Transcripts For CSPAN3 Lectures In History 20221025

So up to this point in the course, weve been talking a lot about the degree to which the constitution did not simply take the form of a written legal document right but rather as a set of ideas about the structure and function of american governance. And among these key ideas was a reliance on union particularly those mutual bonds of nationhood between states often known as comedy and the production of compromise, right . The constitution is a commitment to compromise. And because compromise was baked into the constitution. So too was the evil of slavery. Because they were consistently compromises between slaveholding and nonslaveHolding States about slavery. Because the framers at the Constitutional Convention in philadelphia were so committed to the idea of compromise as part of the scaffolding of american governance. They had drawn a path forward that always was going to accommodate slavery particularly as the nation became more and more committed to slavery. So over the course of the 1850s, you will remember there were lots of compromises over slavery. There was the compromise of 1850 the kansasnebraska act in some ways dred. Scott is considered a compromise. What else happened in kansas, but this all leaves neither side fully satisfied right northerners around happy southerners are unhappy and so by the late 1850s this sort of failures of these compromises had raised the level of tension in the nation. To a fever pitch making it even more difficult to find compromise over the issue of slavery. So this week we are talking about what happens when compromise fails. When the constitution does not provide answers to what to do about this slavery question. And when slaveholders refuse to compromise because theyre the ones who refuse to compromise with republicans and instead choose to secede from the union what happens next constitutionally . Now the main argument of this lecture as you can tell from the title is that we should think about the civil war as a constitutional crisis. But what do i mean exactly by constitutional crisis . Well, if slavery caused the civil war and we know that it causes civil war right . We know this from our readings both from the past few weeks but also for today. If civil if the civil war was caused by slavery. The war itself was fundamentally a constitutional conflict a contest over what the constitution was and what it meant. The constitution had implemented the system of government based in the sovereignty of the people, right . This sovereignty was expressed and balanced in many ways through elections through the separation of powers through federalism through all the structures that had been built into the constitution. But to function in this way the constitution had to provide this possibility for rule of the people at large operating through their representatives in government, right. So in order for the constitution to survive it had to have this structure work. And the civil war is going to be a great test of this idea that sovereignty of the people could not only exist. But last indefinitely permanently thrive so the 11 states that attempted to leave the union and form their own confederacy dedicated to slavery were fundamentally disrupting the Constitutional Order conflict over slavery had produced a constitutional crisis. And so this crisis is going to pose three interrelated questions to americans. First would the union the very basis of constitutional governance in the period before the civil war survive would the Union Survive would the constitution survive . Second how could americans fight a civil war within the bounds of their constitution particularly when the constitution did not offer Clear Solutions for how to conduct a war that was a civil war. That was a war among people within the nation. And third what would the future of american democracy look like if the United States won the war . How would the United States continue forward if it won . Today were going to start to talk about the first two problems and then were going to pick up the very complicated answers to the third for the remainder of the semester. Now as we discussed these questions a few things to keep in mind. First for the most part constitutional conflict did not take place in the Supreme Court. Right. This has been a theme of the class thus far so this probably doesnt surprise you but the worst constitutional problems were primarily engaged by the president and congress. The Supreme Court played a pretty insignificant role in the civil war and there are many reasons for this but we will talk more about them on thursday. This is a reminder that constitutionalism and constitutional interpretation particularly in the 19th century is often found outside the Supreme Court the Supreme Court does not control constitutional interpretation. Second there were often no answers to be found to the crisis in the constitution itself. There were no clear provisions for what the constitution meant in case of secession for how you were supposed to behave in relationship to secession. And as the war went on congress and the president made decisions whose legality under the constitution may have been disputed. But became constitutional because of what lincoln called the friction and abrasion of war. So the civil war in that sense is what history and Cynthia Cynthia nicolette calls a trial by battle right the legality of constitutional problems evolves over the course of the civil war and is related to whether the union can survive on the battlefield whether the union would have victories. So were going to spend some time talking about all of these questions, but i want to start where we left off in our last class, which is talking about the election of 1860. Now its important to recognize that the election of 1860 actually itself did not produce a constitutional crisis. You would almost think that thats where the constitutional crisis began certainly recent events have suggested that but in fact the actual conduct of the election of 1860 was relatively crisis free. The election of 1860 featured four candidates right we have here john bell of the Constitutional Union party. The Constitutional Union party was a newer party in 1860 and it was dedicated to the constitution and the union in fact its platform was so short that pretty much all it was for was the constitution and the union. Then you had two democrats who had split right . So you have northern democrats who tended to support steven douglas. Who was someone we know very well from what . To the beginning fade a little ladder for our thoughts the debate with lincoln the debate with lincoln. What else . What else is he responsible for . Cj compromise of 1850 right kansas, nebraska act. Hed been a very prominent member of congress for many years. And so you might think that he would appeal to southerners particularly because he had been one of these folks who had created more compromise that allowed southerners to get into the territories, but in fact by the time of the election of 1867ers had pretty much abandoned him, especially people in the lower south instead, they tended to support this man John Breckenridge who tended to be more stringent about slavery and therefore got the support of lower south men. And then finally we have Abraham Lincoln of the Republican Party and youll remember that