CONSTITUTIONAL HISTORY, 1861–1865

If expediency and ideology ordinarily conflict with the constitutionalist desire for procedural regularity and limitations on government, in time of war they pose a fundamental challenge to constitutionalism and the rule of law. The first fact to be observed about the constitutional history of the civil war, therefore, is that the federal Constitution, as in the prewar period, served as both a symbol and a source of governmental legitimacy and as a normative standard for the conduct of politics. Because the rule of the Constitution continued without interruption, it is easy to overlook the pressures that the war generated to institute a regime based exclusively on necessity and the public safety. To be sure, considerations of public safety entered into wartime constitutionalism, and there were those who believed passionately that the Union government in the years 1861 to 1865 did indeed cast aside the Constitution and resort to arbitrary rule. Yet, considered from either a comparative or a strictly American perspective, this judgment is untenable. The record abundantly demonstrates the persistence of constitutional controversy in Congress, in the executive branch, in the courts, and in the forum of public opinion—evidence that the nation's organic law was taken seriously in time of war, even if it was not applied in the same manner as in time of peace. Indeed, a constitutionalizing impulse may be said to have manifested itself in the business of warfare itself. General Order No. 100 for the government of Union armies in the field, promulgated by President abraham lincoln in 1863, was an attempt to limit the destructiveness of modern war that had resulted from developments in weaponry and from the emergence of other aspects of total war.

The most important constitutional question resolved by the events of the war concerned the nature of the Union. (See theories of the union.) The Framers of the Constitution had created a mixed regime that in some respects resembled a confederation of autonomous states and in others a centralized unitary government. Its distinguishing feature—the chief characteristic of American federalism—was the division of sovereignty between the federal government and the state governments. In constitutional law several decisions of the Supreme Court under Chief Justice john marshall had confirmed this dual-sovereignty system; yet periodically it was questioned by political groups who insisted that the Union was simply a league of sovereign states, and that the federal government possessed no sovereignty whatsoever except as the agent of the states. From 1846 to 1860 defenders of slavery asserted this state-sovereignty theory of the Union; although they never secured a congressional majority for the theory, they did force northern Democrats to adopt positions that virtually abandoned any claim to federal sovereignty in matters concerning slavery. The secession policy of President james buchanan, which regarded secession as illegal but nonetheless tolerated the existence of the newly forming Confederate States of America, signified the constitutional and political bankruptcy of Democratic dual federalism and the practical repudiation of federal sovereignty.

The constitutional results of the Civil War must be measured against the effective triumph of proslavery state sovereignty which permitted the disintegration of the Union in 1860–1861. Northern victory in the war established federal sovereignty in political fact and in public policy, and by the same token repudiated the state-sovereignty theory of the Union. From the standpoint of constitutional law, this result vindicated the divided-sovereignty concept of federalism asserted in the early national period. From the standpoint of federal-state relations in the field of public policy, the war produced a significant centralizing trend, evident principally in military recruitment and organization, internal security, the regulation of personal liberty and civil rights, and the determination of national economic policy.

The changes in federalism produced by the war have usually been described—sometimes in almost apocalyptic terms—as the destruction of states ' rights and the old federal Union and their replacement by a centralized sovereign nation. In fact, however, the changes in federal-state relations that occurred between 1861 and 1865 did not seriously erode or alter the decentralized constitutional system and political culture of the United States. The centralizing of policy was based on military need rather than the appeal of a new unitary constitutional model, and it was of limited scope and duration. In no comprehensive way did the federal government become supreme over the states, nor were states' rights obliterated either in law or in policy. The theoretical structure of American federalism, as explicated by John Marshall, persisted; the actual distribution of power between the states and the federal government, the result of policy struggles on questions raised by the war, was different.

Perhaps the best way to describe the change in federalism that occurred during the Civil War is to say that after a long period of disinclination to use the constitutional powers assigned to it, the federal government began to act like an authentic sovereign state. Foremost among its achievements was the raising of armies and the providing and maintaining of a navy for the defense of the nation.

