that majoritarian government would therefore not be sustainable. In 0:15:40.716 --> 0:15:43.836 order to solve that problem, he said, the majority had 0:15:43.876 --> 0:15:47.796 to have recourse to a new right that had never 0:15:47.836 --> 0:15:51.556 been discussed by the Framers, namely, the right to use 0:15:51.716 --> 0:15:57.636 force to compel the minority to stay in the Constitutional order. 0:15:58.716 --> 0:16:02.916 Lincoln had, in other words, imposed on the Constitutional Order 0:16:03.396 --> 0:16:07.676 a theory that the Framers themselves had not believed, a 0:16:07.676 --> 0:16:10.156 theory that would have been more suit the views of 0:16:10.196 --> 0:16:14.036 the British monarchy and of Parliament in seventeen seventy six, 0:16:14.476 --> 0:16:17.276 then to the views of the founders of the United 0:16:17.276 --> 0:16:21.716 States of America. The upshot of that theory was that 0:16:21.876 --> 0:16:24.556 the president of the United States could go to war 0:16:25.076 --> 0:16:28.756 even without waiting for Congress to force the Southern States 0:16:28.796 --> 0:16:33.476 to remain, and Lincoln claimed this was somehow under the 0:16:33.556 --> 0:16:39.236 authority of the Constitution. Here, Lincoln was breaking the Constitution 0:16:39.516 --> 0:16:42.716 as it had been understood by his predecessors, and indeed 0:16:42.716 --> 0:16:46.676 as it had been conceptualized by the Founders and the Framers, 0:16:46.756 --> 0:16:50.916 in order to justify his choice to go to war. 0:16:52.356 --> 0:16:57.156 What happened next, Well, Remember that Lincoln had only sixteen 0:16:57.196 --> 0:17:01.396 thousand troops in the regular US Army. Just to defend 0:17:01.436 --> 0:17:04.676 the capital in Washington, d C. He would need at 0:17:04.716 --> 0:17:08.436 least thirty five thousand troops. That meant the only place 0:17:08.476 --> 0:17:13.276 Lincoln could get troops was from state militia volunteers who 0:17:13.356 --> 0:17:16.836 had to be called up and mustered into service essentially 0:17:16.916 --> 0:17:22.036 immediately and transported to Washington, d C. To protect the capital. 0:17:22.476 --> 0:17:25.356 If he didn't, the war could be over almost before 0:17:25.436 --> 0:17:31.356 it began. Consequently, on April fifteenth, eighteen sixty one, Lincoln 0:17:31.356 --> 0:17:36.516 called up seventy five thousand volunteer militiamen. Massachusetts, which had 0:17:36.556 --> 0:17:40.396 been preparing for this moment already, immediately sent eleven companies 0:17:40.396 --> 0:17:44.716 of volunteers to go and help defend the city of Washington, 0:17:44.796 --> 0:17:49.036 d C. They were sent from Massachusetts with great fanfare. 0:17:49.516 --> 0:17:53.556 As the trains carrying the soldiers came through Springfield, Hartford, 0:17:53.636 --> 0:17:58.956 New York, Trenton, and Philadelphia, bells rang bands played, and 0:17:59.076 --> 0:18:03.836 supportive onlookers expressed their pride in the troops, and then 0:18:03.876 --> 0:18:08.676 they got to Baltimore. To pass through Baltimore in those days, 0:18:09.156 --> 0:18:12.196 train cars had to be decoupled at the President Street 0:18:12.236 --> 0:18:16.356 station and then pulled on rails by horses along Pratt 0:18:16.396 --> 0:18:19.876 Street and across a bridge to Camden Station, where they 0:18:19.876 --> 0:18:23.036 could then be reattached to steam engines and sent further 0:18:23.116 --> 0:18:27.396 south to Washington, d C. As the train cars carrying 0:18:27.396 --> 0:18:31.476 the Massachusetts volunteers were dragged across town by the horses, 0:18:32.116 --> 0:18:38.396 a hostile mob of thousands of people formed to stop them. 0:18:38.636 --> 0:18:41.956 Seven of the companies made it through, but four companies, 0:18:42.196 --> 0:18:45.316 consisting of two hundred and twenty men, were stuck at 0:18:45.356 --> 0:18:48.876 President Street. The only way they could make it across 0:18:48.956 --> 0:18:51.716 town and get into train cars in order to go 0:18:51.796 --> 0:18:54.796 down to Washington, d C. Was to march a mile 0:18:55.076 --> 0:19:00.436 across town through the mob itself. Under orders from their officers, 0:19:00.716 --> 0:19:05.556 the soldiers began their march with guns drawn. Somebody we 0:19:05.596 --> 0:19:08.836 still don't know who fired the first shot, and an 0:19:08.836 --> 0:19:13.356 ex change of gunfire occurred between the crowd and the soldiers. 