Nicholas Quinn Rosenkranz: Obama Suspends the Law. What Would Lincoln Say?

The Obama administration announced last month via blog post that the president was unilaterally suspending ObamaCare's employer mandate—notwithstanding the clear command of the law. President Obama's comments about it on Aug. 9—claiming that "the normal thing [he] would prefer to do" is seek a "change to the law"—then added insult to constitutional injury. It also offers a sharp contrast with a different president who also suspended the law.

On April 27, 1861, President Lincoln unilaterally authorized his commanding general to suspend the writ of habeas corpus so that he could detain dangerous rebels in the early days of the Civil War. Lincoln's order was constitutionally questionable. The Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

A rebellion was in progress, so suspension was permissible. But the Constitution doesn't specify who can suspend the writ in such circumstances. Since the Suspension Clause appears in Article I of the Constitution, which is predominantly about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.

Lincoln's order was legally dubious, but what he did next showed remarkable constitutional rectitude. On July 4, 1861, he delivered a solemn message to Congress, in which he did everything possible to square his action with the Constitution. In this message, he set forth the best possible constitutional arguments that he had unilateral power to suspend the writ. These arguments may have been wrong, but they were serious, and they were presented seriously, in good faith.

Exactly what negotiations did Lincoln have with the Confederates over Fort Pickens or Fort Sumter?

I was referring to any negotiations that might occur further down the road. You really don't think that Lincoln was simply going to give the secessionists whatever they wanted when they wanted it, starting with recognition. No, there would be a period of uncertainty, of stalemate, and eventually it would be resolved somehow. That Confederates were so impatient with that was the problem.

Nice to know what kind of poster I'm dealing with.

Nice to know what kind of person you are. This isn't the only thing in my life. I don't have time to look up everything you happen to mention. There are other people who apparently still enjoy doing that sort of thing, who can respond better than I can. Maybe a side effect of the Internet is that people like you can find somebody somewhere to argue with without pushing any particular person too far with your own mania.

In fact, professional historians have dealt with all this already. Maybe you should address yourself to them, rather than waste people's time with massive data dumps of the same tired stuff over and over again, when people may actually have things going on in their own lives that are more important than humoring you.

You really don't think that Lincoln was simply going to give the secessionists whatever they wanted when they wanted it, starting with recognition. No, there would be a period of uncertainty, of stalemate, and eventually it would be resolved somehow.

From his actions, I don't believe Lincoln wanted to resolve anything except on his terms. Compromise did not appear to be one of his characteristics, nor would the South compromise on their understanding of the Constitution. Both sides didn't appear willing to budge from their basic positions, meaning the war was almost inevitable unless they tried to negotiate or stayed with the status quo. Lincoln would not negotiate or even talk with the Confederate commissioners informally and/or secretly, which I think he could have done without officially recognizing them. It takes two to negotiate. Wasn't peace worth talking with the other side who sent their people up to talk with you? Peace apparently wasn't in Lincoln's interest.

The South, for its part, is not without blame. They should have not pushed so hard to get the forts evacuated now, and they should have made every effort to make sure that Sumter was well supplied with food. And, yes, I know that Governor Pickens had early on offered to supply Fort Sumter with food, and Anderson turned him down and even sent back items he didn't order. Whose fault is it that Anderson ran out of food?

Lincoln saw an opportunity to initiate the war with it appearing to be Davis's fault. So Nicolay and Hay indicated in their history of Lincoln, their boss that they saw almost every day. Lincoln took that opportunity instead of negotiating or waiting patiently after sending messages to Governor Pickens that Sumter would be evacuated. He chose to do what his advisors had told him would lead to war, not peace. I have posted that it would have been a better decision for the South not to attack Sumter but to let Lincoln try to stop foreign ships heading to Charleston to collect import duties, a possible act of war or piracy, or as Wigfall termed it, collecting tribute.

Oh, wait ... I forgot that you don't have the time or inclination to look up things like what Nicolay and Hay said and prefer instead to say that professional historians have already dealt with things I post. That's a dodge. You apparently prefer to leave research to us little people or historians. You, my "elite" respondent, can't be bothered. Then why are you wasting our time and yours on a history thread and disparaging sourced information posted to the thread?