At the start of the war the decision to resist secession was made by the federal government, but the task of raising a military force fell largely upon the states. The regular United States Army, at approximately 16,000 men, was inadequate for the government's military needs, and federal authorities were as yet unprepared to call for United States volunteers. To meet the emergency it was necessary to rely on the militia, a form of military organization that, while subject to national service, was chiefly a state institution. Accordingly President Lincoln on April 15, 1861, acting under the Militia Act of 1795, issued a call to the state governors to provide 75,000 militia for three months of national service. By August 1861, in pursuance of additional presidential requests, the War Department had enrolled almost 500,000 men for three years' duty. Yet, although carried out under federal authority, the actual recruiting of troops and to a considerable extent their preparation for combat were done by the state governors, acting as a kind of war ministry for the nation.

This arrangement did not last long. Within a year declining popular enthusiasm and the utility of centralized administrative management severely impeded state recruiting efforts and led to greater federal control. Eventually national conscription was adopted. Congress took a half-way step toward this policy in the Militia Act of July 1862, authorizing the President, in calling the militia into national service, to make all necessary rules and regulations for doing so where state laws were defective or inadequate. Under this statute a draft was planned by the War Department, to be enforced by provost marshals nominated by state governors and appointed by the department. Political resistance in the states prevented implementation of this plan. At length, in the Enrollment Act of March 1863, Congress instituted an exclusively national system of conscription. Directed at male citizens ages twenty to forty-five and foreigners who declared their intention to become citizens, the draft law omitted all reference to the state militia. Conscription was to be enforced by federal provost marshals under a Provost Marshal General, operating under an administrative structure organized according to congressional districts. The Civil War draft, which permitted substitutes and money commutation, aroused widespread and often violent opposition and was directly responsible for inducting only six percent of the total Union military force. Nevertheless, it proved to be a decisive constitutional precedent on which the federal government relied in meeting its manpower needs in the wars of the twentieth century. (See selective service acts.)

Closely related to the raising of armies was the task of maintaining internal security on the home front against the treasonable and disloyal acts of persons interfering with the war effort. In this sphere too the Union government exercised previously unused powers, asserting an unwonted sovereignty in local affairs that challenged the states' exclusive power to regulate civil and political liberty.

The law against treason, the elements of which had been defined in the Constitution, was the most formidable instrument for protecting national security outside the theater of war. Yet in its various manifestations—the Treason Act of 1790 requiring the death penalty and the Seditious Conspiracies Act of 1861 and the treason provisions of the confiscation act of 1862 imposing less severe penalties—it was inapplicable in the South as long as federal courts could not operate there. It was also unsuited to the task of containing the less than treasonable activities of Confederate sympathizers and opponents of the war in the North. Loyalty oaths were a second internal security measure. The third, and by far the most important, component of Union internal security policy was military detention of persons suspected of disloyal activities, suspension of the writ of habeas corpus, and the imposition of martial law.

In April 1861 and on several occasions thereafter, President Lincoln authorized military commanders in specific areas to arrest and deny the writ of habeas corpus to persons engaging in or suspected of disloyal practices, such as interfering with troop movements or discouraging enlistments. In September 1862 the President issued a general proclamation that such persons were liable to trial by military commission or court-martial. Initially the State Department supervised civilian arrests made by secret service agents, federal marshals, and military officers. In February 1862 the War Department assumed responsibility for this practice and created a commission to examine the causes of arrests and provide for the release of persons deemed to be political prisoners. Congress further shaped internal security policy in the habeas corpus act of March 1863, requiring the secretaries of war and state to provide lists of prisoners to federal courts for grand jury consideration. If no indictment for violation of federal law should be forthcoming, a prisoner was to be released upon taking an oath of allegiance.

The Union government arrested approximately 18,000 civilians, almost all of whom were released after brief detention for precautionary rather than punitive purposes. The policy was extremely controversial, however, for what Unionists might consider a precaution to prevent interference with the war effort could easily be regarded by others as punishment for political dissent. Evaluation of internal security policy depended upon conflicting interpretations of civil liberties guarantees under the Constitution, and differing perceptions of what critics and opponents of the government were in reality doing. As with conscription, however, there was no denying that internal security measures had a significant impact on federal-state relations.