0:19:14.636 --> 0:19:18.916 Twelve civilians and four soldiers were killed. It was only 0:19:18.956 --> 0:19:22.356 with the intervention of the Baltimore police that the soldiers 0:19:22.396 --> 0:19:26.076 managed to make it to their trains and head for Washington, 0:19:26.156 --> 0:19:31.156 d C. These events were little short of disastrous seen 0:19:31.276 --> 0:19:36.196 from the standpoint of the Union. In response, Abraham Lincoln 0:19:36.196 --> 0:19:40.116 and the Union had no choice they had to hold Baltimore. 0:19:40.876 --> 0:19:44.556 Acting on his own initiative, a Lowell, Massachusetts mill owner 0:19:44.676 --> 0:19:47.876 named Benjamin Butler, who had just lobbied to get himself 0:19:47.876 --> 0:19:53.276 appointed brigadier general by the state of Massachusetts, decided to 0:19:53.316 --> 0:19:56.556 take over Baltimore with the troops that he had an 0:19:56.716 --> 0:20:02.836 established military rule there. In both word. Indeed, General Butler 0:20:02.956 --> 0:20:06.996 was occupying the city of Baltimore, a city in an 0:20:07.116 --> 0:20:11.596 unceceded state named the mar Maryland, and claiming to exercise 0:20:12.196 --> 0:20:17.876 full martial law in the city. Lincoln knew that the 0:20:17.996 --> 0:20:22.076 risk of alienating the citizens of Maryland and pushing them 0:20:22.116 --> 0:20:27.676 into secession was extraordinarily high. He also knew that there 0:20:27.716 --> 0:20:30.756 was no practical choice but to seek control over Baltimore 0:20:30.876 --> 0:20:33.836 if troops were going to be brought to Washington, d c. 0:20:34.316 --> 0:20:39.196 And eventually further south. Faced with these circumstances, Lincoln took 0:20:39.236 --> 0:20:43.036 an extraordinary and a decisive step. In a letter to 0:20:43.076 --> 0:20:48.196 Winfield Scott, he officially authorized the suspension of the writ 0:20:48.356 --> 0:20:52.636 of habeas corpus anywhere in the vicinity of any military 0:20:52.676 --> 0:20:58.196 line between Philadelphia and Washington. What was the writ of 0:20:58.196 --> 0:21:01.556 habeas corpus and why did its suspension matter? So much 0:21:01.676 --> 0:21:06.156 to Lincoln in that moment. The Writ of habeas Corpus 0:21:06.396 --> 0:21:09.716 was a legal mechanism embodied in a fund mental right. 0:21:10.476 --> 0:21:14.076 What it said, in essence, was the guarantee that the 0:21:14.196 --> 0:21:18.476 government could never detain you and hold you without legal 0:21:18.516 --> 0:21:23.156 grounds and without a criminal trial. Suspending the Writ of 0:21:23.156 --> 0:21:27.476 habeas corpus therefore had the effect of turning whoever was 0:21:27.516 --> 0:21:32.196 running the government into an all powerful ruler who could 0:21:32.276 --> 0:21:37.956 grab up anybody he chose for any purposes without having 0:21:38.036 --> 0:21:41.796 to subject that detention or arrest to the rule of law. 0:21:43.556 --> 0:21:46.236 You can see, therefore, why the Writ of habeas corpus 0:21:46.476 --> 0:21:49.956 was so important to the fundamental structure of the rule 0:21:49.996 --> 0:21:53.316 of law and of order. Now, the Constitution of the 0:21:53.396 --> 0:21:57.396 United States did indeed contemplate suspension of the Writ of 0:21:57.436 --> 0:22:02.596 habeas corpus in cases of rebellion where it should be necessary. 