Strengthening Constitutional Self-Government

No Left Turns

A Visit to Antietam and Reflections on Civil Liberties During the Civil War

This past weekend, I took my two sons, ages 15 and 11, to Antietam, my favorite Civil War battlefield. There are not nearly as many visitors to this site as to Gettysburg, which is too bad. On the other hand, it makes for a nice, quiet visit.

The battlefield is also very compact, especially compared to Gettysburg, perhaps only about one fourth the size of the better-known site little more than an hour north in Pennsylvania. It is amazing to think that so many Americans perished on this small field in a single day—nearly 6000 dead and another 19,000 wounded or missing. September 17, 1862 remains the bloodiest day in American history.

My oldest son is taking a class in digital photography and I was amazed by his eye for framing shots. Of course, there are many possibilities on that hallowed ground. He came away with quite a sophisticated photographic record of the place.

I always get a strange sense when I stand on “Bloody Lane.” I can almost feel the presence of the hundreds of souls who perished when, after repulsing Union attacks for nearly four hours, the Confederate defenders were flanked by their attackers who raked them with enfilading fire. One of Matthew Brady’s photos shows the result: a sunken road piled high with Confederate dead. Standing on this site is quite eerie.

I wrote a couple of pieces about Antietam for the Ashbrook site. They are available here and here. Of course they deal more with the overall campaign than with the battle per se, but anyone who is interested can start here.

Before I left for DC and Maryland, I sent in another piece in my Civil War series, this one concerning civil liberties. It is here. I contend that the steps Lincoln took as commander in chief during the emergency were in fact constitutional. I believe the Bush administration ought to plagiarize Lincoln’s letter to Erastus Corning and the Democrats wherein he defended his actions. I also argue that, despite the Lost Cause narrative, the record of the Confederacy with regard to civil liberties was no better than that of the Union.

Discussions - 32 Comments

Lincoln says that the Constitution is silent regarding who has the power to suspend habeus corpus. But since that power is contained in Article I, Section 9, and since all powers in Article I pertain solely to the legislature, it should be clear to anyone who has ever taken a history course that that power belongs to Congress, not to the president. Is he dissimulating or is he just ignorant?

"Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion."

Is it possible that Lincoln's actions were constitutional, and that at least some of Bush's actions are not? At the same time, I agree that we would be better off if this president could more thoughtfully articulate his positions, however questionable they may be. We'd have a political and constitutional debate. Instead we get creative lawyers and definitions, answered by lawyers and definitions, answered by more lawyers and more definitions.

And then there is the case of Ohio Congressman Clement Vallandigham. The Lincoln administration had him thrown in jail without even accusing him of a crime. When they saw how untenable it was to keep a Congressman in jail for expressing a political opinion they deported him to the Confederacy!

Dr. Owens explains that affair thusly: "The Albany Democrats criticized the arrest and trial by military tribunal of the antiwar Ohio Democratic congressman, Clement Vallandigham, merely for his words. But Lincoln replied that Vallandigham was encouraging desertion from the army, upon which the nation was depending to save the Union. He noted that the Albany Democrats support the suppression of the rebellion by force. But this depends on an army, and one of the biggest problems armies face is desertion, an act so serious that it is punished by death. 'Must I shoot a simple-minded soldier by who deserts, while I must not touch a hair of a wily agitator who induces him to desert.'"

If one accepts this reasoning it would be o.k. to imprison or deport anyone who criticizes the current war in Iraq. That would probably be about half the country, which is why no one takes this argument seriously. But still, that is the argument.

"If one accepts this reasoning" you would not come to the conclusion we have to deport half the country: we currently have an all volunteer military and the penalty for dessertion is no longer death. Two fundamental differences. Everyone serving overseas is their by choice.

">">"> This essay by Harvey Mansfield has been posted before, but it is relevant to this general discussion. One of its boldest claims is that civil liberties are not natural rights and that therefore they sometimes rightly must yield to "necessity."

Death is still on the table:

UCMJ: Punitive Articles

See Article 85.

