History 404: US Constitution Seminar

As part of Daniel Farber’s book, Lincoln’s Constitution, he uses the Ex Parte Vallandigham Case of 1863 to demonstrate how Civil War military authority played a role in inhibiting free speech.  This case is important to our understanding of Lincoln’s questionable Civil War era policies and the impact they had on the public.

In this case, former Ohio Congressman and Peace-Democrat, Clement Vallandigham delivered a speech in which “he had called the war …a war to fight abolitionism rather than to save the Union.” (Farber 171) However, the grounds for Vallandigham’s arrest was his reference to President Lincoln as “King Lincoln” and his call for support to “hurl ‘King Lincoln’ from his throne.” (Farber 171) Previous to this case, an order had been implement entitled General Order No. 38 by General Ambrose Burnside which stated that the “habit of declaring sympathies for the enemy will not be allowed” and that treason “expressed or implied” (Farber 170) was prohibited. Vallandigham was imprisoned but ultimately, Lincoln overturned Vallandigham’s arrest and instead confined him to Confederate territory. Following this, the case was brought before the Supreme Court via a writ of certiorari.

The judge that presided over this Supreme Court case was Chief Justice Salmon Chase. Under his ruling, Chief Justice Wayne delivered the statement that it held no power to issue a writ of habeas corpus to a military commission (Court Decision)

This case provides insight into the way Lincoln and other citizens viewed the First Amendment. However, Farber concludes that although these impedements on free speech may seem unnecessary, “Lincolns intuition that free speech should be suppressed only under imperative circumstances was correct.” (Farber 174) Farber uses World War I-era cases to prove the presence and confrontation of free-speech limitations through a more modern lens, the most prominent example being Debs v. United States. In this example, presidential candidate Eugene Debs openly criticized the U.S. government and the draft as a whole. Ultimately, the court sentenced him to ten years in prison. With this example in mind, Farber is reminding us that considering the extreme political situation at hand, Farber believes that Lincoln’s actions, although perhaps excessive, were justified.

This case is highlighted by several historians as one of the more notable cases of the Civil War era during the military trials that took place amidst the suspension of the writ of habeas corpus. One book, Lincoln and the Court, by Brian McGinty highlights many of miltiary trials that took place during the Lincoln administration that brought the First Amendment into question. However, McGinty also addresses some fundamental problems that the judicial system was having at the time concerning reorganization. This structural disarray placed more stress on the same Supreme Court judges who were dealing with the effects of a sectional war. A review in the Yale Journal of Law of McGinty’s book, entitled “Lincoln and the Court” as well, by R. Owen Williams cites that McGinty “successfully demonstrates that the Civil War was essentially a legal struggle with the Supreme Court at its core.”

Another resource that helps to shed light on this Supreme Court case and where the question of constitutionality and Lincoln’s perspective on it comes into play is in a public letter written to Ohio Democrats, namely Matthew Birchard, justifying his wartime decisions called “The Birchard Letter“. This letter is relevant in that Lincoln offered to release Vallandigham back to his home state should a majority of the letter’s recipients vow that “an army and navy are constitutional means for suppressing that rebellion” and that none will “tend to hinder the increase, or favor the decrease, or lessen the efficiency of the army or navy.” Lincoln also used this letter as a means to justify his wartime decision and claimed that “by the constitution the benefit of the writ of Habeas corpus itself may be suspended when in cases of Rebellion or Invasion the public Safety may require it.” However, Lincoln also acknowledged his dissenters and went on to say that although the Constitution does not specifically grant one single person the power to make decisions during wartime, it is implied that “the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility.” This 2,000 word letter provides a clear and detailed argument for Lincoln’s stance on the constitutionality of his decisions, and is a valuable resource in understanding the effects of the Vallandigham case.

These sources give readers of this case insight into the meaning behind the Vallandigham case and what roles the First Amendment, civil war tensions, judicial stress, and Lincoln’s interpretation of constitutionality play in this important Supreme Court decision.

Original from Frank Leslie's Magazine; Digital Copy Courtesy of House Divided Project

In Lincoln’s Constitution (Chicago, 2003), Daniel Farber identifies the Supreme Court decision in Dred Scott v. Sandford (1857) as the turning point in Lincoln’s constitutional attitudes.  “Before Dred Scott,” Farber writes, “Lincoln does not seem to have questioned the role of the courts in maintaining the constitutional order” (177).

