1. The civil war tests the Constitution
Lesson 17

2. Lesson Objectives
Describe several important Constitutional issues raised by President Lincoln’s actions – suspension of the writ of habeas corpus— Emancipation Proclamation.
Explain the similarities and differences between the United States and the Constitution of the Confederate States of America
How the Civil War led to the creation of the 13th, 14th and 15th amendments.
Take, defend and evaluate positions on the conditions under which the write of habeas corpus might be suspended and the constitutionality of secession.

3. The Constitution and slavery
Constitution avoids the issue of slavery except:
Article I Section I: 3/5 Compromise
Article IV, Section 3: provided that enslaved people who fled from one state to another must be returned to their owners.
Article I, Section 9: prohibited Congress from banning the importation of slaves until 1808.
When that ban expired Jefferson signed a law ending the importation of slaves into the United States.

4. The Constitution and slavery
Before 1800 it was argued whether the Constitution was pro-slavery or anti slavery.
Did the Framers intended to allow slavery to continue regulate by votes.
Many opponents were called Abolitionists.
Many of the opponents said that slavery was not mentioned in the constitutions

5. The Constitution and New Territories
Slavery was not banned in the states, but did ban it in the Northwest Territory.
Each time new territory was added to the United States the questions arose.
1820 – Missouri Compromise: Deal with the Louisiana Purchase (1803)
Missouri slave state
Other states in the purchase would be slave states only if they lay south of Missouri’s border.
North of that line would be “free” territory
For 60 years states would be entered in pairs free in slave to address balance in the House and Senate.

6. The Constitution and New Territories
1845 – Annexation of Texas; Mexican American War –
disrupted that balance.
As the US acquired Utah, Nevada and parts of Colorado and California the balance is disrupted.
Southerners worried it would be impossible to keep the balance.
Northerners believed that slavery should not be expanded into the new territories.
Compromise: California would be free; south would get a stronger fugitive slave law.
1854 Kansas-Nebraska Act: Allowed the people of the territory to decide if their state would be slave or free. “Free Soil” vs. slavery
Each based on the D of I: human liberty in one case and majority rule in the other.

7. Fugitive Slave Law
Earlier Slave Act of 1793 attempted to enforce a section of the US Constitution that required the return of runaway slaves – rarely enforced.
New Act of 1850 was stronger and outrage many Northerners
Anyone could be forced to help capture African Americans who were claimed to be runaway slaves.
This included those who opposed slavery
Northern States passes personal liberty laws.

8. Dred Scott v. Sandford (1857)
Dred Scott was a slave whose master had taken him to the free state of Illinois and the free Wisconsin Territory and then back to Missouri.
Scott sued saying that he had achieved freedom by living in a free territory.
Missouri State Supreme Court ruled against him.
Scott then sued in the Federal Circuit Court in Missouri; court ruled against him
Scott’s attorney appealed to the Supreme Court of the United States.
Chief Justice Taney wrote the majority opinion:
African Americans whether enslaved or free could not be citizens of the United States
Argued they were not defined as citizens under the Constitution
US did not have the right to exclude slavery from territories – property
Due process clause of the 5th Amendment protected property rights – Could own slaves anywhere in the US.
Taney hoped for a peaceful resolution – opposite effect – Court viewed as a court on the slaveholder’s side.

9. Secession 1860 Lincoln becomes President
Belonged to the newly formed Republican Party
Committed to “free soil” principles
Faced with a new administration committed to abolish slavery: 11 Southern states seceded.
Voting to leave
South Carolina
Mississippi
Florida
Alabama
Georgia
Louisiana
Texas
Virginia
Arkansas
North Carolina
Tennesee

10. Secession Formed a new union called the Confederate State of America
Adopted a Constitution in March 1861 – pop. 9 million/ 3.6 million slaves.
Southern Arguments:
Union was a compact of sovereign states
No state gave up it’s sovereignty when it ratified the Constitution
“We the people of the Confederate States, each State acting in its sovereign and independent character”
Ideals of the Declaration of Independence and the American Revolution – gave them the right of revolution if fundamental rights were being infringed upon.
Right to own property
Believed it was a second American Revolution

11. Secession Northern Arguments No state had the right to secede
Created a perpetual union
Lincoln, “No government proper ever had a provision in its organic law for its own termination.”
Lincoln argued that the southern states seceded not because of rights violations, but because they feared they would lose the right to own slaves.
Lincoln viewed this as rebellion

12. Southern Organization
Secession
Southern Organization
Three branches of government
Bicameral legislature
Enumeration of congressional powers
Provisions of the Bill of Rights
Confederate President – single six year term
No law could be passed to bar owning or “impairing the right of property in negro slaves shall be passed.”
Could take slaves anywhere in the confederacy.

13. Constitutional issues of the civil war
Lincoln defied the order
13,000 civilians were held under military arrest without judicial hearings
Most were from rebellious states and border states (even though they remained with the union).
People were arrested for “treasonable language” and publications that appeared to threaten the union cause
Emancipation Proclamation
Illustrates president’s power as commander in chief
Saw proclamation as a military necessity
Would under cut the South’s main labor source and ability to make war
January 1, 1863 – “shall be then, henceforward, and forever free”
Some saw it as an empty gesture because it left slavery alone in Union controlled areas.
Created a foundational liberty – profound political and symbolic significance

14. Resolution of issues framers left unanswered
Resolved the issue of slavery
13th Amendment abolished slavery in US and any place subject to their jurisdiction
Ended the idea of secession as a constitutional right.
Presented the idea of national government supremacy
Union victory led to definition of national citizenship
Black codes began to surface – appeared to protect the rights of African Americans, but limited their right to own property, travel and work for pay on acceptable terms.
Became clear the 13th amendment was not enough
Civil Rights Act of 1866 – over the veto of Andrew Johnson
Little changed

15. Resolution of issues framers left unanswered
Passed the 14th and 15th Amendments
14th declared all persons born or naturalized within the US are citizens
Nullified the Dred Scott ruling
Prohibited states from making or enforcing laws that abridge the privileges or immunities of citizens or denying due process or equal protection under the law.
15th Amendment prohibited both national and state governments from denying citizens the right to vote because of their race, color or status as former slaves.
African Americans were able to begin voting
Large numbers voted from
All three amendments gave Congress the power to enforce them using “appropriate legislation”
Eventually public support for protecting African American rights weakened
14th and 15th became ineffectual
Southern states began passing laws requiring poll taxes, literacy tests and grandfather clauses.