Congress was out of session, and since the right to suspend habeas corpus is indeed an enumerated power in the Constitution for the federal government, he quite reasonably used it in a time of war. He also submitted his actions to the will of Congress to ratify or stop. An act of prudential statesmanship I would say. As he says in his 4th of July speech, it would hardly do to allow the edifice of the entire government to collapse because of a technical reading of the document. Others who have more time can feel free to pull the quote down off this website.

Article II, Section 3 of the Constitution states that the president may "on extraordinary occasions, convene both Houses, or either of them...."

If Lincoln wanted the suspension of habeas corpus that would have been the constitutional way to get it. The Confederates attacked Fort Sumpter on April 12th but Lincoln told Congress they did not have to meet until July 4th. Even then, as the constitutional historian Herman Belz points out, Lincoln continued on his own authority. “For almost two years after the outbreak of hostilities Lincoln continued to suspend the habeas corpus privilege on his own authority.” _The American Constitution: Its Origins and Development_ p. 297.

George Walker Bush hasn't the wit, the intellect, the moral confidence, and lastly, he hasn't the sheer manhood to emulate Lincoln.

Bush prefers to occasionally talk tough in press conferences and interviews, about leaks being pursued. But in reality, as usual with him, it's all talk. And he never had any intention of making good.

Note, it wasn't the just the Lincoln admin, you also have the various federal courts, including the Supreme Court, that were also involved the case of Ohio Congressman Clement Vallandigham.

One other note ...

It wasn't President Lincoln's admin explicity. It was Lincoln's admin via a military commander who issed a general order, which the congressman fell afoul of.

President Lincoln actually commuted the congressman's sentence to live in exile in the Confederacy.

"If one accepts this reasoning it would be o.k. to imprison or deport anyone who criticizes the current war in Iraq. That would probably be about half the country, which is why no one takes this argument seriously. But still, that is the argument."

Brutus, early in the War many made a very similar case. That criticism of a War effort during a time of War is in and of itself treason and/or sedition. I am sure some would make the same argument now, but with perhaps less confidence. Horowitz and Ben Shapiro come to mind as well as half the blood lusters at Free Republic.

"it would hardly do to allow the edifice of the entire government to collapse because of a technical reading of the document."

Tony, the entire edifice wasn't in danger of coming down. A part simply wanted to break away.

Dr. Owens, as you walked where all those people died, it didn’t give you some pause that it all could have been easily avoided? How many deaths are you willing to tolerate in the name of preserving the Hobbesian nation state?

Just in case anyone thinks I am exaggerating, check out this little gem.

People should generally not speak ill of their country when outside the country or in front of foreigners. That is a matter of propriety. The same way you should not speak ill of your family in front of strangers. But propriety is not what little Ben is worried about.

If one accepts this reasoning it would be o.k. to imprison or deport anyone who criticizes the current war in Iraq.

No, that does not follow. It would be ok to imprison or deport anyone who urges our soldiers to desert, using that reasoning.

Yes, and under that reasoning "criticism of the war" = "urging soldiers to desert." Even James McPherson, no friend of the Confederacy, notes that Vallandigham's speech amounted to nothing more than "a rehash of standard antiwar themes."

And yet, much to the frustration of his detractors, Bush stubbornly refuses to imprison people who criticize the current war in Iraq.

And yet, much to the frustration of his detractors, Bush stubbornly refuses to imprison people who criticize the current war in Iraq.

Are you being serious? Or ironic in some way?

I think he's being sarcastic/ironic, Steve, unless you're aware of someone who is in jail/prison for criticizing the war. As to comment 6: when was the last time someone was put to death for dessertion? "The Dirty Dozen", perhaps?

In comment number 12, Red Phillips asks, re my trip to Antietam:

Dr. Owens, as you walked where all those people died, it didn’t give you some pause that it all could have been easily avoided? How many deaths are you willing to tolerate in the name of preserving the Hobbesian nation state?

First, what is the “Hobbesian nation state?” I have read most of Hobbes, so I am familiar with Leviathan. I also understand Hobbes' "state of nature," which he describes as a war of all against all in which the life of man is “solitary, poor, nasty, brutish, and short” (sounds like a law firm). If you mean Leviathan, just say so.

