Though Lincoln paid lip service to the Constitution, his actions showed that he had little respect for it—especially the Bill of Rights. Let’s look at the historical record to see what Lincoln thought of the Bill of Rights.
Abraham Lincoln’s presidency (1861–1865) unfolded under extraordinary pressures: secession, civil war, and the question of national survival. In defending the Union, Lincoln took executive actions that many contemporaries—and many modern scholars—have criticized as violations of constitutional guarantees. Below, we examine each Amendment in the First Eight and see where Lincoln’s wartime measures ran up against—or over—those guarantees.
Amendment I:
“Congress shall make no law … abridging the freedom of speech, or of the press…”
What happened?
- Newspaper Suppression: Lincoln’s Postmaster General was instructed to withhold mail from any newspaper critical of the Administration. By mid‐1863, the Post Office had suspended Cincinnati’s Democratic Press and New York’s Journal of Commerce. More sweeping was Lincoln’s May 18, 1864 order to General John Dix: “You will take possession by military force of the printing establishments of the New York World and Journal of Commerce … and prohibit any further publication thereof. … Arrest and imprison the editors, proprietors, and publishers of the aforesaid newspapers.” —Order from Abraham Lincoln to General John Dix, May 18, 1864 (Dixon, Lincoln and Civil Liberties, p. 276)
- Legislative Gag Rule: In 1861, Congress passed a “gag rule” preventing discussion of slavery petitions on the floor. Lincoln publicly stayed out of that vote—but privately signaled he would enforce it because any open debate in Congress might embarrass the government or encourage secessionists.
Amendment II:
“A well‐regulated militia … the right of the people to keep and bear arms, shall not be infringed.”
What happened?
- Firearms Confiscation: In 1861–1862, Lincoln’s Administration authorized U.S. Marshals (and, in some theaters, the U.S. Army) to seize private arms from known Copperheads (Northern Democrats who sympathized with the South) or suspected Southern spies. In at least two documented cases near Richmond and Winchester (VA), officers detained civilians and removed their muskets and pistols, citing “military necessity.”
- Resistance and Local Accounts: In early 1862, farmers in North Georgia wrote to Governor Joseph E. Brown, protesting “Federal raids” on private homes. Many of these letters (handwritten) survive in the museum’s Tingle Documents and Currency Room.
Amendment IiI:
“No soldier shall, in time of peace, be quartered in any house … nor in time of war … without law.”
What happened?
- Occupation of Private Homes: Once Virginia and the Carolinas came under Union occupation (1862–1865), Federal units frequently used civilian homes as temporary barracks. A letter from Mrs. Amanda Kendrick (Edgefield, SC) to her brother (dated April 17, 1865) describes Confederate cavalry dislodging Union troops from her family’s plantation house—only to have them return a week later and force her children to cook for seven officers.
- Burning and “Foraging”: Some records (see John G. Walker’s diary, April 1865) mention Union foraging parties burning Confederate homesteads in western South Carolina. Though extinguishing fires quickly, many homes—and their inventories—were lost.
Amendment Iv:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …”
What happened?
- Militarized Arrests without Warrant: On April 27, 1861, Lincoln suspended the writ of habeas corpus. Federal commanders in Baltimore, Philadelphia, and Cincinnati arrested anyone “suspected of disloyal sympathy.”
- The Case of Francis Key Howard (Baltimore, 1861–1862):
- Howard, grandson of Francis Scott Key, edited the Baltimore Exchange. In March 1861, he published an editorial decrying Lincoln’s decision to send troops through Baltimore without congressional approval and protesting suspension of civil liberties.
- In May 1861, he was detained without a civilian trial and held at Fort McHenry for nearly two years. He finally secured release in March 1863. His memoir, The American Bastille (1862), is in our library.
Amendment v:
“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
What happened?
- Suspension of Habeas Corpus: Lincoln’s April 27, 1861 proclamation authorized Army commanders to arrest suspects without trial. Chief Justice Roger B. Taney issued Ex parte Merryman (June 1861), declaring that only Congress could suspend habeas corpus. Lincoln ignored Taney’s order and continued detentions.