In carrying out this policy the federal government for the first time intervened significantly in local regulation of civil and political liberty. Not only did the federal government make arbitrary or irregular arrests but it also temporarily suspended the publication of many newspapers. Not surprisingly, considering the traditional exclusivity of state power over civil liberty and the partisan context in which the internal security question was debated, the states resisted this extension of federal authority. In several states persons adversely affected by internal security measures, or by enforcement of federal laws and orders concerning conscription, trade restrictions, internal revenue, or emancipation, initiated litigation charging federal officers with violations of state law, such as false arrest, unlawful seizure, kidnaping, assault, and battery. Under prewar federalism no general recourse was available to national officials involved as defendants in state litigation of this sort. Congress remedied this defect, however, in the Habeas Corpus Act of 1863.

The 1863 act provided that orders issued by the President or under his authority should be a defense in all courts against any civil or criminal prosecution for any search, seizure, arrest, or imprisonment undertaken in pursuance of such an order. The law further authorized the removal of litigation against national officers from state to federal courts, and it imposed a two-year limit on the initiation of such litigation. On only two previous occasions, in 1815 and 1833 in response to state interference with customs collection, had Congress given protection for federal officers acting under authority of a specific statute by permitting removal of litigation from state to federal courts. The Habeas Corpus Act of 1863, by contrast, protected actions taken under any federal law or executive order. Critics argued that the law gave immunity rather than indemnity, denied citizens judicial remedies for wrongs done by the government, and usurped state power. The logic of even a circumscribed national sovereignty demanded some means of protection against state jurisdiction, however, and during reconstruction Congress extended the removal remedy and the federal judiciary upheld its constitutionality. The wartime action marked an important extension of federal jurisdiction that made the national government, at least in time of national security crisis, more able to compete with the states in the regulation of civil liberty.

The most novel and in the long run probably the most important exercise of federal sovereignty during the Civil War led directly to the abolition of slavery and the protection of personal liberty and civil rights by the national government. No constitutional rule was more firmly established than that which prohibited federal interference with slavery in the states that recognized it. The outbreak of hostilities did not abrogate this rule, but it did create the possibility that, under the war power, the federal government might emancipate slaves for military purposes. After prohibiting slavery where it could under its peacetime constitutional authority (in the district of columbia and in the territories), Congress struck at slavery in the Confederacy itself. In the Confiscation Act of 1862, it declared "forever free" slaves belonging to persons in rebellion, those who were captured, or who came within Union army lines. Executive interference with slavery went considerably farther. After trying unsuccessfully in 1862 to persuade loyal slaveholding states to accept a federally sponsored plan for gradual, compensated emancipation to be carried out by the states themselves, Lincoln undertook military emancipation. In the emancipation proclamation of January 1, 1863, he declared the freedom of all slaves in states still in rebellion and pledged executive-branch protection of freedmen's personal liberty.

Federal power over personal liberty was further made manifest in the work of local police regulation undertaken by Union armies as they advanced into southern territory. All persons in occupied areas were affected by the rule of federal military commanders, and none more so than freed or escaped slaves. From the first incursions of national force in May 1861, War and Treasury Department officials protected blacks' personal liberty, provided for their most pressing welfare needs in refugee camps, and assisted their assimilation into free society by organizing their labor on abandoned plantations and by recruiting them into the army. In March 1865 Congress placed emancipation-related federal police regulation on a more secure footing by creating the Bureau of Refugees, Freedmen, and Abandoned Lands. Authorized to control all subjects relating to refugees and freedmen for a period of one year after the end of the war, the freedmen ' sbureau throughout 1865 established courts to protect freedmen's personal liberty and civil rights, in the process superseding the states in their most traditional and jealously guarded governmental function.

