Abraham Lincoln and The Growth of Federal Power

Below is a discussion of some of the ways that President Lincoln violated the US Constitution’s
limitations on his power to preserve the Union. This list is by no means comprehensive. It cannot be. It is
but a beginning that will provide a foundation for looking at the expansion of the President’s power
during the Civil War and the way the war transformed the power of the national government.
1. Secession: This is a controversial one in today’s political climate where nationalism is the most
common expression of dedication to the country. But in the Kentucky Resolutions of 1798, Thomas
Jefferson and James Madison, often called the “Father of the Constitution for his role in its creation and
for working to get it accepted by the various states, wrote that the U.S. Constitution was a compact of
sovereign states which had delegated very specific powers but not sovereignty to a central government-
powers which could be recalled any time. “That the several States composing, the United States of
America, are not united on the principle of unlimited submission to their general government; but that, by
a compact under the style and title of a Constitution for the United States, and of amendments thereto,
they constituted a general government for special purposes — delegated to that government certain
definite powers, reserving, each State to itself, the residuary mass of right to their own self-government;
and that whensoever the general government assumes undelegated powers, its acts are unauthoritative,
void, and of no force.” These “reserved rights” that each State held would include secession. As a result,
before the Civil War the nation was largely seen as a compact of several states working together in
limited specific ways. After the war, the National Government came to be the dominant portion of the
government and state governments submissive to it. This began the process of breaking down the
limitations placed on the national government by the Constitution.
It is worth noting that even Union sympathizers understood their position on forcing the South to
remain by military force stood on weak constitutional grounds. According to Cynthia Nicoletti, a legal
history professor at the University of Virginia School of Law, the reason Jefferson Davis was never put
on trial for treason after the Civil War was that his prosecutors were afraid that he stood a good chance of
being found not guilty of treason because when his home state of Mississippi seceded in 1861 he
automatically ceased to eb a citizen of the USA. They were so worried about this outcome that they
ultimately set him free instead of sending him to trial.
2. Suspending Habeas Corpus: Habeas Corpus is a judicial order requiring a person under arrest to be
brought before an independent judge or court to secure the person's release unless lawful grounds are
shown for their detention. It exists to prevent the government from arresting whosoever it wishes and
imprisoning people for expressing dissent. The Constitution gives Congress the power to suspend habeas
corpus in “Cases of Rebellion or Invasion” when “the public Safety may require it.” In 1861, 1862, and
1863, Lincoln, without permission of Congress, suspended habeas corpus. In 1861 he did so to use the
military against civilians in Maryland who might be sympathetic to the Confederacy or who were critical
of his leadership, even to the point that he gave permission for the military to bombard and level
Maryland cities if the military found it “necessary.” The Supreme Court ruled this completely
unconstitutional. Lincoln completely ignored the Court, and the separation of powers, even going so far at
one point to sign an order for the arrest of Chief Justice Taney though the order was never carried out. In
1862, Lincoln declared martial law across the entire nation, whether it was near the battlefields or not.
This allowed the military to exercise supreme power in the Union states and civilians were even subjected
to military courts instead of the public court system promised by the Constitution. This was renewed in
1863 for the totality of the war.
3. First Amendment Rights: Lincoln seized the telegraph lines and issued an order prohibiting the printing
of war news about military movements without approval. Journalistic dispatches, U.S. mail, and
telegraphs were all routinely censored as part of the administration’s war efforts. People were arrested for
wearing Confederate buttons and for singing Confederate songs. Government officials shut down the
Chicago Times newspaper for excessively criticizing the Lincoln administration. Editors were arrested,
papers were closed, and correspondents were banned from the fields of battle. Over 300 newspapers shut
down, and under the suspension of habeas corpus his administration arrested at least 14,401 civilians were
arrested by the Lincoln administration and held indefinitely without trial as political prisoners, thousands
of whom were certainly newspaper editors and reporters. General Burnside, Military Governor of the
District of Ohio, the office of the Sunday Chronicle, a Washington, D.C., newspaper and arrested
Clement L. Vallandigham, a prominent Democratic member of Congress from Ohio, was arrested for
making an anti-war political speech in his home state. Vallandigham was then convicted by a military
tribunal and sentenced to prison. Lincoln, however, changed the punishment to banishment. Though some
criticism was allowed, it was only allowed to a point. And it always put you in danger as “the repeated
expression of disloyal and incendiary sentiments” could have you arrested for treason. Federal courts
repeatedly called these actions illegal or unconstitutional and ordered them stopped. The orders were
ignored.
4. The Draft: It was under Lincoln that the government first asserted that it had the power to force people
into the army against their will to fight, kill, and die for whatever cause the government felt justified in
waging war about. Article 1 Section 8 provides for Congress to authorize the raising and funding of
armies and the power to declare war. Lincoln not only went war without a declaration of Congress but
nothing in the Constitution allows for any branch of the government to compel people into joining the
military against their will. The draft fell disproportionately on the poor as the rich could afford to pay
$300 to be exempted from the draft, leaving only poor people who would forced into the military. This
ultimately led to the New York City Draft Riots as Irish immigrants resented being forced into the
military because they were too new and too power to be able to buy their way out of the draft.
These are not all the problems of the Lincoln Presidency, but they are some of the most
important. The issue of secession is a non-starter for many today who equate it solely with slavery. This
has resulted in the limiting of one of the most powerful rights of the people, “the Right of the People to
alter or to abolish” their government when it rules in ways that violate their rights and consent. The
precedent set by Lincoln’s suspension of habeas corpus has been followed in every war and major
national crisis. The first thing to disappear are civil liberties- the freedoms of privacy, speech, the press,
etc. In every major conflict since the government has read and censor private mail as a way t control what
people say and think. You can draw a line from the precedent Lincoln set doing these things to the
government’s mass spying and data collection on American citizens today as part of the “War on Terror.”
Likewise, the present day use of military force against American civilians, the arrest and imprisonment of
Americans accused of disloyal thought, words, or actions, and indefinite detention of people all in
violation of their rights all have their roots back in the example Lincoln set. The draft has been used in
every major conflict since the Civil War, even for decades where wars were much smaller such as in
Korea and Vietnam. Lincoln’s refusal to obey the orders of federal courts and the Supreme Court as well
as assuming to himself the powers of Congress to do such things as declare war were a major breach of
the separation of powers laid out in the Constitution that has allowed for the slow but constant
concentration of power into the hands of a single person- The President- to do as he or she thinks
“necessary.” Whatever one thinks of Lincoln’s legacy as an emancipator, his legacy as President has been
a dangerous one that has allowed for the expansion of government power at the cost of individual
freedom.