Lincoln’s law: How did the Civil War change the Constitution? | James Stone | Big Think


The United States Constitution is certainly
dedicated to the rule of law. John Adams famously said, quoting Harrington
who himself is quoting Aristotle or alluding to Aristotle, that the United States aims
to establish the rule of law not the rule of men. And the Constitution lays out a number of
rules about how governments should act. Some of that is involved in creating new institutions
and defining those institutions in a way summoning them into being and some of it is about putting
restrictions on institutions that are already there or practices that are unavoidable. So, when does the rule of law and the rule
of men or something besides the rule of law create a conflict in American government? Well, one of the great conflicts about the
rule of law in governance comes up during the Civil War. Abraham Lincoln was accused of being a dictator
by his political opponents and only partially defended against it by his friends. He made a case against it, but even that case
was kind of modified. And that’s this: in the great crisis of
the spring of 1861 when a number of states purported to succeed from the Union, something
which they claimed was legal and which Lincoln claimed was a violation of the law of the
Constitution, the federal government was faced with this tremendous danger that its capital
was located in the middle of slave territory. The state of Maryland was a slave state and
the state of Virginia, of course, was a slave state and the critical question had to do
with Maryland. And Virginia was succeeding from the Union
or sought to succeed from the Union, but Maryland Lincoln had no intention of allowing to succeed
from the Union and so he suspended habeas corpus, one of those basic guarantees in the
Constitution that there will be no imprisonment without a trial, Lincoln imprisoned people
without a trial and when the chief justice of the United States told him he had to release
a prisoner he ignored him. And Lincoln’s claim was that even though
the law of habeas corpus is in the Constitution, all be it with a provision for suspension
but it looks like maybe suspension by Congress rather than the president, Lincoln said you
have to be able to preserve the whole of the law, you can’t allow the whole of the law
to collapse because of some particular law which you’re trying to enforce just according
to the letter of the law. So, Lincoln suspended habeas corpus. Later on, they put on trial newspaper editors
who were sympathetic to the confederate cause and promoting mutiny among the troops and
here the argument that Lincoln made was that you can’t, by following all the details
of the law, put at risk lawfulness itself, but it was certainly an instance where he
was making an appeal to his judgment, his wisdom about what the circumstances required
rather than trying to follow what the rules permitted or allowed. Not to mention that the rules didn’t say
what to do in a case that some of the states were succeeding. Gosh, Lincoln’s predecessor James Buchanan
thought there was nothing a president could do to respond to succession, that that wasn’t
in the rules of the Constitution. Well, to be sure it wasn’t in the rules
of the Constitution it wasn’t exactly anticipated by the founders and they probably couldn’t
have made a rule about it if they had or the rule would have never of been accepted as
part of the Constitution. So, there I think is one of the critical moments
where the rule of law, the guarantee of basic civil liberties, came up against the claim
that the protection of a constitution that protects civil liberties requires at least
a generous interpretation of the power to restrict, in certain circumstances, the ordinary
rule of law. But if that applies at the time of the Civil
War maybe the clearest crisis in American history, what about right after 9/11 when
two huge buildings collapsed as a result of these sort of homemade bombs, airplanes turned
into bombs an unprecedented thing and suddenly the United States is faced with threats the
nature of which it doesn’t really even know. Do the necessities of that moment require
some restriction of civil liberties? A lot of that was handled by law made by the
legislature, the Patriot Act, but whether the Patriot Act actually fit with the Constitution
and the way in which it fit was a matter of much dispute. Not all of which went to court, some of it
did but not all of it went to court and was resolved and I don’t know that it can be
resolved. So, that would be an example the instance
of the threat of war or of disaster in a moment of war might require some at least narrowing
of the rule of law, certainly it requires an appeal to a wisdom that goes beyond the
rule of law itself.

5 Replies to “Lincoln’s law: How did the Civil War change the Constitution? | James Stone | Big Think”

  1. It didn't change it, it only stopped the Dems from breaking it, that's why they made up that b.s. "Big Switch/Southern Strategy" lie smh..

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