the Republican Party was specifically dedicated to the idea that slavery ought to be restricted in the territories contrary to what decision terrance decision the creation of 3630 line well, they they believed in the 36 30 line, right . They had been in favor of the compromise missouri compromise of 1820. Was it laws that came from the mexican session and Texas Connection . Not from the compromise 1850 there if the the thing that was supposed to restrict them right was the dred scott decision. Dred scott was supposed to say oh no this cant even exist anymore. You you have to make sure that slaveholders can bring enslaved people into the territories. So republicans arguing that they were limited in terms of what they could bring to the territory. So the territories ought to be free was in direct conflict with the dred scott decision. So we have these four candidates Abraham Lincoln is going to win a plurality of the votes and a wide majority of the Electoral College. You can see here that lincolns lincolns popular vote was just a little bit under 40 but he won a great majority of the Electoral College and he won this even despite even if all of these folks had gotten together both democrats and the Constitutional Union party. They would not have won the Electoral College lincoln is going to have a commanding victory there. Now, you know, this is important to think about in the context of the 19th century and not in our 21st century viewpoint because remember theres no provision in the constitution that says you have to have a twoparty system right . There were four parties and this was pretty normal in the 19th century. In fact, almost all of the elections before this one featured more than two candidates for the presidency eight featured more than two candidates of the previous 10 elections and at least four candidates in more different elections before this and so this is important to understand because there was no real contestation at all that lincoln had won the election. Nobody said no lincoln didnt win fairly the vast majority of southerners fully accepted that lincoln had legitimately won the election. Constitutionally, he was the victor and in fact lincolns election was not particularly surprising to people many had predicted it because they understood that these candidates had split in all of these various ways and that the population of northern states was going to create this kind of circumstance. Now this isnt mean that southerners were happy with lincolns election. They were not happy. They were very irritated. Of course the president who was dedicated to the idea that everything they believed in was wrong was something thats slaveholders feared. But at the same time his election does not immediately produce war. Why . Well, you remember that until the 20th century president s did not take office until march. So there was a lot of time between when lincoln was elected and when he was going to go ahead and take the president ial seat. And so the months following lincolns election are going to feature numerous efforts at compromise to fulfill that ideal of compromise that Many Americans understood to be the heart of the constitution. Remember that americans have been compromising for many years on the issue of slavery. And so this was a similar kind of situation in which many thought that they ought to be able to find a compromise. So now im going to spend a little time talking about was called the secession winter. So those five months after lincolns election and going up into april 1861 when the war is triggered by the firing on fort sumter. I want to reiterate here that this is the csection winter not the succession winter. Those are two Different Things this session and succession, right so session leaving the union in this case, right six session what comes next . Or a show on hbo its a totally different thing. So make sure that when youre thinking about secession youre using the correct term. So lincolns election does not immediately produce secession of all of the Southern States that are going to join the confederacy. In fact, the only state that immediately begins the process is South Carolina and this of course is not the first time that South Carolina threatens secession, right . Can anybody think of another example austin the notification crisis nullification crisis, very good, theyd also threatened secession after the compromise of 1850. They were very unhappy with the provisions that were supportive of nonslaveholders. So within a few weeks of lincolns election South Carolina is going to initiate this process of trying to secede from the union on december 17th 1860 delegates who had been nominated to a Secession Convention loaded for secession december 20th. They vote december 17th. They gather theyre going to explain their reasons for why they are seceding from the union and i want you to pay close attention to the wording here because it stated definitively their intention not just to leave the United States, but to dissolve the United States, right . The union subsisting between South Carolina and other states under the name of the United States of america is hereby dissolved. In some ways. This is an acknowledgment of the problem of secession right if you withdraw from the union does the Union Continue to exist. Lincoln is going to make the same kind of claim once he is going to give his inauguration in march in general the idea. Is that the constitution only functions through comedy right through this compromise framework and if one state withdraws then the union is dissolved and this is echoed in almost all the newspapers in South Carolina in the period following the december 20th vote. And so theyre going to say that the union is dissolved. This language makes the case that South Carolinas consent is required to be in the union. This is not something that lincoln and other republicans are going to accept but this is the argument that they are going to make. Now South Carolina is doing this but at the same time. Federal politicians in washington had gathered to try in some way to create compromise to save off civil war and just as congress started to gather in december 1860 James Buchanan is going to deliver his fourth message to congress. So just to set the scene remember that this is not the new congress elected in november 1860. This is the old Lame Duck Congress that is going to meet december to march and then the new congress is not scheduled to meet until the following december. And James Buchanan is going to send in his message to congress not go and deliver a state of the union like we think of today thats not in the constitution. Youre not required by the constitution to go and deliver a speech so he sends in this message to congress. And buchanans message to congress is about as confusing as a could possibly be now. You dont need to go and read all of these words that buchanan offers, but just to give you a general sense of the things that hes trying to explain. He on the one hand says that the federal government. Is organized in such a way the union and the constitution organized such a way that no state can legally leave the union. Its not legal. Is not allowed under the constitution. But at the same time hes saying that the federal government has no power to stop. Anyone from leaving the union . Right, so its illegal under the constitution, but i dont know