CIVIL WAR

The Civil War was the greatest constitutional crisis in the nation's history. It tested the nation-state relationship and the powers of Congress, the President, and the courts. By ultimately destroying SLAVERY, the conflict removed the most destructive element in the constitutional system and produced promises of equality under law throughout the United States. The addition of the THIRTEENTH AMENDMENT, FOURTEENTH AMENDMENT, and FIFTEENTH AMENDMENT dramatically changed the structure of the federal system in important respects. In the short run these amendments ended slavery and gave state and national CITIZENSHIP to over four million black men, women, and children. They also opened the door for black participation in politics. By the mid-twentieth century the amendments would place a great many individual rights under federal protection.

The was also finally settled the long-debated question of SOVEREIGNTY. When a state and the national government clashed over ultimate authority, the national government would prevail. This primacy did not mean, however, that the states were stripped of power or influence. Both state and national governments involved themselves energetically and successfully in war-making and hence increased both their influence and their stature before the people. State and federal taxation increased along with state and federal expenditures for public projects. The war thus produced an ironic dual legacy: freedom for black Americans and a vital federal system in which states would retain significant, though no longer unique, influence over the amount of freedom these freedmen would exercise.

Because Congress was in recess when the conflict began, the President had to cope with the crisis alone. ABRAHAM LINCOLN answered secessionist rhetoric with a powerful argument that sustained national authority by noting the danger of anarchy in SECESSION and by emphasizing the sovereignty of people, not states. "A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people," Lincoln said. To preserve the constitutional system that embodied this process, Lincoln was willing to lead the Union into war.

Lincoln marshaled northern resources to fight secession. He called for troops, paid $2 million from the treasury, pledged federal credit for $250 million more, and proclaimed a blockade of southern ports. These initiatives raised the constitutional problem of whether the conflict was legitimate at all, for Lincoln had acted without statutory authority and only Congress had power to declare war. In the March 1863 PRIZE CASES, the Supreme Court gave its answer on the disposition of several ships seized by the Union navy after Lincoln's 1861 blockade. The constitutional question was whether the President could blockade the South without a DECLARATION OF WAR by Congress. Emphasizing the distinction between an international war, which Congress had to declare, and a civil war thrust upon the President and demanding immediate response, the Court defined the war as an insurrection, thus recognizing the President's power to subdue the rebellion without recognizing the Confederacy as an independent nation. The Court also justified Lincoln's action on the basis of the Militia Act of 1795, which allowed the President to call up the federal militia to stop insurrections. Presidents JOHN QUINCY ADAMS, JAMES K. POLK, MILLARD FILLMORE, and FRANKLIN PIERCE had established precedents in exercising this power, and the 1827 case of MARTIN V. MOTT had sustained it.

Executive authority over CIVIL LIBERTIES, the rights of civilian justice, FREEDOM OF SPEECH, and FREEDOM OF THE PRESS provoked the most criticism. Fearing prorebel judges and juries in border states, Lincoln in 1861 suspended the privilege of the writ of HABEAS CORPUS in the area between New York and Washington. This action gave the military control over civil liberty. Union soldiers arrested men near Baltimore for recruiting rebels and burning bridges linking Washington to the North. Chief Justice ROGER BROOKE TANEY went to Baltimore especially to challenge Lincoln's suspension of the writ. Congress, not the President, retained constitutional suspension authority, Taney claimed. But over fifty pamphlets quickly surfaced to debate the issue, and authoritative voices supported Lincoln. Lincoln ignored Taney, and habeas corpus remained suspended. In fact, in 1862 suspension of the writ was expanded to cover the entire North.

The Union army arrested about 15,000 people; however, the vast majority were taken as rebel territory was occupied. The number of northern civilians subject to military law owing to the suspension of habeas corpus was limited, perhaps to a few hundred, and press, platform, and pulpit continued to sound with criticism of the "Lincoln dictatorship." On the other hand some newspapers, including the National Zeitung, the Philadelphia Evening Journal, the Chicago Times, and the New York World, were temporarily shut down, and the editors of others were arrested, held for short periods of time, and then released—a practice that often restrained their criticism. Furthermore, Lincoln defended the suspension policy with sweeping rhetoric that may have had its own chilling effect on criticism: "The man who stands by and says nothing when the peril of his government is discussed cannot be misunderstood. If not hindered he is sure to help the enemy."

In the most famous civil liberties case of the time, a leading Ohio Democratic congressman, Clement Vallandigham, was arrested in Ohio in 1863 for protesting General Burnside's prohibition of "declaring sympathy for the enemy." Tried and convicted by a military tribunal, Vallandigham was banished to the Confederacy after the Supreme Court denied itself jurisdiction of the case in Ex Parte Vallandigham (1864). Vallandigham and his arrest were popular causes, however, and the Democratic party sought votes with some success as the party of civil liberties throughout the conflict. Still, when northern voters had to choose between Lincoln's suspensions and Vallandigham's defiance, they usually sided with Lincoln and his explanation that preserving the constitutional system as a whole in wartime required limiting speech that threatened the war effort. The Confederate government also suspended the writ of habeas corpus, provoking protest from state-sovereignty radicals, but such protest did little to weaken the Confederacy.