Farber focuses on Lincoln’s decisions as a wartime president, but the most important new developments in the scholarly understanding of the Dred Scott Case have been revelations about the people actually involved in the case.  Most scholars knew, for example, that both Dred Scott and his wife Harriet Robinson Scott filed freedom suits on April 6, 1846, but it has only been in recent years, and especially because of the work of University of Iowa law professor Lea VanderVelde, that historians have developed a deeper understanding of the Scott family and the forces that helped propel them into the most notorious Supreme Court case in American history.

VanderVelde’s fascinating biography, Mrs. Dred Scott:  A Life on Slavery’s Frontier (Oxford, 2009) came out only last year, although an article upon which the book was based (also titled, “Mrs. Dred Scott’) did appear in the Yale Law Journal in January 1997 (now available through Lexis-Nexis).  There is no comparable biography of Dred Scott, but Walter Ehrlich’s book, They Have No Rights: Dred Scott’s Struggle for Freedom (Greenwood, 1979) is widely cited as the best study of the case’s origins in Missouri and the most detailed account of the plaintiff’s personal story (available in Dickinson Library).  Yet the principal source on the federal case remains Don E. Fehrenbacher’s The Dred Scott Case: Its Significance in American Law and Politics (Oxford, 1978), a landmark study which won the Pulitzer Prize, but is not currently available at the Dickinson Library (nor available in any significant way at Google Books).

Dred and Harriet Scott field for freedom in 1846 in St. Louis Circuit Court claiming that they had been held as slaves in the free territory around Fort Snelling (present-day Minnesota) by their master, an Army surgeon named John Emerson, during the late 1830s and early 1840s.  In 1846, they sued Irene Emerson, the surgeon’s widow, invoking what was known as the “once free, always free doctrine” that previous slaves had used in similar cases to win freedom.  In fact, they won their case on this basis before losing on appeal in the Missouri Supreme Court (Scott v. Emerson) in 1852.  By then, lawyers had also agreed to combine the two suits under Dred Scott’s name, since under another doctrine of the day known as coverture, wives found their legal rights subsumed under their husbands.  In other words, if Harriet Scott had won her freedom from slavery, she would still find her independence compromised as a wife.  Lawyers for Dred Scott continued the case after the 1852 state defeat (a surprising verdict that reversed years of precedents in their favor) by pursuing a new case in federal court in 1854, now suing under the diversity of citizenship clause since Irene Emerson’s brother, John F.A. Sanford, a New York resident, had been acting as their master (by supervising their hiring out).  After three years, a divided Supreme Court (7-2) finally ruled against Dred Scott, not only denying him freedom, but also in the process ruling that blacks could not hold federal citizenship, that states did not have to honor each others’ rules regarding slavery, and finally, that Missouri Compromise of 1820 had been unconstitutional because Congress could not prohibit slavery in the territories.  This complicated story (combined with a clerk’s error) explains how the story of a couple fighting for freedom in Missouri came to be known in federal courts at Dred Scott v. Sandford (1857).

Chief Justice Roger Brooke Taney (Dickinson College, Class of 1795) dominated the Supreme Court which ruled against Scott.  Most scholars still seem to regard Carl B. Swisher’s 1935 multi-volume biography of the controversial Chief as the standard account of his life, though there has also been a recent and generally well-received book-length comparison of Taney and Lincoln by James F. Simon.  There is also a new revisionist article in the Journal of American History by Timothy S. Huebner (Rhodes College) that carefully explains Taney’s complicated anti-slavery background.

Other members of the Taney court who joined the Chief Justice in the 7-2 majority ruling include John A. Campbell, John Catron, Peter V. Daniel, Robert Cooper Grier (Dickinson College, Class of 1814), Samuel Nelson, and James M. Wayne.  None of them, however, have been the subject of recent biographical work.  Nor have the two dissenters, Benjamin R. Curtis and John McLean attracted much modern attention.

There is, however, a major new study of Hamilton Gamble, who was the lone Missouri Supreme Court justice who dissented from the 1852 decision in Emerson v. Scott. See Dennis K. Boman, Lincoln’s Resolute Unionist (2006).

There are also several helpful web-based resources about Dred Scott.  One of the most comprehensive reference guides comes from Washington University in St. Louis which has posted a Revised Dred Scott Case Collection that includes a detailed chronology and more than 400 pages of original documents.  The House Divided Project at Dickinson College has also created a slideshow with the Gilder Lehrman Institute that features page images of the original Scott freedom suits.