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| The Civil War was an undeclared war. Under the Constitution, when the nation or the nation’s interests are threatened, Congress can use its powers to declare war against another independent nation (Read Article I, section 8). But what happens when hostilities break out, as they did in 1861? Since the United States did not recognize secession, then the "seceding states" were still a part of the Union, so no declaration of war could be made. What powers, then, are granted to the president and to the Congress when war is undeclared? Is it any less a war just because it is undeclared? The Constitution provides Congress in Article I and the president in Article II certain war powers, but they are not complete or specific, particularly in terms of circumstances arising from undeclared wars. How do the president and Congress determine the limits of their powers in areas where the Constitution is silent? Does the Constitution provide necessary checks against undue expansions of power on the part of either of these branches? You and your classmates are going to consider these questions in a simulation that examines the way President Abraham Lincoln responded to the undeclared Civil War. You will do this by playing the role of legal advisor to a specific group in the era of the Civil War. Keep in mind that role-playing is an effective way for you to better understand points of view different from your own. Of course, the roles are not real, but they provide a mechanism for you to understand factual information. You are to imagine that you will be called upon to appear before a congressional hearing to judge Lincoln’s actions during the Civil War. 1. Legal Advisor to President Lincoln Your role is to advise the president on the legality of actions he will or has been taking. Interpret his actions in light of his constitutional war powers, the presidential oath of office, and the preamble to the Constitution. In addition, you will find justification in Lincoln’s addresses, special messages, and annual messages to Congress. 2. Legal Advisor to Congress Your role is to advise Congress on the legality of actions taken by the president. You will need to find legal justification for your position by reading the constitutional provisions defining the powers of Congress (Article I) and those of the president (Article II). You can also take into consideration arguments the president presents in his inaugural addresses and special messages to Congress. 3. Legal Advisor or Clerk to the U.S. Supreme Court Your role is advisor or clerk to the U.S. Supreme Court. You are to judge the constitutionality of the president’s actions, keeping in mind the powers given to the president in certain sections of Article I and those given to Congress in Article II. 4. Legal Advisor to Special Interest Groups You represent either state governments, the Democrats, individuals who have been in some way affected by the actions of the president, or even members of the president’s own Republican Party who disagree with him. Your role is to be the "watchdog" of the government’s actions, especially the president’s. You question every action. Try to determine counterarguments for them, using the Constitution, his special messages and annual messages, and your own logic. In the Prize Cases, keep in mind that counterarguments are already given. Please note that there are three Situations. At each Situation you will find information about an action taken by Lincoln in response to the Civil War crisis. Read and respond to each of these situations from your role’s perspective, using the information provided. Don’t forget to make use of the primary documents included with each situation. After you have gathered all evidence, you should be prepared to take part in the congressional hearing. Hearing Set-Up and Procedure: If there are three students in each advisory group, your class will need a total of twelve advisors for the activity. Your other classmates can sit as members of the hearing board for the simulation. In setting up the hearing, take the following steps: 1. One of your classmates should agree to act as the moderator. It will also be his or her job to arrange the classroom to accommodate the simulation. 2. To lend authenticity, each legal advisor should dress appropriately for the formal hearing setting. 3. The moderator will read each scenario and call upon each advisory group to make arguments either in support of Lincoln’s actions, or against them. 4. The moderator will determine how much time your advisory group has to argue a point of view about each situation. Three minutes is probably about right. You will need to prepare carefully so you can make your points efficiently. For each argument you present you should make reference to at least one of the primary sources provided at this site. 5. The hearing board will write down at least two compelling arguments presented by each set of legal advisors. Its members should also take note when you use any of the primary documents as support for an argument, since they give credibility to your testimony. 6. At the end
of the presentations, ask the hearing board to evaluate the
arguments presented. Finally, in a wrap-up discussion, assess
Lincoln’s actions. The final question is this: Lincoln
is almost always listed among the five best presidents of the
United States. After your study of his actions, do you think
he deserves this rank? To gather information for your arguments, be sure you use the Student Text and any of the primary documents listed below: Relevant Constitutional provisions Lincoln’s First Inaugural Address, March 4, 1861 Proclamation Calling Militia and Convening Congress, April 15, 1861 Proclamation of Blockade Against Southern Ports, April 19, 1861 Lincoln’s Special Session Message, July 4, 1861 Lincoln’s First Annual Message, December 3, 1861 Lincoln’s Second Annual Message, December 8, 1862 Lincoln’s Third Annual Message, December 8, 1863 Findings in the Prize Cases, 1863 Lincoln’s Emancipation Proclamation, January 1, 1863
Situation 1 When Abraham Lincoln
became president on March 4, 1861, the secession of seven southern
