our speaker this evening mr.

david fisher. david has been studying u.s. presidents for most of his adult life. he has lined the walls of his home. he tells me with his extensive collection of more than 1100 first edition presidential biographies dating the founding of the republic. after graduating with distinction from stanford university, david has held a has career positions as radio sportscaster.

a consultant, an executive in the federal government and as risk management expert. his leadership positions in government spanned the department of defense, the government accountability office and the internal revenue service. he currently resides with helene, his wife, in bethesda maryland. so please join me in welcoming david fisher. and thank you so much, pat, and great to be here, folks. pleasant good evening to you i will be back here at wheatland. my wife and i actually had made the drive up a couple of years ago to see the home at the time we we brought our dog chester who is think three months old at the time just a little puppy and he loved running these grounds. and for me when i go to a new presidential site, i sometimes that same puppy exuberance whenever i get a chance to see history firsthand and the beautiful home here in week one

is a great example of that. you know what us back to a very difficult in the united states history where these four men these presidents millard fillmore franklin pierce james buchanon and abraham lincoln all had the responsibility to lead this country and they had that piece of paper in the middle there that the constitution of the united is a critical element to guide them through that process. and that's what we're going to talk about here today at a very difficult we're going to talk about how fillmore, pierce and buchanan took a very similar approach, the constitution. and we'll talk about some of the results that that came from that. and then we'll talk about mr. lincoln, who a very different approach in terms of his implementation and of his interpretation of the constitution. and we'll talk about that. these were difficult topics not only slavery, the expansion of slavery issues, states rights, secession, the power of the presidency the war powers of the presidency. some of these were really being

tested the first time in difficult topics. and so we're going to explore that here this evening. one of the reasons why the constitution, of course, so important is because that's the oath of office that each president takes upon arrival into position and says, i do solemnly swear or affirm that i will faithfully the office of president of the united and will, to the best of my ability, preserve, protect and defend the constitution of the united states. and it's interesting language that's in the constitution for this oath preserve, protect and defend the constitution it's not preserve protect and defend the country. it's not preserve, protect and the citizens. it's preserve protect and defend the constitution. why did the founders do that? well, founders were afraid of a monarchy. they were afraid of an powerful president who would start taking on you know, responsibilities and authorities, frankly, he had not been given. and the constitution in many ways had some guardrails. it had constrain on the

president. and it was really embedded in this oath is the commitment to stick to those limitations so that we can't have an all powerful president we have a president with checks and balances three branches of government and this was that commitment to stay within those guardrails and that can be really difficult in a time of crisis and what we'll talk about here is sort of how each of these four men dealt with this crisis, trying to stick with pledge to preserve, protect and defend the constitution. so let's go back in time. this is a map from 1848 right after the united states and mexico had completed its war and the u.s. had gotten a whole bunch territory. and every time the united states got more territory during the 19th century, it brought up these issues, slavery and slavery, expansion and there were disputes going on and in particular, this point in time, we had a dispute on between the new state of texas and the territory of new mexico.

they were actually in disagreement about who owned which piece of this land. and this became particularly acute because new mexico wanted to come into the union. now, as a state they were considering that and they wanted to come in as a free state. well, peter bell is the governor, texas at the time, and he's not very happy about this idea. he's saying, first of all, that's land, not yours. it's going to have slavery on it. and he's actually calling up his own militia. he's calling other governors from southern states. zachary taylor is the u.s. president telling the folks in the union army be ready to defend this territory? we're close to having the onslaught of a civil war right here prior to 1850, not the ten years later. that actually happens. so it's a dangerous time, really, from the end of the mexican war on this path to national fracture that we follow now. well, this is going on. there is a concerted in the united states congress to try mitigate these risks with a grand. and we have henry clay in the

united states senate who been so involved 30 years before with the compromise of 1820, the missouri compromise. and he's now at the latter station stages of his career. he's trying for another grand compromise. and this is bringing up some great senators coming to the united for the united states senate for some really powerful speeches coming from very different. and we'll share a couple of those with you. so, john calhoun, senator, south carolina, the former vice president of the united states, one of our most staunch states rights members of congress, he said, we as the representatives of the states of this union should come to a distinct understanding in order to ascertain whether the great questions can be settled. and if the north will not settle them on the broad principle of justice and duty, say so. let the states separate this notion of secession and national fracture with very much in these discussions, in these debates here in the senate in 1850. now then you have the other side

of the equation. you've got a pro-union us daniel webster from massachusetts and he's saying secession and peaceable secession, whose so foolish to expect any such thing. where's the line to be drawn? i'd rather hear of war, pestilence and famine than here, gentlemen. talk of secession, different perspectives. and then we have a new perspective that really is emerging for the first time here around these arguments of 1850. and it's william seward is from new york and he introduces this concept of a higher wall. there is a higher wall than the constitution. he says, which regulates or authority over the domain, not your broad domain to send to us unencumbered free from khawam bodies of human bondage. i'm opposed compromise in any and all forms. so a new a higher law than the constitution. again presidentially thinking well, you took an oath to preserve protect, defend the constitution. there's no notion there of a higher law. but the country is starting to settle on. maybe we need to do things little bit differently.