how to get get folks to stay thats sort of the constitutional argument here. This message well, you know was pretty roundly criticized especially by republicans really indicated the lack of clarity and ability of the constitution to contain this moment, right the constitution is not clear on all kinds of things was secession legal. Buchanan didnt think so but it doesnt say anything in the constitution that secession is legal. How did one prevent a state from leaving the union the constitution did not account for this . Now lincoln is going to disagree with buchanan about what is constitutional and what is not but this indicates a real fear about what to do next and whether the constitution could provide a path forward. So buchanan says all this and at the same Time Congress comes together and says, okay. Were going to try to come up with some sort of solution. In the house they create a committee of 13 which includes or sorry a committee of 33, which is headed by Thomas Corwin of ohio a 33 states in the union one member of each state in the house and then in the senate theres a committee of 13 which included several prominent political leaders among them Jefferson Davis about to be made the president of the confederacy William Henry seward who was a runnerup to lincoln in the Republican National convention and soon to join lincolns cabinet and this man John Jordan Crittenden of kentucky. Crittenden had been a member of the Constitutional Union party. So this was a moment made for him, right . He was all about this kind of compromise. He had followed after henry clay the great compromiser from kentucky and he was one of the longest serving politicians in washington at this time. He was very much dedicated to the idea that there ought to be some sort of compromise to prevent civil war. And so he provides one of the most Promising Solutions to the situation a proposal that came to be known as the crittenden compromise. So ive listed all the measures here and it was a detailed plan, but the most important part of it. Was this one on top here the extension of the missouri compromise line to the Pacific Ocean . So this is a compromise that suggests that the missouri compromise the sacred compromise that so many believed was essential to the constitution should be reimplemented right reimplemented so that there can be this balance between north and south and if it were reimplemented that this could create some sort of compromise between the people who are worried about slaveholders getting too much power or about antislavery men getting too much power and this part down here that no future amendment of the constitution could change these amendments or authorize or empower congress to interfere with slavery within any slave state was meant to suggest that this compromise will be final. We will not have any more of this kind of difficulty between north and south this is a bit naive in some ways because of course white southerners had their eyes on all kinds of other areas south of the missouri compromise line huba for example, but this is crittendence solution. Compromise seemed like the way to go right this seemed like a good way to approach the situation and this seemed like a good way to split up the territory, but the committee of 13 was hamstrung from the start by a rule that they adopted that republicans on the committee and members of the lower south lake Jefferson Davis both had to agree to any kind of compromise and davis and others refused. This was not enough for them. So crittendens measures are going to fail in congress and in january lower south states begin to leave the union one by one. Mississippi on january 9th florida on january 10th, alabama on january 11th, georgia on january 19th, louisiana on january 26th and texas votes on february 1st to leave the union, but their governor sam houston was a unionist and so tried to prevent it from Going Forward so they dont actually leave until march. These conventions of these lower south states were even more explicit than South Carolina and ive given you this to read for today because its really just gives you all of the reasons why secession is important to these folks. And so this is the mississippi ordinance of secession and you can see right from this part here. Our position is thoroughly identified with the institution of slavery the gradious greatest material interest of the world. Theyre not messing around theyre telling you exactly why they are leaving and again, they say that they are going to dissolve the union. This is not just about leaving the union. This is about dissolving the compact. So once these seven states have seceded they determined to create their new nation and they meet in montgomery in march 1861 to draft a new constitution for their new nation and to put a provisional government in place. Now again, the confederate constitution indicates exactly what this conflict is all about because these men set up a confederate constitution very closely modeled on the Us Constitution, which you read for today, and its a subject that were going to be discussing more on thursday, but some key provisions here. It explicitly protected the institution of slavery, right so it comes right out and says it this is a country dedicated to slavery. It forbids protective tariffs and federal internal improvements it limits the president to one six year term. These are provisions that are thought of to be as in support of state over the federal government, but it also gives the president a line item veto and then in the kicker it forbid states from leaving the new confederacy, right . This isnt in the Us Constitution and so theyre going to write it into the confederate constitution one interesting thing about the confederate constitution that i think maybe it means something to us in this class is that there is a provision for a Supreme Court of the confederacy, but its never organized. Theres no operational Supreme Court during the civil war in the confederacy. So they create this constitution and then they start thinking about how they can pursue their greater goals and one of the most important parts of their greater goals is to bring in more slaveHolding States because you remember we have we have these states down here who have seceded, but there were other states that had not yet seceded, arkansas, tennessee, North Carolina and virginia were states that were eventually going to join the confederacy, but by march 1861, they had not yet seceded and we are going to have four more states the border states of missouri, kentucky West Virginia west, virginia is not going to be formed until the civil war itself, but maryland and delaware that are not going to leave the union at all. And so one of the things that theyre thinking about as theyre trying to put together this new government is how do we appeal to these other slaveHolding States . That would be very important to any kind of new confederacy particularly their economic benefits, right . And so they start thinking about how can we appeal and one way they do this is they create a provisional government that has Jefferson Davis as president. We just heard about and davis, hes on the committee of 13 and Alexander Stephens of georgia both longterm members of the United States congress both wellrespected in places outside the south both lukewarm about secession in december. Not sure that they really