I am a retired Ph.D., and I am by nature and training a researcher. Surely you are not casting aspersions on me because I am old and enjoying myself just because you don’t have time to fully participate in a history thread. Over the last ten years or so I have gathered a large collection of old newspaper articles and history books on the war and its issues. I post things to these threads from them and from information I find on the web like Holt's and Scott's March 5, 1861 letter to Lincoln. That was something I had never seen before the other night, and it only took a few minutes to find what Scott was telling Lincoln about the truce right after the inauguration.

I'll keep posting stuff when it pleases me, even though you might not be willing or able to respond. Cheers!

I am a retired Ph.D., and I am by nature and training a researcher.

You tell me that you are a Ph.D. and you tell me to get off a history thread, and I'm the elitist? You guys have to get over the idea of thinking that everyone who disagrees with you is some kind of elitist. Relying on established authority may be faulted as weak or sheep-like, but it's not modest "little people" who think that they are going to overturn established opinion.

I have been participating in these Civil War discussions for years. Time was, I'd put in a lot of research and go running after any book that would prove a point. I don't have time for that now. I'm not really in the mood. Still, I think I have made a contribution here and continue to do so, though in a more modest way.

I don't think it's out of line to say that I'm not going to bother running down everything you make reference to, and to invite others who may be interested to look into your claims. There are people out there (maybe) for whom this is fresh and new. They'd do a better job of tracking down sources and forming a time line than I'd do even if I wanted to. The alternative would be to simply ignore what you say. Would that be better?

If I've slighted your own contributions, that has a lot to do with my own attitude and situation right now. The way you have of treating every discussion as though it were a one-on-one debate, an excuse for barraging others with all manner of arguments, whenever somebody might just want to make a small point is another reason.

Also, I don't really think anything is going to be resolved by these discussions. I'm not saying historical research is useless or a waste, but the beginning of the American Civil War is (like the beginning of WWI) one of the most researched, most debated topics ever, and trying to force a conclusion one way or the other just isn't going to work.

Finding dozens of Southern editorials on secession that say that Lincoln's inaugural meant war doesn't really prove anything, any more than finding, say German editorials from 1914 making claims about French or Russian actions (or French or Russian editorials about German actions), because they say exactly what one would expect people in a war fever, intent on conflict, would say.

Finally, I'm at a loss as to what the upshot of all this is. To prove that the current government is illegitimate? To restrict the federal government to the powers it had in 1850? To break up the country? To vindicate the Confederacy, a government that certainly wasn't any better than its adversary? To make Lincoln the great villain of American history? To feel better about being Southern than you already do? I'm not saying it's all a waste or I wouldn't participate, but there are definitely reasons why this becomes trying and wearying at times.

[You in post 161]: Maybe you should address yourself to them, rather than waste people's time with massive data dumps of the same tired stuff over and over again, when people may actually have things going on in their own lives that are more important than humoring you.

You called my posts massive data dumps that you didn't have time to reply to and that professional historians had addressed their points. According to you, my data-filled posts that you didn't want to respond to were wasting people's time. That is why I posted back that if you were going to complain about posts filled with historical data on a history thread, "Then why are you wasting our time and yours on a history thread and disparaging sourced information posted to the thread?" I didn't tell you to stay off the thread. Isn't history the point of these threads?

The alternative would be to simply ignore what you say. Would that be better?

I post historical information that you can respond to or not. Your choice.

... trying to force a conclusion one way or the other just isn't going to work.

Where am I trying to force a conclusion? I provide historical information that supports my opinion. If you want to provide some historical information that indicates my sources are wrong, please do. I'd appreciate it. If you're too busy or don't have an inclination to research the issue, so be it. Again, it's your choice to respond or not.

Finding dozens of Southern editorials on secession that say that Lincoln's inaugural meant war doesn't really prove anything ...