so they're having these lengthy discussions about what to do and can we come up with another big compromise to settle these questions? well, zachary taylor is the president of the united states at the time, and he was not in favor of a grand compromise. in fact, he was threatening veto. he thought it was bringing up issues that didn't need to be brought up. and turned out, though on july 4th of 1850, zachary taylor got sick and five days later, zachary taylor died. and now all of a sudden looking to this person, the guy who was sitting at the front of the room during all of these great debates in the united states senate, which was vice president millard fillmore. and fillmore is now about to become the 13th president of the united states. and all of this responsibility of what to do about this compromise, if it passes, is going to fall on millard fillmore. so what do we know about millard fillmore millard fillmore is from new york. he's from buffalo, was an attorney. he served four terms in the house of represen is he served as the chair of the ways and means committee. and he was thought at the of the

1848 election would be a good balance on the ticket. so zachary taylor is, a career soldier, he's never had a political career, never even voted for a president in his whole life. he is a southern slaveholder now. millard fillmore, very much different. he's a career politician. he's not a slaveholder. he's from new york. good balance for the whig ticket and they win the election 1848. but now we transition from taylor to fillmore as president. and so where does fillmore stand into this office on some of these questions of constitutional issues and slavery? and he made the remark that he regarded slavery as an evil, but one with which the national government had nothing to do that by the constitution of the united states. the whole power over that was vested in the several states. the institution was tolerated. and this up to this point was the main understanding about slavery in the united states. it was protected by the constitu at least in the states in which it already existed.

all the way up through lincoln. all presidents, including lincoln had made a very clear that they believe this to be true further for fillmore. what about the constitution? remember that oath that he just took to become president of the united states? he remarked that he the constitution would be his chart. i would cast every selfish, considerate to the winds. i would weather the storm or sink with the ship. i would not suffer her to be plunged into the breakers by the abolitionists of the north or. the disunion of the south. his plan was to be the president of, the entire country. he wasn't going to side one way or another, but now he's got a practical set of things that got to do. what does this mean? is his adherence to the constitution in terms of actual practical political experience here? because is compromise passes the us congress and within ten weeks millard fillmore has a whole bunch of bills on his desk to do all these things and. he, unlike taylor, who is sort of against this grand

compromise, fillmore is in favor of it. he thinks it's an opportunity for the country get past this difficult time and be in a pretty good position to go. so all these provisions settling that dispute between texas and new mexico, california comes as a free state. we're going to use popular sovereignty to what the people in utah and new mexico, they're going to territories for a while. they get to decide for themselves whether or not they'll have slavery. congress is out of that. so that's a change. you've also got the abolition of the slave trade in washington, d.c., the adoption of a more stringent fugitive slave wall. so a lot provisions coming a little bit for people, a little bit for others. no one's totally happy. but fillmore, this is a good set of compromise measures. it's going to help the country he signs them all into law. well the most controversial of all of these provisions, that last one, the adoption, a more stringent fugitive slave law. now the fugitive provision, it actually goes back long before this.

anybody know the first provision for the fugitive requirement actually is in the united states. so anybody know it's actually in the constitution in the constitution, in article four, section two, clause three of the constitu tution, no person held to service or labor in one state under the laws thereof escaping into another shall, in consequence of any law or regulation therein, be discharged from service or labor. in other words, you can't free an escaped slave, but shall be up on the claim of the party to whom such service or labor may be. not only you can't free them, you must them. it's actually in the constitution one of those compromises that was set at the constitutional convention. this was a little bit different, though, in that this provision here in 1850, imposed different of penalties that. is the implementation of this constitution or provision and this touched people in the north in a very personal way because now civil officers in the north