want to join the confederacy davis remember is on the committee of 13, so hes interested in theory in some side sort of compromise Alexander Stevens of georgia. He becomes Vice President , but in december he had been a little well. I dont know if we really should be doing this stevens interestingly new Abraham Lincoln from their time serving in congress together and so he had some sense of what lincolns actual views were. But so by the time they become the president and Vice President of the confederacy, they are a hundred percent committed to the confederacy hundred percent committed to this new cause but by by selecting these folks as the provisional government, its sending a message to these upper south states that were going to be a reasonable nation. Were going to be a nation that you can join and feel comfortable with its not radical people. Its more moderate lawmakers. So what happens next is that these states start thinking about secession again, right, but they are not out of the union yet. So again, we have the border south are these states up here the upper south here the lower south or the deep south here the lower south has seceded by march now those other four states or really the other eight slaveHolding States are the subject of continued efforts at compromise because folks know that if for example, virginia and tennessee decide that theyre not going to go with the confederacy this would change the game quite a bit and maybe there would be a possibility to bring the lower south back into the union. So in march and excuse me in february and march there are going to be continued efforts to try to bring these states along both in the confederacy and in the United States. And so one thing that happens, is that in february. There are all kinds of folks who are organizing to try to create some sort of compromise both in the north and in these upper south states one big group of these folks is businessmen in new york. You remember we talked last week about how important those business connections were in new york. And so they are very concerned about the possibility of secession turning into separation. So theyre pushing for compromise. Weve got politicians pushing for compromise and ultimately a bunch of these guys get together in washington dc in february in what was known as the washington peace conference. These are people from both the north and the south delegates from both the north and the south people that you would have been very familiar with lots of congressmen and next congressmen who get together to try to figure out some sort of compromise and spent several weeks doing this and ultimately they determine that the crittenden compromise is actually pretty good plan. It makes a little sense. It might actually work and so they produce a plan that looks very similar to this and they send it on to congress. Congress not their receptive. It didnt work the first time. He wasnt accepted by the lower south men and so congress is sort of saying to itself. Well, you know, i think i think this is a good idea to try to have some sort of compromise, but in general this particular approach is not going to work. And so even though the washington peace conference produces this interest in compromise on behalf of these Folks Congress is going to go a slightly different direction. Ultimately, theyre going to come together on an amendment known as the corwin amendment or the original 13th amendment. How many of you have had heard of the original 13th amendment before this class . Okay, so a few a few. So the original 13th amendment is very much the opposite of the 13th amendment that we get past. This amendment is short and simple. Right, it suggests that slavery will be permanent, right . So no amendment shall be made to the constitution which will authorize or give to congress the power to establish or interfere within any state with the domestic institutions thereof, including that a persons held to labor or service by the laws of said state. This is very simple. We are not going to interfere with slavery where it exists and there can be no amendment for this. So this 30 original 13th amendment is going to pass both the house and the senate. It is going to pass the house by a vote of 133 to 65 and the senate by a vote of 24 to 12 exactly twothirds majority. And important to remember that this is going to pass both houses of Congress Even though members of the lower south had already left. Right, they were no longer in congress. This is a serious effort on behalf of republicans. Especially though not all republicans vote for it to try to create some sort of compromise. A few other things to note about this amendment. First it was the First Amendment passed by congress and sent to the states since 1804, which you remember was the amendment the 12th amendment had revised the process of the Electoral College in terms of thinking about Vice President and president very important amendment because of the election of 1800 but pretty long time ago, right 1804. Second it was distributed, right it was signed by the president and you can see here and it is signed by James Buchanan, march 2nd 1861. And so its sent to the states and states began the process of considering ratification. And in fact, it was ratified almost immediately by three states and later by two states. So there were states that had already passed this amendment as our ratify this amendment and expected it to become law. The war is going to disrupt this of course. So, this is a serious attempt. At constitutional compromise. Its also one that president elect Abraham Lincoln fully supported. When lincoln arrived in washington in february, hes going to spend some time talking to congressman and also going to the peace conference and supporting the efforts of folks to compromise. There was one thing he wouldnt compromise on right thats the territories because the territories are what the Republican Party had run on in 1860 restricting slavery in the territories, but in terms of where slavery existed yes, lincoln is on board with not interfering. On march 4th lincoln is going to deliver his inaugural address. Much less confusing than James Buchanan one of the wonderful things about Abraham Lincoln is his ability to sort of capture all of the key points of whats going on in that particular moment both sort of in general terms, but also constitutionally and so his at first inaugural address, which you read for today and well talk more about on thursday is going to lay out his constitutional vision for this particular moment. You can see in the first case that he says he has no constitutional ability to interfere with slavery as it exists in the states. He is not in control of any kind of power to constitutionally interfere with slavery. He makes a constitutional argument about union about the importance of the union. He argues that the union is perpetual. Whats the meaning of the word perpetual . Does he mean by perpetual . Remember constant forever right it will exist forever. It will last forever. Very good. So he makes this argument that the union is intended to last forever that it is not meant to be broken up. Unlike buchanan. He says hes going to enforce the law. Hes going to make sure that the law is abided by in the south regardless of whether states have argued that they have left the union. He says secession is anarchy. Right . Its