possibly have made. and john are like man, who i quote in my book, had a different view. he said, come! make a difference. do what is right. get involved! one of nixon's favorite poems was teddy roosevelt -- the man in merino. he talks about the man with the sweaty brow, who has gotten into the arena and fought for what he believed in. and he has done his best. and he makes -- the poem makes the point that it is much better, much more a credit to the person that gets into the arena and fights for what they believe in. they are the people that we should honor, and i believe it is imperative that we get new blood, young blood,

and great people into our government. [applause] >> ladies and gentlemen, let's thank dwight chapin. >> weekends on c-span are an intellectual feast. every saturday, american documents america story. and on sundays, book tv brings you the latest in nonfiction books and authors. funding for c-span two comes from these television companies and more. including charter communications. >> broadband is a force for empowerment, that's why treasure has invested billions building infrastructure, upgraded technology, improving

technology and communities big and small. charter is connecting us. >> charter communications, along with these television companies, supports he's been to as a public service. simply>> so, up to this point e course we have been talking a lot about the degree to which that constitution did not take the form of a simple written document, but rather as a set of ideas of the structure and function of american government. among these key ideas was a reliance on union, particularly those mutual fonts of nationhood, between the states and the production of compromise. the constitution is a commitment to compromise. because it's baked into the constitution, so too was the evil of slavery.

because there are consistently compromises between slaveholding and donald slaveholding states about slavery. there are so committed to the idea of compromise as part of the scaffolding of american governments. they had drawn a path forward that always was going to accommodate slavery, particularly as the nation became more and more committed to slavery. over the course of the 1850s, you'll remember there were lots of compromises over slavery. there was a compromise of 1850, the kansas nebraska act. in some ways, dred scott is considered a compromise. what else happened in kansas? northerners are unhappy, southerners are unhappy. but the weight, 1850s the failures that led the tension and the nation raised to a

fever pitch. making it even more difficult to find a compromise over the issue of slavery. this week, we're talking about what happens when it fails, when the constitution does not provide answers about what to do about the slavery question. when slaveholders refused to compromise, because they're that ones who refused to compromise with republicans and instead choose to secede from the union, what happens next, constitutionally? the main argument of this lecture, as you can tell from the title, is we should think of this war as a constitutional crisis. but what do we mean by constitutional crisis. --

if it is for it was caused by slavery, it was a fundamental conflict of the constitution, what it was and what it meant. the constitution had implemented this system of government based on the sovereignty of the people. the sovereignty was expressed and balanced in many ways through elections, through the separation of power. -- it had to provide a possibility for this role of the people at large, operating through their representatives of government. so, in order for the constitution to survive, it had to have this structure worked. and the civil war is going to be a great test of this idea, that sovereignty of the people could not only exist but last indefinitely.

law permanently thrive on. so, the 11 states that attempted to leave the union and formed their own confederacy, dedicated to slavery, were fundamentally disrupting the constitutional order. conflict over slavery had produced a constitutional crisis. so, this crisis is going to pose three inter related questions to americans. first, would the union, the very basis of constitutional governance in the period before the civil war, survive? would the union survive? what does the constitution survive? second, how could americans fight a civil war within the bounds of their constitution? particularly when the constitution did not offer clear solutions to how to conduct a war that was a civil war, that was a war among people within the nation. and third, what would the future of american democracy

look like if the united states won the war? how would the united states continue forward if it won? today, we are going to start to talk about the first two problems. and then we're going to pick up the very complicated answers to the third for the remainder of the semester. now, as we discuss these questions, a few things to keep in mind. first, for the most part, constitutional conflict did not take place in the supreme court. this has been a theme of the class thus far, so this probably doesn't surprise you. let the war's constitutional problems were primarily engaged by the president and congress. the supreme court played a pretty and significant role in the civil war, and there are many reasons for this. but we will talk more about them on thursday. this is a reminder that constitutional was on and constitutional interpretation,

particularly in the 19th century, is often found outside the supreme court. the supreme court does not control constitutional interpretation. second, there were often no answers to be found to the crisis in the constitution itself. so, there were no clear provisions for what the constitution meant in case of secession. for how you are supposed to behave in relationship to secession. and as the war went, on congress and the president made decisions whose legality under the constitution may have been disputed, but became constitutional because of what lincoln called the friction and abrasion of war. so, the civil war in that sense is what history and cynthia nicoletti calls a trial by battle. the legality of constitutional problems evolved over the course of the civil war and is related to whether the union

can survive on the battlefield. whether the union would have victories on. so, we are going to spend some time talking about all these questions, but i want to start where we left off in our last class. which is talking about the election of 1860. now, it's important to recognize that the election of 1860 actually itself did not produce a constitutional crisis. you would almost think that that is where the constitutional crisis began, certainly recent events have suggested that. but in fact, the actual conduct of the election of 1860 was relatively crisis free. the election of 1860 featured for candidates, we have here john battle of the constitutional union party. the constitutional union party was a newer party in 1860 and it was dedicated to the constitution and the union. in fact, it was so short that almost all it was for was the

