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INTRODUCTION

President Abraham Lincoln and Chief Justice Roger Brooke Taney bitterly disagreed on three fundamental issues -- slavery, secession, and Lincoln's constitutional authority during the Civil War. But had they known each other in less perilous times, they might have been friends, or at least respectful adversaries. In fact, they had much in common.

Lincoln and Taney were homely physical specimens -- tall, gaunt, slightly cadaverous figures, usually attired in drab, ill-fitting clothes. Each man believed in a divine design that guided him, though Lincoln shirked organized religion while Taney was a devout Catholic. Both men were known for their personal integrity, fairness, and compassion for those less fortunate than themselves. Self-effacing in public, they possessed an unrelenting will to succeed.

In their prime, Taney and Lincoln were among the best litigators in their respective states of Maryland and Illinois. Without flourish, Taney demonstrated the extraordinary ability to lay the facts and law of a case bare before a judge or jury. Lincoln often embroidered his major legal points with folksy stories, but he never lost sight of the argument that would win the case for his client.

Both men disapproved of the institution of slavery. As a young lawyer, Taney freed his slaves and pronounced slavery immoral in a Frederick, Maryland, courtroom. Since childhood, Lincoln had considered slavery wrong and never wavered in his conviction. Taney and Lincoln were actively involved in colonization societies whose purpose was to remove free blacks (including, they hoped, an increasing number of emancipated slaves) from the United States to be resettled in a self-governing colony in Africa. But as lawyers, they defended the property rights of slaveowners under state laws that protected slavery.

Taney and Lincoln agreed on the need for a strong Union. Each was active in state politics and was considered a moderate, though they followed national leaders with very different philosophies. Taney campaigned vigorously for the populist Democrat Andrew Jackson in 1828. Like Jackson, Taney was suspicious of vested corporate interests. After Jackson was elected president, he appointed Taney to be his Attorney General and, later, Secretary of the Treasury. Together, Jackson and Taney fought the Second Bank of the United States, which they believed symbolized autocratic corporate power. When Chief Justice John Marshall died, Taney was Jackson's choice to replace him.

Lincoln's political hero, Kentucky's Henry Clay, challenged Jackson in his reelection bid for the presidency in 1832. The twenty-three-year-old Lincoln (who was a generation younger than Taney) supported Clay's American System, which defended the Bank of the United States as essential to the economic prosperity of the country. After Clay lost the 1832 election, Lincoln served four terms in the Illinois legislature and became a successful Springfield lawyer. Throughout those years, he remained loyal to Clay, supporting him in two more losing efforts to win the presidency.

The issue of slavery did not dominate the national political debate during the 1840s, as it would the next decade. Taney and Lincoln took cautious public positions on slavery in the forties. As Chief Justice, Taney carefully steered the Court away from expansive decisions when slavery was an issue, insisting that the relevant state law governed. In his single term in the House of Representatives in the late forties, Lincoln did not take a leadership role on the slavery issue. His only initiative on the subject was to propose a referendum for the District of Columbia that abolished slavery, but enforced the Fugitive Slave Law and compensated slaveowners who freed their slaves. His compromise proposal did not satisfy either abolitionists or pro-slavery members of Congress and was never formally introduced.

During the 1850s, Taney and Lincoln moved to center stage in the increasingly rancorous national debate over slavery. In his Dred Scott opinion, Taney declared that the U.S. Constitution did not grant the black man any rights that the white man was bound to honor. Taney also held that Congress could not prohibit the spread of slavery in the western territories. Shortly after Taney announced the Court's Dred Scott decision in 1857, Lincoln attacked it as a warped judicial interpretation of the framers' intent. Lincoln made his opposition to the Court's decision a major theme in his campaign for the Senate in 1858. In the famous Lincoln-Douglas debates, Lincoln denounced the Dred Scott decision and accused Douglas and Taney of being members of a pro-slavery national conspiracy.

In his presidential inaugural address in 1861, Lincoln insisted that the South had no legal right to secede. Chief Justice Taney disagreed. He not only believed that secession was legal, but also that a peaceful separation of North and South, with each section forming an independent republic, was preferable to civil war. Once eleven states in the South had seceded, Lincoln broadly interpreted his constitutional powers as commander in chief to prosecute the war. Chief Justice Taney vociferously dissented, accusing Lincoln of assuming dictatorial powers in violation of the Constitution.

This book will trace the long, sometimes tortuous journeys that brought Lincoln and Taney to their final judgments, and actions, on the issues that threatened the survival of the United States.