The only time I posted "dozens of Southern editorials" was in my own thread in 2004, though I've provided a link to that thread maybe four times over the years to posters who probably had not seen it. And besides, I posted both Southern and Northern editorials. I even provided a link to the text of Lincoln's speech. Strictly speaking, the subject wasn't secession. It was the editorials' opinions of Lincoln's first inaugural and what it meant. The editorials showed how very far apart the two sides of the country were. I'd not seen such a collection of editorials anywhere before.

You (at least, I think it was you) suggested a New York Times book to me based on their own articles during the war. I bought that book and later their disk containing the articles they published about the war and related issues during the war. For that, I thank you. I'm open to useful suggestions like that. It is another history source for me. The main problem with their articles on disk is that the text they provided was apparently prepared by optical character recognition, and some of the results had a number of errors when I compared to the actual articles themselves.

Finally, I'm at a loss as to what the upshot of all this is.

To prove that the current government is illegitimate? [rb: No]

To restrict the federal government to the powers it had in 1850? [rb: No]

To break up the country? [rb: No]

To vindicate the Confederacy, a government that certainly wasn't any better than its adversary? [rb: The Confederacy wasn't a perfect government at all, but I think the Confederacy's view of the Constitution was certainly more accurate than Lincoln's. The history I was taught oh so many years ago oversimplified history, IMO. I wanted to research what actually happened myself and post on threads where the history of that period is discussed. I had access in local libraries to great collections of newspapers of the period. What actually went on didn't always make it into the history books.]

To make Lincoln the great villain of American history? [rb: Up until recently, he violated the Constitution more than any other president. And, I believe, and I think the data support my opinion, that Lincoln initiated war because to let the South go with its far lower tariff than the North's recently passed Morrill tariff would ruin the Northern economy. I think the South went to war to protect its own slave based economy. And for other reasons as well.]

To feel better about being Southern than you already do? [Heck, as I've posted on these threads, I argued against segregation while living in the Deep South in the 50s and 60s. I donated food to the march on Selma because I thought that blacks had a right to vote even if it was not for the party I favored. I went to hear Martin Luther King speak. I argued at work during a summer job that blacks had the same rights as whites, and I got threatened with murder by a white hick. I voted against the Democrat race-baiters and segregationists when I became old enough to vote. So, I know both the good sides and the bad sides of the South. I wouldn't trade it, warts and all, for any other part of the country, and I've been to all 50 states.]

I'm not saying it's all a waste or I wouldn't participate, but there are definitely reasons why this becomes trying and wearying at times.

If it's trying to you, don't bother posting. I would much rather have you provide some information, whether it supports my argument or not. Mostly though, you seem to post opinions, not data.

The same kind of violations of civil liberties that people ascribe to Lincoln also happened in the Confederacy.

I don't think that, in general, violations of civil liberties were as numerous in the South. Lincoln suspended habeas corpus without Congressional approval, Davis had the approval of his congress before each time period in which he suspended habeas corpus.

By the way, I've been reading a fascinating book about the time of the document that first formalized, at least in English law, the concept of habeas corpus against abuses by the king, "1215, The Year of the Magna Carta" by Danny Danzinger and John Gillingham. It is filled with interesting details about life in that time period. I recommend it.

The suppression and destruction of newspapers and arrests of editors, writers, and publishers happened far more often in the North. I've found mention of more than 100 cases in the North in old newspapers, books, and online. Those were caused by mobs, by soldiers, and by orders from Lincoln and his administration. The total would have been higher if I knew how to count the blockage into a state of all Democrat papers a month or two before an election. In contrast, I've only found about six cases in the South, most by mob action and none by the central government. Two of those Southern suppressions actually happened by mob actions before the war. IIRC Davis and/or Lee did complain about press treatment of some subject, and both sides objected to publication of military situations, troop movement, etc., that would give the other side an advantage to know.

One reason I reacted as I did is that we already discussed the topics you mentioned back in April. See my responses here and here.

Thanks for refreshing my memory. We didn't agree then, and we don't agree now. That's fine. I will try to check on previous posts I've made to you before posting to some information to you again. If you bring something up on the thread to me or someone else that I disagree with and you and I have discussed it before, maybe I'll just post links back to our previous discussions.

