If war comes to America, say goodbye to your constitutional rights

(Bugout.news) President James Buchanan (1857-1861) and his predecessor, Abraham Lincoln, both shared the view that no state had a right to secede from the Union. Buchanan, however, believed that if a state did secede, the central government possessed no power to force it to remain in the union.^[1]

The Constitution was unclear on this issue, providing only a formal process for states to enter the union but no formal exit process.^[2]

Lincoln, however, disagreed with Buchanan’s view that the federal government had no power to block states from leaving and so, as president (1861-1865), felt he had an obligation to preserve the Union. As such, he took a series of Executive actions aimed at 1) preventing the secession of states; and 2) bringing the states that eventually seceded back into the Union, by force if necessary.

Upon assuming office and without first consulting Congress or acting in response to Legislative action, but instead in his role as Commander-in-Chief of the armed forces in the midst of a national emergency, where a state of armed rebellion existed, Lincoln took the following actions:

• Issued orders to expend public money to expand the Army;
• Issued orders to expend public money to expand the Navy;
• Suspended writ of habeas corpus;^[3]
• Called forth the military and militia to suppress an “insurrection”;^[4]
• Ordered armed citizens in states that had seceded to disband;
• Ordered a blockage of ports in Confederate states.

Later, on January 1, 1863, Lincoln would issue an Executive action known as the “Emancipation Proclamation,” which ordered all slaves in Confederate states to be freed. In sum, Lincoln:

— deemed these actions legal and constitutional, having been taken in his role as Commander-in-Chief during a time of national emergency;

— judged that the Judicial branch had no authority to limit his actions because a state of rebellion existed and therefore constituted a grave threat to domestic security;

— believed he was acting in both the spirit of the Constitution and with historical precedence, since the putting down of rebellion was a duty and responsibility of the Executive, as opposed to the declaration of war powers granted to the Legislative branch.^[5]

In his inaugural address March 4, 1861, he declared that “no state upon its own mere motion can lawfully get out of the Union,” that “the Union of these states is perpetual,” and that he would “take care that all the laws of the Union should be faithfully executed in all the States.”^[6]

Nevertheless, at the time, some judged his actions constitutionally questionable, even given the dire nature of the threat to domestic security. But eventually U.S. courts, up to and including the U.S. Supreme Court, sanctioned all of them, and for the reasons Lincoln implored: The unique state of emergency – armed rebellion, war – called for quick, decisive actions by the Commander-in-Chief. His declaration of martial law passed the Judicial Branch’s constitutional scrutiny and thus, the precedent set.

Fast forward to the present day. ISIS has threatened to take the war on terror back to American soil. In fact, a number of analysts and intelligence experts believe there are already terrorist operatives in our midst. Though Lincoln stood for election during the strife, in which he led the Union to war with the South, President Obama – should ISIS launch a sustained campaign on American soil – might declare that, under conditions of martial law, such normal constitutional processes are null and void, at least until the “emergency” passes.

When North fought South, there was a clear beginning and ending point in the war. Many experts have concluded that the third World War has begun, albeit an unconventional conflict. So theoretically, Obama could use that definition to his advantage.

War on American soil is not a pleasant thing to contemplate, though most don’t expect the current global conflagration that is being waged primarily by unconventional forces to manifest itself on the American continent with the same ferocity as that which defined our Civil War. But would that matter? Isn’t the precedent thus that “war” and “national emergency” and “martial law” are now defined in a manner the president decides?

A couple of Paris-style ISIS attacks in America is all it would take for this president to emulate Lincoln’s actions, albeit with far less noble intentions.

The die has been cast. The legal precedent set. And now, we have been warned.

References:

[1] Lee, Susan Pendleton. “Mr. Buchanan’s Views.” Lee’s New World History (1907): 255. This underscores the differences of opinion during the era regarding the legality of state secession and the Constitution’s lack of provisions allowing – or disallowing – state secession.

[2] See Article IV, Section 3, Clause 1 of the U.S. Constitution.

[3] Defined as “an order by a common-law court to require a person holding a prisoner to demonstrate the legal and jurisdictional basis for continuing to hold the prisoner.” Under the Constitution, there must be a legal basis to hold or otherwise incarcerate a person. See also: “The Heritage Guide to the Constitution: Habeas corpus.” The Heritage Foundation. Accessed April 11, 2015, at Heritage.org.

[4] Williams, Frank. “Abraham Lincoln and Civil Liberties in Wartime.” Heritage Foundation Lecture #834, May 5, 2004. Accessed March 2, 2015, at Heritage.org.

[5] Ibid.

[6] Lee, Susan Pendleton. Text of President Lincoln’s March 4, 1861 inaugural address, as quoted in Period V, “War Between the States and Reconstruction,” Sect. 1. Lee’s New School History (1907): 261.