Judicial Role in Civil War

Abraham Lincoln on Antietam Battlefield , circa 1862

President Lincoln was quite aware of how much he overstepped the boundaries set for presidents by the Constitution. However, Lincoln contended that he was not able to exercise the power entrusted in him as president without a very liberal interpretation of executive privilege in the interest of putting down the Southern rebellion. After all, he insisted, the president had to preserve and protect the union. At the time, many of his own constituents were indignant at his complacency in acting swiftly to suppress the Southern rebellion. He issued an unpopular draft and suppressed many civil liberties during wartime. Nostalgic celebrations of his accomplishments often construct Lincoln as a cultural icon of stalwart leadership. To what extent was Lincoln justified in his authorization of the military to put down the rebellion, especially without the support of Congress? Was the draft justified? Was a military state justified for the ends of preserving the Union?

Teaching Resources:

Impact and Legacy of Lincoln

Part of a substantial set of online resources on presidents and civic affairs more generally, this site on Lincoln’s legacy suggests that he pushed far beyond the traditional roles played by a president. Paired with the primary sources on his extension of executive privileges during wartime, the essay raises questions on what standards—present or past—are more fair to use in judging Lincoln’s legacy.

Lincoln, Patriotism and Protest

How does Lincoln’s treatment of executive power and privilege in the Civil War compare to his treatment thereof in the Mexican –American War? What remained consistent about Lincoln’s philosophy toward the union and nationhood, and what changed? This set of lesson plans nicely sets up a later discussion on changes in executive power during the 1860s.

Was the Dred Scott Decision Judicial Activism? The Theoretical Foundations of Legal Reasoning

Was the Dred Scott decision judicial activism? This excellent lesson plan teaches students to evaluate the constitutional questions at the heart of the 1850s debates over freedom. It raises themes that this unit can continue to explore into wartime: what powers did the Constitution  directly grant to Lincoln, and which were implied as a means to an end? To what extent were sectional tensions at the heart of the Civil War differences over Constitutional interpretation?

Primary Sources:

    W.V. Barnett to Abraham Lincoln, 30 Nov 1860

Abraham Lincoln to Horace Greely, August 22, 1862

Lincoln’s message to Congress, Dec 1 1862

Harper’s Weekly, Draft Riot Report, 1863

Lincoln's suspension of habeas corpus