constitution and the union. then you had two democrats who had a split, right? you have northern democrats who tended to support stephen douglas who was someone we know very well, from what? say it a little louder for us, austin? >> the debate with lincoln. >> the debate with lincoln. what else is he responsible for? c.j.? >> compromise of 1850. >> compromise of 1850, right? kansas nebraska act, he'd been a prominent member of congress for many years. so, you might think that he would appeal to southerners particularly because he had been one of these folks who had created this compromise that allowed southerners to get into the territories. but in fact, by the time of the election of 1860, southerners had pretty much abandoned him. especially in the lower south. instead, they tended to support this man, john breckinridge. who tended to be more stringent about slavery and therefore got

the support of lower south man. finally, we have abraham lincoln of the republican party. you will remember that the republican party was specifically dedicated to the idea that slavery ought to be restricted in the territories. contrary to what decision? >> the decision that resulted in [inaudible] >> they believed in the 30 6:30 line. they had been in favor of the compromise, the missouri compromise of 1820. >> for the sussex laws that came from the mexican secession? >> not the compromise of 1860. the thing that was supposed to restrict them was the dred scott decision. dred scott was supposed to say, oh no, this can't even exist anymore. you have to make sure that slave holders can bring enslaved people into the territories. so, republicans arguing that they were limited in terms of

what they could bring to the territories. so, the territories ought to be free, it was in direct conflict with the dred scott decision. so, we have these four candidates. abraham lincoln is going to win a plurality of the votes. and a wide majority of the electoral college. you can see here that lincoln's popular vote was just a little under 40%, but he won a great majority of the electoral college. and he won this event despite, even if all of these folks hadn't gotten together, both democrats and a constitutional union party, it would not have won the electoral college. lincoln is going to have a commanding victory there. now, this is important to think about in the context of the 19th century, not in our 21st century viewpoint. because remember, there is no provision in the constitution that says you have to have a

two party system, right? there were four parties, and this was pretty normal in the 19th century. in fact, almost all of the elections before this one featured more than two candidates for the presidency. eight featured more than two candidates, of the previous ten elections. and at least four candidates in four different elections before this. so, this is important to understand because there was no real contestation at all that lincoln had won the election. nobody said, no, lincoln didn't win fairly. the vast majority of southerners fully accepted that lincoln had legitimately won the election. constitutionally, he was the victor. and in fact, lincoln's election was not particularly surprising to people. many had predicted it because they understood that these candidates had split in all of these various ways and that the population of northern states

was going to create this kind of circumstance. now, this doesn't mean that southerners were happy with lincoln's election, they were not, happy they were very irritated. of course, the president who was dedicated to the idea that everything they believed and was wrong was something that slaveholders feared. but at the same time, his election does not immediately produce war. why? well, you remember that, until the 20th century, presidents did not take office until march. so, there was a lot of time between when lincoln was elected and when he was going to go ahead and take the presidential seat. so, the months following lincoln's election are going to feature numerous efforts at compromise, to fulfill that ideal of compromise that many americans understood to be the heart of the constitution. remember that americans had been compromising for many

years on the issue of slavery, so this was a similar kind of situation in which many thought that they ought to be. able to find a compromise. now, i'm going to spend time talking about what was called the secession winter, those five months after lincoln's election. and going up into april 1861 when the war is triggered by the firing on fort sumter. i want to reiterate here that this is the secession winter, not that succession winter. those are two different things, succession and succession. secession, leaving the union in this case. secession, what comes next, or a show on hbo, completely different thing. make sure when you think about secession or using the right word. lincoln's election does not immediately produce succession

of all the states that are going to rejoin the confederacy. in fact, the only state that immediately begins the process is south carolina. this of course is not the first time that south carolina threatens secession. can anybody think of another example, austin? >> nullification crisis. the >> nullification crisis, good. they both threatened secession after the compromise of 1850, they were unhappy with the provisions that were supportive of not slaveholders. within a few weeks of lincoln's election, south carolina is going to initiate this process of trying to secede from the union. on september 17th, 1860, delegates who had been nominated to a succession convention with voted for its accession. december 20th a vote, december 17th they gather. they're going to explain their reasons for why they are succeeding from the union, and i want you to pay close attention to the wording here. because it stated definitively

their intention, not just to leave the united states but to dissolve the united states, right? the union subsistent between south carolina and other states, under the united states of america, is hereby dissolved. in some ways, this is an acknowledgment of the problem of secession, right? if you withdraw from the union, does the union continue to exist? lincoln is going to make the same kind of claim when he is going to give his inauguration in march. in general, the idea is that the constitution only functions through this compromise framework. and if one state withdraws, then the union is dissolved. and this is echoed in almost all the newspapers in south carolina in the period following the december 20th vote. so, they are going to say that

the union is dissolved. this language makes the case that south carolina's consent is required to be in the union. this is not something that lincoln and other republicans are going to accept, but this is the argument that they are going to make. now, south carolina is doing this, but at the same time, federal politicians in washington had gathered to try, in some way, to create compromise to stave off civil war. just as congress started to gather in december, 1860, james buchanan is going to deliver his fourth message to congress. so, just to set the scene, remember that this is not the new congress elected in november, 1860. this is the old, lame duck congress that it's going to meet december to march. and then the new congress is not scheduled to meet until the following december.