and even individual citizens in the north could be held accountable if participate in the slave running away through like the underground railroad, whatever it may be for escaped slaves, they could be punished. and the people in the north took this very personally. they did not like it. and was a question, of course, about, well, how are we to enforce this? and a lot of it following on the new president, millard fillmore. now in terms of signing it into law, fillmore had no problem with that. again, he back to the constitution so far from its violating the constitution law was in accordance with it require by it sound injunctions and to refuse signature was to disregard constitution, which i had sworn to support in very consistent view. taking his oath of office. but again, people in the north are starting to nullify this law, whether it's juries or there's called liberty laws that are passed in the north that basically in our state we're not going to return those slaves. now, fillmore trying to be the

president of the entire country says that can't be. he the comment with what face could we require the south to comply with their constitutional obligations. well we in the north openly refuse to live up to ours by the nullification of the fugitive slave law. his was to implement this law intimate all the elements of the compromise of 1850. he's going be the president of the entire country. and he believes again, if people would just give the law a chance. this will help us move on, move past this rough spot and the country will be in good shape. of course, that is not what happens and we'll process through these next couple of presidential terms. the most common perspective around, fillmore, of course, is how could he have signed thing into law? how could he have signed such an odious provision in this fugitive slave provision into law? and a lot of history has looked at it that way, including a lot of folks of his contemporaries thought of it that way. it's not the way he thought. he thought he was trying to be the president of the whole

country. everybody has to give and take and if we just all sort of respect other's rights, then we'll be able to go a go forward together. the one thing i'll say about this, this set of compromise measures, well, they're controversial and they're difficult and we'll see them in terms of how they're trying to be enforced here throughout the fifties. it did by the country years. civil war doesn't start 1861 and it's actually a really important ten years because the north had an extra decade to really grow manufacturing base. it's an unused capacity and actually put it in a much better position when the war occurred. so there's absolutely a clear benefit by having these compromised measures in place for a decade, even though history does not look kindly upon that. that fugitive slave provision. so fillmore is out as the end of his term in 1852 is the election and the democrats come back to power. and for this we get franklin pierce. how do we get franklin? who is he? well, pierce comes from a political family, from the state of new hampshire. his father had been governor of

the state. he had served in state government, served in the u.s. house, in the u.s. senate, got a lot of experience but he actually had not been in office for about the last ten years. his jane did not like his political career. so let's go back to new hampshire. do something else. so he didn't run for office again until the presidency, but he did run the democratic party. he was the chair of the democratic party in the state of new hampshire, which kept him in the mix. and then in 52, he's basically hoping maybe at the convention he might get the vice presidential slot. well, as it turns out, james buchanan, one of those who is up for potential nomination, lewis cass is up for the nomination. those democrats that two thirds rule that requirement had to get to two thirds at the convention. it really tough to do to get the nomination. it's one of the reasons why we get these dark horses are that are looked at to potentially come in and that's how franklin pierce gets nomination because they couldn't settle on someone else is that how about that guy franklin pierce he gets the

nomination beats winfield scott who would have been his commander in the mexican army or in the mexican war. scott and there's the last to run for the president. franklin takes over. all right. what appears think in terms of again, this oath office and the role of the constitution very similar to fillmore according to in his inaugural address pierce makes the remark i believe involuntary servitude as it exists in different states of this confederacy is recognized by the constitution. i hold the laws of 1850, commonly called the compromise measures are strictly want to be un hesitating. we carried into effect again very to fillmore different party, same philosophy president of the entire country, oath of office, preserve, protect and defend the constitution this is the approach that he's going to take. he also talks in his inaugural address about this concept of the relationship of the states to each other sort of states rights as has sort of a couple of flavors. it's the relationship of the states to the federal, but also

the states to each other. and and pierce makes the remark that the country could only be kept in national cohesion by the strictest fidelity to the principles the constitution, the minimum of four federal government strict to the sovereign rights and dignity of every state. and again, these are pretty consistent at this point in the nation's history in terms of this understanding of the principles, federalism and states rights. the problem was, again, the country was moving on into somewhat of a different and it's all about to up as more land is about to be opened up and, these topics are going to be very much tested. so let's move forward and think about really the essence of the pierce administration in has to do with the territories of kansas and nebraska and that we start actually this discussion a senator by the name of stephen douglass. stephen douglass is a center for senator from illinois. and what does he want? he wants in a transcontinental railroad. he wants it to go across the

north. he wants it to go through. and for that to go all way to the west coast, it got to open up more land. and right now, this part of the land which on this map from the act shows the and kansas territories right in the middle of the of the country basically unpopulated the time there's really nothing there and those boys let's open that up and that help us with this transcontinental of course what does that do it brings up the question of slavery. what are we going to do in these territories and these territories that come over from the louisiana purchase. so the the compromise of 1820 was in play which said that no territorial above the 3630 parallel the southern border of missouri can have slaves. well a lot of this is above that. and so this is, again, a question being brought up again. maybe maybe get rid of the missouri compromise and we take new look. well, douglass, his colleagues, go and have a discussion,