Neither the Founders nor Lincoln wished to establish Leviathan. They did believe, in Hamilton’s words, that a strong union was the “surest guardian of our liberties.” Harvey Mansfield’s essay, linked to in comment 5, reinforces my argument.

The assumption underpinning your argument--that the war could have been easily avoided because separation would have been peaceful--is, I believe, simply wrong. To begin with, the dissolution of the Union would have created something the authors of The Federalist greatly feared: the emergence of small, weak confederacies, "a prey to discord, jealous, and mutual injuries, formidable only to each other."

Publius feared that such confederacies, lying in close geographical proximity to each other, would fall to squabbling among themselves, leading to a militarization of the American continent along the lines of Europe, with shifting alignments and alliances, standing armies, and never-ending competition for dominion. Additionally, these confederacies would have been vulnerable to penetration and subversion by European powers wishing to reestablish their influence in North America.

Great Britain most certainly would have taken advantage of the breakup of the Union to consolidate power in North America. One of the reasons for annexing Texas in 1845 was that Great Britain was attempting to use the Republic of Texas as a way of blocking US expansion to the west. There is little doubt that France would have used its base in Mexico to do the same.

In addition, given their close geographic proximity, it is likely that the Southern Confederacy and the remaining United States would have gone to war over any number of issues: anti-slavery agitation and the refusal of the US to return fugitive slaves; the refusal of the Confederacy to permit Americans in the upper Mississippi River Valley to use the port of New Orleans; the attempt to entice other states out of the Union; and competition over western territories.

For instance, despite proclaiming that the Confederacy sought "no conquest, no aggrandizement," the Confederacy envisioned an empire stretching north to the Mason-Dixon Line and the Ohio River and west to the Colorado. This empire would have contained all 15 slave states, including those that had not seceded, and two existing US territories, New Mexico and the Indian Territory south of Kansas.

In keeping with this grand vision, the Confederacy admitted Missouri and Kentucky to statehood, despite the lack of a secessionist majority in either state. The Confederate congress initiated treaties with the Indian tribes and dispatched an expedition to conquer the New Mexico Territory for the Confederacy. In January 1862, it organized a separate Arizona Territory.

There is evidence that the Confederacy envisioned an even more expansive empire. In his famous "Cornerstone" speech given at Savannah on March 21, 1861, Alexander Stephens, the newly installed vice-president of the Confederacy, claimed that "we are now the nucleus of a growing power, which, if we are true to ourselves, our own destiny, and our high mission, will become the controlling power on the continent." Stephens made it clear that he expected the Confederacy to grow by the accession of more states from the old Union (seven had by then seceded), including not only the other slave states but also "the great states of the North-West." These free states could be accommodated, he said, when "they are ready to assimilate with us in principle."

In other words separation in 1861 would not have led to peace. As the old Fram oil filter commercial would have it, “pay me now or pay me later.”

I am at least gratified that no one on this thread has trotted out the old fairy tale about “Southern constitutionalism” with regard to civil liberties. I do not believe that there was a constitutional right of secession, but the fact is that once the Confederacy was formed, its leaders took the same steps as Lincoln did to preserve their state.

If anything, the Confederacy faced a greater problem than the North when it came to dissension, nay obstruction of the war effort. Throughout most of the South, civil war raged between supporters of secession and Unionists. Both sides resorted to merciless guerrilla warfare.

In addition, much of the suppression of civil liberties in the South was effected by vigilante justice. This wasn’t limited to Missouri. Lynching and bushwhacking were prominent facts of life from Texas (the great Gainesville hanging) to Mississippi (the “Free State of Jones”) to North Carolina.

The multiple references to a Confederate "empire" ruin what would be a reasonable response. Unless you have uncovered some documents showing that Jefferson Davis was going to be crowned Emperor.

The "empire" you describe was in fact constructed, after all, but by the Union.

Point-set-match. Well done, Mac!

Thank you, Professor Owens. Your posts, and especially your comments, are always very helpful.