Copyright © 2006 by James F. Simon

EPILOGUE

Taney's estate was so meager that it did not provide even the basic amenities for his two dependent daughters: Ellen, now chronically ill and a spinster, and Sophia, widowed with a small child. At Taney's death, they were left with a trust fund composed primarily of a $10,000 life insurance policy (whose premiums during the Chief Justice's last years had been paid by David Perine) and a batch of devalued Virginia bonds. The two women were forced to take low-level clerical jobs at the Treasury Department. Years later, Taney's heirs were refunded the amount he had been taxed on his salary by Secretary of the Treasury Chase. One of Chase's successors at the Treasury Department concluded, as did Taney, that the government had illegally taxed the salaries of Supreme Court justices.

Taney was punished by spiteful abolitionists in the Senate even after his death. Early in 1865, after the House of Representatives had passed a bill to appropriate funds for a bust of Taney to be displayed in the courtroom of the Supreme Court, the Senate Judiciary Committee reported the bill to the full Senate for approval. An indignant Senator Sumner rose to oppose the bill, objecting "that now an emancipated country should make a bust to the author of the Dred Scott decision." He added, "[I]f a man has done evil during life, he must not be complimented in marble." Sumner proposed that a vacant space, not a Taney bust, be left in the courtroom to "speak in warning to all who would betray liberty."

Lyman Trumbull, the anti-slavery senator from Illinois who was the bill's sponsor, responded that it was time to heal the wounds created by Taney's Dred Scott opinion. No man was infallible, said Trumbull. Taney was a learned and able Chief Justice, who should be recognized for his contributions to the nation as the leader of the Supreme Court for a quarter of a century. He compared Taney to Chief Justice Marshall, stating that both were "great jurists, and each has shed luster upon the judicial tribunal over which he presided."

Sumner roared in rebuttal: "An emancipated country will fasten upon him [Taney] the stigma which he deserves. The Senator says that he for twenty-five years administered justice. He administered justice at last wickedly, and degraded the judiciary of the country, and degraded the age." Sumner vowed that Taney would not be "recognized as a saint by any vote of Congress if I can help it." He was successful; the bill did not pass.

Another Massachusetts anti-slavery advocate, former Associate Justice Benjamin Curtis, came to Taney's defense. Curtis, as much as Sumner, had reason to resent Taney's Dred Scott opinion. He had written a persuasive dissent in the case and became embroiled in an acrimonious exchange of letters with the Chief Justice after he requested a copy of Taney's unpublished opinion. Despite that rancorous episode, which led to Curtis's resignation from the Court, he spoke of the late Chief Justice with deep respect. In judicial conference, he remembered Taney's "dignity, his love of order, his gentleness." He also recalled the Chief Justice's extraordinary command of the facts and law in the cases before the justices. His power of legal analysis, said Curtis, exceeded that of any man he ever knew. Curtis credited Taney and his predecessor, Chief Justice Marshall, with bringing "stability, uniformity, and completeness of our national jurisprudence."

Which portrait of Taney, Sumner's or Curtis's, survives? Both, actually, though Sumner's has proved to be the more enduring image. Certainly Sumner, vitriol aside, accurately forecast that Taney's place in history would be inextricably bound to his disastrous Dred Scott opinion. In Dred Scott, Taney abandoned the careful, pragmatic approach to constitutional problems that had been the hallmark of his early judicial tenure in favor of a rigid march to his doctrinaire conclusions. He expected that his opinion would be the final constitutional word on the subject of slavery and that, as a result, the warring factions in North and South would engage in more productive pursuits. He was, of course, wrong, and his tragic miscalculation cost the nation and the Supreme Court dearly.

Though Taney would have denied it, his most controversial judicial opinions, beginning with Dred Scott, were influenced by his southern heritage. He was a proud member of his region's landed aristocracy, and when his class was attacked, he vehemently defended it. He bristled at the charge that slavery made the South morally inferior to the North. Although he had freed his own slaves, he joined other southerners in insisting that slaveowners treated blacks more humanely than did northerners. As the North outpaced the South in population and economic power, he shared the fear of most southerners that the terms of the Missouri Compromise would perpetuate the North's dominance. He harbored the prejudices of his region, contrasting the corruption he associated with the North with the pure, refined values of his southern friends. After the southern states seceded, he concluded that it was better that the South be allowed to establish peacefully an independent republic rather than to live under the autocratic rule of the North. Fortunately, his was a doomed reading of American history.