he and james buchanan is going to send in his message to congress, not go and deliver a state of the union that we think of today. that's not in the constitution, you're not required to go to the constitution and deliver a speech. he sends this message into congress, and buchanan's message to congress is about as confusing as -- go and read all of oh go [inaudible] thanks he's trying to do. he, on the one hand, says that the federal government is organized in such a way that the union and the constitution are organized in such a way that no state can legally leave the union. it's not legal, it's not allowed under the constitution. at the same time he's saying that the federal government has

no power to stop anyone from leaving the union. it's illegal under the constitution, but i don't know how to get folks to stay, that's the constitutional argument here. this message, while it was pretty roundly criticized, especially by republicans, really indicated the lack of clarity and ability of the constitution to contain this moment, right? the constitution is not clear on all kinds of things. was secession legal? buchanan didn't think so, but it doesn't say anything in the constitution that secession is legal. headed one prevent a state from leaving the union? that did not account for this. lincoln is going to disagree with buchanan about what is constitutional and what is not, but this indicates a real fear about what to do next and whether the constitution could provide a path forward.

you cannot says all this and at the same time, congress comes together and says, okay, we are going to try to come up with some sort of solutions. in the house, they create a committee of 13 which includes -- sorry a committee of 33, which is headed by thomas corwin of ohio, 33 states. one member of each state in the house. in the senate, there is a committee of 13 which included several prominent political leaders. among them jefferson davis, about to be made the president of the confederacy, william henry was a runner-up to lincoln in the republican national convention and soon to join lincoln's cabinet. this bad, john jordan crittenden of kentucky. crittenden had been a member of the constitutional union party. this was a moment made for him. he was all about this kind of compromise. we had followed after the great compromiser from kentucky.

he was one of the longest serving politicians in washington at this time. he was very much dedicated to the idea that there ought to be some sort of compromise to prevent civil war. he provides one of the most promising solutions to the situation, a proposal that came to be known as the lincoln compromise. i listed all the measures here. it was a detailed plan about the most important part of it was this one on top here. the extension of the missouri compromise lying to the pacific ocean. this is a compromise that suggests that the missouri compromise is sacred compromise. so many believed it was essential to the constitution, it should be re-implemented. re-implemented. that there can be this balance between north and south. if it were re-implemented that

this could create of some sort of compromise between the people who were worried about slaveholders getting too much power or about anti slavery man getting too much power. this part down here that no future amendment of the constitution could change these amendments or authorize or empower congress to interfere with slavery with a slave state, was meant to suggest that this compromise will be final. we will not have any more of this kind of difficulty between north and south. white southerners had their eyes on all kinds of other areas south of the missouri compromise line. cuba, for example. this is for crittenden's solution. compromise seemed like the way to, go right? this seems like a good way to approach a situation.

this seems like a good way to split up the territory. the committee of 13 was hamstrung by the start by rule they adopted that republicans and members of the lower south jefferson davis both agreed to any kind of compromise. davis and others refused. this is not enough for them. crittenden's measures are going to fail in congress and january lower south states begin to you leave the union won by one. mississippi on january 9th, florida on january 10th, alabama on january 11th, georgia on january 19th, louisiana on january 26th and texas votes on february 1st to leave the union but their governor, sam houston, was a unionist and so try to prevent it from going forward so they do not actually leave until march.

these conventions of a lower south say were more explicit than south carolina. i have given you this to read for today because it's really giving you all the reasons why secession is important to these folks. this is the mississippi ordinance secession. you can see right from this part here, our position is thoroughly identified with the institution of slavery, the greatest material interest of the world. they are not messing around. they are telling you exactly why they are leaving. they say they are going to dissolve the union. this is not just about leaving the union, this is about dissolving the compact. once the seven states have succeeded, they determined to create the new nation and they meet in montgomery in march 1861 to draft a new constitution for the new nation and to put a provisional

government in place. again, the confederate constitution indicates exactly what this conflict is all about. these men set up a confederate constitution very closely modeled under the u.s. constitution and it's a subject that we are going to be discussing more on thursday. some key provisions here. it explicitly protects the institution of slavery. it comes right out and says, this is a country dedicated to slavery. it forbid protective tariffs and federal internal improvements. it limits the president to 16-year term. these are provisions that are thought of to be in support of states over the federal government. it also gives the president to veto and then, in the kicker, it forbids states from leaving the new confederacy. this is not in the u.s. constitution and so they are

going to write it to the confederate constitution. one interesting thing about the confederate constitution that i think maybe mean something to us in this class is that there is a provision for a supreme court in the confederacy but it's never organized. so there is no optional supreme court during the civil war and the confederacy. they create this constitution and then they start thinking about how they can pursue their greater goals. one of the most important parts of the greater goals is to bring in more slave holding states because, as you remember, we have these states down here that seceded but there is also states that had not yet succeeded. arkansas, tennessee, north carolina and virginia were eventually going to join confederacy but march, 1861,

they have not yet succeeded. we are going to have four more states, missouri, kentucky, west virginia, west virginia is not going to be formed until the civil war itself, maryland and delaware, that are not going to leave the union at all. one of the things that they are thinking about as they are trying to put together this new government is how do we appeal to these other slave holding states that would be very important to any kind of you confederacy, particularly their economic benefits. they start thinking about how they can appeal. one way they do this is they create a provisional government that has jefferson davis as president. we heard of jefferson davis and alexander stevens of georgia. both long term members of the united states congress. both well respected in places outside of the south. both lukewarm about december.