I didn't relish having these things thrown at me as though they were new and important information that I absolutely had to look up all over again, regardless of what was going on in my own life at the time.

Thrown? I throw, and you post? How about "posted" instead. Post back that you are busy and can't respond right now or don't care to. I'll be more judicious with my reply than I was above. I've had to beg off replying a number of times myself when we had visitors staying with us from out of state, or a deadline on a scientific paper, or a trip out of town, or estate or tax matters to attend to.

x, back when you were calling my posts "junk" (April?), I mentioned wanting to repost a long data-filled post of mine that had been on a thread that was later deleted. But I mentioned back then that I deferred reposting it at that time in deference to your dislike of long data filled posts. But I want to repost it so that I can link back to it when I get into a discussion with someone about what Lincoln did that can be interpreted as trying to initiate war. No need for you to reply to it.

Here is the old post with slight formatting changes and more descriptive link names in a few cases:

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Consider the definition of "act of war" [Source: USLeagle.com, my bold below]:

"An act of war is an action by one country against another with an intention to provoke a war or an action that occurs during a declared war or armed conflict between military forces of any origin."

Without war Lincoln did not have the power under the Constitution to coerce states back into the Union or prevent additional secessions. He would not have sufficient revenue to run the government. If he could provoke the South to attack first, he could manipulate the country into war and bypass constitutional restrictions on his powers. Here are some of the actions he took to at Fort Pickens provoke war:

Violate Fort Pickens truce to provoke the South to attack

Truce Details. A Southern proposal was laid before President Buchanan that Fort Pickens would not be attacked if the fort was not reinforced by the North. The proposal was agreed to and signed by the US Secretaries of War and the Navy. This truce kept the peace and the status quo in Pensacola Harbor and prevented war. Here are the terms of the truce in January 29 instructions to Union commanders from the two Secretaries and the Secretary of War’s separate orders to the Army commander in Fort Pickens: [Official Records, Series 1, Volume 1, Part 1, pages 355-356].

March 5, Lincoln's first effort to violate the truce. The day after his inauguration Lincoln gave verbal orders to General Winfield Scott to "maintain" all forts with special directions concerning Fort Pickens. [Source 1 and Source 2]

March 5, Scott tells/reminds Lincoln of the truce. [Source] The truce had been mentioned in the press. New York Times, February 6, 1861: "Reported Truce at Pensacola", February 22, 1861: "The Truce at Fort Pickens," but the articles I've found didn't mention how high up in the US government the officials were who were involved in the negotiations.

Lincoln's second effort to violate the truce, March 11.

Lincoln’s written order to reinforce Fort Pickens. Finding that nothing had been done on his March 5 verbal orders, Lincoln gave a written order to General Scott that he should reinforce Fort Pickens. [Source] Source 2 above said that on March 11, Lincoln "once more gave special directions in regard to Pickens."

Scott issues an order to reinforce Pickens, March 12.. In response to Lincoln's order of the previous day, Scott sent secret written orders to reinforce Fort Pickens to his army commander on the Brooklyn, Captain Vogdes.

Scott's Order received by Vogdes, March 31. Vogdes received Scott's order to reinforce Fort Pickens on March 31. Vogdes then asked the senior naval officer in the harbor, Captain Adams, for boats to land his troops. Adams refuses to obey the order from Scott as he had written orders from the former Secretary of the Navy not to land troops at the fort unless the fort was attacked and besides, the order was old and it came from Scott and not from the Navy.

By the way, Vogdes called the truce an "armistice."

April 1. "not only a declaration but an act of war". On April 1, Adams writes Welles, the new Secretary of the Navy, saying he did not provide boats to reinforce Pickens and adding [Source: "Lincoln Takes Command" by Tilley, page 50 or Official Records of the Navies, Series 1, Vol. 4, pages 109-110]

it [reinforcing Fort Pickens] would be considered not only a declaration but an act of war. … While I can not take on myself under such insufficient authority as General Scott's order the fearful responsibility of an act which seems to render civil war inevitable, I am ready at all times to carry out whatever orders I may receive from the honorable Secretary of the Navy.

