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Lincoln Stretched Powers of Presidency

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Law professors Tim Dixon and Gary Gershman Law professors Tim Dixon and Gary Gershman

In another of the fascinating seminar series being held at the Broward Public Library in Fort Lauderdale, law professors Gary Gershman and Tim Dixon of Nova Southeastern University discussed the constitutional issues involved in the Civil War of the 1860s.

In order to save the Union, Lincoln "stretched the powers of the presidency," said Gershman. He believed it was his duty to save the Union, which justified all the actions he took. Among these, said Dixon, "was expanding the militia by 75,000 and paying $2 million to recruiters to expand the size of the army."

One of his most controversial decisions was the suspension of the right of habeas corpus in parts of Maryland in 1861 ostensibly in response to riots and the possibility that the border slave state of Maryland would secede from the Union, thus isolating Washington DC.  Lincoln's great foe, Supreme Court justice Roger Taney ruled the act was unconstitutional. "Lincoln ignores the Taney opinion, saying we are in a state of crisis and Congress is not in session." Violence that helped spark the crisis is depicted in the illustration shown here, part of the Lincoln exhibit at the Broward Library.

As Gershman noted, Congress did not convene in the 1860s as it does today. "They sat in two sessions, and did not sit in the summer, so the idea of Lincoln acting without Congress makes sense."

When Congress finally did take up the issue in 1862 it approved all of Lincoln's acts including the expansion of the militia and payments for the expansion of the army, which many also deemed to be unconstitutional.

Of course the issue of slavery hangs over every legal discussion of the Civil War. "The Civil War was not fought over slavery per se," said Gershman. "It's an integral part, however."

Dixon said the "Supreme Court had come down firmly on the side of the Southerners" on the slavery issue. "The North saw it as a Southern issue," but friction arose when people from the South wanted to go West and take slaves with them. "To prevent movement of the slaves into the West would have required financial compensation" as a Fifth Amendment right as slaves were considered to be property, not people. "Taney said blacks have no rights," noted Dixon.

A panel from the Lincoln exhibit.A panel from the Lincoln exhibit.The issue had been on a slow boil for many years prior to the war. Gershman noted there was a gag rule in Congress in the 1830s, effectively prohibiting any discussion of the issue at all.  A measure of how important the Southern states regarded the issue may be gleaned from what they stated when leaving the Union. "Read the secession resolutions: states' rights were followed by a discussion of slavery," said Dixon.

The issue of states' rights was another major factor in the outbreak of war, and another issue that had been festering for years. In the administration of Andrew Jackson (the president who appointed Taney to the Supreme Court, a post he was to fill from 1836-1864), vice-president Calhoun "expressed his opinion about the ability of the states to defend themselves against the federal government. He resigned over the issue. Jackson said the Federal government is supreme, and felt that Calhoun had back-stabbed him," explained Gershman.

Lincoln did not believe the states had the right to secede from the Union. Dixon said "Congress vindicated Lincoln in 1867, saying the states never lawfully left the Union." But he never had the chance to savour this vindication, or pursue his attempts to rebuild the South.  "His program of Reconstruction was cut off by the assassination" in 1865.

This is the fourth in a series of feature articles by Clifford Cunningham about Lincoln and the Civil War.

 
Clifford Cunningham

Dr. Clifford Cunningham is a planetary scientist. He earned his PhD in the history of astronomy at the University of Southern Queensland, and has undergraduate degrees in science and ancient history from the University of Waterloo. In 2014 he was named a contributor to Encyclopedia Britannica. He is the author of 14 books on asteroids and the history of science. In 1999 he appeared on the TV show Star Trek: Deep Space Nine. Asteroid 4276 was named in his honor in 1990 by the International Astronomical Union based on the recommendation of its bureau located at Harvard-Smithsonian Center for Astrophysics.

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