the essence of minority rule. It is a fullon rejection of majority rule. It does not allow for democratic and finally importantly he says that he supports the original 13th amendment that core wind amendment believing it already in the constitution. Constitution does not allow him to interfere with slavery where it already exists. So it says fine. Lets put it in a constitutional amendment. Ill support that. And i just want to pause and talk very briefly about the contours of this argument because its really important. Lincoln is arguing that secession is illegal if a state leaves the union it fundamentally violates the constitution it is unconstitutional to secede. This is not universally accepted but its an argument lincoln is making based on the idea that democracy cannot exist without majority rule and if the United States is a democracy, which is up for debate, right if the United States is a democracy if people secede then you no longer have a union you no longer have majority rule. This is the argument that lincoln is making but lincoln who believed slavery was wrong who was antislavery not an abolitionist, but antislavery. The constitution contained support and protection for the institution of slavery in the slaveHolding States something he could not do do anything about under the constitution. Lincolns view was that the union itself must be protected. He was interested in the idea of compromise. I dont know if my computer just went to sleep. There we go. He was interested in the idea of compromise. He believed that compromise was essential to the union. He had been a supporter of the missouri compromise. He believed in constitutional approaches. So its events on the ground that are going to force lincolns hand. Its going to change the circumstances when things change for him and so throughout the early months of 1861 a problem had been brewing on this in this area right here fort sumter off the coast of South Carolina. It was a federal fort and it was in need of reinforcing so and reinforcing specifically in terms of food and supplies. Im not talking about guns here. Were talking about food primarily and lincoln understood this he knew this was a problem. Actually James Buchanan had dealt with it. You can see here that theres a an attempt to resupply in january total failure under the buchanan administration, but lincoln is going to see that this is a problem and by april its going to be such a problem that its an emergency. He needs to resupply the fort or else withdraw from the fort. So this is a real test right of those problems within the first inaugural and that buchanan had refused to deal with the question of am i going to enforce the law am i going to hold federal property that exists for federal purposes but is in supposedly this new nation. And so on april 12th a ship a resupply ship is going to arrive for its in the in Charleston Harbor attempting to resupply fort sumter. Its an unarmed ship but immediately confederates begin firing on it, and then they turn to fort sumter itself. They bombard the fork eventually forcing the United States to surrender there. And so because of this act of aggression lincoln believes he must respond and so on april 15th the following day he is going to call up 75,000 volunteers to take on the confederacy or this rebellion. This is a very small drop in the bucket of how many people are going to fight in the civil war and perish in the civil war but nonetheless it triggers a real reaction from those. Slave Holding States that had remained in the union. So, arkansas, tennessee, North Carolina and virginia who are up to this point had some hope of compromise determined that they agree with buchanan. Theres nothing in the constitution that says that it is possible to hold those states within the union and theyre going to call Secession Conventions. Whereas the earlier Secession Conventions they called had resulted in staying in the union these four states this upper south block votes to leave the union. The other states, missouri kentucky, delaware and maryland are not going to vote to leave the union and this is important because its going to provide some problems for lincoln Going Forward. But so we have arkansas, tennessee, North Carolina and virginia going into the confederacy and is lincoln would later say and the war came. So now were going to get into the war. Were gonna get into the problems problems of the civil war. Because once the civil war did come its going to pose all kinds of constitutional problems for the United States. Because theres no real guidance in the constitution on the problem of how to fight a war against your own people right people who are considered in your own nation. What should the conflict look like if you believe that secession is illegal. This is the rub. This is the issue that lincoln and others in washington are facing lincoln says secession is illegal. It violates the constitution it cannot be possible right. That fundamentally means that these states had not left the union because they had done something illegal, but they are not actually succeeding according to lincoln. Theyre going to fight this this war to keep them in the union, right but not acknowledged that they had actually left. To say that they remained in the union the folks in these states were in rebellion. They were not their own nation in this particular formulation. And so the message of the Lincoln Administration from the very beginning is that these states have not left the union. They remain in the union, but the people in them who are claiming to be part of the confederacy are. In rebellion thats why in the 19th century following the civil war end during the civil war their primarily calling this the war of the rebellion not a civil war. This is the war of people who are rebelling against the United States. They had declared their wishes, right they had declared this by saying they wanted to dissolve the union and so they have declared that theyre in rebellion. But calling it a rebellion creeds all kinds of problems. Because it forces link into consider. What is the situation constitutionally in dealing with people who are in rebellion . And so what happens in the civil war itself is a lot of worry about what is constitutional in a constitution that does not provide the answers to questions about secession to questions about conduct to questions about war powers to questions about what lincoln is even able to do and so this too becomes a period of constitutional creativity. Where these folks are seriously trying to abide by the constitution, but are not entirely sure about what to do. And so theyre constantly searching for the right answers for how things ought to work constitutionally. So in the next class were going to talk a little bit about sort of the consequences of what happens in the war, but i want to set this up for you by talking about four key constitutional problems that the Lincoln Administration and congress are dealing with during the war. Its not the only series of constitutional problems, but these four pretty well capture sort of the kinds of conflicts that come from the problem of calling it a rebellion. So first if a person is in rebellion and captured by authorities, what is the United States government supposed to do with that person . Lets say somebody did that today, right . If they declare themselves to be in rebellion, and