Lincoln’s law: How did the Civil War change the Constitution? | James Stoner | 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. The Constitution lays out a number of rules about how government should act. Some of that is involved in creating new institutions and defining those institutions in a way summoning them into being. 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, you know, 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 secede 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. 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. The critical question had to do with Maryland and Virginia, which were seceding from the Union or sought to secede from the Union.

But Maryland, Lincoln had no intention of allowing to secede 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 it. Lincoln's claim was that even though the law of habeas corpus is in the Constitution, albeit with a provision for suspension, 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. 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 seceding. Gosh, Lincoln's predecessor James Buchanan thought there was nothing a president could do to respond to secession 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 never have 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 the sort of homemade bombs, airplanes turned into bombs, unprecedented thing, right? 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?