Dr. Owens,

What I mean by Hobbesian nation state is simple. It is a nation state formed on the model of Hobbes. It is a single, unitary, indivisible sovereign. And the sovereignty is inseparable from territory. It is the modernistic, left-wing concept that was ushered in by the French Revolution. It is opposed by the model of a Republic made up of competing sovereignties, which is the pre-modern notion although imperfectly so.

Neither the Founders nor Lincoln wished to establish Leviathan.

I am an unapologetic anti-Federalist, but I certainly agree that the Founders did not intend to create Leviathan. But it is indisputable that Lincoln intended to usher in a post French Revolution style nation state. That is what we were fighting about. As a result, we have Leviathan whether Lincoln intended it or not (a debatable proposition). Our 3 trillion plus federal budget is proof positive we have Leviathan. Do you seriously dispute this?

They did believe, in Hamilton’s words, that a strong union was the “surest guardian of our liberties.”

Hamilton believed that because he was an arch federalist. But it is certainly debatable that "they" believed that.

the emergence of small, weak confederacies

Oh, please don't throw me into that brier patch. That is exactly the desired outcome with emphasis on small and weak.

As for what would have happened had Lincoln allowed the Confederacy to secede, as he should have, we can only speculate. But you can't justly go to war over what might happen. But you need to make up your mind. Would the South have been made up of competing small and weak confederacies or would it have been a large empire vying with the North. (You Unionists and centralizers hate competition.) You suggest both.

Your whole argument is one big apologia for a powerful central state. I am sure Franco and Bismarck would agree with you. The Founders would not.

We will also never know what the majority of Missouri and Kentucky thought because Lincoln and his storm troopers wouldn't allow the will of the people to be expressed. Western Kentucky and Southern Missouri were clearly pro-Confederacy.


You live in a libertarian fantasy world. And spare me the "Lincoln and his storm troopers" nonsense. Much of the South was Unionist, but the Unionists in the South were repressed in ways that Lincoln could never dream of. In addition, the Confederacy was much more statist during the war than the Union. indeed, much of the non-Unionist opposition to the Confederacy was driven by resistance to Confederate statism.

Lincoln was a left-wing dictator.

It is funny that I live in a libertarian fantasy world since I am not one. I am a paleocon.

I totally agree that war brings out the worst in any nation regarding civil liberties and suppression of dissent. That is why it should be avoided if at all possible instead of gloried in as a means of advancing the revolution.

Ahhh ... another Pat Buchanan friend.

The Founders didn't worry about the Union splitting up and being at the mercy of the Great Powers of Europe? I guess we're reading different Founders. That was one of GW's greatest fears during the 1780s. Hamilton's too. (and, several others to boot)

This argument regarding the Civil War is stupid and absolutely worthless.

It does nothing to advance us, as a nation, forward, nor does it help us face adversity in the present or the future.

It is fine to understand our past, but those that denigrate Lincoln and the Union and make the Southern Confederacy appear as rightous, just, and 'in the American way, are not interested in understanding our past, but only interested in making up a fictional one.

Time and time again, via different ways and different people, the arguments for the Lost Cause have been shown to be false. However, that is of no matter to the 'true believer' in the nobility of the Southern Confederacy.

And this sums up all the pro-Southern Confederates well ...

"A new generation of Southerners was as forcibly impressed with the sectional trauma as if they had lived through it themselves. Symbols and paraphernalia of the Redemption were patched up and and donned by twentieth-wearers." - C. Vann Woodward, 'The Strange Career of Jim Crow', Oxford University Press, 2002, Pages 85-86.

Ultimately, and without barbs, what I mean to state is that both sides, Northern and Southern, are static, comforted in the belief that they are correct and this does nothing to help us understand our past and present or even help us prepare for our future.

We are living in a time when a Republican Attorney General can appear before Congress and declare, with a straight face, that “there is no express grant of habeas in the Constitution.” It's amazing. And little wonder that those who support this administration would turn to Lincoln as their idol.

And where is that attorney general now?

Yeah, thought so.

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