they took up arms against the United States. What would you say they were committing . Lucas treason treason, right . This is generally the definition of treason. Oh, maybe. So article 3 section 3 of the Us Constitution says exactly what treason meant, right it exists in levying war against the United States or adhering to their enemies giving them aid and comfort. This is a very different reason if youre saying these folks are in rebellion and back in 1790 congress had passed a law against treason that had held without modification up to this point in time that treason was punishable by death specifically hanging. All right, so you have this quandary right where . Folks in rebellion against the United States you want to say that they are in rebellion, but that means that they are committing treason and what do you do if you catch a prisoner, right . How do you deal with these combatants . This is really problematic. Right are you going to execute every Single Member of the confederacy that you are able to capture what is going to happen to prisoners of war . This is also pretty sticky practical matter, right because lincoln wants to bring these states back into the union to recommit the United States to this particular foundation and what is going to happen if you decide to summarily execute every Single Person who takes up arms against the United States, so lincoln has to think creatively about how to handle this problem. He wants to insist that this is just a rebellion that there is no confederacy because secession is illegal. Its not even a possibility. But at the same time he wants to treat these folks as enemy combatants not as folks committing treason because if theyre committing trees in he have to execute them. So lincoln decides that hes going to thread this needle and it is challenging. Hes going to call them belligerents and hes going to extend belligerent rights under International Law to Confederate Armed forces. And lincoln is going to place soldiers and officers of the rebel army on the foot of those on the footing of those engaged in lawful warm. So thinking about these folks as belligerents not conceding that they are a nation but conceding that they are belligerence under International Law meant that they could capture prisoners of war and not execute them. This is lincolns solution. This is one major problem, right the question of what to do with these folks. Its going to last well into even the late 19th century. How do we handle the people who are in rebellion against the United States the 14th amendment is going to have a lot to say about that. But its not the only major problem. Another problem is what are we going to do about our military approach to defeating the confederacy . So some of you may know that Winfield Scott a great military hero at this point in time had designed a plan for how to approach defeating the confederacy that newspapers began to call the anaconda plan. It was called this because you can see that this line around the confederacy sort of looks like a snake they called it scotts great snake or the anaconda plan and the idea was that you are going to blockade the coastline. And the rivers so that confederates could not receive foodstuffs and goods and military supplies, and then you are going to march your armies right into the heart of the confederacy to defeat them. Winfield scott is going to provide the very plan that the United States uses to defeat the confederacy. He had predicted that it was not going to be quite as long i think he said two to three years right and was going to require not even close to the number of men that they are going to use but this is exactly the plan that they are going to adopt. At the same time this creates a serious problem. Because under International Laws of war a blockade, which is a key part of the anaconda anaconda plan indicates a state of war between nations. Right because there have to be neutral ports and other nations have to be able to remain neutral. So this in and of itself suggests. That you are engaging with another nation. How do you blockade your own ports . If you claim that they still belong to the United States. How do you do that . But this is war and something needs to be done and this is the best military plan and so lincoln determines that he is going to implement the blockade. Issues a blockade order april 19th 1861 indicating that there will be this push in the coastline to make sure that the confederacy cannot get the things that it needs. So the black heat is going to again pose a lot of questions about what is constitutional. What makes sense. Is this the right thing to do if you are going to these folks rebellious. Men as opposed to a new nation. In the future this is going to pose Serious Problems that are going to come in front of the Supreme Court. Heres one just small example of this kind of issue coming before the Supreme Court in the prize cases, which we are going to talk about on thursday, but these cases are going to indicate the kinds of arguments that folks are dealing with in terms of the constitutionality of a blockade. Against your own nation now the timing of this blockade order in april 1861 is going to highlight a third constitutional problem that the Lincoln Administration was dealing with right after the firing on fort sumter. And that was that congress was out of session right . Not scheduled to have a new congress until december 1861. To go back right . We have the old Lame Duck Congress that started in december 1860. They were trying to work on compromise till march. Then theyre going to disperse and theres not meant to be another congress that meets until december 1861. So congress is out of session. What is lincoln supposed to do when he does not have all the powers of fighting a war listed under the constitution . This is really tricky right you rely on congress for example to declare war. And if you declare war as the president , are you violating the constitution . This is a real question. So lincoln is going to call a special session of congress. Theyre going to meet in july 1861, but they dont mean until july and so lincoln has several months where he has to figure out what to do. And one particular constitutional issue that comes up during these few months is having to do with something called the writ of habeas corpus. How many of you have heard of the writ of habeas corpus before weve heard of it, but its kind of a tricky concept right . So lets go over what it is because its really something that we as a members of a free society hold dear. We think its really important. Rid of habeas corpus is a legal action that requires a person under arrest to be brought before a judge or into court to hear the charges against them, right . So the idea behind the writ, is that a person cannot be detained for long periods of time without some sort of lawful reason to do so to show why this detention is necessary. And if a person is detained they have the right to ask. What they are being detained for in front of a judge. They are allowed to hear the charges against them. The american version of this right came from english law, right . And this is as in many cases historically. This was a critical rate that could only be suspended in times of war to protect the public engaged in hostilities. Right. So this is the idea that the writ of habies corpus can be suspended in