But there is much more to Taney's legacy than his southern perspective or a single ill-fated opinion, even one as momentous as Dred Scott. All of the Taney attributes that Curtis eulogized were displayed throughout the twenty-eight years he served as Chief Justice: his acute legal analysis, clarity of expression, sensitivity to the needs of his colleagues, and reverence for the institution he served. He also made significant contributions to constitutional law. As a fervent Jacksonian Democrat, he came to the Court with a profound belief in states' rights -- that the best government was closest to the people and that decent agrarian American values were threatened by the crass commercialism of the urban North. If Chief Justice Marshall is justly celebrated for defining the broad perimeters of federal authority, Chief Justice Taney should be recognized for his adroit and subtle trimming of his predecessor's most expansive opinions. It was no coincidence that the published writings of Jefferson, not those of Hamilton or Adams, were prominently displayed on Taney's bookshelf at his death.

Had Taney died before he wrote his Dred Scott opinion, he would undoubtedly have secured a prominent place in our constitutional history. But even his post-Dred Scott opinions merit a respectful reading. The finely crafted Booth opinion declaring the supremacy of federal law when challenged by state judicial authority, for example, could have been written by Chief Justice Marshall. And his opinions written during the Civil War raised basic civil liberties issues in a time of national emergency. To be sure, his sympathy for the South influenced his decisions from Merryman to his circuit court opinions striking down Lincoln administration policies and practices. But viewed in the calmer atmosphere of a United States at peace, his commitment to individual liberties has been endorsed by later Supreme Court decisions.

An important constitutional principle articulated in Taney's Merryman opinion, which was ignored by Lincoln and pilloried in the northern press, was embraced by the Supreme Court shortly after the South's surrender. Taney had insisted in Merryman that neither Lincoln nor Union commander Cadwalader possessed the constitutional authority to prevent John Merryman from challenging his military imprisonment in a civilian court of law. In 1866, Justice David Davis, Lincoln's former campaign manager and Court appointee, declared for the Court that the Constitution did not authorize the military's detention and trial of a U.S. citizen during the war when the civilian courts were open.

In the 1866 decision, the Court considered the rights of an Indiana resident, Lambdin Milligan, who had been convicted of treason and sentenced to death by a military tribunal in 1864. Milligan's military trial had taken place in Indiana, a loyal Union state, not in Merryman's Maryland, where secessionist sentiment in the early days of the war was rampant and the objectivity of the civil courts could reasonably be questioned. Justice Davis's majority opinion nonetheless established the broad principle that "[c]ivil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish." He concluded that "[m]artial law can never exist where the [civilian] courts are open."

Sixty-seven years after Taney's death, Chief Justice Charles Evans Hughes traveled to Taney's hometown of Frederick to pay his respects. The occasion was the unveiling of a bust of Taney. The author of the Dred Scott decision, said Hughes, "bore his wounds with the fortitude of an invincible spirit." After discussing Taney's opinions in a wide range of fields, including federal-state relations and civil liberties, Hughes concluded that he was "a great Chief Justice."

After his sweeping electoral victory in November 1864, Lincoln moved with renewed confidence to secure a peace with the South on his terms: preservation of the Union and emancipation of the slaves. In his annual address to Congress in December, he reiterated his promise to southerners willing to pledge their loyalty to the federal government that they could return as full-fledged citizens to the Union. At the same time, he pointedly excluded the leadership of the Confederacy from his offer and rejected any suggestion that he should meet with Confederate president Jefferson Davis in an effort to consummate a negotiated settlement. "No attempt at negotiation with the insurgent leader could result in any good," he said. "He would accept nothing short of severance of the Union -- precisely what we will not and cannot give."

Lincoln was more determined than ever to enforce his Emancipation Proclamation. He would not retract or modify his proclamation, he told Congress, "nor shall I return to slavery any person who is free by the terms of that proclamation." He also urged congressional Democrats who had voted against the proposed Thirteenth Amendment, which would have abolished slavery throughout the United States, to reconsider their votes. Though the presidential election did not impose a duty on them to change their votes, Lincoln suggested that the people had spoken and undeniably had endorsed the constitutional amendment: "In a great national crisis, like ours, unanimity of action among those seeking a common end is very desirable -- almost indispensable."

