Lincoln and the Constitution

Did Lincoln violate the Constitution at any time during his presidency?


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dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
"Initially, Lincoln was persuaded by the advice from Davis and Treat regarding the Coles County prisoners. He wrote a release order for the prisoners on July 19, 1864. However, he suspended it later on the same day in part because of the voluminous evidence, and he requested the Judge Advocate General to prepare a report on the case. The prisoners' supporters and attorney Ficklin in Charleston gathered and forwarded to the president numerous additional testimonies, letters, and petitions for the prisoners' release from Fort Delaware. Finally, after a mercy visit from Dennis Hanks—Lincoln's cousin and a Charleston resident—the president wrote the final release order on November 4, 1864, leading to the prisoners' actual release ten days later."

Lincoln had Davis' unofficial opinion and wanted to review the case more due to the large amount of evidence he had to go through. Additionally, he wanted the JAG's report. Davis' unofficial opinion wasn't law. It was merely his advice to Lincoln.

Regards,
Cash


Should not Lincoln, wishing not to offend the Constitution, ordered release of the unindicted individuals immediately, instead of waiting for a JAG to review the volumes of evidence? The statute said citizens had to be released in twenty days of arrest if not indicted.

Davis was warning Lincoln all along that something needed to be done with the unindicted prisoners.

Or was Lincoln timing the releases to benefit his re-election at the expense of innocent and or unindicted civilians.

Sincerely,
dvrmte
 

Elennsar

Colonel
Joined
May 14, 2008
Location
California
Voluminous is tangled as well as vast. Sorting out what to make of it would merit taking time before doing anything.

That Lincoln intentionally timed their release to benefit his campaign seems highly unlikely. How would it influence the results of the election one way or another?

So with only Davis's personal opinion to go on, Lincoln - to the best of the knowledge he had available - is not violating the Constitution.

Certainly, there is no mention of the Fifth Amendment present in Davis's statement - which seems strange.
 

coltshooter1

Sergeant
Joined
Feb 20, 2005
Location
Southwest Virginia
Lincoln broke the Constitution in:
Calling up troops with out Congressional issuing a declaration of war
Funding the troops without Congressional approval
Restricting the Writ of Habeus Corpus

He had a war to fight and did not wait to gain Congressional approval on a number of things, so yes he did violate the Constitution.
 

ole

Brev. Brig. Gen'l
Retired Moderator
Joined
Feb 20, 2005
Location
Near Kankakee
Lincoln broke the Constitution in:
Calling up troops without Congressional issuing a declaration of war
Funding the troops without Congressional approval
Restricting the Writ of Habeus Corpus
All of these have been covered extensively on other threads.

1) He did not call up troops. He called up state militias which was specifically within his Constitutional power. And there was no declartion of war.
2) When Congress was seated, it approved of his actions. Lincoln was supposed to wait until a special session was seated to respond to a real threat? Shortly after Sumter surrendered, there was much talk of "flying the flag over Washington." Chicken little?
3) The Constitution allows for the president to suspend the writ in times of national emergency when Congress isn't seated.

He had a war to fight and did not wait to gain Congressional approval on a number of things, so yes he did violate the Constitution.
This does not compute. Yes, there was an emergency and he could not wait for Congressional approval, but in that not waiting, he did not violate the Constitution.

We've gone round and around what he could do and what he could not do according to the Constitution. We've come down to onr point at which he may have violated the Constitution: ex parte Milligan, and that is still up for grabs and a coin flip.

If you have another real example, we'd like to see it.
 

prroh

Captain
Honored Fallen Comrade
Joined
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Location
Maryland
Lincoln broke the Constitution in:
Calling up troops with out Congressional issuing a declaration of war


This was not a violation. In a rebellion no declaration of war is necessary. The militia act allowed for the callup.

Also Congress was not in session and approved his actions when they came back.
 

dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
Voluminous is tangled as well as vast. Sorting out what to make of it would merit taking time before doing anything.

Davis told him there were individuals that had no evidence against them. He didn't need to sort through the evidence to write the order to release the unindicted.

That Lincoln intentionally timed their release to benefit his campaign seems highly unlikely. How would it influence the results of the election one way or another?

The order of release was made November 4th but not made public until November 8th when he was re-elected. Some historians feel it may have been timed that way purposely. In hindsight I can see it wouldn't have made a difference but did Lincoln know that until the votes were in?

So with only Davis's personal opinion to go on, Lincoln - to the best of the knowledge he had available - is not violating the Constitution.

David Davis was his personal friend and Supreme Court Justice. Why would he not trust his opinion or did he just feel indifference for the Constitution.
Certainly, there is no mention of the Fifth Amendment present in Davis's statement - which seems strange.

Lincoln could probably quote most of the Constitution being a lawyer. Had Lincoln lived,how would he have felt when his old friend chastised his behaviour toward the Constitution in ex parte Milligan?
 