franklin pierce, about this. the president, and say, you know what, we should get rid of that compromise of 1820 and adopt a popular sovereignty for that entire region. they step their toe in the water a little bit with popular sovereignty in the utah territory, with compromise measures now say, well, what could be more democratic? the people in states get to decide whether or not we're going to have slavery or not. why don't we do the same thing? integrity worries take congress out of the mix. what could be more democratic than that? pearce listens to this argument. he says, make sense to me and and pearce joins us. stephen douglass in pushing for this law which eventually passes called the kansas nebraska. so what happens at that point pretty much chaos you've got masses of people into this unpopulated coming from the north and the south. try to get there as fast as they can because popular sovereignty going to dictate who has the most votes, whether or not this is going to be a slave or it's

going to be a free territory and president pearce appoints a governor for. this territory which typical at the time reader is his name. this is a really tough job with all this chaos going on at the same time and and reader it gets to the point where he's ready to hold elections for the territory legislature. it's the first vote that's going to take place and this is primarily in the kansas territory. this is happening, nebraska comes much later in terms of it being populated, well, they hold this vote and reader established and pretty stringent requirements for residency. you had to be in the territory in terms of voting but on election day that didn't hold we get from both north and south people come in on election day and start casting ballots there's a lot more of that from the than the north and pretty much the state of missouri slave state directly next to kansas. a lot of missourians come in to to kansas and cast ballots.

so it's not a surprise then when the the vote goes the way for this territorial legislature of the pro-slavery folks. now a lot of people at the time claimed fraud. this is this is just not appropriate because all these illegal voters that came in and people to franklin pierce the president united states so you've got to do something about this isn't right andrew read it the governor had solidified and said that this was a valid election and franklin pierce said nothing i can do about it. his view of his job as the president it was beyond the sphere of action of the executive, the president of the united states has not power to interpose in elections, to cede their freedom, to canvass their votes, to pass upon the legality in the territories any more than in the states. and this is his view of limited role of the federal government, respect for states, territories. this was their if there was fraud. i don't i'm not i'm not getting involved. that's for the people. kansas to figure out.

well some people would say maybe he's almost hiding behind the constitution as opposed to being the leader that the country was looking for. others would say this was oath. he took limited role. the federal government and these are the results that we. well what do we get from that from this we get violence. we get what's called bleeding eventually comes into play because free staters actually set up their own government in this town of topeka you've got in in lawrence, kansas. you've got the official government the pro-slavery folks, and they're not getting along very well. you pretty much violence on the plains of nebraska kansas erupting in front of them and it pretty bloody you've got killings on both sides a lot of property is a scary place to and once again the question is what's the president of the united states going to do? is he going to do anything? and once again, franklin pierce says, not my job. according pierce, the laws must be executed, but military force

should not be employed until after the marshal has met with actual resistance in the fulfillment of his duty. well, the marshal had met that resistance, and it was not being fulfilled. but pierce to say until really late in his term, he actually sent in his governor that he had of the territory. he finally was convinced to bring some additional military in to try to quell some of this violence. but for a couple years, it's really erupting on the plains of kansas. but again this was pierce's view on the very limited role of the president, even in these times of great difficulty. and we'll hear from more from pierce a little bit later on. pierce does not renominated as we know, because james buchanan then becomes our next president, is obviously a picture from earlier in his career. buchanan in 1856 becomes the democratic nominee, are originally from the mercers burg area and pennsylvania, eventually comes here to lancaster. this beautiful home wheatland that that puts that he that he

buys he's very accomplished political person ten years in the house ten years in the senate. the minister to russia. the minister to great, the secretary of to james polk as we had from this a couple of months ago. professor michael cohen talking about that interesting between mr. polk and mr. buchanan, very qualified. but this again, is going to be a really tough because the country is having a mini civil war going on right now, kansas. and there's a lot of tension on so once again we asked this question coming in what's perspective of james buchanan when comes to things like the constitution, states rights and these kinds of topics? i had this earlier picture of him because the first quote is from his days in the senate way back in 1834, he had actually a comment along these lines. he said the, older i grow or she was young at the time, the more i'm inclined to be what is called a state rights man, the

