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L, Lincoln, Abraham

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Lincoln, Abraham

(b. Hardin County, Ky., 12 Feb. 1809; d. Washington, D.C. 15 Apr. 1865), lawyer, congressman, and president of the United States, 1861–1865.

As the newly inaugurated president of a divided nation, Abraham Lincoln anticipated working with a generally cooperative Congress. Though still viable, its Democratic ranks had been both diminished in size and deprived of some of its most forceful and experienced legislators owing to the departure of the seceded states’ delegations. But of the southern justices of the Supreme Court, only Alabaman John A. *Campbell had resigned in 1860. As feared, the chief justice, Marylander Roger B. *Taney, did try to lead a bloc hostile to Union war objectives. His circuit opinion in Ex parte Merryman (1861) condemned Lincoln’s “arbitrary arrests” of allegedly disloyal civilians as arrogations of Congress’s sole authority to declare and wage war. Taney denounced the president’s refusal to obey his order to produce the detainee John Merryman as a fatal blow to constitutional government. Like many other lawyers, however, Lincoln believed that the Merryman opinion violated Taney’s own *political question doctrine counseling judicial restraint, as enunciated in *Luther v. Borden (1849), which suggested that in civil strife the elective branches bore responsibility for making basic policy choices.

Merryman convinced no other justices and few lower federal judges. By stressing the obvious dangers to the Union, Lincoln stymied an antiwar bloc on the Court by disseminating the conclusions of legal scholars that previous crises had triggered comparable exercises of the nation’s *war powers. Lincoln believed that the Constitution was adequate for both peace and war. Most northern lawyers accepted Lincoln’s position that erroneous judicial opinions such as *Scott v. Sandford (1857) and Merryman were ultimately reversible by political processes.

Nature of the Lincoln Court

While the war ground on, the Court’s composition changed. Campbell’s resignation in 1860, then Peter *Daniel’s death in 1860, John *McLean’s in 1861, and Taney’s in 1864, permitted Lincoln to appoint Republicans Noah H. *Swayne of Ohio, David *Davis of Illinois, and Samuel *Miller of Iowa, plus antisecession Democrat Stephen J. *Field of California. For the post of chief justice, Lincoln named abolitionist veteran Salmon P. *Chase of Ohio, who since 1861 had served effectively as secretary of the treasury. Lincoln believed that these appointees concurred with administration civil-military policies and long-term postwar aims.

Lincoln supported statutes such as the 1862 Judicial Reorganization Act and the 1863 Habeas Corpus Act, which enlarged the federal courts’ jurisdiction and increased the number of circuits and of justices and judges. These measures increased opportunities for antigovernment decisions and opinions on war governance from the highest bench.

Lincoln’s desire for interbranch accord was apparent early in his administration. Meanwhile, the embittered Taney repeatedly violated judicial propriety by preparing opinions-without-cases, declaring unconstitutional executive orders and statutes dealing with emancipation, conscription, and state *reconstruction. Lincoln ordered federal attorneys to avoid initiating prosecutions involving these policies, but he could not inhibit victims or other opponents from bringing suit. His gamble paid off because most justices also wished to emphasize shared constitutional responsibilities and to avoid confrontation, at least while the war continued.

Prosecution of the War

Despite Taney, throughout the war a narrow Court majority sustained presidential orders and statutes as constitutionally adequate. For example, Justice James M. *Wayne’s opinion in Ex parte Stevens (1861) implicitly rejected Merryman. Stevens involved a Union soldier who had responded to Lincoln’s call for ninety-day volunteers, then had his enlistment extended to three years by presidential order, an extension that Congress retroactively legitimized. The Court sustained the president’s and Congress’s actions.