a case in which it was really necessary in order to protect the public during war. In practice what this meant to suspend the writ of habeas corpus. Was that a military or civilian official acting under orders from civilian authorities . Would Detain Persons for the protection of the Public Safety for an extended period of time without the requirement of needing to explain to them why they are being held so when this is suspended the authorities keep detainees in custody until the Suspension Ends until the writ is reinstated and this person has basically no way of challenging this so you can see why this is something that is really tricky to do people do not like to be detained without any kind of sense of why it is that they are being detained war or no war. So the constitution takes this very seriously. We have an article one section 9 the privilege of the writ of habeas corpus shall not be suspended, right . This is very Strong Language shall not be suspended unless unless when in cases of rebellion or invasion of or the Public Safety may require it. So this is really important in terms of what is going to happen during the civil war. Theres a view that in more time you can suspend the rate of habeas corpus and you also can do it in cases of rebellion. So its not quite the problem that lincoln was facing in terms of the blackade or in terms of enemy combatants. But theres another problem. Because this part of the constitution is an article 1 section 9. What part of what branch of government does article one of the constitution tend to deal with . Go ahead amber. The legislative branch, right . So the idea is that you are going to have perhaps the writ of habeas corpus only able to be suspended by congress maybe it doesnt say right the constitution does not say Congress Shall not suspend it. It just says it shall not be suspended. And what do you do when congress is not in session and youre dealing with a rebellion, this is exactly lincolns problem. So lincoln is faced with this in a very practical sense in april 1861. Because after the fall of fort sumter regiments of union troops begin to come to the United States from other places in the north to protect the capital. Capital is really important. Its also in the middle of slave states right you have virginia which has already seceded and then you also have maryland. Which has not yet seceded, but its a slaveholding state. So theres real concern that maryland is going to go into the confederacy real worry and what happens if maryland goes into the confederacy. The capital is swallowed up and what happens if maryland is generally in rebellion, its hard to get troops to washington dc. And this is exactly what happens during the early months of the civil war you have people in baltimore coming together and trying to prevent these troops from getting to washington dc. They start riots. They destroy railroad lines. They make it really difficult for the troops to get to the United States to get to the capitol and so lincoln decides, okay. I need to do something about this. And so he he sends a letter. Two Winfield Scott at this point general in chief of the army authorizing him to suspend the writ of habeas corpus at any point on or in the vicinity of the military line, which is now being used between the city of philadelphia and the city of washington. Those are the stipulations. He sends to Winfield Scott. This is not without controversy. In fact, this becomes controversial almost immediately and on thursday, were going to talk about the merriman case which comes from these riots in baltimore and reaches chief. Justice roger tony our favorite villain in this story on circuit in maryland and tony is going to be very much opposed to what lincoln is doing. And so lincoln is going to defend himself in his july 4th message to congress. And i think again as as i said earlier lincoln often gives us such a clear vision of what the problems are of whats going on lincoln is sort of saying to us. Okay, you know the constitution does not account for this moment. And what should we do . Right. Should we abide by all the laws . And then the country goes to pieces and the union no longer exists and the constitution no longer exists. Or is it better to break one law . And maintain the union and the constitution its his sort of initial like well, maybe we should think about whether the constitution is actually useful to this moment, and maybe it isnt maybe its not going to help us maybe following the constitution here will destroy our chances of bringing the seceded states back into the union and therefore the union no longer exists. But after he puts that out there lincoln backs up. He also says well, yeah, thats true. But also, i dont think i did anything unconstitutional so lincoln is saying look at the provision in the constitution does not say who is in charge of suspending the rent and so he did not believe he had done anything wrong. He is making the constitutional justification for his actions. So this is sort of a third major issue the writ of habeas corpus. Its going to continue on really all the way to the 21st century still such an important piece of our constitutional history, but a final problem and probably the most important problem that the Lincoln Administration and congress faced during the war was the question of slavery. So slavery is the cause of the war. And we know the stakes here right . There is a belief that slavery should be eliminated among republicans. And now that the lower south is gone and the upper south is gone from congress. You have mostly people who want to get rid of slavery. That doesnt mean they want black equality, but it does mean that theyre interested in the possibility of eliminating slavery and allowing this to happen in wartime because the war provides the possibility for this kind of change. This is tricky because lincoln strongly believes that the constitution protects slavery where it already exists. And again, we come back to that problem of are the states in rebellion, or are they a separate nation . If these folks in these states are in rebellion, can we take their property property in quotation marks . Can we mess with their institution of slavery . Probably not right. This is the issue if you are going to say that the constitution does not allow for these states to leave then you probably need to acknowledge that slavery is going to remain in these states. This is what lincoln thinks in the early months of 1861 when hes dealing with these problems and its going to crop up right because enslaved people in huge numbers are taking advantage of the war to run away to leave their enslavers to leave their situations and go to union lines. And so this is going to force the hand of many military officials and ill just give you one example on august 30th 1860. Oh, excuse me in early august 1861 a Union General by the name of john c, fremont. You might remember that name john c vermont the first republican candidate for president in 1856. He issues an order declaring martial law and freeing the enslaved people of confederate activists in missouri. So vermont is over there trying to maintain, missouri in the union and he says, okay. Well one way im going to do this is to ensure that if confederates if if folks are going to support the confederacy then they are going to lose their enslaved people. But on august 30th lincoln