not sure they want to join the confederacy. davis remembers on the committee of 13 so he is interested, in theory, and some sort of compromise, alexander stevens of georgia, he becomes vice president but in december he had been a little autumnal free really should be doing this. stevens interestingly new abraham lincoln from their time serving in congress together and so he had some sense of what lincoln's action -- actual views were. by the time they become the president and vice president of the confederacy, they are 100 percent committed to the confederacy, 100 percent committed to this new cause. by selecting these folks as the provisional government, it is sending a message to these upper south states that we are going to be a reasonable nation. we are going to be a nation that you can join and feel comfortable with. it's not radical people, it's more moderate lawmakers.

what happens next that the states start thinking about secession again but they are not out of the union yet. again, we have the border south of these states over here. the upper south here. the lower south or the deep south here. the lower south has succeeded by march. but those other four states are really the other slave holding states are the subject of continued efforts and compromise. folks know that, for example, virginia and [inaudible] decide they are not going to go with the confederacy. this would change the game quite a bit and maybe there would be a possibility to bring the lower south back into the union. in march and -- excuse me february in march, they are going to be continued efforts to try to bring these states along.

both in the confederacy and in the united states. one thing that happens is that in february that there are all kinds of folks who are organizing to try to create some sort of compromise both in the north and in these upper south states. one big group of these folks's business met in new york. you remember we talked last week about how important those business connections who were in new york and so they are very concerned about the possibility of secession turning in to separation. they are pushing for compromise, we've got politicians pushing for copper vice altimetry these guys get together washington, d.c. in february in what was known as the washington peace conference. you have people from both the north and the south delegates from both the north in the south, people that you would be very familiar with, lots of congressman ex congressman who get together to try to figure

out some sort of compromise. they spent several weeks doing this and ultimately they determine that the crittenden compromise is actually pretty good plan. and makes a little sense, it might actually work. they produce a plan that looks very similar to this and they send it on to congress. congress, not that receptive. it did not work the first time. it was not accepted by the lower south man and so congress is sort of saying to itself, well, you know, i think this is a good idea to try to have some sort of compromise but in general this particular approach is not going to work. even though the washington peace conference produces this interest in compromise on behalf of these folks, congress is going to go slightly different direction. ultimately, they are going to come together on an amendment known as the core win amendment

or the original 13th amendment. how many of you have heard of the original 13th amendment before this class? for a few weeks. a few. to the original 13th amendment, it is very much the opposite of the 13th amendment that we had passed. this amendment is short and simple. it suggests that slavery will be permanent. no amendment should be emphasized and give to congress to establish an interfere within any state with the domestic institutions there are including that person's health, labor or service by the laws of said state. this is very simple. we are not going to interfere with slavery where it exists and there can be no amendment for this. for the original 13th amendment is going to pass both the house and the senate for.

it is going to pass the house by a vote of 133 to win 65. and the senate vote of 24 to 12. exactly two thirds majority. important to remember, this is going to pass both houses of congress even members of the lower south have already left. they are no longer in congress. the republicans vote for it to try to create some sort of compromise. a few other things to note about this amendment. first, it was the first amendment passed by congress for since 1804, which you remember was the amendment, the 12th amendment, had revised the process of the electoral college in terms of thinking about vice president and president, very important amendment because of the election of 1800. pretty long time ago, right?

second, it was distributed. it was signed by the president and signed by james buchanan, march 2nd, 1861. it is sent to the states and states begin the process of considering ratification. in fact, it was ratified almost immediately by three states and later by two states. there were states that already passed the amendment to ratify the amendment and expected to become law. atthe war is going to disruptive of course. this is a serious attempt at constitutional compromise. it's also one that president elect abraham lincoln fully supported. when lincoln arrived in washington in february, he's going to spend some time talking to congressman and also going to the peace conference and supporting the efforts of folks to compromise.