Lincoln's bold words were backed by Union victories on the battlefield. General Grant's troops had pinned down Lee's army near Richmond. General Sherman ruthlessly spurred his men in their devastating march through southern Georgia. In Tennessee, General George Thomas reported that his troops had repelled the initial Confederate invasion of the state. "You made a magnificent beginning," Lincoln wrote Thomas. "A grand consummation is within your easy reach. Do not let it slip." Thomas did not disappoint the president, routing Confederate troops in the decisive victory at Nashville on December 15 and 16.

While he had promised Congress that he would enforce the Emancipation Proclamation, Lincoln continued to view it as a war measure that would necessarily expire when hostilities ended. He was therefore eager that Congress pass the Thirteenth Amendment. Combining political muscle and venerable Lincolnesque charm, he worked effectively behind the scenes to persuade wavering congressional Democrats to support it. On February 1, 1865, after the 38th Congress voted in favor of the amendment and submitted it to the states for ratification, Lincoln was ecstatic. "[T]his amendment is a King's cure for all the evils [of slavery]," he told an applauding crowd outside the White House. "It winds the whole thing up." And he extended his congratulations to "the country and the whole world upon this great moral victory."

Despite entreaties from the South, Lincoln refused to budge from his demand of an unconditional surrender. In early February 1865, he reiterated his position politely but firmly to three representatives of the Confederacy who had boarded the president's steamer, the River Queen, moored at Hampton Roads in northern Virginia. One of the three Confederate envoys, Alexander Stephens (whom Lincoln had last seen sixteen years earlier when both men were Whig members of the House of Representatives), concluded that it was "entirely fruitless" to have further discussions on a peace settlement. A month later, Lincoln sent instructions to General Grant that he was "to have no conference with General Lee unless it be for the capitulation of Gen. Lee's army."

At noon on the gray, gusty day of March 4, Lincoln walked onto the platform at the east front of the Capitol to deliver his second inaugural address. The strain of the war on the president was immediately visible. He appeared weary beyond his fifty-six years, the lines in his gaunt face more deeply furrowed than ever. His mood matched his somber appearance and was eloquently reflected in his brief speech.

He explained the meaning of the war in spare, impersonal terms. "Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish," he said. Slavery was the cause of the war, he contended, but he refused to blame the South beyond observing that "[i]t may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces." And he quickly added, "but let us judge not that we be not judged." God had punished both sides, and He alone would decide when the horrors of the war would end. Despite his fearsome acknowledgment of divine will, Lincoln concluded with inspiring words of hope: "With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan -- to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations."

For the first time since Andrew Jackson's second inauguration in 1833, Chief Justice Taney was not present to administer the presidential oath. In his place, Chief Justice Chase stepped forward to swear in Lincoln for a second term. At the moment he asked Lincoln to place his hand on a Bible, Chase recalled, the sun suddenly burst through the dark clouds. The Chief Justice interpreted the change in weather as an auspicious omen "of the dispersion of the clouds of war and the restoration of the clear sun light of prosperous peace."

Although Lincoln had spoken of God's will and wrath in his inaugural, he acted afterwards as if the Union's fate was very much in his and his generals' hands. He eagerly received reports of military successes from South Carolina to northern Virginia. General Sherman had turned his army northward from Georgia, wreaking further havoc in South and North Carolina, leaving thousands of dead bodies and miles of burning houses and fields in his wake. Grant's forces, overwhelmingly superior in numbers and equipment, had finally worn down Lee's demoralized Army of Northern Virginia and were moving inexorably south of Petersburg and Richmond. General Philip Sheridan, marching east across the Shenandoah Valley, reported that his troops had routed the Confederate army at Burke's Station, Virginia, and could soon unite with Grant's army for the final assault on Richmond. "If the thing is pressed," Sheridan continued, "I think Lee will surrender." Lincoln immediately wired Grant, "Let the thing be pressed."

Lincoln wanted to witness the final scenes of the war. He had accepted an invitation from General Grant to visit his headquarters in City Point, Virginia, in late March. After sailing down the Potomac on the River Queen with a small entourage that included Mary and their son Tad, Lincoln felt better than he had in months. At Grant's headquarters, with sounds of Union cannons bombarding Petersburg in the background, the president inspected the battle-toughened troops in the field and visited the wounded in nearby hospital tents. On April 3, he followed Grant's troops into Petersburg, which had been abandoned by Lee's retreating Confederate army. Secretary of War Stanton, who was charged with the president's safety, was appalled. He admonished Lincoln: "Allow me respectfully to ask you to consider whether you ought to expose the nation to the consequences of any disaster to yourself in the pursuit of a treacherous and dangerous enemy like the rebel army." Don't worry, Lincoln assured him. "I will take care of myself."

