Missouri Compromise of 1820 Designed to maintain a

balance between slave and free states

Established the 36degree 30’N line for future admission of slave and free states

Temporary solution

Slavery’s extension questioned

Wilmot Proviso: Popular Sovereignty: Stephen Douglas

Compromise of 1850

1) California would be free.2) New Mexico, Utah decide

themselves.3) Slave trade illegal in DC.4) Texas gave up claims to

New Mexico.5) Fugitive Slave law Passed.

Issue of Slave or Free

“Great and Primary” issue is one of political power. The North and South are battling over control of the congress and the electoral college.

Sectionalism is emotional.

Dred Scott Decision 1857 Scott v. Sanford Roger Taney is Chief Justice. Court ruled 7-2 against Scott. “Slaves are not citizens and do

not have rights.” Congress could not ban slavery.

Lincoln / Douglas Debates 1858 senate Race Freeport Doctrine: It does not

matter what the Supreme Court says slavery cannot exist in a territory if the local police do not support it.

Stephan Douglas Freeport doctrine

States decide Slavery.

Not for racial equality

The Causes of the Civil War Nationalism

States Rights v/s National Rights

Sectionalism (economics)

Slave Owner Statistics

According to the U.S. 1860 Census, one out of every four families in Virginia owned slaves. There were over 100 plantation owners who owned over 100 slaves.

Population of Virginia 1860 1,596,318 people

Number of slaves in the Lower South: 2,312,352 (47% of total population). Number of slaves in the Upper South: 1,208,758 (29% of total population). Number of slaves in the Border States: 432,586 (13% of total population).

Fewer than one-third of all Southern families owned slaves at the peak of slavery prior to the Civil War.

On a typical plantation of more than 20 slaves, the capital value of the slaves was greater than the capital value of the land and implements.

Election of 1860 Abraham Lincoln – R-

Freehomesteads, protective tariff, internal improvements, rail to pacific, preserve the union.

Stephan Douglas – D- Popular Sovereignty.

The Election of 1860 John Breckenridge – D – Pro

Slavery

John Bell – Constitutional Union Party

Save the Union at all costs and no stance on slavery.

Election of 1860 Lincoln was not on the ballot in the

southern states.

Lincoln received 40% of the vote.

CSA formed South Carolina seceded 12-20-1860.

CSA formed when Florida, Georgia, Alabama, Texas, Mississippi, Louisiana also secede from the Union.

Before April of 1861.

Jefferson Davis Elected President

of Provisional CSA govt.

Instituted a national conscription.

First Fighting of the War Fort Sumter, South Carolina April

6, 1861

Shelled for 33 hours.

Habeas Corpus

Art. I, Sec. 9 of the Constitution says, “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.”

Who is protected by habeas corpus? U.S. citizens? Persons in the U.S.? Person’s held by the U.S. government?

Art. I outlines legislative, not executive power. Therefore, is this a limitation on legislative power?

Can the executive unilaterally suspend habeas corpus?

Ex parte Merryman (1861) In April 1861 Lincoln unilaterally and secretly suspended the

writ of habeas corpus in Maryland. Among the pro-Confederates in the Maryland militia was Lieutenant John Merryman. He had recruited and trained soldiers for the Confederate army and was involved in cutting telegraph wires and burning railroad bridges. On May 25, Merryman was arrested and charged with treason.

Merryman's lawyers appealed to the United States Circuit Court for the District of Maryland. At this time, Supreme Court Justices sat as circuit judges while the Supreme Court was not in session. Merryman's complaint was heard by Chief Justice Roger Taney.

Taney promptly issued a writ of habeas corpus for Merryman and held that the President cannot suspend habeas corpus: “These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, 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, citing Andrew Jackson before him, disregarded the ruling. Lincoln also got an opinion supporting his suspension from Attorney General Bates. It formed the basis for Lincoln's July 4, 1861 speech to Congress in which he rhetorically asked "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln subsequently expanded the zone within which the writ was suspended.

Congress Responds

When Congress convened in special session on July 4, 1861, Lincoln sent them a message in which he defended his actions in suspending the writ of habeas corpus. Although he felt he had the right to expand his powers under the Constitution, he assured the members “that nothing has been done beyond the constitutional competency of Congress” and he expressed confidence that the legislature would “ratify” the extraordinary measures he had taken.

Rep. Clement Vallandigham (D-OH) carried on a prolonged and futile fight against Lincoln’s acts of “usurpation,” and introduced seven resolutions censuring the President for the suppression of freedom of speech and press, the suspension of the writ of habeas corpus and the establishment of a naval blockade, among others. But by voice vote the House quickly tabled the resolutions and they never came to a vote.

Led by Thaddeus Stevens (R-PA), the Republican-controlled Congress passed 66 bills, all but four of which related to supporting the war effort, in the one month they were in special session. For example, one of the bills authorized the secretary of the treasury, Salmon P. Chase, to borrow $250 million over the next 12 months to help finance the war.

But the Union Army initially lost a series of battles to the South. Eventually, they fought to a draw at Antietam in September 1862. Lincoln declared victory and issued a preliminary Emancipation Proclamation in which he would free all slaves as of January 1, 1863, in Confederate areas still in rebellion against the U.S.