there is one thing that he would not compromise on, that is the territories because the territories are what the republican parties had run on in 1860. restricting slavery and the territories. in terms of where slavery already existed. yes, lincoln's on board with not interfering with. on march 4th, lincoln is going to deliver his inaugural address but much less confusing then james buchanan. one of the wonderful things about abraham lincoln's his ability to capture all the key points of what is going on in that particular moment. both in general terms but also in constitutionally. his first inaugural address which we referenced today and we'll talk more about on thursday, is going to lay out his constitutional vision for this particular model. you can see in the first case, he says he has no constitutional ability to

interfere with slavery as it exists in the states. he is not in control of any kind of power to constitutionally interfere with slavery. he makes a constitutional arguing about union, about the importance of union. he argues that the union is perpetual. what is the meaning of the word perpetual? what does he mean by perpetual? >> constant? >> forever, right? it will exist forever. it will last forever. very good. he makes this argument that the union is intended to last forever. that is not meant to be broken. unlike buchanan, he says he's going to enforce the law. he is going to make sure that the law is abided by, in the south, regardless of whether states have argued that they have left the union.

he says secession is anarchy, it's the essence of minority rule. it is a full-on rejection of majority rule. it does not allow for democratic processes. finally, importantly, he says that he supports the original 13th amendment, that core win amendment, but leaving its already essentially in the constitution. constitution does not allow him to interfere with slavery word already exists and says, fine, let's put it in the constitutional amendment. i will support that. i just want to pause and talk very briefly about the contours of this argument because it's really important. lincoln is arguing that secession is a legal if a state leads the union it fundamentally violates the constitution. it is unconstitutional to secede. this is not universally accepted but it's an argument lincoln's making based on the idea that democracy cannot

exist without majority rule. if the united states is a democracy, which is up for debate, if the united states is a democracy, if people succeed, then you no longer have a union. you no longer have majority rule. that's what the argument that lincoln is making. lincoln, who believes slavery was wrong, who was anti slavery, not an abolitionist but anti slavery, the constitution contains support and protection for the institution of slavery in the slave holding states. something he could not do anything about under the constitution. lincoln's view was the union in itself must be protected. he was interested in the idea of compromise. i do not know if my computer went to sleep. mario. he was interested in the idea of compromise, he believed that compromise was essential to the union, he had been a supporter

of the missouri compromise, he believed in constitutional approaches. if the events on the ground are going to force lincoln's hand, it's going to change the circumstances when things change for them. throughout the early months of 1861, a problem had been brewing on this area right here, fort sumter off the coast of south carolina but. it was a federal fort and it was in need of reinforcing. reinforcing specifically in terms of food and supplies. not talking about guns here, we are talking about food primarily. lincoln understood this. he knew it was a problem. actually james buchanan had dealt with it as you can see here that there is an attempt to resupply in january. total failure under the administration but lincoln is going to see that this is a problem and by april, it's

going to be such a problem that it's an emergency. he needs to resupply the fort oils withdraw from the fort. this is a real test of those problems within the first inaugural. but the buchanan had refused to deal with. the question of, am i going to enforce the law, am i going to hold federal property that exists for federal purposes but is in, supposedly, this new nation. on april 12th, a ship is going to arrive in charleston harbor for attempting to resupply fort sumter. it's an unarmed ship. immediately confederates begin firing on it and return to fort sumter itself. they bombard the fort eventually forcing the united states to surrender there. because of this act of aggression, lincoln believes he was responded.

on april 15th, the following day, he's going to call up 75,000 volunteers to take on the confederacy or this rebellion. this is a very small drop in the bucket of how many people are going to fight in the civil war and parish in the civil war. nonetheless, it triggers a real reaction from those slave holding states that had remained in the union. arkansas, tennessee, north carolina and virginia, who up to this point had some hope of compromise, determined that they agree with buchanan. there was nothing in the constitution that says that it is possible to hold those states within the union. they are going to call secession conventions whereas the early secession convention they called had resulted in staying in the union. these four states, this upper

south block votes to leave the union. the other states, missouri, kentucky, delaware and maryland are not going to vote to leave the union. this is important because it's going to provide some problems for lincoln going forward. we have arkansas, tennessee, north carolina and virginia going into the confederacy and as lincoln would later say, and the war came. now we are going to get into the war. we are going to get into the problems of the civil war. once a civil war did come, it is going to pose all kinds of constitutional problems for the united states. there is no real guidance in the constitution on the problem of how to fight a war against your own people. people who are considered in your own nation, what should the conflict look like if you believe that secession is illegal? this is the issue that lincoln

and others in washington are facing. lincoln says secession is illegal. it violates the constitution, it cannot be possible, right? that fundamentally means that these states had not left the union because they had done something illegal but they are not actually succeeding, according to lincoln. they are going to fight this war to keep them in the union but not acknowledge that they have actually left to say that they remain in the union. the folks in the states were in rebellion. they were not their own nation in this particular formulation. the message of the lincoln administration from the very beginning is that these states have not left the union. they remain in the union but the people in them who are claiming to be part of the confederacy are in rebellion.