Federal emancipation measures, based on the war power, did not accomplish the permanent abolition of slavery as it was recognized in state laws and constitutions. To accomplish this momentous change, and the invasion of state power that it signified, amendment of the Constitution was necessary. Accordingly, Congress in January 1865 approved for submission to the states a constitutional amendment prohibiting slavery or involuntary servitude, except as a punishment for crime, in the United States or any place subject to its jurisdiction. Section 2 of the amendment gave Congress authority to enforce the prohibition by appropriate legislation.

Controversy surrounded this terse, seemingly straightforward, yet rather delphic pronouncement, which became part of the Constitution in December 1865. Though it appeared to be a legitimate exercise of the amending power under Article V, Democrats argued that the thirteenth amendment was a wrongful use of that power because it invaded state jurisdiction over local affairs, undermining the sovereign power to fix the status of all persons within a state's borders and thus destroying the unspoken premise on which the Constitution and the government had been erected in 1787. The Republican framers of the amendment for their part were uncertain about the scope and effect of the guarantee of personal liberty that they would write into the nation's organic law. At the least, the amendment prohibited chattel slavery, or property in people; many of its supporters believed it also secured the full range of civil rights appurtenant to personal liberty that distinguished a free republican society. No determination of this question was required in order to send the amendment to the states, however, and when a year later the precise scope of the guarantees provided and congressional enforcement power became issues in reconstruction, more detailed and specific measures, such as the civil rights act of 1866 and the fourteenth amendment, were deemed necessary. Constitutionally speaking, the Thirteenth Amendment played a minor role in reconstruction.

The federal government further exercised sovereignty characteristic of a nation-state in the sphere of economic policy. This development raised few questions of constitutional propriety; the instruments for accomplishing it lay ready to hand in the alexander hamilton -John Marshall doctrines of broad construction and implied powers. These doctrines had fallen into desuetude in the Jacksonian era, when mercantilist-minded state governments effectively determined economic policy. The exodus of Southerners from the national government in 1861 altered the political balance, however, and Republicans in control of the wartime Congress seized the opportunity to adopt centralizing economic legislation. They raised the tariff for protective purposes, authorized construction of a transcontinental railway, facilitated settlement on the public domain (homestead act), provided federal aid to higher education (morrill act), established a uniform currency, asserted federal control over the nation's banking institutions, and taxed the American people in innovative ways (income tax, direct tax). These measures laid the foundation for increasing federal economic regulation in the late nineteenth and early twentieth centuries. Yet they did not make the determination of economic policy an exclusively national function. In this field, as in civil rights, the federal government's acquisition of a distinct and substantial share of sovereignty diminished, but by no means obliterated, state power.

As the federal government gained power relative to the states during the war, so within the separation of powers structure of the national government the executive expanded its authority relative to the other branches. Lincoln was the instrument of this constitutional change. Unlike his predecessor Buchanan, Lincoln was willing to acknowledge the necessity of an inflexible defense of the Union during the secession crisis, and after the bombardment of Fort Sumter he acted swiftly and unhesitatingly to commit the nation to arms.

To raise a fighting force Lincoln called the state militia into national service, ordered—without authority from Congress—a 40,000-man increase in the regular army and navy, requested 42,000 volunteers, and proclaimed a blockade of ports in the seceded states. He also instituted the main elements of the internal security program previously described, closed the postal service to treasonable correspondence, directed that $2,000,000 be paid out of the federal treasury, and pledged the credit of the United States for $250,000,000. Lincoln did all this without congressional authority, but not without regard for Congress. Ordering the militia into national service, he called Congress into session to meet in mid-summer. Directing the enlargement of the army and navy, he said he would submit these actions to Congress. He did so, and Congress voted approval of the President's military orders, "as if they had been done under the previous express authority and direction of the Congress." Thereafter Lincoln was ever mindful of the lawmaking branch, and in some respects deferential to it. Yet in war-related matters he continued to take unilateral actions. Thus he proclaimed martial law, suspended habeas corpus, suppressed newspaper publication, issued orders for the conduct of armies in the field, ordered slave emancipation, and directed the political reorganization of occupied southern states.