Elennsar

Colonel
Joined
May 14, 2008
Location
California
Davis told him there were individuals that had no evidence against them. He didn't need to sort through the evidence to write the order to release the unindicted.


Was it clear who was who?

The order of release was made November 4th but not made public until November 8th when he was re-elected. Some historians feel it may have been timed that way purposely. In hindsight I can see it wouldn't have made a difference but did Lincoln know that until the votes were in?

I don't think there's any reason to suspect it was timed just because it occured around that time. Did these things usually become public upon being written?

And why would Lincoln feel it would make a difference? This isn't somewhere where I can see any political gain at stake - and Lincoln had a keen political eye.

David Davis was his personal friend and Supreme Court Justice. Why would he not trust his opinion or did he just feel indifference for the Constitution.

Was Davis on the Court at the time? And speaking for myself, but undoubtedly others feel the same way - trusting a friend in most regards does not mean doing what they advise in all cases.

Lincoln may have felt Davis was being more cautious than necessary, or felt it merited taking time before deciding as opposed to going with Davis's judgement alone, or other things.

Lincoln could probably quote most of the Constitution being a lawyer. Had Lincoln lived,how would he have felt when his old friend chastised his behaviour toward the Constitution in ex parte Milligan?

Since Lincoln did not violate the Constitutional rights of Milligan - he did not order, arrange, request, support, or otherwise promote a military tribunal, I'm not sure, above and beyond the fact I have no way of answering that question.
 

dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
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Was it clear who was who?

Davis knew.

I don't think there's any reason to suspect it was timed just because it occured around that time. Did these things usually become public upon being written?

And why would Lincoln feel it would make a difference? This isn't somewhere where I can see any political gain at stake - and Lincoln had a keen political eye.

It's just suspect. That's all I know.

Was Davis on the Court at the time? And speaking for myself, but undoubtedly others feel the same way - trusting a friend in most regards does not mean doing what they advise in all cases.

He was appointed by Lincoln in 1862. He presided over the same judicial district that Linoln practiced law in, from 1848 to 1862. He should have trusted the mans opinion.

Lincoln may have felt Davis was being more cautious than necessary, or felt it merited taking time before deciding as opposed to going with Davis's judgement alone, or other things.

See above.


Since Lincoln did not violate the Constitutional rights of Milligan - he did not order, arrange, request, support, or otherwise promote a military tribunal, I'm not sure, above and beyond the fact I have no way of answering that question.


Lincoln with knowledge of, did allow these military trials to go on. Lincoln was known for the amount of time he spent in the telegraph office. I think he didn't want to interfere, at the time, with the military.

Sincerely,
dvrmte
 

Elennsar

Colonel
Joined
May 14, 2008
Location
California
Davis knew.

It is not, however, specified. Maybe he said that personally, maybe he wasn't sure - knew some were but not "Here. This man."

It's just suspect. That's all I know.

It being suspect is really not a sign of anything other than a healthy (?) skepticism, though.

He was appointed by Lincoln in 1862. He presided over the same judicial district that Linoln practiced law in, from 1848 to 1862. He should have trusted the mans opinion.


I generally trust OpnOlympic's opinion, but I don't always agree with it.

And yes, this is relevant because Davis is giving a personal opinion rather than speaking as a judge to someone who needs to adhere to the law.

Lincoln with knowledge of, did allow these military trials to go on. Lincoln was known for the amount of time he spent in the telegraph office. I think he didn't want to interfere, at the time, with the military.

Which could easily be trusting that Hovey had good sense, or having bigger things to deal with, or anything else as well as the possibility of deliberately letting it occur.

The facts do not point to "Lincoln violated the constitution" here.
 

ole

Brev. Brig. Gen'l
Retired Moderator
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Location
Near Kankakee
I can't pronounce dvrmte, but I'll hereby pronounce this person as "bulldog." Chew and chew. Go for it bulldog.

Ole
 

Elennsar

Colonel
Joined
May 14, 2008
Location
California
I will second that. As a good thing.

This sort of thing calls out for chewing on it until you come to something.

And CWT is the site it is because people who want to do that are welcome.

Not always agreed with, but a welcome presence.
 

dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
Thanks, Ole and Elennsar, I'll take bulldog as a compliment but this old bulldog has about wore out his teeth. I'll just gum you to death from now on.

I thought a few days ago I had ran out of info. I then found the site that had the Davis letters that had been lost for some time. They opened a can of worms.

As long as this discussion doesn't get too nit picky, I'll continue to research more information.

I have made it known that I hated the study of politics and law but have now found a sudden interest.

Sincerely,
dvrmte
 

dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
I have thought of changing my handle here. I have had inquiries as to what it means. It is a silly childhood nickname without the vowels. No, I won't tell you what it was!
When I first visited this forum I thought it was just another CW forum. It turned out to be one of the best. Noing what I know now, I would have used a more appropriate handle.
Does anyone think I should change it at this time?