Lincoln's third effort to violate the truce, March 29

Lincoln's plan to hold Fort Pickens, March 29. Lincoln had not heard whether Fort Pickens had been reinforced as a result of Scott’s March 12 order, but he must have assumed that the fort had been or would be shortly. On March 29, Lincoln asked Army Captain Montgomery Meigs whether Fort Pickens could be held. Meigs thought it could unless the Navy had already lost it. At the same meeting, Seward asked Meigs to develop a plan for holding Pickens. [Source]

Scott issues orders to reinforce and hold Pickens, April 1. Lincoln approved the orders. Meigs was to go as the expedition's engineer. [Official Records, Series 1, Volume 1, Part 1, pages 365-366]

"This is the beginning of the war", April 6. As the Fort Pickens expedition authorized by Scott and Lincoln on April 1 is departing New York on April 6, Meigs, on board the expedition ship Atlantic, sends a note to Seward that says, "This is the beginning of the war". [Official Records, Series 1, Volume 1, Part 1, page 368]

Adams' notice of his refusal to offload troops at Pickens arrives in Washington on April 6. Adams communicated that he had not carried out Scott's order to reinforce Pickens as the order was in conflict with his earlier orders from the Navy.

Welles responds by ordering Adams to help reinforce Pickens, April 6. [Official Records of the Navies, Series 1, Vol. 4, pages 110-111]

Welles order gets to Adams. There are different versions of when troops reinforced Fort Pickens. Here's one that says in the evening of April 12th [Reign of Iron]. Here is another that says some troops were offloaded on shore after 9 pm on April 11. [Truth of the war conspiracy]

Worden did reach the Federal ship the Wyandotte on the 11th. Seas were too rough on April 11 to take Worden over the bar to Captain Adams' ship, the Sabine. Worden's report to the Acting Secretary of the Navy was that he was conveyed to Adams on April 12 and delivered the message then. However, signals could have been sent from the Wyandotte to Adams authorizing the offloading of some troops on the 11th (which would have been before the firing on Fort Sumter). Federal troops had earlier been offloaded onto Santa Rosa Island to relieve fort soldiers on picket duty [from memory].

Confirming information of April 11 reinforcement from a ship’s log.. [Official Records of the Navies, Series 1, Vol. 4, Log of the Ship Supply]:

April 11 -- At 9 p. m. the Brooklyn got underway and stood in towards the harbor, and during the night landed the troops and marines on board, to reenforce Fort Pickens.

The date could be a typo, of course. Also, about March 31, the Brooklyn's troops were sent to Captain Adams' ship, the Sabine. The Brooklyn and the Wyandotte were the ships that delivered troops to Fort Pickens. On April 10, the fort sent a request for immediate reinforcement to Adams because of a possible impending attack. Adams replied that he wanted to see more details to justify the reinforcement.

FWIW, Vogdes was listed as in charge of Fort Pickens from April 1l to April 16. [1904 Bio of Vodges and West Point Class History]

1,211posted (originally) on Sunday, November 13, 2011 12:15:54 AMby rustbucket

If I didn't have time to thoroughly check out your last, post, I certainly don't have time for this either, but I can't help noticing that you have Lincoln attempting to start a war the day after his inauguration. So -- what? -- he gave his speech, went to a party, went to bed, and got up the next morning already conspiring to start a war?

No time to figure out how things were on the ground or how the White House actually worked? No time to figure out what forces were available and muster them for the coming war? Not much time think out a strategy for the war or reflect on how it might go?

Maybe Abe was working it all out in the ten days he'd been in Washington, or further back on the train or in Springfield, but the idea that Lincoln was that single-minded and didn't consider other alternatives is at least a little silly.

Your definition of an "act of war" implies that the Confederacy was a country, something that many Americans didn't believe, and that any action that "provokes" any armed force is an "act of war." Surely, police going after criminals or troops breaking up a riot or rebellion isn't an "act of war." And most surely, bringing sandwiches to policemen or soldiers involved in a stand-off situation isn't by any means an "act of war." That leaves the tricky question of "intention" which isn't by any means clear in this case.