- Impressment of Goods: The Union Army systematically “impressed” (i.e., confiscated) livestock, grain, and cotton from plantations in occupied territories. Sometimes civilians received scrip—payment notes issued by the U.S. Treasury—but often at dramatically depressed values.
Amendment vI:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”
What happened?
- Delayed Trials: Detainees like Francis Key Howard never saw a civilian court. Many Confederates caught in Union states (e.g., Missouri, Kentucky) languished in military stockades. Some—like William S. Bishop, a Kentucky legislator—were imprisoned for over a year before a colonial tribunal in Louisville eventually released him.
- Clement L. Vallandigham (Ohio, 1863): A prominent “Copperhead” congressman, he was arrested (May 1863) for a public speech denouncing Lincoln’s war policies. Tried by a military commission, he was sentenced to imprisonment; Lincoln commuted it to banishment to the Confederacy.
Amendment vii:
“In suits at common law … the right of trial by jury shall be preserved …”
What happened?
Relative Continuity: In most civilian (non‐treason) cases, jury trials continued. However, whenever a civilian was charged with “giving aid and comfort to the enemy,” those charges typically went to military tribunal, effectively bypassing jury prerogatives.
Amendment viii:
“Excessive bail shall not be required … nor cruel and unusual punishments inflicted.”
What happened?
- Deportation as Punishment: Congressman Clement L. Vallandigham’s banishment to Confederate lines (May 1863) was widely condemned as “cruel and unusual.” After crossing into Richmond, he became a private citizen—unable to return home.
- Solitary Confinement & Harsh Conditions: Thousands of “political prisoners” (Northern Democrats, pro‐Southern editors) were held in Fort McHenry or Fort Monroe. Medical records (1863) show overcrowding and scurvy outbreaks—not unique to Confederate prisons, but notable because these detainees never faced trial.
Amendment ix:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
What happened?
- Broader Civil‐Rights Suppression: Beyond the enumerated rights, many argue Lincoln’s blanket war powers curtailed freedom of association, movement, and speech for tens of thousands.
- Emancipation Controversy: While the Emancipation Proclamation (January 1, 1863) is often celebrated as a moral act, some contemporaries (including Chief Justice Taney) argued it lacked constitutional basis absent a peace treaty with the Confederacy—since Lincoln claimed secession was illegal, he never treated the South as a sovereign power.
Amendment x:
“The powers not delegated to the United States by the Constitution … are reserved to the states respectively, or to the people.”
What happened?
- Federal vs. State Authority: Lincoln frequently asserted “national supremacy” when enforcing blockades (April 1861), raising revenue (the first federal income tax in July 1861), and creating the new territory of West Virginia (June 1863) without direct constituency approval.
- Reconstruction Prelude: Although Reconstruction proper began after Lincoln’s death, his 1863–1865 policies (e.g., “ten‐percent” plan for Southern state governments) implied that the federal government could unilaterally remake state constitutions.
In Summary
By 1861, a majority of white Southerners (and a significant minority of Northerners) believed secession was a legitimate constitutional remedy. Yet, once in office, President Lincoln construed the Constitution through the lens of “saving the Union at all costs.” The result was a pattern of executive orders and military measures that bypassed—sometimes brazenly—the explicit protections of the Bill of Rights.
- Suspension of habeas corpus without congressional approval.
- Military tribunals supplanting civilian juries.
- Censorship and closure of dissenting newspapers.
- Forcible quartering of troops in Southern homes.
- Seizure of private property (arms, livestock, cotton) for the war effort.
- Deportation of U.S. citizens (e.g., Clement Vallandigham) without any civilian hearing.
Whether one ultimately regards those acts as necessary “war powers” or unconstitutional overreach, the historical record is clear: between 1861 and 1865, millions of Americans—North and South—endured constraints on freedoms later enshrined in the Fourteenth Amendment (1868). This blog post invites visitors to weigh Lincoln’s wartime choices in light of the same Bill of Rights we study today—recognizing that history often forces difficult trade-offs between civil liberties and national security.