Two days after he issued the preliminary proclamation he announced that at his discretion the writ of habeas corpus could be suspended anywhere in the United States.

Peace Democrats picked up congressional seats during the 1862 elections and increased their criticism of Lincoln. On the House floor they howled their opposition to this “imperial military despotism.” Vallandigham had failed to win reelection but continued to denounce Lincoln’s tyrannical rule in a fiery February 23, 1863 speech before he left his seat.

Thaddeus Stevens introduced a habeas corpus bill in the House, giving the President the authority, at his discretion, to suspend the writ for the duration of the war. It passed in March 1863.

No longer a member of Congress, Vallandigham gave a speech back in his home state of Ohio on May 1, 1863, in which he contended that the war could have been concluded by negotiation but that the administration needlessly prolonged the bloodshed in order to liberate blacks and enslave whites. Accused of advocating resistance to the Lincoln administration and expressing sympathy for the enemy, he was arrested, denied the privilege of habeas corpus, tried by a military commission and found guilty of disloyal opinions. He was sentenced to prison for the duration of the war. But Lincoln commuted his sentence and ordered Vallandigham escorted to the Confederacy.Clement Vallandigham

Robert E Lee Offered Command

of All Union Armies by Lincoln.

Declined to accept.

Commanded CSA troops during the War.

Northern Strategy Naval Blockade of the South Gain control of the Miss. River. Capture Chattanooga, TN Capture Richmond, Virginia

The Prize Cases (1863) Lincoln had not asked Congress to declare war on

the Confederate States of America as he believed this would be tantamount to recognizing the Confederacy as a nation. Instead, Lincoln instituted a naval blockade which had interesting legal ramifications because nations do not blockade their own ports; rather they close them. By ordering a blockade, Lincoln essentially declared the Confederacy to be belligerents instead of insurrectionists.

The Confederate States were mostly agrarian, and almost all of their machined and manufactured goods were imported. At the beginning of the war there was only one significant steel mill and manufactory in the South, the Tredegar Iron Works in Richmond, Virginia. Moreover, the southern economy depended on the export of cotton, tobacco and other crops.

The blockade of the South resulted in the capture of dozens of American and foreign ships, both those attempting to run the highly efficient blockade and smuggle goods and munitions to the South as well as those attempting to smuggle exports from the South.

The commercial ship owners brought suit claiming that Lincoln did not have the authority to seize their ships without a formal declaration of war from Congress.

Justice Robert C. Grier Delivered the Opinion of the Court “The right of prize and capture has its origin in the

‘just belli,’ [laws of war—international law governing war] and is governed and adjudged under the law of nations [international law in general]. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, territory.”

Writing for a 5-4 majority, Grier said that the parties do not have to be sovereign nations, one belligerent can claim sovereign right against the other. A civil war is never publicly proclaimed, it just evolves.

“The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”

“Therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard.”

Though a bare majority, the decision expanded the power of the president to act in military conflicts without congressional approval. It also made clear that war could exist without a formal declaration.

Southern Strategy Fight a defensive War.

This strategy is often used by the side that is overmatched, and is often successful.

Heavy price for victory though.

Northern Advantages Large Population. Industrialized. Stronger economy/more varied

econ. More resources. Agriculture suited for human

consumption.

Southern Advantages More motivated. Defensive Strategy Military Leadership Military Tradition Horsemanship Robert E Lee

Battle of Bull Run (1st) Southern Victory

Ruined the hope for a short war.

No one thought the South would win any battles.

Battle of Antietam Battle was a draw. First time the North did not lose. Stopped the Confederate invasion

of the North. Encouraged Lincoln to free the

slaves. North could not find a good leader.

Union Army: Lacks Leadership McDowell McClellan Burnside Hooker Meade Grant

Joseph Hooker Commander of

the Army of the Potomac

Lost the Battle of Chancellorsville and was fired. (May 1863)

Ulysses S Grant Won several

battles in the Western Theater early in the war.

Became the last commander of the Army of the Potomac

18th President

Battle of Gettysburg Northern Victory Turning Point of the war Stop Confederate invasion of the

North July 1863

Longstreet and Lee

Battle of Vicksburg Northern Victory Gave the Union control of the

Mississippi River. US Grant becomes nationally

famous and will be promoted to command of the Army of the Potomac.

Grant and Sherman

Sherman’s March to the Sea Northern Victory William Tecumseh Sherman

commanding Total war practice by Sherman Broke the will and ability of the

South to fight. Hard feelings created.

Ex Parte Milligan (1866) Milligan was an attorney living in southern Indiana. He was a confederate sympathizer (a Copperhead) and made speeches and organized against the war. He was arrested by the military, found guilty by a military tribunal, and was sentenced to be hanged.

Meanwhile, the war ended but President Andrew Johnson sustained the sentence. Milligan filed for a writ of habeas corpus in federal court claiming that he should not have been tried by the military and that the President did not have the authority to suspend habeas corpus. Lambdin P. Milligan

Justice David Davis Delivered the Opinion of the Court

Writing for a unanimous Court, Davis held that the writ of habeas corpus had not been suspended by Congress and therefore Milligan must be set free or tried in a civilian court.

