Abraham Lincoln: Breaking the Rules to Save the Rules

Thoughts upon this Fourth of July, 2024.

Rupert Chapman is a retired long-time Holy Land archaeologist and curator emeritus of the Levantine Antiquities department of The British Museum. He is a senior writer for PolitiSage.

For the Fourth of July, I am having some thoughts about saving our democracy and the status of our country as a republic as opposed to a monarchy ruled by an absolute monarch. Emperor—from the Latin imperium, which refers to someone who holds power, who rules rather than serves—would perhaps be the more appropriate word, especially given that the continental United States alone is more extensive than any empire of the ancient world.

It has often been noted that Trump has no regard for the United States Constitution and has even called for it to be “terminated.” From the moment he came down his gold-painted escalator to announce his first bid for the presidency to the present day, he has disregarded both the letter and the spirit of the Constitution.

The question this places before the country, the dilemma of every constitutional republic and democracy, is this: How do you use the rules to defeat—democratically, legally, constitutionally—an opponent (perhaps, again, one should say a foe) who not only despises the Constitution and the laws based upon it but also has allies who understand full well at the level of low cunning where the weaknesses of that system lie and how to jujitsu that system, to use its inherent power against it.

The Civil War

There is an example of how to do this that really isn’t being discussed at the moment – Lincoln’s defense of the Constitution during the War Between the States. Here I am not referring to the war itself—to Lincoln’s raising of the largest army the U.S. had mustered to that point, one of the largest in human history, and the war he waged against the states which had attempted to secede from the Union. I am referring to the steps he took to preserve the Constitutional order.

There has always been some dispute as to whether secession was legal in 1861. The Constitution does not contain a specific prohibition against secession (that came with the Supreme Court’s ruling in the case of Texas v White in 1869). So, Lincoln’s first action was to assume the legal position, in which he was hardly alone at the time, that the Acts of Secession passed by eleven Southern states were unconstitutional, and that these acts did not make those states independent, but rather placed them in a state of rebellion against the legitimate government, which held sovereignty over the Union. On this basis he mobilized the military of the United States to restore the legitimate government of those states and to save the Union and its Constitutional Order.

The second major action Lincoln took was to act to prevent the attempted secession of what became three of the border states, namely, Maryland, Kentucky, and Missouri. The fourth border state didn’t yet exist—its creation was yet another of Lincoln’s action, to which I shall turn below. All three of these states were slave states, and all three had strong secessionist movements. Maryland’s status in the Union was of the most immediate strategic importance, given that it completely surrounded the national capital, the District of Columbia, on all sides north of the Potomac River. (Virginia hadn’t yet seceded when Lincoln was elected and did not formally do so until after a rigged referendum on May 23, 1861, but it was crystal clear from the time of the election of 1860 which way it would go.) 

If Maryland were allowed to secede, Washington and the national government would be cut off, and the chances of any resistance being mounted by the new administration, indeed, the chances of the survival of that administration and the government over which it presided, were virtually none.  Lincoln, therefore, acted immediately to take control of Baltimore and prevent the legislature from passing an “ordinance of secession” by military force. Shortly thereafter he did the same thing in Kentucky and Missouri. 

The legal basis for these actions was the defense of the Union, in which all three states were of supreme strategic significance, but the legal basis was, again, the assumption that secession was unconstitutional, and, therefore, illegitimate. It was argued at the time, and has been argued by some ever since, that these actions were themselves unconstitutional, that Lincoln had broken the rules in defense of the rules.

The outset of open warfare between the Federal Government and the states which had seceded came at Fort Sumter, Charleston, South Carolina. The Union Army garrison of this fort was held in the name of the Federal government, as were the garrisons of all the other coastal forts that defended the United States and its territories. The seceded states claimed these forts as their own, and this became the first flashpoint. Charleston boasted powerful shore batteries, equipped with the latest British breach-loading artillery, originally intended to support and defend Fort Sumter from naval attack. Now in the hands of a hostile power, they were repurposed to prevent the resupply and reinforcement of the fort. These batteries were used successfully to prevent this, and to implement a siege which ultimately led to the fall of the fort. The legal title to the coastal forts was used by both sides as a casus belli.

Lincoln: Suspending the Writ of Habeus Corpus

At the same time, in the earliest days of the war, President Lincoln took what was and remains his best-known and most controversial act of rule-breaking in defense of the Union and of the Constitution: he issued a partial suspension of the Writ of Habeus Corpus, one of the oldest and most important defenses of personal liberty under the law, going back at least as far as Magna Carta in 1215.  Wikipedia describes this as follows:

At the outbreak of the American Civil War in April 1861, Washington, D.C. was largely undefended, rioters in Baltimore, Maryland threatened to disrupt the reinforcement of the capital by rail, and Congress was not in session. The military situation made it dangerous to call Congress into session. In that same month (April 1861), Abraham Lincoln, the president of the United States, therefore authorized his military commanders to suspend the writ of habeas corpus between Washington, D.C., and Philadelphia (and later up through New York City). Numerous individuals were arrested, including John Merryman and a number of Baltimore police commissioners; the administration of justice in Baltimore was carried out through military officials. When Judge William Fell Giles of the United States District Court for the District of Maryland issued a writ of habeas corpus, the commander of Fort McHenry, Major W. W. Morris, wrote in reply, “At the date of issuing your writ, and for two weeks previous, the city in which you live, and where your court has been held, was entirely under the control of revolutionary authorities.” [Abraham Lincoln, William H. Rehnquist, and John Lossing Benson, quoted in Habeas Corpus Suspension Act (1863), Wikipedia]

For this action, which was later fully supported by Congress in the Habeus Corpus Suspension Act of 1863, Lincoln was labelled a tyrant, and not only by the Confederates and the Copperheads in the North. However, it enabled the military authorities to maintain order in the areas which they had removed from secessionist control in April 1861, and in areas over which they later regained control throughout the rebellious states.