states had already taken place. The Confederate States of America
had been formed, and a president, Jefferson Davis, had been
elected. Attempting to force the new Confederacy into a position
of either beginning the hostilities or allowing the continued
control of the Union, Lincoln moved to "provision"
the federal garrison at Fort Sumter in the Charleston, South
Carolina harbor. On April 12, 1861, Fort Sumter was fired upon
by the Confederates, and the fort surrendered April 13. Hostilities
had begun. On April 15, President Lincoln called for 75,000 militiamen to suppress the insurrection. On May 3, President Lincoln called for forty regiments (42,000 volunteers) to serve for three years. On May 3, President Lincoln ordered money appropriated for the army and navy, paying out $2 million from the federal treasury without specific authorization. He indebted the government $250 million in pledged credit. 2. Click on and read: President Lincoln’s First Inaugural Address, March 4, 1861 Proclamation Calling Militia and Convening Congress, April 15, 1861 Lincoln’s
Special Session Message, July 4, 1861 3. Prepare arguments for your specific advisory group. Hints for Developing Arguments: 1. Assess the validity of Lincoln’s explanations and justifications given in the First Inaugural Address and the Special Session Message to Congress, July 4, 1861. 2. Look for the "spirit" in which President Lincoln acted in this situation. 3. Though Lincoln called a Special Session of Congress, he did not ask that it be present until July 4, 1861. Assess whether you think he could have called Congress into session sooner to pass necessary legislation. 4. Did any of the presidential actions seem more necessary than others? Was the situation dire enough to warrant all of these actions? 5. Did Lincoln’s actions conflict in any way with congressional powers? 6. Did Lincoln obey his oath of office and stay within the meaning of his role as commander in chief as defined by the Constitution? 7. What happens when the Constitution is silent regarding which branch has a certain power? Did Lincoln presume too much? 8. If this wasn’t a declared war, how could President Lincoln use his war powers? 9. Was Lincoln establishing a dangerous precedent?
Situation 2 On April 27, 1861, President Lincoln suspended the privilege of habeas corpus along the route between Philadelphia and Washington, D.C., as a means of controlling pro-seccessionist violence against U.S. troops being sent to protect the capital city. This suspension meant that military authorities could arrest those persons thought to be aiding the Confederacy or attempting to overthrow the government. Those arrested could be detained indefinitely without indictment, and the arresting officer did not have to release them even if a judge presented a writ of habeas corpus. Normally, when a writ of habeas corpus is presented, the police authority that has custody of the prisoner is required to bring him or her before the court or a judge to determine whether there has been an unlawful detention. Repeatedly, Lincoln suspended the writ of habeas corpus in areas where secession seemed a possibility. Furthermore, martial law was established in many areas, and in September 1861, Lincoln suspended the writ throughout the country. In the first nine months of the war, 864 persons were imprisoned and held without trial. After February 1862, such arrests came under the control of the secretary of war, and many more people were arrested without benefit of trial.3 Question: Can
the president suspend the privilege of the writ of habeas corpus? Procedure: 1. Read: Student Text Relevant Constitutional Provisions Lincoln’s First Inaugural Address, March 4, 1861 Lincoln’s Special Session Message, July 4, 1861 Lincoln’s First Annual Message, December 3, 1861 2. Prepare arguments for your specific advisory group. Hints for Developing Arguments: 1. Consider
the intent and "spirit" of Lincoln’s actions. 3. Look carefully
at Article I, Section 9 of the Constitution, which deals with
powers forbidden to Congress. What can be inferred from this
list as to the president’s power to suspend the writ of
habeas corpus? Situation 3 On April 15, 1861, President Lincoln proclaimed a blockade of Confederate ports. A blockade is the use of ships and force to close hostile ports to prevent any maritime commerce. Five days after the attack on Fort Sumter, President Jefferson Davis authorized privateers to prey on the Union’s commercial ships. A privateer is an armed ship that is privately owned and manned but commissioned by a government to fight and harass enemy ships. Many foreign ships engaged with commerce were in southern ports as well Union ports. It was inevitable that clashes would come, and mistakes made, in blockading the southern ports and in the taking of prize. Prize is cargo or booty seized from enemy ships. As a rule, a blockade is an instrument of war between two belligerent powers or nations. Supposedly, if Lincoln believed the Confederacy did not exist, he would simply close all southern ports so they could not be supplied by the other nations. Lincoln was convinced that an order closing the ports would be repeatedly tested by foreign vessels and that conflict with the European naval powers would result, so he ordered the blockade, with enforcement by the Union Navy.4 Questions: Procedure: 1. Read: Proclamation of Blockade Against Southern Ports Lincoln’s
First Annual Message The
verdicts in the Prize Cases 2. Prepare arguments for your specific advisory group. Hints for Developing Arguments: 1. Could it be argued that a state of war existed between the Union and the "so-called" CSA from 1861 to 1865? 2. In preparing your legal advice, be sure you consider both opinions rendered in the Prize Cases. 3. What do you make of Lincoln’s statement in his First Annual Message: "In the exercise of my best discretion I have adhered to the blockade of the ports held by the insurgents, instead of putting in force by proclamation the law of Congress enacted at the last session for closing those ports." Adapted from a simulation
used at Langley High School in Fairfax County, Virginia, 1983
to 1985. |
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