(p. 585) Following a year-long interval, the Court heard arguments in the *Prize Cases (1863). This challenge to Lincoln’s proclamations of 1861 and 1862 imposing naval blockades on southern ports raised technical issues about when the Civil War began and basic questions about its legitimacy. The plaintiffs argued that no war, but rather a rebellion, existed. Blockades were appropriate only for formal international wars that only Congress could declare. Military necessities could not, they maintained, transcend the Constitution’s provisions governing the declaration and conduct of war. Echoing arguments made earlier in Stevens, the Prize Cases claimants asserted that even if blockades were proper, all seizures of violators’ property before Congress confirmed Lincoln’s orders were illegal as, implicitly, were other executive initiatives. Government attorneys pleaded the adequacy of the Constitution’s provisions for the nation’s defense against foreign or domestic fees, the inappropriateness of excessively formal doctrines to the existing crisis, and the political-question precedent of Luther. By a bare 5-to-4 majority, the Court sustained the government, Justice Robert C. *Grier holding that the existence of the war was a political reality and that the Confederacy’s citizens were technically enemies whose property could be confiscated. For the minority, Justice Samuel *Nelson insisted that Lincoln’s orders became legitimate only when Congress ratified them.

The justices similarly avoided constitutional confrontation in Ex parte Vallandigham (1864), which raised issues of military arrests and trials of civilians. Vallandigham, a former Ohio Democratic congressman, had encouraged anti-war activists in Ohio. General Ambrose Burnside had him charged with treason in 1863. An army court sentenced Vallandigham to prison for the duration of the war. Determined to make no martyrs, Lincoln commuted the sentence to exile to the Confederacy, from where Vallandigham slipped back into Ohio and resumed antiwar politicking. Lincoln ordered federal attorneys and the army to ignore him. Vallandigham petitioned the Supreme Court to void his earlier military arrest and trial as unlawful. Wayne’s terse opinion skirted substantive civil-military questions, instead holding that the Court lacked jurisdiction over an appeal from a military tribunal (see military trials and martial law). The Court’s majority again declined to hear an appeal on jurisdictional grounds in Roosevelt v. Meyer (1863), implicitly sustaining a wartime statute authorizing the issuance of paper money. By such cautious rulings and by avoiding challenges to executive orders on conscription, confiscation, and emancipation, the Court exercised *judicial review yet avoided confrontation with the president and Congress.

Activist Wartime Court

None of this suggests that the Court was supine, however. Instead, the justices vigorously established unprecedented authority over states’ public policies and the judgments of states’ supreme courts. The outstanding example is *Gelpcke v. Dubuque (1864). Iowa municipalities defaulted on bonds issued to attract all rail lines and terminals. Successive elected Iowa supreme courts issued conflicting decisions on the validity of the bonds and of the repudiations. The bondholders appealed to *lower federal courts, which by statute and custom deferred to state supreme court rulings on state law. But the federal judges lacked guidance as to which of the multiple and contradictory state decisions prevailed. After federal judges in Iowa sustained repudiation, bondholders appealed to the U.S. Supreme Court. As recently as 1862, in Leffingwell v. Warren, the Court had ruled that the most recent state supreme court judgment construing state law should control. But in Gelpcke, Justice Swayne reverted to an earlier holding that a contract valid by state standards when made could not invalidated by subsequent state laws or state supreme court rulings. Gelpcke increased investors’ confidence both in the stability of state bonds and in the role of the federal courts in supervising elected state judges, who allegedly bowed to their constituents’ parochial interests. The Supreme Court’s reporter, John W. *Wallace, extolled the justices for enforcing “high moral duties … upon a whole community, seeking apparently to violate them” (1 Wall. xiv).

Lincoln welcomed the Court’s generally cooperative stance. Election results in 1862 and 1864 suggested that the northern public, including soldiers, believed that the Lincoln administration and the Supreme Court were sustaining constitutionalism and law. Republican congressmen sometimes expressed anti-Court views. Yet they and Lincoln applauded the Court’s reviving credibility after Dred Scott and Merryman. Accordingly, Congress never transformed criticism into constraints on the Court that would have denied its appropriate role in evaluating public policies and protecting private rights.