Davis explained that the “law and usages of war can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. Indiana was under federal authority ad no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise connected with military service. He should have been presented to the grand jury of the circuit court.”

“It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.”

Conclusion The Civil War brought about the first

occasion for the Supreme Court to weigh in war powers claims.

Overall, the rulings were mixed. On the one hand the President’s authority was strengthened by The Prize Cases (1863). On the other hand the habeas cases suggested that the President’s authority had limits—particularly when U.S. citizens were involved.

Election of 1864 Took Place only in the North.

Abraham Lincoln – R – National Union Party (55% of the vote)

George McClellan-D- Supported by the Copperheads.

Appomattox Court House April 9, 1865

Ulysses Grant and Robert E Lee meet.

Lee Surrenders his army

Reconstruction Major questions:

Who was in Charge of Reconstruction?

Had the Southern State really left the Union?

What was to be done with the newly freed 4 million slaves?

Lincoln’s Plan

High ranking officials would not be pardoned.

All other CSA supporters would be pardoned.

An end to slavery accepted. 10% of pre war voters must take

oath of loyalty.

Radical Republican Plan Insisted on Black Suffrage.

New state govt. set up with non-CSA supporters.

Wade-Davis Bill Majority of White males must take

oath of loyalty. Blacks to receive “Equality before

the law.” Passed by congress. Killed via pocket veto.

Lincoln shot while at a play John Wilkes Booth

An actor

Shot Lincoln and then leaped from the box to the stage.

Lincoln shot in Ford’s theater.

Carried across the street where he died.

Andrew Johnson VP

Andrew Johnson Democrat Tennessee Radical

republicans hate him.

Continues with Lincoln’s Plan for Reconstruction.

Impeachment Radical republicans passed the

Tenure Office Act to limit Andrew Johnson’s ability to interfere with their reconstruction efforts.

President had to have senate approval to remove cabinet members.

Impeachment Johnson believe the law

unconstitutional so he fired Edwin Stanton Sec. Of War.

House of Reps. Voted to impeach.

First President to be impeached.

Reconstruction Amendments 13th : 1865 :

Abolished Slavery

Why was this amendment necessary?

14th : 1868

All native born person’s are citizens.

Equal protection under the law. Former CSA officers cannot hold

state or national office.

IncorporationApplying the Bill of Rights to the States

Bill of Rights InstitutePrairie State College---Matteson Area CenterMatteson, IL

March 19, 2009

Artemus WardDepartment of Political ScienceNorthern Illinois Universityhttp://polisci.niu.edu/polisci/faculty/ward

What is the Bill of Rights? The first 10

Amendments to the U.S. Constitution.

Passed by the first Congress in 1791.

The Bill of Rights was added to the Constitution because of the fear that the federal government might become too powerful and encroach on individual rights.

What is Incorporation? Consider the 1st Amendment: "Congress

shall make no law . . . abridging the freedom of speech.” What does this mean?

Can state legislatures pass laws curtailing their citizens' free speech?

Incorporation: The process by which certain provisions of the Bill of Rights have been made applicable to the states.

Selective Incorporation: As America entered the 20th century, the Supreme Court slowly began to inform state governments that they too must abide by most guarantees contained in the first 8 amendments to the federal Constitution.

Constitutional Convention

Before the Framers adjourned the convention, "It was moved and seconded to appoint a Committee to prepare a Bill of Rights." The motion, however, was defeated.

The 14th Amendment (1868) “No state shall: make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws.”

Privileges or Immunities Clause →

Due Process Clause →

Equal Protection Clause →

The Slaughterhouse Cases (1873) Does the Privileges or

Immunities Clause of the 14th Amendment “incorporate” or make applicable the Bill of Rights to the states?

“We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”

Miller’s opinion had the effect rendering the Privileges or Immunities Clause virtually useless, a condition that has changed little since then. Today, the Clause remains a virtual non-starter in the law.

Justice Samuel Freeman Miller

Palko v. Connecticut (1937) The Due Process Clause of

the 14th Amendment incorporates those rights which are “implicit in the concept of ordered liberty” and which constitute “the very essence of a scheme or ordered liberty.”

“If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed.” Justice Benjamin Cardozo

Today . . . Today, essentially all of the important provisions of the Bill

of Rights have been incorporated. 1st Amendment: Fully incorporated. 2nd Amendment: Supreme Court rejected

incorporation in 1876 and avoided the issue in D.C. v. Heller (2008). Fully incorporated in MacDonald v. Chicago 2010.

3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.

4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause

guaranteeing criminal prosecution only on a grand jury indictment.

6th Amendment: Fully incorporated. 7th Amendment: Not incorporated. 8th Amendment: Incorporated with respect to the

protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.

Reconstruction Amendments 15th: 1870

Prohibits the limiting of voting rights because of race.

Ku Klux Klan Formed The KKK was formed with the main

goal of keeping blacks from voting.

Terrorism and intimidation were the means to this end.

Lynchings