A day later, after Union troops had taken control of Richmond, Lincoln visited the ravaged capital of the Confederacy. He entered the city wearing his familiar stovepipe hat and long black overcoat. Twelve armed sailors who had rowed him ashore accompanied the president through the streets of Richmond, representing his only protection against a rebel bullet. Lincoln did not seem to notice that white residents peered sullenly through windows at their unwanted visitor. He was hailed as a messiah by awestruck blacks, who clasped his hand and bowed before him, much to the president's discomfort. At the abandoned Virginia statehouse, he surveyed the chaos -- the overturned desks of rebel legislators and scattered sheets of official documents and worthless Confederate bonds that littered the floor. In the Confederate White House he sat in Jefferson Davis's chair, and his Union escorts cheered.

Lincoln intended to be more than a conspicuous tourist in Richmond. While at the Confederate White House, he met with former U.S. Supreme Court Justice John Campbell, one of the southern envoys who had discussed a peace settlement with the president at Hampton Roads and the only high-ranking member of the Confederate government remaining in the city. Campbell counseled moderation and magnanimity on the part of the Union in the anticipated peace settlement with the defeated South. The next day, Lincoln and Campbell, accompanied by Richmond attorney Gustavus Myers, resumed their discussions aboard the USS Malvern, anchored on the James River near Richmond. Lincoln listed three non-negotiable presidential demands: restoration of federal authority in the South; no retreat from his commitment to former slaves; and unconditional surrender of Confederate troops. But he also suggested generous terms for the return of confiscated land and the formal reentry of the secessionist states into the Union.

Lincoln returned to City Point and hoped to remain with Grant for Lee's surrender. But on April 8, when it appeared that the surrender was not imminent, he boarded the presidential yacht for the return voyage to Washington. Shortly after he had arrived the next evening, he was handed a telegram from Grant reporting Lee's surrender at Appomattox Courthouse. The news spread quickly through a jubilant capital city the next day. Cannons boomed, bells rang out, men laughed giddily, and small children cheered. That night, throngs of celebrants converged on the White House demanding to hear the president. Appearing in a second-story window, Lincoln told the crowd that he would have much to say the next evening and did not want them "to dribble it all out of me before." He noted the presence of the quartermaster's band and suggested that the musicians play "Dixie." The Confederate anthem was one of his favorite tunes, he said, and added wryly that the Attorney General had informed him that "it is our lawful prize."

Lincoln drafted his written remarks for his April 11 address, which was primarily devoted to the complex problems of Reconstruction, with a lawyer's attention to technical detail. He made no effort to please an audience anticipating a stirring patriotic speech. Nor did he expect to fully satisfy the contentious wings of his party. Conservative Republicans continued to advocate a return of the southern states to the Union on liberal terms -- without slavery, to be sure, but with the South's prewar white leadership of planters and businessmen restored to power. Radicals, like Senator Sumner, insisted that freed slaves play a central role in a new South and demanded the complete destruction of the antebellum political and social structure.

Sumner had already indicated his displeasure with the president's earlier expressions of moderation by declining an invitation from Mary Lincoln to view the victory celebration from the White House. His fellow Radical, Chief Justice Chase, sent a letter to Lincoln shortly before he was scheduled to deliver his speech, urging him to accept the total reorganization of southern states "without regard to complexion." It was Chase's way of discouraging the president from persisting in his support for the controversial Reconstruction government in Louisiana, which had not given the vote to blacks.

With the illuminated Capitol visible in the distance, a large, joyful crowd gathered at the north portico of the White House on the evening of the eleventh to hear the president. Lincoln's appearance in an upstairs window was greeted with waves of applause and cheers. As Lincoln methodically read his policy-laden speech, his audience grew restless. By the time he reaffirmed his support for the Louisiana Reconstruction government, many in the crowd had wandered away in disappointment. But the president forged ahead. Though the Louisiana government deprived blacks of the vote, he noted that it had adopted a free constitution, provided public school benefits to blacks and whites equally, and empowered the state legislature to confer the franchise on blacks. For his part, Lincoln wished that intelligent blacks and those who had served in the Union military had been given the vote. But this was not the time to destroy the fledgling effort of Louisiana to return to the Union as a free state. Conceding that "the new government of Louisiana is only to what it should be as the egg to the fowl," Lincoln asked, shouldn't we sooner "have the fowl by hatching the egg than by smashing it?"