rights of the states reserved to by that instrument ought ever to be held sacred, similar to. his predecessors respect each other and the country will be in good shape. so when the compromise of 1850 came along, buchanan made a comment about it in 1850 and the whole fugitive slave law, and he says, look, this is totally fine. it's a well known historical fact that without this provision, the constitution could never have existed. how could this have been otherwise? fugitive slave law, constitutional so everybody just get along. he plans to implement it and enforce law. well, buchanan then takes a wins the election, takes his oath of office march 4th of 1857, gives his inaugural address, and he reiterates some of these key points. he says long and observation have convinced me that a strict construction of the powers of the government is the only true as well as the only safe theory of the constitution in very similar, strict construction. he's not going to take on powers that are not authorized in

document, even if things are falling apart. so speaking of kansas, in his inaugural, he commented the territorial question being settled upon the principle of popular, a principle as ancient free government itself, everything, a practical nature has been decided follow. the law is. the general concepts advocated james buchanan. now interesting about buchanan, he's sort of less ideologically aligned on how pro-slavery anti-slavery these kinds of things would buchanan was aligned with was the law he liked clarity. he what does the constitution say? what does the law say? what are the say? whatever that is sort of fine with him and he's going to implement because if we all follow the law, we'll be fine. if we start usurping responsibility and taking powers into own hands, that's when things are going to fall apart. so two days into buchanan's presidency, we get a landmark supreme court decision that's

based this gentleman here, dred scott, and the case of dred scott v sanford. dred scott had sued for his freedom in federal court the court of roger tawney comes out with a decision again two days after buchanan takes the of office. and what did they say? well he can't sue in a federal because effectively he's not a person has property and there's other of this again when people maybe the most infamous decision in the of the supreme court that congress has no right to a adjudicate whether or not a state a territory can have slaves or not. that's up to those people. so that whole missouri compromise, it was unconstitutional all along according to the tiny court. now, again, a lot of people are sort of up arms about this decision. abraham lincoln was one who really derided it. he says, look, we'll follow the court. but it's one of these things that maybe we need to get decision changed some time. lincoln to. but again, not james brookes and buchanan likes and he makes the

comment when this comes out this decision so full explicit establish the right the master to take his slaves into the territory and hold them there. and despite of all conflicting congressional or territorial legislation, what does the constitution say? what are the law say? what are the court say? that's what was going to be the hallmark for james buchanan as president of united states. don't expect him to go outside of those guardrails? well, the issue in kansas continues to to rile up they've gone from a territorial legislature now to the point where they're actually getting ready to apply statehood. time for another election. they're going to elect delegates to a state constitutional convention to write constitution so that they can become a state. same story again. is it going to be a pro-slavery group or a free state group that comes together to get the pen in their hand, to write this constant tution? well, this time around, free staters decide there's going to be fraud. we know there's going to be fraud.

people from missouri, whatever, they're going to come in to vote. so we're not going to participate. we're not even going to show up at the polls. so when they go to vote, 90 some odd percent or more of, the people are voting for the pro slave three delegates to this to this convention. and they they draft a convention. it strongly pro-slavery and they send it off to to the president states james buchanan and are looking for him to pass it along to congress with his recommendation. well, buchanan is now aware of the situation about again, half territory didn't vote. but as far he was concerned, that was sort of their tough luck. they made that decision. he's going to go with what was the official vote? what is the law? he's got a document that he thinks he needs to stand behind. he says, we acknowledge no master the law. we should cut loose from its restraint. should we cut loose from its restraints? everyone and everyone do it seem as good in his own. our case will indeed be

hopeless. so he's going to follow what? the official word coming out of kansas is, even though a whole bunch of people the pros are the anti-slavery side decided not to show up to vote. there's a problem in this, though, because, again, that guy, stephen douglass, shows back up where douglass was sort of the champion of popular sovereignty. and he you know, they're both democrats. and douglass goes to the president. this isn't popular sovereignty. how can it be when half the people in this territory decided not to vote? this is invalid. i can't support. it will be kittens taken aback by because again, as far as he's concerned, this is a legal decision that was made by the people of kansas. and he basically confronts douglass says, mr. douglass, i desire you remember no democrat ever differed with an administration of his own choice without being crushed, kind of threatens him there. well, douglass, back down. he says if this is to be forced down, our in violation of the fundamental principle of free government under a mode of submission, that is a mockery

and insult, i will resist it. the last well lines have been drawn. the sand and the vote. now going to go to the u.s. congress. the is actually pretty straightforward. they approve the competent constitution. the house of representatives much more. douglass is lobbying members of the house. buchanan is lobbying members of the house going back and forth. in the end, buchanan doesn't the votes. it's not going to pass. wisconsin constitution actually goes. he's very disappointed in this because believes it's legitimate. but the congress at this point is not ready to go. they're sort of rejecting again because wasn't a representative thing of of popular sovereignty. and for now they're back to square one in kansas with yet problem sort of unresolved all leading to the next election. now buchanan, of course, has taken a one term pledge. he is not running in the election of 1860. we've got actually four people in the race and eventually abraham lincoln this race. he is the first republican to become president.