How could these extraordinary actions be rationalized under the nation's organic law? The question aroused bitter controversy at the time, giving rise to charges of dictatorship which continued to find echo in scholarly debate. No more penetrating analysis of the problem has ever been offered than that presented by Lincoln himself.

In his message to Congress of July 4, 1861, Lincoln said his actions were required by "public necessity" and "popular demand." Referring to suspension of the writ of habeas corpus, he stated that if he violated "some single law," his doing so was justified on the ground that it would save the government." "[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" he asked. On another occasion Lincoln posed the question whether it was possible to lose the nation and yet preserve the Constitution. "By general law life and limb must be protected," he reasoned, "yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb." This appears to mean that the Constitution might be set aside, as a limb is amputated, to save the life of the nation. The inference can be drawn that emergency action, while expedient, is unconstitutional.

What is required to understand the lawfulness of the emergency measures in question, however, is not legalistic analysis of the constitutional text but rather consideration of the fundamental relationship between the nation and the Constitution. Lincoln's principal argument was that the steps taken to defend the government were constitutional because the Constitution implicitly sanctioned its own preservation. The Constitution in this view was not a mere appendage of the living nation or a derivative expression or reflection of national life, as a legal code might be considered to be. Coeval and in an ultimate political sense coterminous with it, the Constitution was the nation. This conception is present in Lincoln's statement of April 1864 that "measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation." "Is there," he asked in his message of July 1861, "in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?" Not that Lincoln conceded to his critics at the level of positivistic, text-based constitutional argument. Concerning habeas corpus suspension, for example, he tenaciously insisted that as the Constitution did not specify who might exercise this power, he was justified in doing so when Congress was not in session. Congress, in fact, subsequently ratified Lincoln's suspension of habeas corpus. Although his argument conformed to the requirements of American constitutional politics, his principal justification of emergency actions was that they were necessary to preserve the substance of political liberty, which was the end both of the Constitution and the Union.

It is sometimes said that Lincoln established in American public law the principle of constitutional dictatorship. Yet at no time did Lincoln exercise unlimited power. The notion of constitutional dictatorship also obscures the fact that although Lincoln applied military power on a far wider scale than previous Presidents, in doing so he merely accelerated a tendency toward expansion of the executive's defensive war-making capability. In 1827 the Supreme Court, in martin v. mott, had upheld the President's power under the Militia Act of 1795 to call out the militia (and by extension the army and navy) in the event of actual or imminent invasion. President james k. polk had used this defensive war-making power to commit the nation to war against Mexico, and Presidents Millard Fillmore and Franklin Pierce had employed military force in circumstances that could have led to wars with foreign states. In his exercise of executive power Lincoln merely widened a trail blazed by his predecessors.

Yet in minor matters unrelated to the war, emancipation, and reconstruction, Lincoln was a passive President. Although as party leader he made effective use of his patronage powers, he did little to influence congressional legislation aside from formal suggestions in annual messages. Moreover he exercised the veto sparingly, gave broad latitude to his department heads, and made little use of the cabinet for policymaking purposes. Lincoln's respect for legislative independence complemented and encouraged another important nineteenth-century constitutional trend—the strengthening of congressional power.

To an extent that is difficult to appreciate in the late twentieth century, nineteenth-century government was preeminently legislative in nature. Lawmakers shaped public policy, resolved constitutional controversies through debate and legislation, controlled the taxing and spending process, and exercised significant influence over administration. The years between the presidencies of thomas jefferson and andrew jackson had been a period of legislative assertiveness, and although the struggle over slavery had brought Congress to near-paralysis, still the political foundation existed for wartime exertions of power that anticipated the era of congressional government during and after reconstruction.