The temper of the president's remarks was characteristically moderate, but the remarks were not so interpreted by one disgruntled member of his audience. John Wilkes Booth, a raven-haired, twenty-six-year-old actor, listened with disgust to Lincoln's speech. "That means nigger citizenship," Booth muttered, and vowed that Lincoln's April 11 public address would be his last.

Booth, a native of the slaveholding agricultural community of Bel Air, Maryland, had been stalking Lincoln for months. After contacting the Confederate Secret Service, Booth recruited a small band of southerner sympathizers who had plotted to kidnap the president. The plan called for them to take Lincoln behind Confederate lines in Virginia, where he would be held hostage for the release of thousands of imprisoned Confederate soldiers. But after two aborted attempts at abduction, Booth began to consider assassinating the president rather than kidnapping him. He had been standing in the rotunda of the Capitol when Lincoln walked past him to deliver his second inaugural address a month earlier, and concluded that he could easily come close enough to the president to kill him.

On the evening of April 14, Booth silently slipped into the president's box at Ford Theatre during a performance of the comedy, Our American Cousin. At a few minutes after ten o'clock, he pointed his derringer at the back of Lincoln's head and pulled the trigger. The president died nine hours later.

Lincoln's assassination prostrated the nation with grief. Six hundred people crowded into the East Room of the White House for the funeral service, including the cabinet, leaders of Congress, Chief Justice Chase, a tearful General Grant, Mary Lincoln, and her two surviving sons, Tad and Robert. Led by a detachment of black troops, the funeral procession carried Lincoln's body down Pennsylvania Avenue to the rotunda of the Capitol, where thousands of mourners filed past. A nine-car funeral train transported the dead president 1,600 miles across the country. Hundreds of thousands of Americans watched the funeral cortège in silence -- in New York City and Cleveland, Indianapolis and Chicago, until it arrived in Springfield for Lincoln's burial.

If Lincoln had died before Taney wrote his Dred Scott opinion, his place in American history, like the Chief Justice's, would be radically different. Without Dred Scott, Lincoln might well have been remembered after his death as a good man, a fine lawyer, and a frustrated politician. Having been defeated in 1855 in his first senatorial campaign, Lincoln appeared destined to devote his professional life to the practice of law. But he was outraged by Dred Scott and the prospect of slavery spreading across the United States. He challenged Senator Stephen Douglas for his Senate seat in 1858 and very nearly won, in large part because of his effective attack on Dred Scott and what he termed the pro-slavery conspiracy comprised of Douglas, Taney, former President Franklin Pierce, and President Buchanan. Even in defeat, Lincoln's political star was ascendant. He was a dark horse candidate for the Republican presidential nomination in 1860, but his victory would surely have been impossible without Dred Scott and his superb performance in the Lincoln-Douglas debates.

Lincoln won the presidency in 1860 with less than 40 percent of the vote and almost one-third of the states poised to leave the Union rather than accept his leadership. After the firing on Fort Sumter, he prosecuted the war relentlessly, brusquely dismissing criticism that his policies violated the Constitution. In this regard, Chief Justice Taney was his unwitting foil, challenging Lincoln's assumption of sweeping executive powers. But Lincoln was not to be denied, by Taney or anyone else, in his goal to preserve the Union and, ultimately, to free African Americans from slavery. For those achievements alone, he will always be revered as one of our greatest presidents.

Lincoln's constitutional legacy is more ambiguous. Like every other wartime president from John Adams to George W. Bush, he took measures to protect the nation's security interests at the expense of individual liberties. But in judging Lincoln's actions, it is important to keep in mind that he had taken the presidential oath to see that the laws were "faithfully executed" shortly before the Civil War created the worst crisis in American history.

More than sixty years before the Civil War, President Adams had watched with increasing frustration as both France and Great Britain, who were at war, plundered American shipping on the high seas. The United States had arranged for an uneasy peace with Great Britain by signing the Jay Treaty. But attempts at a peace settlement with France ended in humiliating failure when an American delegation in Paris reported that three French representatives (labeled X, Y, and Z) had demanded a large bribe and loan as preconditions for the negotiation. When the so-called XYZ Affair was made public, Americans were outraged, and the president openly talked of war with France. Adams's Federalist Party inflated the threat of a French invasion of the United States and charged that Jeffersonian Republican critics of the administration posed an immediate danger to national security.

