President Abraham Lincoln and the Supreme Court
"President Lincoln's suspension of the writ violated the Constitution." Chief Justice Taney
A serious challenge to the Supreme Court came shortly after the Civil War. Chief Justice Taney did little
to enhance his reputation with Union sympathizers when, sitting as a Circuit Judge in the United States Circuit Court in Baltimore
in 1861, he came into direct conflict with President Lincoln in the case of Ex parte Merryman. In that case, Merryman had been arrested by the military for aiding the Confederacy. He was imprisoned in Fort
McHenry and obtained a writ of habeas corpus from Chief Justice Taney. When the officer
in charge of Merryman refused to obey the writ, stating that the President had suspended the writ of habeas corpus for public
safety, Taney filed an opinion holding that "President Lincoln's suspension of the writ violated the Constitution."
Most press accounts at the time were extremely critical of Chief Justice
Taney. The New York Tribune wrote that "The Chief Justice takes sides with traitors, throwing around them the sheltering protection
of the ermine." And the New York Times described Chief Justice Taney's opinion as follows: "Too feeble to wield the
sword against the Constitution, too old and palsied and weak to march in the ranks of rebellion and fight against the Union,
he uses the powers of his office to serve the cause of traitors." The Missouri Democrat suggested that "If the Government
will follow up the suspension of the writ of habeas corpus with the dispension of . . . Taney, it will be a good riddance
for the country." He did receive some more favorable press from those more sympathetic to the cause of civil liberties, however.
It was at the beginning of the recovery from the Dred Scott decision that the Court encountered a substantial
challenge to its authority from the radical element of the Republican Party which gained control of both Houses of Congress
in the election of 1866. The following year Congress passed several "Reconstruction Acts," which were sweeping pieces of legislation
placing most of the southern states under military government. Many observers thought that major parts of the laws contained
serious constitutional flaws.
Before the McCardle case, the Supreme Court had twice avoided ruling on the constitutionality of the Reconstruction
Acts by dismissing suits on the ground that they raised political questions over which the Court had no jurisdiction. However,
the Court, by virtue of a February 1867 statute which expanded the high Court's jurisdiction to review denials of writs of
habeas corpus, received a direct appeal from one William H. McCardle. As a newspaper editor in the southern state of Mississippi,
McCardle used the publication to criticize Reconstruction, as well as the military officers administering it throughout the
South. Eventually, his vituperative editorials landed him in hot water. Arrested and held for trial by a military tribunal,
McCardle was charged with several crimes including inciting insurrection and printing libelous statements. When McCardle's
habeas corpus petition in the federal circuit court in Mississippi was denied, he appealed as a matter of right to the Supreme
Court under the law as it then existed.
Rumors abounded that the Supreme Court would use the McCardle case to declare the Reconstruction Acts unconstitutional,
and, in fact, there is substantial evidence that sentiment on the Court favored such an outcome. But, early in March of 1868
while the case was being argued before the Supreme Court, Congress moved swiftly to repeal the very legislation which gave
the Court jurisdiction over the case. The Court ultimately reviewed the effect of the repeal legislation in April of 1869,
and it unanimously upheld the repeal measure and dismissed the case for lack of jurisdiction. In an opinion written by Chief
Justice Salmon P. Chase, the Court held that Article III of the Constitution gave power to Congress to make exceptions to
the Supreme Court's appellate jurisdiction, and the Court could not inquire into the motive with which Congress enacted such
exceptions. The prestige of the Supreme Court obviously did not fare well during this encounter with the Reconstruction Congress.
Undoubtedly, it could have ruled differently in the McCardle case. What would have been
the outcome then is a matter of speculation; it may be that the Court's apparent decision to live to fight another day was
the best conceivable one under the circumstances. See also What was the Main Cause of the Civil War? A Study of Slavery, States'
Rights, Secession, State and Federal Governments, Constitution, Supreme Court, and President Abraham Lincoln
Source: Supreme Court of the United States located online at supremecourtus.gov
Recommended Reading: The Real Lincoln: A New Look at Abraham Lincoln, His
Agenda, and an Unnecessary War. Description: It hardly seems possible
that there is more to say about someone who has been subjected to such minute scrutiny in thousands of books and articles.
Yet, Thomas J. DiLorenzo’s The Real Lincoln manages to raise fresh
and morally probing questions, challenging the image of the martyred 16th president that has been fashioned carefully in marble
and bronze, sentimentalism and myth. In doing so, DiLorenzo does not follow the lead of M. E. Bradford or other Southern agrarians.
He writes primarily not as a defender of the Old South and its institutions, culture, and traditions, but as a libertarian
enemy of the Leviathan state. Continued below...