republicans on a platform very similar to the whigs previous. but with this provision in their platform, no more expansion of slavery. that's the hallmark of the republicans the democrats had split they they tried twice to conventions they couldn't come to agreement. douglass runs vice president john breckinridge runs sort of split their votes. and you've got this guy, john bell, running on another party, the national union party. lincoln sweeps the north and wins the electoral college. actually easily, because you can see in this map the electoral votes are really heavily favored to the high population centers in the north. so it's a fact that there's 13 states and in those 13 states, 99.9, 6% of the population in those 13 states voted for someone than abraham lincoln. 99.96% in 13 states voted for someone other than abraham lincoln. those 13 states represented about a third of the population of the country.

lincoln becomes president with less than 40% of the national popular vote. the lowest in american history. so he sort of he is the legitimate. he's won the electoral college. but the country is very much divided. and a big section of the country was not interested in him. frankly, any other republican of president of the united states. so what happens next? secession starts to kick in the south says, i'm going to be here with a republican. they're going to take my away. time to do something different. and we start having secession of course again. this is on james buchanan's watch. lincoln is not president yet. he's president elect. buchanan is in charge. south carolina goes first. december 20th of 1860. they vote unanimously in convention to secede from the union six other states. the ones here in red followed over the course of the next six weeks of the time. lincoln is inaugurated as president, seven states have seceded. while this is going on, james buchanan, president of united.

people want to know what is he going to do it? is he going to do anything? secession, constitutional? could he do anything about it? these the questions that again, the legal issues that james buchanan was was trying figure out so he could potentially take action. and he confers with his his attorney general, jeremiah black. and they're trying to figure this. and one of the reasons it's confusing is the constitution is complete we are silent on this topic. there is nothing in the constitution about to get out of the union. if you can get out of the union. plenty of talk about constitution, about how to get in. nothing. the constitution of whether you can leave or how you would potentially it so black and buchanan get together. they're looking at the constitution is their guide they're trying to figure out well what can we do here. and he up with some interesting conclusions. buchanan says that in order to justify secession as a constitutional, it must be on the principle that the federal government is a mere voluntary

association of states to be dissolved pleasure by any one of the contracting parties. if this be so, the confederacy is a the confederacy is a of sand to be penetrated and by the first adverse wave of public opinion in any of the states. secession is not an inherent constitutional right. secession is neither more nor less than revolution. james buchanan concludes secession is unconstitutional. but what can do about it? and this is the second part of the equation. couple of weeks later, january eight, 1861, he says, has constitution delegated to congress power to coerce a state into submission which is attempting to withdraw or actually withdrawn from the confederacy. if answered in the affirmative, it must be on the principle that the power has been conferred upon congress to make war against state. after much serious, i have arrived at the conclusion that no such power has been delegated congress or to any other

department the federal government. so for james buchanon secession is unconstitutional. but i can't do anything about it. and for that he was ridiculed. he was ridiculed by a lot of his contemporaries, including william seward is about to become lincoln's secretary state. and seward said about buchanan that, no state has the right to secede unless it wishes to, and that it's the president's duty to enforce the law unless somebody it. again, he was essentially ridiculed, but buchanan's say, look, it's nothing in the document. i got to figure something out and i'm going to not look beyond the document to come up with my own answer. i'm going to look what's in there. secession unconstitutional. nothing i can about it. well, as this is moving forward. take a second to again, think about how how difficult it was. make a decision on sort of the constitutionality of secession when document actually doesn't mention it. of the interesting things i've studied in my journey through the presidents in writing my presidential chronicle series a

biographies up to starting on fdr right now. so i'm up to 30 of these folks and i've studied trying to one of the things i look for especially in the first 18, did any of them actually say anything kind of on the record about secession was there a consensus among our early presidents on this topic? and the truth, it's all over the map. these are the 11 that i've documented that have actually comment either in letters or in diaries or publicly, the constitutionality of secession. all four of the ones that we're talking about today are up there, including a couple on the unconstitutional side millard fillmore, abraham lincoln, andrew jackson, among the most ardent in this category that he was a big rights guy. right up until it came time to secession. that was not happening on his watch, which was talked about at the time. and so those are far right. secession, unconstitutional this middle column, i describe it, is sort of a nuanced interpretation like buchanan, where it's unconstitutional, but i can't really do anything about it.