Adams signed the Alien and Sedition Acts, a series of oppressive statutes passed by the Federalist-controlled Congress aimed at intimidating or silencing the administration's Republican critics. The most egregious of those statutes, the Sedition Act of 1798, made it a crime to say or print anything "false, scandalous, and malicious" about the federal government (but made an exception for criticism of Vice President Thomas Jefferson). Within months of the passage of the Sedition Act, federal prosecutors had sent a number of high-profile Republican critics of the administration to jail for violations of the statute.

There was no comparable federal government threat to civil liberties until the Civil War. The Lincoln administration censored the mails and military commanders sporadically shut down newspapers that opposed the war. But Lincoln never proposed, nor did the Republican-controlled Congress pass, a mid-nineteenth-century version of the Alien and Sedition Acts. The opposition press remained robust during the war and continued savagely to attack administration policies.

Lincoln is the only president to have blockaded domestic ports and suspended the writ of habeas corpus. But he is also the only president who faced a rebellion that threatened the very existence of the United States, He justified his actions as necessary to preserve the Union and authorized by his constitutional power as commander in chief. At his request, Congress immediately endorsed his blockades and later passed a statute authorizing his suspension of the writ. In the Supreme Court's decision in the Prize Cases, a narrow majority of the justices embraced Lincoln's constitutional argument of necessity in imposing the blockades of southern ports. The Court did not rule on his suspension of the writ during the war.

Lincoln's strongest argument for suspension of the writ of habeas corpus was made early in the war after secessionist sympathizers in Maryland had cut the telegraph lines and blown up bridges between Baltimore and the nation's capital, isolating Washington from the northern states. After Chief Justice Taney had condemned the president's action in his Merryman opinion, Lincoln issued his famous rejoinder that the framers did not intend for the president to sit idly by (with Congress adjourned) and allow the nation to be torn to pieces by rebellion. Under those circumstances, Lincoln believed that his first constitutional duty was to make certain that the government survived, and it is difficult to challenge his pragmatic judgment. This cannot be said for his later, widespread suspensions of the writ, giving license to local military commanders to arrest and try U.S. civilians before military tribunals. The Supreme Court condemned the president's actions in the Milligan decision, but that occurred after the war was over.

By modern constitutional standards, Lincoln's defense of the arrest and conviction of the Peace Democrat Clement Vallandigham is unconvincing. Nothing in the record of Vallandigham's military trial suggested that he did more than criticize the administration's prosecution of the war. That is political speech and should have been protected under the First Amendment. But the civilian courts to which Vallandigham appealed were unresponsive. The federal circuit court judge hearing the appeal emphatically endorsed the military tribunal's judgment, and the U.S. Supreme Court refused to review the case on the merits.

The reluctance of the Supreme Court to declare the government's wartime policies unconstitutional continued through every major war of the twentieth century. During World War I, President Woodrow Wilson's Justice Department aggressively prosecuted outspoken opponents of U.S. involvement in the war under the Espionage Act of 1917, which made it a crime to "willfully cause or attempt to cause . . . disloyalty" or "willfully obstruct" the military draft. The Supreme Court consistently upheld the convictions, including that of Eugene V. Debs, the Socialist Party's frequent presidential candidate, for a speech he delivered to the Ohio Socialist Party convention. Debs's speech was devoted primarily to Socialist principles, but he also assailed the Wilson administration's prosecutions under the Espionage Act and praised those young men who had resisted the draft. Debs appealed his conviction to the Supreme Court, claiming that his speech was protected by the First Amendment. But in Debs v. United States, a unanimous Court, speaking through Justice Oliver Wendell Holmes, Jr., rejected Debs's argument, concluding that a jury could have found that his speech had "the natural and intended effect" of obstructing recruiting.

In light of Justice Holmes's Debs opinion, Lincoln's constitutional argument in defense of Clement Vallandigham's conviction does not seem unreasonable. After all, Lincoln's argument was made more than fifty years earlier, before the Court had even begun to establish a constitutional shield for political speech. Neither Lincoln's nor Holmes's opinions would prevail under the modern Supreme Court's interpretation of the First Amendment. But the Court's vigilant protection of political speech was not fully developed for more than a century after Lincoln's presidency.

During World War II, the Court again demonstrated extreme solicitude toward the government's wartime policies. One of the modern Supreme Court's most celebrated civil libertarians, Justice Hugo Black, wrote the majority opinion which upheld President Franklin D. Roosevelt's executive order that allowed the military to exclude thousands of Japanese-American citizens from their homes on the West Coast. The Roosevelt administration had argued that military necessity justified the forced exclusion. Although the trial record failed to show that Japanese Americans posed any greater threat to national security than other citizens, the Court rejected the claim of the defendant, Fred Korematsu, a young Japanese-American welder from San Leandro, California, that the government's policy had violated his right to equal protection of the laws.