that is why in the 19th century, following the civil war and during the civil war, they are primarily calling this the war of the rebellion, not a civil war. this is the war of people who are rebelling against the united states. they have declared their wishes. they declared this by saying they want to dissolve the union and so they have declared that they are in rebellion. calling it a rebellion creates all kinds of problems. it forces lincoln to consider what is the situation constitutionally and dealing with people who are in rebellion? what happens in the civil war itself is a lot of worry about what is constitutional in a constitution that does not provide the answers to questions about secession, to questions about conduct, to

questions about wore power, to questions about what lincoln is even able to do. these to become a period of constitutional creativity. these folks are seriously trying to abide by the constitution but are not entirely sure about what to do. they are constantly searching for the right answers for how things got to work constitutionally. the next class, we are going to talk a little bit about sort of the consequences of what happened in the war but i want to set this up for you by talking about four key constitutional problems. the lincoln administration and congress are dealing with during the war. it's not the only series of constitutional problems but these for pretty much capture the conflicts that come from the problems of calling it a rebellion but. first, if a person is in rebellion and captured by

authorities, what is the united states government supposed to do with that person? let's say somebody did that today and they declared themselves to be in rebellion and they took up arms against the united states. what would you say they were committing? lucas? >> treason. >> treason, right? this is the definition of treason. maybe. article three section three of the u.s. constitution says exactly what treason meant. it exists in levin more against the united states or adhering to their enemies giving them aid and comfort. this is the very definition of treason if you are saying these folks are being rebellion. back in 1790, congress had passed a law against treason that had held without

modification up to this point in time, that treason was punishable by death, specifically hanging. you have this quandary where folks in rebellion in the united states, you want to say that they are in rebellion but that means that they are committing treason and what do you do if you catch a prisoner, right? how do you deal with these combats? this is really problematic. are you going to execute every single member of the confederacy that you are able to capture? what is going to happen to prisoners of war? this is also pretty sticky in a practical matter. lincoln wants to bring these states back into the union to recommit the united states to this particular foundation. what is going to happen if you decide to summarily execute every single person who takes up arms against the united

states? lincoln has to think creatively about how to handle this problem. he wants to insist that this is just a rebellion, that there is no confederacy because secession is illegal. it is not even a possibility. at the same time, he wants to treat these folks as enemy combatants, not as folks committing treason because if they are committing treason he will have to execute them. we lincoln decide that he's going to thread this needle and it is challenging. he's going to call all of them and going to extend belligerent right under international law to confederate armed forces. bucket is going to place soldiers and officers of the rebel army on the foot of those -- on the footing of those engaged in awful law. thinking about these folks as

belligerence, not conceding that they are a nation but conceding that they are belligerence under international law meant that they could capture prisoners of war and not execute them. this is what lincoln's solution we. this is one major problem. the question of what to do with these folks. it's going to last well into the late 19th century. had we handled the people who are in rebellion against united states? the 14th amendment is going to have a lot to say about that. it's not the only major problem. another problem is what are we going to do about our military approach to defeating the confederacy? some of you may know that winfield scott, great military hero at this point in time, had designed a plan for how to approach defeating the confederacy that newspapers began to call the anaconda plan. it was called this because you

can see that the line around the confederacy sort of looks like a snake. they called it scott's great snake. the idea was that you are going to blockade the coastline and the rivers so that confederates cannot receive food stuffs, goods and military supplies. then you are going to march your armies right into the heart of the confederacy to defeat them. winfield scott is going to provide the very plan that the united states uses to defeat the confederacy. he predicted that it was not going to be quite as long and i think he said 2 to 3 years, right? it was going to require not even close to the number of men that they are going to use but this is exactly the plan that they are going to adopt. at the same time, this creates a serious problem. for under international laws of

war, a blockade, which is a key part of the anaconda plan, indicates a state of war between nations. there has to be neutral corks and other nations have to be able to remain neutral. this, in and of itself, suggests that you are engaging with another nation. how do you blockade your own -- if you claim that they still belong to the united states? how did you do that? this is war and something needs to be done. this is the best military plan. lincoln determines that he is going to implement the blockade. he issues a blockade order on april 19th, 1861. indicating that there will be this push in the coastline to make sure the confederacy cannot get the things that it

needs. the blockade is going to, again, pose a lot of questions about what is constitutional, what makes sense. is this the right thing to do if you are going to call these folks rebellious men as opposed to a new nation? in the future, this is going to pose serious problems that are going to come in front of the supreme court. here is one just small example of this kind of issue before the supreme court. in the price cases, which we are going to talk about on thursday. these cases are going to indicate the kinds of arguments that folks are dealing with in terms of the constitutionality of a blockade. well against your own nation. now the timing of this blockade order in april, 1861, is going to highlight a third constitutional problem that the lincoln administration was

dealing with right after the firing on fort sumter. that was that congress was out of session. what scheduled to have a new congress until december 1861. to go back, right? we have the old lane duck congress that started in december 1860. they are trying to work on compromise until march. they are going to disperse and there is not meant to be another congress that meets until september 1871. congress is at a session, what is lincoln supposed to do what he does not have all the powers of fighting a war listed under the constitution? this is really tricky, right? you rely on congress for example to declare war. if you declare war, as the president, are you violating the constitution. this is the real question. lincoln is going to call a

special session at congress. they are going to meet in july of 1861. they do not meet until july so lincoln had several months where he has to figure out what to do. one particular issue that comes up during these few months is having to do with something called the writ of he bs corpus. how many of you heard of it? we it's kind of a tricky concept. let's go over what it is. faith is something that we as members of free society hold dear. you think it's really important. we it's a legal action that requires a person under arrest to be brought before a judge or in to court to hear the charges against them. the idea behind it is that the person cannot be detained for long periods of time without lawful reason to do so, to show