0:22:03.436 --> 0:22:06.956 But and here was the butt upon which an enormous 0:22:06.956 --> 0:22:11.436 controversy would turn. The Constitution also made it extremely clear 0:22:11.756 --> 0:22:14.836 that it was Congress that it had the authority to 0:22:14.836 --> 0:22:18.956 suspend the Writ of habeas Corpus, not the President. The 0:22:19.036 --> 0:22:22.036 suspension of the Writ of habeas Corpus was contained in 0:22:22.076 --> 0:22:25.796 the provision of the Constitution in Article one, Section nine, 0:22:25.836 --> 0:22:28.676 where all of the powers of Congress are laid out. 0:22:29.316 --> 0:22:32.116 The whole of Article one is about the powers of Congress, 0:22:32.316 --> 0:22:34.436 and the President doesn't even come into the picture in 0:22:34.476 --> 0:22:39.716 the Constitution until Article two. Thus, the Constitution made it 0:22:39.796 --> 0:22:42.556 about as clear as it could have been that in 0:22:42.676 --> 0:22:45.836 cases of war or rebellion, it would be Congress's job 0:22:46.076 --> 0:22:48.876 to suspend the writ of habeas corpus, and Congress that 0:22:48.916 --> 0:22:52.876 would therefore have the capacity to reverse that suspension. It 0:22:52.956 --> 0:22:56.116 did not contemplate that the president could do this himself, 0:22:56.796 --> 0:23:01.436 nor had any president in US history heretofore ever imagined 0:23:01.796 --> 0:23:05.676 that he had such a right. Lincoln, on the other hand, 0:23:05.956 --> 0:23:09.716 suspended the writ of habeas corpus in April eighteen sixty one, 0:23:09.996 --> 0:23:15.396 when Congress was not even in session. He was acting unilaterally, 0:23:15.756 --> 0:23:19.156 and he was acting in violation of the clear and 0:23:19.316 --> 0:23:24.916 obvious meaning of the Constitution. In the weeks and months 0:23:24.996 --> 0:23:28.676 that followed, the fact that Lincoln had broken the Constitution 0:23:29.076 --> 0:23:33.916 became evident and absolutely clear. It took place in the 0:23:33.956 --> 0:23:38.876 context of an extraordinary, historic confrontation between the President of 0:23:38.876 --> 0:23:42.236 the United States and the Chief Justice of the United 0:23:42.276 --> 0:23:46.076 States in the case that came to be known as 0:23:46.516 --> 0:23:51.116 Ex Party Merriman. The case got its name from one 0:23:51.476 --> 0:23:55.716 John Merriman, who was a Maryland farmer and militiaman who 0:23:55.876 --> 0:24:01.236 was deeply sympathetic to the secessionist South. Along with his 0:24:01.276 --> 0:24:05.636 militia company, and probably under orders from higher up Maryland officials, 0:24:05.796 --> 0:24:09.956 including maybe even the governor of the state, Ariman burned 0:24:10.036 --> 0:24:14.156 a series of railroad bridges, making it even harder for 0:24:14.516 --> 0:24:18.996 Union troops to come through Baltimore. In response, at two 0:24:19.036 --> 0:24:21.796 in the morning on May twenty fifth, eighteen sixty one, 0:24:22.356 --> 0:24:26.556 federal troops seized Merriman at his farm and imprisoned him 0:24:26.716 --> 0:24:31.316 at Fort McHenry in Baltimore. The arrest was a military arrest, 0:24:31.636 --> 0:24:35.676 not a civilian arrest. Merriman would not be put on trial, 0:24:36.076 --> 0:24:38.876 and he would not be charged with a crime. Instead, 0:24:39.116 --> 0:24:42.236 he would be held as long as the government chose 0:24:42.396 --> 0:24:46.556 to hold him. Now. Merriman had a lawyer who thought 0:24:46.636 --> 0:24:49.436 fast and immediately went to the Chief Justice of the 0:24:49.516 --> 0:24:54.636 United States, Roger Tawney, himself a pro Union Maryland man, 0:24:55.036 --> 0:24:58.876 and asked Tawny to issue a writ of habeas corpus 0:24:58.916 --> 0:25:02.276 that would require the government to produce the body of 0:25:02.396 --> 0:25:05.236 John Merriman, that's what the words habeas corpus mean in 0:25:05.276 --> 0:25:09.356 Latin produced the body and by so doing tell the 0:25:09.396 --> 0:25:12.676 world that it was not within the authority of the 0:25:12.756 --> 0:25:16.076 President of United States or the US military to grab 0:25:16.156 --> 0:25:19.836 up a citizen of the United States living in Maryland, 0:25:20.036 --> 0:25:23.236 a state that was part of the Union, and hold 0:25:23.316 --> 0:25:29.796 him indefinitely without trial. Tawny responded, the way you would 0:25:29.836 --> 0:25:35.196 hope and expect a good judge would. He issued an 