Emancipation Proclamation

The next act of rule-breaking for which Lincoln is justifiable famous, is the Emancipation Proclamation (officially Proclamation 95), which declared that all of those people held in slavery in the states currently in rebellion were free. It was noted then, and has been noted ever since, that by its very definition this proclamation had no force, could not free so much as a single enslaved person in any of the areas which remained under the control of Confederate forces as of the date of issue. What it did do, however, was to give full presidential cover to those United States military commanders who were being inundated with huge numbers of refugee slaves, in every part of the South where they had regained control. These commanders could now treat them as free people, and, in modern terms, they became political refugees who could be offered protection against the forces of the enslaving power.  Lincoln is, quite rightly, celebrated as a hero of human rights for this action, but there were intense debates at the time—and since—as to its constitutionality.

On the 8^th of December 1863, President Lincoln issued the Proclamation of Amnesty and Reconstruction, which set conditions for the readmission of the rebellious states after control had been regained by the United States Army. Amongst the conditions for readmission were that at least 10% of the 1860 election participants from such states must have taken an oath of allegiance to the United States—this was a formal, legal oath and definitely not the well-known Pledge of Allegiance, which wasn’t composed until 1892. In this oath, voters pledged to abide by emancipation. 

Voters could then elect delegates to draft revised state constitutions and establish new state governments.  All Southerners except for high-ranking Confederate army officers and government officials would be granted a full pardon. The policy also made it so the South had to provide education for former slaves, who were no longer considered private property. Lincoln guaranteed Southerners that he would protect their remaining property. By 1864, Louisiana, Tennessee, and Arkansas had established fully functioning Unionist governments. … This policy was meant to shorten the war by offering a moderate peace plan. It was also intended to further his emancipation policy by insisting that the new governments abolish slavery. [Wikipedia article titled “Ten Percent Plan”]

This plan remained operative until after Lincoln’s assassination, when Congress, under the control of the Radical Republicans passed the Reconstruction Acts of 1867, which imposed much harsher terms on the states of the former Confederacy.

Lincoln Neutralizes the Supreme Court

One of the least known, but perhaps most significant, actions Lincoln took in the course of his presidency was the neutralization of the Supreme Court. The now-infamous Chief Justice at the time of Lincoln’s inauguration was Roger Taney, who was appointed by President Andrew Jackson on March 28, 1836, and served in that capacity until his death at the age of 87 on October 12, 1864. Taney was viscerally hostile to the Lincoln administration and did everything in his power to obstruct its smooth functioning. Lincoln had, of course, no power under the Constitution to remove Taney from office, which could only be done by Congress, the process being impeachment by the House of Representatives and Trial by the Senate. There remained enough Democrats in both houses to obstruct this process. Lincoln acted instead, entirely legally and within his Constitutional powers, by expanding the Court, through legislation establishing the Tenth Circuit (then including California and Oregon) and establishing a tenth seat on the Court. When Taney died, Lincoln was able to appoint Salmon P. Chase, formerly Lincoln’s Secretary of the Treasury, to replace him. The Judiciary Act of 1869, signed into law by President Ulysses S. Grant, reduced the size of the Court to nine, where it has remained ever since, in spite of the creation of several new circuits.

While the state of the Union, as I write this. is nowhere near so dire as it was when Lincoln took the oath of office on 4 March 1861, it is generally recognized by both sides that of the political debate that it is very dire. The Republican nominee-apparent is a convicted criminal and a serial breaker of the rules. It is a regular complaint of Democrats, both in and out of public office, that it seems unlikely that his challenge to the Constitution and the status of the United States as a democratic republic, subject as our great second President John Adams put it to “the rule of law and not the rule of men.” can be successfully defended and preserved by a strict adherence to the rules and norms which have served us so well since the adoption of the Constitution in 1789.

Consitution of the Senate

Moreover, it is crystal clear that there must be further Amendments to the Constitution in order to prevent this situation from arising again, which must, inter alia, address the composition of the United States Senate (the anti-democratic limit to two Senators per state regardless of the size of the population of the states, thus giving greater weight to acreage than to people), and to the Senate rule (which is not a matter of law, but of custom) known as the filibuster.

Needed Now: Supreme Court and Federal Judiciary Reform

Obviously, something must be done to reform the Supreme Court, to give greater recourse to the legislative branch to remove corrupt justices, perhaps to impose term limits, to remove the power of justices to time their retirement so as to enable a president of their choosing to appoint their replacement.

Something must also be done to reform the judiciary in some way so as to prevent “judge shopping: in the federal courts, to ensure the enforcement of proper rules concerning jurisdiction.  The federal judiciary should also be placed on a proper footing as regards qualifications, something which has been left to the American Bar Association, but which has been suborned by the Federalist Society and the Republican Party, who have secured hundreds of highly politicized appointments of frequently under-qualified individuals to lifetime appoints of great power.

It is now time for President Biden and the Democratic Party to consider seriously breaking some of the rules and norms which have hitherto bound them in defense of the Constitution and the Rule of Law, while there is still time.

Rupert L. Chapman III, Ph.D.

Devon, England on the 4^th of July, 2024