Emancipation, Citizenship, and Reconstruction

Indeed, Lincoln deferred to the Court as the final legitimizer of one of his most sensitive war power orders, that of 8 December 1863 on the political reconstruction of the Confederate states. In this order, Lincoln reshaped the federal system by imposing standards for readmission and interim governance of the affected states, including the abolition of slavery in new constitutions and the reconstitution of the states’ electorates. But Lincoln also feared that the Court might yet reverse his Reconstruction orders, a possibility that spurred Republican efforts to confirm emancipation in (p. 586) what became the *Thirteenth Amendment. Lincoln vigorously supported the amendment, seeing in the Constitution thus improved an appropriate guide for the post-Appomattox Supreme Court and for the reunited nation.

Lincoln believed that the Constitution was adequate for all purposes. His impressive educability and his innate instinct for interracial decency led him, on becoming president, to envisage an improved as well as reunified nation. In 1862 he requested Attorney General Edwin Bates to specify the rights adhering to national *citizenship. Bates’s reply rested on Justice Bushrod *Washington’s 1823 circuit opinion in Corfield v. Coryell. He stressed mobility, a right no slave enjoyed. Lincoln’s catalog of federal citizens’ rights grew much larger after his military emancipation order in 1862 and his 1863 orders to the army to recruit blacks, especially recent slaves.

In his address at Gettysburg, Pennsylvania, in late 1863, the president linked the *Declaration of Independence to the Constitution. Meanwhile, his administration was embodying equalitarian aspirations in recommended statutes, especially the *Homestead, Morrill, and *Jurisdiction laws of 1862 and 1863. These federal laws implicitly defined freedom as a cluster of national rights, including widened access to property (especially land), literacy (education), and legal remedies for both private and public wrongs. Having advocated in 1863 that the occupied states both constitutionalize abolition and educate their black residents, Lincoln expanded that idea to all states in 1865. He reported happily the numerous Homestead Act sales to smallholders, including Union Army veterans, among them many black soldiers. In April 1865, with total victory imminent and a new presidential term seemingly ahead, Lincoln defined his final objectives: suffrage for literate blacks and black veterans and state-supported education for all children, white and black.

The Postwar Era and the Johnson Administration

Lincoln’s perception of the *Thirteenth Amendment was central to his postwar objectives. Abolition would help him and Congress implement individuals’ rights derived from the national Constitution, rights paralleling and not displacing those derived from state citizenship. Lincoln’s view of *federalism allowed for interstate diversity but required states’ laws and customs to be race blind.

People who shared Lincoln’s aspirations, like Chief Justice Chase, failed to convince his successor, Andrew Johnson, that the Thirteenth Amendment embraced civil and political rights and extended federal power over private as well as public wrongs. Johnson made no appointments to the Supreme Court, but he filled many lower federal judgeships and other court offices and the entire judiciary of all the southern states with whites, predominantly pardoned ex-Confederates. Though the Court after 1865 remained dominated by Lincoln’s appointees, most justices shared only some of his views on the need for race-blind equality under state laws as a primary ingredient in federal rights. The Supreme Court began to lose its wartime sense of restraint and of enhanced national purpose.

In the Test Oath (see test oaths) and Ex parte *Milligan decisions of 1866–1867, the Court, with Chase vainly dissenting, adopted increasingly ahistorical formalist views. The decision in the *Slaughterhouse Cases (1873) limited the Thirteenth Amendment to formal abolition. Thereafter, victims of private wrongs, including those connived at by state authorities, enjoyed few practical federal remedies. Another retrograde decision in the pivotal 1873 Court term, Osborn v. Nicholson, validated a prewar contract for the sale of a slave. Another, *Bradwell v. Illinois, excluded qualified women who sought access to state-licensed professions from Thirteenth and *Fourteenth Amendment protections. Nevertheless, the war-time Court had built enduring constitutional redoubts against a total return to official racism.

See also civil war; race and racism.

Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (1978). Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (1982). James G. Randall, Constitutional Problems under Lincoln, rev. ed. (1951). David M. Silver, Lincoln’s Supreme Court (1956).

Harold M. Hyman