Sincerely,
dvrmte
 

Elennsar

Colonel
Joined
May 14, 2008
Location
California
My request, if you don't mind, since you're digging things up: Did Davis or anyone else relevant ever tell Lincoln his actions (or inaction) is violating the Constitution?

Lincoln can't be held accountable for an interpetation of the Constitution after his time unless there was good reason to believe a Reasonable Person (informal legal term) would see it that way.

So, seeing if any did would be influential, one way or another.

I have thought of changing my handle here. I have had inquiries as to what it means. It is a silly childhood nickname without the vowels. No, I won't tell you what it was!
When I first visited this forum I thought it was just another CW forum. It turned out to be one of the best. Noing what I know now, I would have used a more appropriate handle.
Does anyone think I should change it at this time?

Sincerely,
dvrmte

I never expect to have to pronounce it, so if you like it, use it. But something easier wouldn't hurt, certainly.
 

K Hale

Colonel
Annual Winner
Joined
Aug 10, 2009
Location
Texas
I have thought of changing my handle here. I have had inquiries as to what it means. It is a silly childhood nickname without the vowels. No, I won't tell you what it was!
When I first visited this forum I thought it was just another CW forum. It turned out to be one of the best. Noing what I know now, I would have used a more appropriate handle.
Does anyone think I should change it at this time?
Dover Mite
Diver Mite
Diver Mate
Diver Mote
Dover Mate
Dover Mote
Devour Mate
Devour Mite
Devour Mote

...maybe you should change it?
 

dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
Dover Mite
Diver Mite
Diver Mate
Diver Mote
Dover Mate
Dover Mote
Devour Mate
Devour Mite
Devour Mote

...maybe you should change it?


Leave it up to you. You could have just left it alone.
You may remember a movie from the 70's starring Rudy Ray Moore called Dolemite. If not, google it and beware it's x-rated.
I may be forced to change it now.
Men are stupid, women are evil.

Sincerely,
dvrmte
 

dvrmte

Major
Joined
Sep 3, 2009
Location
South Carolina
My request, if you don't mind, since you're digging things up: Did Davis or anyone else relevant ever tell Lincoln his actions (or inaction) is violating the Constitution?

Lincoln can't be held accountable for an interpetation of the Constitution after his time unless there was good reason to believe a Reasonable Person (informal legal term) would see it that way.

So, seeing if any did would be influential, one way or another.

http://www.mrlincolnandfriends.org/inside.asp?pageID=40&subjectID=3
Davis was willing to stand up to the President when necessary. He particularly objected to the use of military courts when there were civilian alternatives and President Lincoln's 1862 suspension of habeas corpus for civilians held by Union military authorities. "Mr. Lincoln was advised as Presdt that the various military trials in the Western states, even in the southern border states, where the Courts were open and untrammeled & free, were unconstitutional & wrong - and would not be sustained by the [Supreme] Court could not be & ought not to be - that such proceedings were dangerous to liberty," Davis wrote Herndon in 1867. "I am satisfied that Lincoln was throughly opposed to these Military Commissions Especially in the free States where the Courts were open - & free.'"32

So, according to Davis, Lincoln knew his opinion.

Sincerely,
dvrmte
 

Elennsar

Colonel
Joined
May 14, 2008
Location
California
It is unclear if that was presented as part of Davis's fondness for sharing what he thought with Lincoln or if that was ruled from the bench, but assuming the source can be trusted (I don't have any reason to doubt it, but I don't know it - which says absolutely nothing, I'm just observing in case someone who has read it can come to either its defense or note its unreliability), that does, indeed, make it clear Lincoln had at least one respectable judge say there was something wrong with them.

However, it is unclear if he was condemning their use - but not Lincoln - or both.

Lincoln did not, unless my memory is sorely failing me, order military tribunals - so for Davis to declare them unconstitutional and wrong does not mean Lincoln violated the Constitution over them.

After all, while it can and probably should be said Lincoln should have done something about the subordinates who used them despite his preferences, the violation of the Constitution was done by them.

As for the issue of Coles County, sadly your link does not tell us anything (or at least I didn't see anything) indicating Davis telling Lincoln that the Constitution is being broken by his behavior.

Good link though, thank you for adding it to the list of known resources.
 

cw1865

Sergeant Major
Joined
Jun 12, 2007
Location
Riverdale, NJ (Morris County)
Lincoln's ratification of military tribunals

Lincoln's actions authorized the use of military tribunals generally. While Lincoln may or may not have had knowledge about any particular given case, there were high profile ones.

The case involving Vallandigham naturally comes to mind. Lincoln pens the Birchard letter offering to release Vallandingham while defending the administration's actions against anti-war agitators.

http://books.google.com/books?id=ap...nepage&q=lincoln's letter to birchard&f=false

Of course, at this juncture, the issue of military tribunals is still up in the air.

The Supreme Court would of course uphold Lincoln's actions in Ex Parte Vallandigham:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/68/243.html

And of course reverse course after the war in Ex Parte Milligan.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=71&invol=2
 
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