DiLorenzo holds Lincoln and his war responsible for the triumph of "big government" and the birth of the ubiquitous,
suffocating modern U.S. state. He seeks
to replace the nation’s memory of Lincoln as the “Great Emancipator” with
the record of Lincoln as the “Great Centralizer.”
Recommended Reading: Lincoln
Unmasked: What You're Not Supposed to Know About Dishonest Abe. Description:
While many view our 16th president as the nation’s greatest president and hero, Tom Dilorenzo, through his scholarly
research, exposes the many unconstitutional decisions of Abraham Lincoln. Lincoln Unmasked,
a best-seller, reveals that ‘other side’ – the inglorious character – of the nation’s greatest
tyrant and totalitarian. Continued below...
book that is hailed by many and harshly criticized by others, Lincoln Unmasked, nevertheless, is a thought-provoking study
and view of Lincoln that was not taught in our public school system. (Also available in hardcover: Lincoln Unmasked: What You're Not Supposed to Know About Dishonest
Reading: Tried by War:
Abraham Lincoln as Commander in Chief (Hardcover). Description: Author James McPherson, Pulitzer Prize Winner and bestselling Civil War historian, illuminates how Lincoln worked with—and often against— his senior commanders
to defeat the Confederacy and create the role of commander in chief as we know it. Though Abraham Lincoln arrived at the White
House with no previous military experience (apart from a couple of months spent soldiering in 1832), he quickly established
himself as the greatest commander in chief in American history. James McPherson illuminates this often misunderstood and profoundly
influential aspect of Lincoln’s legacy. In essence,
Lincoln invented the idea of commander in chief, as neither
the Constitution nor existing legislation specified how the president ought to declare war or dictate strategy. In fact, by
assuming the powers we associate with the role of commander in chief, Lincoln
often overstepped the narrow band of rights granted the president. Good thing too, because his strategic insight and will
to fight changed the course of the war and saved the Union.
For most of the conflict,
he constantly had to goad his reluctant generals toward battle, and he oversaw strategy and planning for major engagements
with the enemy. Lincoln was a self-taught military strategist (as he was a self-taught lawyer), which makes
his adroit conduct of the war seem almost miraculous. To be sure, the Union’s campaigns often went awry, sometimes horribly
so, but McPherson makes clear how the missteps arose from the all-too-common moments when Lincoln could neither threaten nor
cajole his commanders to follow his orders. Because Lincoln’s
war took place within our borders, the relationship between the front lines and the home front was especially close—and
volatile. Consequently, Lincoln faced enormous challenges
in exemplary fashion. He was a masterly molder of public opinion, for instance, defining the war aims initially as preserving
the Union and only later as ending slavery— when he sensed the public was at last ready to bear such a lofty burden.
As we approach the bicentennial of Lincoln’s birth in
2009, this book will be that rarest gift—a genuinely novel, even timely, view of the most-written-about figure in our
history. Tried by War offers a revelatory portrait of leadership during the greatest crisis our nation
has ever endured. How Lincoln overcame feckless generals,
fickle public opinion, and his own paralyzing fears is a story at once suspenseful and inspiring.
Recommended Reading: Team of Rivals: The Political
Genius of Abraham Lincoln (944 pages) (Simon & Schuster). Description: The life and times of Abraham Lincoln have been analyzed and dissected in countless books.
Do we need another Lincoln biography? In Team of Rivals, esteemed
historian Doris Kearns Goodwin proves that we do. Though she can't help but cover some familiar territory, her perspective
is focused enough to offer fresh insights into Lincoln's leadership
style and his deep understanding of human behavior and motivation. Goodwin makes the case for Lincoln's political genius by examining his relationships with three men he selected for
his cabinet, all of whom were opponents for the Republican nomination in 1860: William H. Seward, Salmon P. Chase, and Edward
Bates. Continued below...
all accomplished, nationally known, and presidential, originally disdained Lincoln for his backwoods upbringing and lack of
experience, and were shocked and humiliated at losing to this relatively obscure Illinois lawyer. Yet Lincoln
not only convinced them to join his administration--Seward as secretary of state, Chase as secretary of the treasury, and
Bates as attorney general--he ultimately gained their admiration and respect as well. How he soothed egos, turned rivals into
allies, and dealt with many challenges to his leadership, all for the sake of the greater good, is largely what Goodwin's
fine book is about. Had he not possessed the wisdom and confidence to select and work with the best people, she argues, he
could not have led the nation through one of its darkest periods. Ten years in the making, this engaging work reveals why
"Lincoln's road to success was
longer, more tortuous, and far less likely" than the other men, and why, when opportunity beckoned, Lincoln was "the best prepared
to answer the call." This multiple biography further provides valuable background and insights into the contributions and
talents of Seward, Chase, and Bates. Lincoln may have been "the
indispensable ingredient of the Civil War," but these three men were invaluable to Lincoln and they played key roles in keeping the