is going to rescind this order. He says this is a problem constitutionally, but also its going to alarm our southern friends and turn them against us. So lincoln is dealing with a big issue here because hes dealing not only with the states that have left the union or claimed to have left the union, but also slave Holding States remain in the union. Hes not sure in august 1861 that its a good idea to try to mess with us. Congress feel slightly differently they had begun to take action against slavery and piecemeal ways and theyre going to continue this in 1861 and 1862. This is a quick overview of what congress does in relationship to slavery. Theyre going to pass two confiscation acts. Theyre going to bar the return of enslaved people who had escaped from their in slavers. Theyre going to abolish slavery in washington dc with compensation to enslavers and they are going to abolish slavery in the territories without compensation. But here again, the constitutional issues are a bit fuzzy. As weve discussed several times this semester antislavery folks in general like to make the argument that constitutionally enslaved persons were persons. Right, they were not property under the law that the constitution did not acknowledge them as property, but in order to issue particularly the confiscation acts theyre going to have to make a slightly different argument because they are saying that they are confiscating property of slaveholders who are in rebellion. Right, so they are sort of changing there too into adjust to the situation makes a lot of sense right enslaved people were doing a lot of the work on plantations right in these areas where the enslavers had gone to fight right against the union and at back home the enslaved people were actually allowing these firms to continue producing. So it was very helpful as a war measure to confiscate enslaved people but thinking about it its slightly different. Once Congress Acts lincoln is also compelled to think more about how the war can provide the possibility for the end of slavery. And he thinks about this again in complicated constitutional ways, you know like lincoln is really committed to the constitution. He does not want to violate the constitution, but the constitution does not provide all of the answers to the questions of what to do in this situation. And so he begins to think well, you know as a war measure in particular this might work i might be able to end slavery if i think about this as a war measure again because enslaved people are running away in large numbers. This is creating a situation in which lincoln has to think about it. And so lincoln and his administration begin to rely on the practicality of war to think about how to get rid of slavery. And so in september 1862 lincoln issues the preliminary emancipation proclamation in which he says on january 1st, if these people in rebellion have not returned to the union given up their arms i will issue the emancipation proclamation. There will be freedom of enslaved people in confederate controlled territories. He says this in september hes trying to give some time for these folks in rebellion. To determine that they want to return to the union thinking maybe that this threat will be successful in the meantime. Lincoln is thinking about how to create the possibilities for making this constitutional in the postwar period in december 1862. Hes going to send his message to congress where he offers several constitutional amendments including one that involves the colonization of freed people and hoping that there will be some sort of future in which the United States can accept the end of slavery. But confederates dont do anything and so january first 1863. He issues the emancipation proclamation. And again, he relies on what he considers to be his war powers to do this as a result. You know, we think emancipation proclamation like we got to be so excited about emancipation, but this is about the most uninspiring emancipation proclamation. You can possibly imagine right because really all it is is him saying like, you know, im im the commander in chief, so im declaring this to be the case. There is no great beautiful language about the importance of freedom instead it is issued as a war measure. So lincoln opposed slavery. But as his first inaugural indicated, he was very concerned about the constitutionality of acting in relationship to slavery. As the war progressed and is enslaved people pushed for their own freedom. Course, theyve been pushing for many years before this, but theyre using the war to their advantage lincolns hand is forced and so he starts to think about how to deal with this constitutionally. By using his power as commander in chief lincoln is able to think about a constitutional solution to this problem. That may or may not work. After the civil war right and has to be qualified in various ways. So the emancipation proclamation does not apply to the slaveHolding States that remain in the union. It does not apply too many areas that the union had recaptured over the previous two years, right so parts of louisiana and, tennessee and virginia West Virginia had also begun to separate at this point and it didnt apply there it applied to no places that remained in the union. So the effect of this is that it is a piecemeal solution to a problem that lincoln is engaging in because he believes he is hamstrung by the constitution. Its also why lincoln begins pushing he actually abandons his colonization strategy in 1863 believes that its important then to push for actual freedom. He starts to support the new 13th amendment right the 13th amendment that we do have in the constitution that has been fully ratified which ultimately passes both houses of congress in 1865 and is ratified by the states and is the very opposite of the original 13th amendment neither slavery nor involuntary servitude except as punishment for crime. An important exception where of the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction and that congress will have the power to enforce us. So lincoln believes that this is the way to maintain the constitutionality of what he has done in the emancipation proclamation. So we have four major issues here, right . We have the the issue of enemy combatants. We have the issue of the blockade. We have the issue of habeas corpus and we have the issue of slavery and all of these issues are going to continue to be a problem for the Lincoln Administration and then in the years following the civil war. When we get to reconstruction folks thinking about the future of the american constitution are going to consider each of these problems. But in general they illustrate how much the civil war was a constitutional crisis. It created a crisis both on what the constitution was whether it required all of these states to be in it whether it was illegal to secede and also how to conduct a war against your own people, right . When they are trying to rebel, how do you approach these constitutional problems when the constitution does not give you easy answers does not provide the answers that you need in order to appropriately fight the war. And so this is what the Lincoln Administration and congress are going to have been dealing with over the course of the war and its going to have really important ramifications Going Forward and thats what were going to talk about on thursday. Right