why this is necessary. if a person is detained, they have the right to ask what they are being detained for in front of a judge. they are allowed to hear the charges against them. but the american version of this right came from english law. we as in many cases, historically this was a critical war right to that can only be suspended in times of war to protect the public engaged in hostility. this is the idea with that habeas corpus can be suspended in the case in which it was really necessary in order to protect the public during war. in practice, what this meant to suspend without habeas corpus a military or civilian official acting under orders from civilian authorities would

detain persons for the protection of the public safety for an extended period of time without the requirement of needing to explain to them why they are being held when this is suspended, the authorities keep detainees in custody until the suspension ends, until the rig is reinstated and this person has basically no way of challenging this. you can see why this is something that is a really tricky to do. people do not like to be detained without any kind of sets as to why it is they are being detained, war or no war. the constitution takes us very seriously. we have an article one section nine, the privilege of the writ of habeas corpus, shall not be suspended. this is very strong language. shall not be suspended. unless cases of rebellion or invasion or the public safety

may require it. this is really important in terms of what is going to happen during the civil war. there is a view that is more time you can suspend the writ of habeas corpus and you can also do it in cases of rebellion. it's not quite the problem that lincoln was facing in terms of the blockade or in terms of enemy come batters. there is another problem with. this part of the constitution is an article one, section nine. what part will -- branch of government does article one of the constitution we tend to deal with? go ahead, amber. the legislative branch. the idea is that you are going to have perhaps for the writ of habeas corpus only to be suspended by congress we, maybe. it does not say, right? the constitution does not say.

congress shall not suspend, it just says that it shall not be suspended. what do you do when congress is not in session and you are dealing with a rebellion. this is exactly lincoln's problem. lincoln is faced with this in a very practical sense in april 1861. other plaafter the fall of for, regiments of union troops begin to come to the united states from other places in the north to protect the capital. capital is really important, it's also in the middle of a slave states. you have virginia, which has already succeeded and then you also have marilyn, which has not yet succeeded but it's a slave holding state. there is really concern that maryland is going to go into the confederacy. real worry. what happens if maryland goes into the confederacy? that capital is swallowed up and what happens if maryland is

generally in the -- it's hard to get troops to washington, d.c.. this is exactly what happens. during the early months of the civil war, you have people in baltimore coming together and trying to prevent these troops from getting to washington, d.c.. they start riots, they destroy railroad lines. they make it really difficult for the troops to get to the united states will to get to the capital. rankin decides, okay, i need to do something about this. we he sends a letter to winfield scott which at this point in general and chief of the army, authorizing him to suspend the writ of habeas corpus at any point on in the vicinity of the military line, which is now being used between the city of philadelphia in the city of washington. those are the stipulations stands to winfield scott.

this is not without controversy. in fact, this becomes controversial almost immediately. for more talk about the mary man case, which comes from these riots in baltimore and reaches chief justice will, or if a villain in the story but, on circuit in maryland. but he's going to be very much opposed to what lincoln is doing. lincoln is going to defend himself in his july 4th message to congress. i think, again, as i said earlier, lincoln often gives us a clear vision of what the problems are what's going on. thank you to sort of saying to us, okay, the constitution does not account for this moment and what should we do? should we abide by all the laws and the country goes to pieces

and the union no longer exists in the constitution no longer zits? it's a better to break one law and maintain the union and the constitution? that's his sort of initial, well, maybe we should think about whether the constitution is actually useful to this moment and maybe it is not. maybe it's not going to help us, maybe following the constitution, it will destroy our chances of bringing the seceded states back into the union and therefore the union no longer exists. after he put that out there, looking backs up. he also says, well, yes, that is true but also i do not think i did anything unconstitutional. mccain is saying, look, the provision in the constitution does not say who is in charge of suspending the writ so he had not believed he had done anything wrong. he is making the constitutional justification for his actions.

this is sort of a third major issue, the writ of habeas corpus. it's going to continue on all the way to the 24 century. it's still an important piece of our constitutional history but a final problem, and probably the most important problem that the lincoln administration and congress faced during the war was a question of slavery. slavery is a cause of the war and we know the mistakes here. there is a belief that slavery should be eliminated among republicans. now that the lower south is gone in the upper south is gone from congress, you have mostly people who want to get rid of slavery. that does not mean they won't equality, it doesn't mean they're interested in the possibility of eliminating slavery and allowing this to happen in more time because the war provides a possibility for this kind of change.