In reference to Captain Adams, I point out the inter-service rivalry aspect. He was not inclined to obey orders that didn't come from his direct superiors in the Navy Department. Perhaps he was also involved in personal relationships with Florida authorities who were on the other side and his view of things reflected that and differed from Washington's view.

In any case, so far as I know, whatever Union forces did at Fort Pickens did not provoke war, so either aggressive Abe failed in his evil plot or else shrewd Lincoln assessed the situation accurately and his moves successfully strengthened US positions without provoking war.

The question in early 1861 was whether the federal government would do anything at all to stand in the way of the secessionist tide or not, whether it would try to hold on to any legitimate federal property in the South or whether it would let it all go, whether it would make even a nominal or symbolic assertion of its authority or whether it would collapse completely. Holding on to a fort would be a way to assert the continuity of the union and national authority if the US chose to do so.

At the time many in both the South and the North would view any attempt to hold on to any federal property in the South as a violation of state or Confederate sovereignty and an act of war. Any measures to resupply or reinforce federal positions still in federal hands in the rebel states (or elsewhere) would likewise be regarded as belligerent acts. That accounts for many of the opinions you've found.

That left only the alternative of surrender and collapse so far as the United States's claims that secession was unconstitutional and the union unbroken. That also likely meant passivity in the face of future acts of secession. That was something Lincoln couldn't countenance.

Lincoln (and others in the North) wanted an assertion of continued federal authority in the face of secession movements and rebel theft and plunder. Such actions would be taken by some (even in Lincoln's own cabinet) as warlike moves, but if one wanted the union to take a stand one would have to draw the line somewhere. For Lincoln and his supporters, this was a moderate, measured step that stood in contrast to surrender on the one hand and beginning an aggressive war in support of the Constitution (as they understood it).

Since there were a limited number of installations outside of rebel hands and they all had their advantages and disadvantages it would require some complicated and awkward footwork to chose a place to make a stand and supply the troops on the ground with what they needed, even if it was only food or medicine and not weapons and ammunition. That accounts for at least some of the awkward manouevers that you consider belligerent.

If you believed the choice was between three alternatives, you might support Lincoln. If you believed there were only two alternatives -- complete passivity and withdrawal from all federal property in the rebel states or provoking a war, you would most likely condemn his strategy.

Barring some smoking gun, some admission by Lincoln that he was trying to start a war, how could you legitimately conclude that he was trying to provoke a war, rather than simply endeavoring to take a firm stand against what he regarded as unconstitutional secession? I don't think you can. And you really can't get away from interpretation either if your means of doing so is simply excluding or ignoring the possibility that Lincoln and his supporters were pursuing the middle strategy of firmness without provocation.

Of course that strategy didn't work. Efforts to stand in the way of the rebels seizing all federal property in the Deep South would be regarded by the state and Confederate governments as belligerent. In that sense, Lincoln was wrong. Still, that doesn't prove that trying to hold on to forts was intended to provoke a war.

The possibility of war was something that had to be on Lincoln's mind. And we know that he wanted to avoid firing the first shot, but I don't see how you can definitively conclude that it was his intention to start a war that he had little idea of how to fight and win.

For we also know that Lincoln believed that pro-secessionist sentiment in the South was thin and weak. It's not unreasonable to conclude that he believed that holding the line would cause the rebellion to collapse. He was wrong about that too, but what you're accusing him of goes far beyond misjudgment.

Interpretations like yours whitewash Jefferson Davis's responsibility. I don't say that you personally do that, but it is implied in what you write. It's as though he had no choice: faced with the resupply mission he just had to have the fort bombarded.

But really, this idea of Davis as a mechanical, knee-jerk creature with such a paucity of imagination and lack of resourcefulness makes him look quite bad -- worse than Lincoln, in fact. Attempts to make it look like Davis was "fooled" or "tricked" or "provoked" into war either deprive him of whatever free will and political savvy he had or admit that he actually was lacking in the categories that make for a competent national leader.

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