so a little bit of both sides. franklin, our fourth president, we're talking about today, he made the comment around time of the fracture of the country, look, if we can't live in peace, maybe we should separate in peace. and he doesn't necessarily a provision on how to do that. it wasn't something he was advocating, but he thought maybe it would be better off if we did. he was open to this notion that there should be or could be a way to have a peaceful separation. ulysses grant is interesting because he in his memoirs, which come out in the 1890s, right around when he's about to pass away, he said in his memoirs that secession was potentially constitution final at the beginning of the republic. but once new states in and the new interrelationships between states started to happen, then then secession was no longer constitutional. so again, sort of a nuance, differing kind of interpretation. but then we got these folks, the left, very clearly. secession is constitutional.

thomas jefferson. we'll talk about the declaration of independence of course he's the author that we'll talk about that here in just a moment and its implications for this topic. but jefferson, actually, it was 1798, 1799, where he and james madison getting together and they were looking to nullify what's called the alien and sedition acts that had passed under john adams. and around that time of 1798, 1799, that they thought were unconnected to shannon and they're looking to nullify. and jefferson writes this letter to madison says, look, if we can't get satisfaction on this, we're just going to have to leave. we will leave the union. so clearly he thought, as the champion of the declaration of independence, that this would be a constitutional act. john quincy adams, who wrote his diary, he's secretary of state in 1820 at the time in the missouri compromise and he's similar to pierce said look i'm happy we got this then he writes this in his diary he says it might actually be better if we called a convention of the states article in the constitution and actually to separate, because if we're going

to separate sometime, it's going to be because of slavery and maybe we should do it again in a nonviolent. and that was the provision that he that he offered as maybe a way to go. and then you've got john tyler. john tyler, the most ardent states rights president that we've ever had. he was from virginia. he's still in virginia here in 1861. he's of the secession movement, actually, with virginia leaving the union, which they after all, lincoln is is. in fact, he's elected to the confederate house of representatives. he never seats as sits the house of representatives because he dies just before he had his chance to but ardently in favor of this notion of secession. if if the right circumstances come to pass. we're completely all over the map a very difficult road map to follow on this topic of the of secession. we share quote with you here for a moment. it's it's from one of the 11. see if can identify what does it

sound like who do you think said this? any people anywhere the right to rise up and, shake off the existing government and form new one that suits them better. any portion of such people that can may revolutionize and make own of so much of the territory as inhabit. this is a most valuable and most sacred right. a right which we hope and believe is to liberate the world. anyone who said that. i've heard two different ones here. the most answer i hear on this question is jefferson, because it sounds a lot. the declaration of independence, but the answer is abraham lincoln. abraham lincoln said in 1848 he was talking about at the time, texas seceding from mexico, seeking its own independence, and he a supporter of this and in the u.s. congress, he served just the one term and he makes it very bold statement on this score. right, that we hope to liberate the world.

obviously going to have a different opinion when he becomes the president. we'll get there in just a moment. you know, lincoln in the constitution, we're going to talk about sort their relationship between these two. it's a little bit tricky but lincoln in the declaration of independence and that was really his guide more than anything else and here he said just before he became president, i've never had a feeling politically that did not spring from the sentiments embodied in the declaration. i'd rather be assassin nated on the spot than to surrender it. big fan of the declaration, right? well, when winget talks about the declaration in particular, like in lincoln-douglas debates in 1858, he talked a lot about the declaration. he really honed in on one sentence, and it is sort of most sort of poetic sentence, maybe in american history, written by thomas. we hold these truths to be self-evident, that all men are created equal. they're endowed by their creator with certain unalienable rights, that among these are life. liberty, the pursuit of happiness, a phrase that we're all familiar with again, very much about what the american

experiment is all about. lincoln is absolutely aligned to this including the phrase, obviously all men are created equal. those 35 words represent 3% of the declaration of independence. 97% of the declaration is about secession. we are seceding from britain. and if you look at this other paragraph here from just one paragraph from the declaration that whenever any form of government destructive of these ends, it is the of the people to alter or abolish it and to institute new government. prudence indeed will dictate that governments long established should not be changed for light and transient causes. but when a long train of abuses usurpations, pursuing invariably the same object evinces designed to reduce them under absolute, it is their right is their duty to throw off government and to provide new guards for their future security. sounds a lot like what lincoln was talking about in 1848. it's also what the people of

