Circa1865

Below, Alexander Stephens reviews the constitutional dilemma Abraham Lincoln faced when formulating his plan to resist the American South’s decision for political independence from the industrialized north.

Congress Alone Has the Power

“[Mr. Lincoln had] sworn to “preserve, protect and defend the Constitution” and “faithfully to execute the office of President of the United States.” This oath imposed a solemn obligation on him not to violate the Constitution, or to exercise, under color of his office, any power not conferred upon him by that instrument. He was required to see to the faithful execution of the laws of the United States, as passed by the Congress of States, and as construed by the Judiciary.

He said in the first of these proclamations that he made a call for the militia “in virtue of the power vested in him by the Constitution and the laws.”

But no such power was vested in him by the Constitution, nor was there any law authorizing him “to set on foot” the naval blockade as he did in the second of these proclamations. He said he did this in pursuance of law, but there was no such law.

In reference to the first proclamation, Congress alone has power, under the Constitution, to declare war and raise armies. Congress alone has the power to provide by law, for calling out the militia of the several States.

The President under the Constitution has no power to call out [State] militia to suppress an insurrection in a State, except “on application of the Legislature or the Governor, when the Legislature cannot be convened.” This was one of the provisions of the United States Constitution which Mr. Lincoln swore to “preserve, protect and defend.”

That clause of the Constitution is amongst the mutual covenants between the States guaranteeing to each a “Republican Form of Government” and protection against invasion and domestic violence.” This contemplated and authorized no interference whatsoever on the part of the Federal authorities with the internal affairs of the several States, unless called upon for that purpose, unless specifically requested by a State.

On this point, Mr. Stephen Douglas, in his speech of March 15^th, in the U.S. Senate, in the policy of withdrawing Federal troops from the forts in seceded States, was so clear, conclusive and unanswerable. Mr. Douglas said:

“But we are told that the President is going to enforce the laws in the seceded States. How? By calling out the militia and using the army and navy!? These terms are used as freely and flippantly as if we were in a military government where martial law was the only rule of action, and the rule of the Monarch was the only law to the subject.

Sir, the President cannot use the Army or the Navy, or the militia, for any purpose not authorized by law; and then he must do it in the manner, and only in the manner, prescribed by law. It must be requested by the State’s legislature, or Governor.”

(A Constitutional View of the Late War Between the States, Vol. II. Alexander H. Stephens Sprinkle Publications, 1994 (original 1870), pp. 397-402)