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Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime, Thomas C. Mackey

Reviewed by Joseph R. Fornieri


With characteristic foresight, Benjamin Franklin famously warned that “those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety.” Equally valid, however, is Justice Robert Jackson's admonition more than a century later that “the constitutional Bill of Rights” is not a “suicide pact.” Between these two poles lies the difficult task of balancing dissent in wartime.

With these equally important interests in mind, Thomas C. Mackey performs a great service in narrating and analyzing Abraham Lincoln's broad use of executive power in confronting dissent and disloyalty during the unparalleled crisis of the Civil War. He provides a highly readable yet nuanced case study of the historical context that begins with a concise overview of the sectional conflict leading up to secession. He then turns to “the Eighty Days,” the crucial interval between the first shot at Fort Sumter on 12 April 1860 and Lincoln's special message to Congress on 4 July 1861, in which he sought to justify these actions. While Congress was out of session, the President undertook extraordinary measures to suppress the rebellion and save the country. Mackey reminds us of the perilous circumstances faced by Lincoln: the Confederacy had been established, the border states were teetering on the brink of secession, the capital was encircled, and rioters and insurgents sabotaged railroad bridges and telegraph lines to prevent its reinforcement. In response, Lincoln suspended the writ of habeas corpus (a cornerstone of due process that provides judicial review of one's detainment), authorized the spending of money, called up the state militias, and commenced a blockade of the South. Subsequently, the draft and military commissions were established. Though Congress ultimately approved the suspension of habeas corpus, some wondered whether the Constitution would survive Lincoln's effort to preserve it.

While richly narrating these events, Mackey focuses on the trial of the leading figure of the Copperhead movement, Clement Vallandigham, who was arrested by General Ambrose Burnside for an inflammatory speech he made in Ohio. The case sparked a national debate over dissent and loyalty in wartime. Vallandigham was convicted by a military commission and exiled to the Confederate lines. Building on recent scholarship, Mackey superbly analyzes the political thought of the Copperheads, Southern sympathizers, who are more properly described as western sectionalists. Seeking to establish a Northwest Confederacy, they saw themselves as heirs to the Jeffersonian and Jacksonian traditions of limited government, strict construction, and distrust of eastern moneyed elites. Mackey persuasively argues that the Copperhead threat was real, not imagined. He convincingly demonstrates that the president worked primarily within constitutional channels. Lincoln sought to defend his actions on the basis of high principle, even if he fell short at times. Thus Mackey observes that “the overall lack of political oppression by the Lincoln administration is surprising” (p. 28).

In sum, this short volume amply fulfills its stated goal of educating students and the public about the challenges of balancing liberty and security in wartime. In addition, it makes an equally important scholarly contribution by deftly analyzing core documents like Lincoln's letter to Erastus Corning of 12 June 1863 and by highlighting underappreciated sources such as his letter to Matthew Birchard and others on 29 June 1863. Finally, it concisely reviews the three major habeas corpus cases of the Civil War era: Ex Parte Merrymen, Ex Parte Vallandigham, and Ex Parte Milligan. This book serves as an outstanding entry point for further study and reflection on these crucial topics.

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