The abiding health of the constitutional system in the North during the war was demonstrated by the ongoing electoral process, within which civil liberty restrictions could be discussed and debated and through which the voters might throw out of office the very government that was restricting civil liberties. In Dixie, too, elections continued for the Confederate Congress, although not for the presidency, which had a six-year term, beginning in 1861. One advantage the North had over the South was an established political system that generated alternatives, focused political discussion, used patronage to keep intraparty rivalries in line, and kept opposition to the administration within reasonable bounds. Confederate political quarrels, lacking party apparatus, became personal and hence more intense.

LEGISLATIVE POWER also expanded during the war, as Congress and executive cooperated to preserve and strengthen national authority. Legislators enacted a series of military drafts that brought national authority directly into the life of every American. Congress endorsed Lincoln's habeas corpus suspension in March 1863, although the tardiness of the Indemnity Act suggests the sensitivity of voters to the issue. Congress established the Joint Committee on the Conduct of the War to investigate generals perceived as not vigorous enough or not in accord with REPUBLICAN PARTY policies. Lincoln used committee pressure to prod generals toward advanced measures. The one major division between executive and legislative branches, over RECONSTRUCTION, began with the antiLincoln diatribe of the Wade-Davis Manifesto, but soon found Lincoln and Congress working out their differences, agreeing on the need to protect freedmen and provide them with economic support through the Freedmen's Bureau Act. Wade and Davis both supported Lincoln for reelection in 1864, and just before his death Lincoln was apparently contemplating a change in his Reconstruction policies that would have moved him closer to Congress. The two branches still debated which southern governments should be restored to the Union—those following Lincoln's plan or Congress's alternative—but both agreed that once war ended Congress would effectively control the Reconstruction process.

There was no disagreement about the wartime economic program. The first federal income tax law, the creation of the first national currency in the Greenback Act of 1862, the development of a national banking system, the taxing out of existence of state-based currency, the huge subsidy to build railroads to the Pacific Ocean, the opening up of millions of acres to homesteading with the HOMESTEAD ACT, the establishment of the Department of Agriculture, and the MORRILL ACT, which helped found and sustain major universities throughout the nation, all received Lincoln's unequivocal approval.

None of this national government activity was accompanied by federal regulation. The first national regulative agency, the Interstate Commerce Commission of 1887, lay twenty-two years into the postwar era. But people now accepted Congress's constitutional authority to shape the economy. Despite the Jeffersonian rhetoric of the Democratic party, it was the old Hamiltonian program and Hamiltonian views of national power, now infusing Whig and Republican political economy, that shaped national government policymaking. State governments, too, became more active. Some states set up public health boards and railroad oversight commissions. In the South, Reconstruction state governments established the region's first public schools. Cities also expanded their activities, having seen what government energy might accomplish.

The death of slavery was the largest constitutional change of the war. The conflict helped to resolve a growing contradiction within the constitutional system itself. On the one hand, the Constitution of 1787 recognized and protected slavery in several of its provisions. FEDERALISM left states free to determine whether they would be free or slave. The Supreme Court had declared the territories open to slavery. Democratic presidents had endorsed proslavery demands. On the other hand, by 1860 slavery had become, in many northern eyes, a major threat to constitutional liberties and the operation of the political/constitutional system.

The prewar era saw proslavery attempts to stifle antislavery voices—in Congress through gag rules, in the free states through anti-abolitionist mobs, and in politics generally through the prohibition of antislavery arguments in the slave states and the territories. All these efforts helped generate sectional parties. In addition, the South used threats of secession to protect slavery, thus hardening northern hostility to the peculiar institution and to what it termed "the Slave Power Conspiracy." People did not have to be racial egalitarians to be enemies of slavery. The threat to individual rights and the political process made slavery a target of northern hostility. The Constitution thus was at war with itself—promising open elections, free debate, the right to petition, the whole process of government by consent, on the one hand, and protecting slavery, on the other. The war ended the conflict.

Freed from obstruction by southern congressmen, the wartime northern Congress not only enacted much nationalizing legislation but also attacked slavery whenever the Constitution put it within congressional reach. Congress ended slavery in the DISTRICT OF COLUMBIA and in the territories. Then, acting on the theory that slaves might be contraband of war, Congress turned on the South and passed laws first confiscating property used directly to attack the Union (First Confiscation Act, August 1861) and then taking all slaves of rebels (Second Confiscation Act, July 1862). But these two laws freed no slaves, for the judicial procedures to prove disloyalty were too cumbersome. The laws did, however, demonstrate growing support for executive action against slavery.

Lincoln had two arenas in which he might act. In civilian areas his emancipation goals were restrained by the Constitution, which let states choose freedom or slavery. He asked border slave states to free their slaves. When that effort failed, he turned his attention to places still in rebellion, places where his constitutional war powers could operate. The EMANCIPATION PROCLAMATION of January 1, 1863, freed slaves wherever the Union advanced after that day, and it permitted freedmen to acquire claims on citizenship by serving as soldiers.

Emancipation ended the national government's protection for slavery, which had existed since 1787. With the adoption of the Thirteenth Amendment in 1865, the national government promised to eradicate, not defend, slavery. The death of slavery ended the reason for secession and for obstructing open debate in Congress and in the polity at large. It also meant that the institution that had most conspicuously challenged the ideal of equal justice under law was gone. As the Civil War ended, a robust constitutional system of active states and a proven nation awaited new challenges to that ideal.