0:25:35.316 --> 0:25:39.356 order directing the person in charge of Fort McHenry to 0:25:39.516 --> 0:25:42.676 bring the body of John Merriman with him into court 0:25:42.996 --> 0:25:46.036 and show cause why it was lawful for him to 0:25:46.116 --> 0:25:51.156 be detained. In a dramatic confrontation in the Federal courtroom 0:25:51.436 --> 0:25:55.116 in Baltimore, a delegate of the officer in charge of 0:25:55.156 --> 0:25:58.916 Fort McHenry appeared and announced that the body of John 0:25:58.956 --> 0:26:03.716 Merriman would not be produced. The US military, under the 0:26:03.756 --> 0:26:07.036 authority of the President, was going to defy the authority 0:26:07.236 --> 0:26:11.556 of a constitutional judiciary created by Article three of the Constitution, 0:26:12.116 --> 0:26:16.396 and was going to claim the authority to suspend habeas corpus. 0:26:17.716 --> 0:26:22.476 Tanny understood what he had to do. On June fourth, 0:26:22.476 --> 0:26:26.396 eighteen sixty one, he issued a written judgment known as 0:26:26.636 --> 0:26:31.996 X Party Merriman, which explained the legal circumstances in the document. 0:26:32.436 --> 0:26:36.916 Tanny explained that the Constitution did not authorize the President 0:26:37.036 --> 0:26:39.916 of the United States to suspend the writ of habeas corpus. 0:26:40.316 --> 0:26:44.156 It authorized only Congress to do so. He pointed out 0:26:44.556 --> 0:26:47.236 that no president had ever claimed such an authority before. 0:26:47.716 --> 0:26:50.716 Tanny went further. He said that no argument could be 0:26:50.796 --> 0:26:54.116 drawn from the nature of sovereignty or the necessity of 0:26:54.156 --> 0:26:57.836 government for self defense in times of tumult and danger. 0:26:58.556 --> 0:27:01.036 The reason that the government could not rely on a 0:27:01.076 --> 0:27:05.196 pure argument from necessity, said Tanny, was that the US 0:27:05.276 --> 0:27:10.516 Constitution is a government of limited powers. It does not 0:27:10.636 --> 0:27:15.596 confer absolute power or absolute sovereignty on anyone in the system, 0:27:15.676 --> 0:27:19.636 not on Congress, not on the president. Sovereignty resides in 0:27:19.756 --> 0:27:24.436 the people. By violating the Constitution's conferral of the right 0:27:24.476 --> 0:27:28.356 to suspend habeas corpus on Congress, the president was therefore 0:27:28.756 --> 0:27:32.596 usurping the power of the people, and doing so was 0:27:32.636 --> 0:27:38.556 fundamentally illegitimate. Tany understood that he was taking an enormous 0:27:38.676 --> 0:27:41.756 risk in confronting the President of the United States. It 0:27:41.796 --> 0:27:44.596 was rumored at the time that he himself, the Chief 0:27:44.676 --> 0:27:49.076 Justice might be arrested for his active resistance. In the 0:27:49.116 --> 0:27:53.156 concluding words of his written the judgment, he explained that 0:27:53.236 --> 0:27:57.276 he could not do anything about the suspension of Habeas corpus. 0:27:58.476 --> 0:28:01.796 He explained that these great and fundamental laws had been 0:28:01.836 --> 0:28:06.116 disregarded and suspended by a military order supported by the 0:28:06.156 --> 0:28:09.676 force of arms. All he could do, he said, was 0:28:09.996 --> 0:28:15.196 his duty. Tony's message to Lincoln was devastating. Lincoln was 0:28:15.356 --> 0:28:19.476 claiming to be going to war in fulfillment of his 0:28:19.596 --> 0:28:23.996 constitutional oath to take care that the laws be faithfully executed. 0:28:24.636 --> 0:28:28.796 But by suspending Habeas corpus, Lincoln was doing the opposite 0:28:28.956 --> 0:28:32.676 of taking care that the laws be faithfully executed. To 0:28:32.756 --> 0:28:37.356 the contrary, Lincoln was violating that very oath of office. 0:28:38.836 --> 0:28:42.996 Lincoln could not take this argument lying down, and on 0:28:43.076 --> 0:28:46.916 July fourth, eighteen sixty one, in his address to Congress, 0:28:47.476 --> 0:28:52.076 he offered a series of attempted justifications for why the 0:28:52.116 --> 0:28:57.276