Although Congress approved Lincoln's emergency measures in 1861, its action by no means signified general deference to executive power. On the contrary, reciting constitutional provisions that gave Congress power to declare war and regulate the military establishment, members made vigorous claim to exercise the war power. Accordingly, they raised men and supplies for the war, attempted through the Joint Committee on the Conduct of the War to influence military strategy, modified internal security policy, and enacted laws authorizing confiscation, emancipation, and reconstruction. The need for party unity notwithstanding, the Republican majority in Congress insisted on civilian control over the military, monitored executive department administration, and, in an unusual maneuver in December 1862, even tried to force a change in the cabinet. Tighter internal organization and operational procedures made Congress more powerful as well as more efficient during the war. The speaker of the House, for example, assumed greater control over committee memberships and the flow of legislative business; the party caucus became a more frequent determinant of legislative behavior; and standing committees and their chairmen enjoyed enhanced prestige and influence, gradually superseding select committees as the key agencies for accomplishing legislative tasks. Exercising power conferred by statute in 1857 to punish recalcitrant or uncooperative witnesses, Congress used its investigative authority to extend its governmental grasp.

In the 1930s and 1940s, Civil War historiography regarded conflict between a radical-dominated Congress and the soberly conservative Lincoln administration as the central political struggle of the war. Recent research has shown, however, that disagreement between the Democratic and Republican parties was more significant in shaping the course of political and constitutional events than was the radical versus moderate tension within the Republican party. Conflict occurred between the executive and legislative branches, as much as a result of institutional rivalry inherent in the structure of separated powers as of programmatic differences. Congressional-presidential relations were not notably more strained than they have been in other American wars. Although Lincoln demonstrated the potentially vast power inherent in the presidency, his wartime actions did not measurably extend the executive office beyond the sphere of crisis government. He evinced no tendency toward the so-called stewardship conception of the presidency advanced by theodore roosevelt in the early twentieth century. The power of Congress waxed, its wartime achievements in policymaking and internal organization providing a solid basis for a subsequent era of congressional government.

A significant portion of American constitutional history from 1861 to 1865 occurred south of the Potomac, where were manifested many of the same problems and tendencies that appeared in the wartime experience of the United States government. The confederate constitution, modeled closely on that of the United States, revealed the most bitterly contested issues that had led to the war. It recognized and protected the right of slave property; proclaimed state sovereignty as the basis of the Confederacy; omitted the general welfare clause and the taxing and spending power contained in the United States Constitution; stated that all federal power was expressly delegated; and prohibited a protective tariff and internal improvements appropriations. Yet the right of secession was not recognized, evidence that the Confederacy was intended to be a permanent government.

Confederate constitutional history was marked by war-induced centralization and conflicts between federal and state authority. The Confederate government conscripted soldiers; suspended the writ of habeas corpus and declared martial law; confiscated enemy property and seized for temporary use the property of its own citizens; taxed heavily and imposed tight controls on commerce and industry; and owned and operated munitions, mining, and clothing factories. These actions and policies aroused strong opposition as expressed in the rhetoric of states' rights and through the institutions of state government. Some governors refused to place their troops under the Confederacy's authority and challenged conscription and internal security measures. Many state judges granted writs of habeas corpus that interfered with military recruitment. Lack of effective leverage over the states seriously hampered the Confederate war effort.

The most significant difference between Union and Confederate constitutionalism centered on political parties. Driven by the desire to create national unity, Southerners eschewed political party organization as unnecessary and harmful. When political differences arose, they had to find resolution in the conflict-inducing methods of the system of states' rights. In the North, by contrast, political parties continued to compete, with beneficial results. Political disagreements between the government and its Democratic critics were kept within manageable bounds by the concept of a loyal opposition, while among members of the governing party differences were directed into policy alternatives. Moreover, party organization encouraged federal-state cooperation in the implementation of controversial measures like conscription, thus helping to minimize the centrifugal effects of federal organization. Indeed, the persistence of organized party competition, even in the critical year of 1864 when military success was uncertain and the Democratic party campaigned on a platform demanding a cessation of hostilities, was perhaps the most revealing fact in Civil War constitutional history. It showed that despite important changes in federal-state relations and reliance on techniques of emergency government, the American commitment to constitutionalism was firm, even amidst events that tested it most severely.

Herman Belz
(1986)

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