Recent scholarship has suggested that Congress represents the best check on the growing assumption of executive power in wartime. The problem is that Congress, like the Supreme Court, has been reluctant to curb the president's powers when the nation's security is perceived to be at risk. In 1964, when President Lyndon Johnson was accelerating U.S. military involvement in Vietnam, Congress passed the Gulf of Tonkin Resolution, which gave the president virtual carte blanche power to prosecute the war. After the Vietnam War had ended, Congress passed the War Powers Resolutions of 1973, which imposed explicit restraints on the president's authority to wage war unilaterally. President Richard Nixon declared that the resolutions were an unconstitutional infringement on the president's war powers, a position that has never been tested in the Supreme Court. The resolutions, however, have largely been ignored by every president since their passage.

Shortly after September 11, 2001, Congress passed a joint resolution that effectively gave President George W. Bush open-ended authority to wage the War on Terrorism in the United States and abroad by whatever means he deemed necessary. The Bush administration has prosecuted the War on Terrorism without noticeable attention to constitutional guarantees of individual rights. Suspected enemy combatants have been detained indefinitely without the opportunity for judicial review. And the president has directed the National Security Agency to eavesdrop on Americans' international phone calls without a court warrant.

In two 2004 decisions, the Supreme Court rejected the Bush administration's arguments that the detention of suspected enemy combatants was beyond judicial review. In Rasul v. Bush, the Court said that federal courts retained jurisdiction over detainees at Guantánamo Bay, Cuba, a territory that had been leased and controlled by the U.S. military since 1903. More pointed, in Hamdi v. Rumsfeld, the Court dismissed the Bush administration's argument that suspected enemy combatants who are U.S. citizens have no due process rights. "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Justice Sandra Day O'Connor wrote for the Court. Two years later, in Hamdan v. Rumsfeld, the Court again rebuked the Bush administration, declaring that its plan to put Guantánamo detainees on trial before military commissions was unauthorized by federal statute and violated international law.

Compared to the actions of other wartime presidents, Lincoln's broad exercise of executive power during the Civil War does not appear to be extreme. He did not encourage the systematic prosecution of his political critics, as did Adams in 1798. Nor did he uproot thousands of U.S. citizens from their homes, as the Roosevelt administration allowed the military to do to Japanese Americans during World War II. And he did not attempt to escape judicial scrutiny in the name of national security, as the Bush administration has repeatedly done in prosecuting the War on Terrorism, which, unlike the Civil War, has no discernible end.

Throughout the Civil War, Lincoln's moral compass remained steady, and so did his respect for the rule of law. As proud as he was of his Emancipation Proclamation, he only justified it constitutionally as a necessary war measure. His doubts about the proclamations's enduring legality caused him to lobby intensely for the passage of the Thirteenth Amendment. In his prosecution of the war, he wielded his constitutional powers fearlessly, but also with restraint. His purpose was not to seize authority that was unchecked by the other co-equal branches of the federal government.

Although Lincoln's record on the protection of civil liberties was not unblemished, he consciously weighed the legitimate security needs of the nation under siege against the individual rights of its citizens. That is one of the reasons that Justice Felix Frankfurter, a founding member of the American Civil Liberties Union, greatly admired Lincoln. Lincoln's balancing of national security interests against civil liberties also impressed Justice O'Connor, the author of the Court's Hamdi opinion. In a lecture delivered less than a year after writing that opinion, she reviewed Lincoln's exercise of executive power, including his suspension of the writ of habeas corpus: "To his immense credit, Lincoln did not use this authority to trample on the civil liberties that the writ was meant to protect. . . . He appreciated that the strength of the Union lay not only in force of arms but in the liberties that were guaranteed by the open, and sometimes heated, exchange of ideas."

For Lincoln, the essential goal of the Union in the Civil War was to repair the rupture to the constitutional government established by the framers. He had anticipated that monumental task when he told his friends at Springfield's Great Western Railroad depot on a chilly morning in February 1861 that his presidential challenge was greater than Washington's. He had been elected to preserve what he later described to be "the last best hope" for democratic government in the world. When his body was returned to Springfield in May 1865, the entire nation knew that he had met that challenge with courage and wisdom to become the wartime president indispensable to the future of the United States.

Copyright © 2006 by James F. Simon