From the outset of the War of Northern Aggression, President Lincoln infringed the Constitution that supposedly bound his nation together. His first transgression was directed at the State of Maryland.
Maryland was a divided border state separating Washington from the Northern Union States. Inevitably, it became a political tinderbox. Lincoln illegally suspended the writ of habeas corpus along the line between Philadelphia and the District of Columbia by placing Maryland under military rule, even though the state had not voted to secede. Essentially, this was an impeachable act on the part of the President.
Chief Justice of the Supreme Court, Roger Taney, a consistent supporter of states’ rights, invalidated Lincoln’s suspension of habeas corpus. In his alternative role as presiding judge of the circuit court of Baltimore, Roger Taney questioned Lincoln’s action in May 1861 in the case of Ex parte Merriman.
Merriman was a pro-Confederate Maryland political leader who was arrested without trial, under Lincoln’s suspension of habeas corpus, for allegedly participating in the destruction of railroad bridges. Taney issued the writ of habeas corpus, but the military commander to whom it was addressed refused to produce Merriman to the court. Taney then issued a writ of attachment ordering the military commander to be apprehended. Again he was rebuffed.
Holding a session in chambers, now as Chief Justice, Taney declared Merriman entitled to his freedom, and filed an opinion condemning Merriman’s arrest as an arbitrary and illegal denial of civil liberty. According to this legal opinion, only Congress (under Article I of the Constitution) , and not the President (under Article II of the Constitution), had the right to suspend the writ of habeas corpus. Taney noted that if Lincoln’s action was allowed to stand, then ‘the people of the United States are no longer living under a Government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.’
Lincoln ignored Taney’s opinion. Worse still, the President attempted to intimidate the Chief Justice by writing out standing orders for the Chief Justice’s arrest. Fortunately for the Constitution, even Lincoln did not possess the crude audacity to serve that writ and so breach irreparably the separation of powers forged in Philadelphia by the Founding Fathers.
When the Maryland legislature followed up on Chief Justice Taney’s opinion by lodging its own protest concerning Merriman’s illegal arrest to the U.S. Congress, however, Lincoln did not hesitate to respond with illegal brute force.
Secretary of State Seward ordered a military raid that jailed 31 legislators, the Mayor of Baltimore, one of the state’s congressmen, and key anti-administration publishers and editors. At the state’s mext elections in the fall of 1861, federal provost marshalls stood guard at the polls and arrested any disunionists who attempted to vote.
Lincoln also arranged for special furloughs to Marylanders who had joined the Union army, so that they could return home to vote. Under such circumstances, it is unsurprising that the new legislature strongly endorsed the War. When Robert E. Lee’s Army of Northern Virginia swept through Maryland in the summer of 1963, it is no wonder that they were received with joyous welcome by Marylanders as they marched to the refrain:
The despot’s heel is on thy shore, Maryland!
His torch is at thy temple door, Maryland!
Thereafter, the Supreme Court deferred to the internal security policy of President Lincoln even when executive action exceeded the limits of habeas corpus suspension. Ex parte Vallandigham (1864) is one good example.
In April 1863, Union General, Ambrose Burnside issued an order prohibiting in the area of his command any declarations of sympathy for the Confederate cause. He declared that any person who assisted the enemy would be tried under military authority. Former Democratic representative, Clement Vallandigham, condemned the order and urged resistance to it. He was arrested, tried and convicted by a military commission. His conviction was commuted by Lincoln to banishment beyond Confederate lines.
From Canada, Vallandigham petititoned the U.S. Supreme Court for a writ of certiorari to review directly the decision of the military commission. With Chief Justice Roger Taney not participating, the Court denied certiorari, asserting that the Court lacked jurisdiction over a military commission. This, by then, had become a pattern for the Court of systematically refraining from interventions that might impact on war-related actions by the executive branch. This discretion was systematically abused by Lincoln as he proceeded to violate various provisions of the first ten amendments to the United States Constitution.
Readers will note how closely Lincoln’s dark side of the force mirrors the dark side of the force recently displayed by such Middle Eastern dictators as Colonel Gaddafi of Libya, President Assad of Syria and President Mubarak of Egypt.
Such is always the case with dictators, in the absence of any constraining rule of law.