this is tricky because of linkage strongly believes that the constitution protects slavery where it already exists. again, when we come back to that problem of are the states in rebellion or are they a separate nation? if these folks in the states are in rebellion, can we take their property was, can we mess with their institution of slavery? we probably not, right? this is the issue. if you are going to say that the constitution does not allow where the states leave, and you probably need to acknowledge that slavery is going to remain in the states. this is what lincoln thinks in the early months of 1861 when he is dealing with these problems. it is going to crop up because enslaved people, in huge numbers, are taking advantage of the war to run away, to leave their enslavers, to leave

their situations and go to union lines. this is going to force the hand of many military officials and i will just give you one example. on one early august 1860, won a union general from vermont, you might remember that name, the first republican candidate for president in 1856, he issued an order declaring martial law and freeing the enslaved people a confederate activists in missouri. riman is over there trying to maintain missouri in the union and he says, okay, one way i'm going to do this is to ensure that is confederacy's -- if folks are going to support the confederacy, than they are going to lose their enslaved people. on august 30th, will they are going to rescind this order. he says this is the problem, constitutionally, but also it's

going to alarm our southern friends and turn them against us. lincoln is dealing with a big issue here because he is dealing not only with the states that have left the union or claim to have left the union but also slave holding states that remain in the union. he is not sure in august 1861 that it's a good idea to try to mess with this. congress feels slightly differently. they have begun to take action against slavery and continue this in 1861 and 1862. this is a quick overview of what congress does in relationship to slavery. they are going to pass to confiscation acts. they are going to bar the return of enslaved people who had escaped from their enslavers. they are going to abolish slavery in washington, d.c. with compensation to enslavers and they are going to abolish slavery in the territories without compensation. here again the constitutional

issues are a bit fuzzy. as we discussed several times this semester, anti slavery folks in general like to make the argument that constitutionally enslaved persons were persons. they were not property under the law. the constitution did not acknowledge them as property we. back home the enslaved people were actually allowing these firms to continue producing. so it was very helpful as a [inaudible] so if people were allowing the

farms to continue to produce so it was very helpful as a war measure to confiscate enslaved people. thinking about it constitutionally, it's slightly different. once congress acts, lincoln is also compelled to think more about how the war can provide the possibility for the end of slavery. he thinks about this again in complicated constitutional ways. lincoln is really committed to the constitution. he does not want to violate the constitution but the constitution does not provide all of the answers to the questions of what to do in this situation. we begin to think well, you know, as a war measure in particular, this might work. i might be able to end slavery if i think of this as a war measure. again, because in a safe people are running away in large numbers, this is creating a situation in which lincoln has

to think about with. lincoln and his administration begin to rely on the practicality of a war to think about how to get rid of slavery. in september of 1862, lincoln issues the preliminary emancipation proclamation in which he says on january 1st, if these people in rebellion had not return to the union, given up their arms, i will issue the emancipation proclamation. there will be a freedom of enslaved people in confederate control territories. he says this in september. he is trying to give some time for these folks in rebellion to determine that they want to return to the union thinking maybe that this threat will be successful. in the meantime, blinken is thinking about how to create the possibilities for making

this constitutional in the post war period. in december, 1862, he is going to send his message to congress where he offers several constitutional amendments including one that involves the colonization of freed people. hoping that there would be some sort of a future in which the united states can accept the end of slavery. confederates do not do anything but january 1st, 1863, he issues the emancipation proclamation. again, he relies on what he considers war powers to do this. as a result, we think emancipation proclamation like we got to be so excited about emancipation but this is about the most uninspiring events of emancipation proclamation you can imagine. really all it is him saying like, i am the commander-in-chief. i am declaring this to be the case.

there is no great, beautiful language about the importance of freedom. instead, it's issued as a war measure we. lincoln opposed slavery. as his first inaugural indicated, he was a very concerned about the constitutionality of acting in slavery. as the war progressed, as enslaved people push for their own freedom, of course they have been pushing for many years before this but they are using the war to their advantage, lincoln's hand is forced. he starts to think about how to deal with this constitutionally. by using his power as commander-in-chief, lincoln is able to think about a constitutional solution to this problem that may or may not work after the civil war. we will be qualified in various ways. the emancipation proclamation does not apply to the slave

holding states that remain in the union. it does not apply to many areas that the union had recaptured over the previous two years. parts of louisiana, tennessee, virginia, west virginia had also been separated at this point and it did not apply. there it applied to know places that remained in the union. what the effect of this is that it is a piece we'll solution to a problem that lincoln is engaging in because he believes he is hamstrung by the constitution. it's also why lincoln begins pushing. he actually abandons his colonization strategy in 1863 and believes that it's important to push for actual freedom. he starts to support a new 13th amendment, the 13th amendment that we do have in the constitution that has been fully ratified which ultimately passes both houses of congress in 1865 and is ratified by the

states. it's the very opposite of the original 13th amendment. neither slavery no involuntary servitude, except as punishment for crime, an important step shun, wear of the party shall have been duly convicted, shall exist within the united states, or any place subject to their jurisdiction. and congress will have the power to enforce is we. lincoln believes that this is the way to maintain the constitutionality of what he has done in the emancipation proclamation. we have four major issues here. we have the issue of [inaudible] , the issue a blockade, the issue of habeas corpus and we have the issue of slavery. all of these issues are going to continue to be a problem for the lincoln administration and then in the years following the civil war. when we get to reconstruction, folks