south carolina were talking about in 1860, because they, quote, in their secession very liberally from jefferson's declaration of independence. so you get sort of this disconnect between. lincoln and his affinity the declaration. but this notion what was the declaration of all about it was announced saying that the colonies were forming a country and leaving great. it's interesting. in 1861 is the civil war is about to begin and quote here from cornhill magazine in london, the comment was with what pretense of fairness? it is said, can you americans to the secession of the southern states when your nation was founded on secession from the british empire? so again, it depends on where you sit. all right. so is now the president of the united or is about to become the president? he's to be inaugurated. and during the interregnum period where buchanan's been the last four months of his presidency. abraham lincoln has been completely silent.

people want to know, what do you think about all this stuff? there's only one president at a time. it's not me. i'm not saying anything. so everybody is now paying attention. inauguration day on march the fourth of 1861. what's lincoln to say? and he addresses these topics directly, starting with slavery. i have no purpose directly or indirectly to interfere with the institution of slavery in the states where it exists. i believe i have no lawful right to do so. i have no inclination to do so. and that's consistent with what he has said in the past. he even goes so far. remember we talked about there been some there were some constitutional amendments were proposed and discussed in during the interregnum. and one of them was to actually sanction slavery in perpetuity in the states in which it already existed. implied, as lincoln said here by constitution. maybe we'll just make that explicit and maybe that'll make the south accept this. and lincoln in his address says he's willing sign up for that. he said that holding such a

provision to now be implied constitutional law. i have no objection to it's being made express and irrevocable. well imagine if the 13th amendment was that instead of the 13th amendment that we eventually get four years later which two forever bans slavery from the united states. if the south accepted this offer a chance, we could have had the 13th amendment would have been to slavery in the states where it already existed in perpetuity. so of course the south does not accept this, in part because of what lincoln said next. lincoln said despite his for the declaration, i hold that in contemplation of universal and other constitution. the of these states is perpetual perpetuity is implied. if not expressed in the fundamental law of all national. it's safe to assert that no government proper ever had a provision in its law for its own termination. it follows from these views that no state, upon its own mere motion, can lawfully get out of the union that resolves and ordinances to that effect. are we going void.

very different from what again, he had said in 1848, his affinity, the declaration in that sacred right he's now president united states. he's coming down very clearly that secession, in his mind is and he's not going let it happen. well, a month later we get the battle for fort sumter and the civil war is underway. and lincoln calls for 75,000 volunteers to suppress rebellion. and he immediately runs into some trouble because the to get the people from the north, you know, down to the south to try to suppress the rebellion, getting on trains and they're getting stuck part because there are there are some riots and there's objections from confed great sympathizers in this travel kind of philadelphia, the baltimore to washington, d.c. it's highly in fact, there's a couple of riots. four union soldiers are killed and 130 are wounded. lincoln, i can't have that. i've got to do something about it. and so he actually an order to

the commanding general. scott was still the commanding general at, the time at the beginning of the war. and he says, i'm suspending the writ of habeas corpus. you can now arrest anyone in that travel corridor. and if you decide the military decides that they are disrupting the war unfairly or unnecessarily, the government supporting the confederate ac any of those things you can arrest them you can hold them in a military prison without charge for as long as we need to. we need to clear up area. well, one of the people who is arrested a gentleman by the name of john merriman and john merriman, didn't like this outcome. he thought it was unfair. he thought it was illegal. he applied for this writ from the from the from the courts. and it finds its way to roger the chief justice, the supreme court, who has another job like all the supreme court justices at the time. he's writing circuit over circuit that has authority over it's a space where merriman is arrested.

so it comes to him and he says the federal courts are up and running. he should have his chance to go in front of a judge and plead his case. and so he signs out the writ. it's the way it delivered to the military prison where merriman is being held and they deny him entry. so look, our commander in chief says that doesn't apply anymore. we're not going to deliver this. merriman is still going to be. well, tawney not very happy about that sort. an unprecedented move by national executive to ignore an order from the chief justice supreme court. much never happened before andrew jackson's daughter did it once, but mostly this has never before. and tawney writes out this very lengthy notice that these great and fundamental have been disregarded and suspended like the writ of habeas corpus by a military order supported by force of arms. i can only say that if the authority which the constitution has confided to the judiciary every department and judicial officers, thus upon the pretext

of any or under any circumstances usurped by the military power at its discretion, the people of the united are no longer living under a government of laws. he puts his foot. there's nothing he can do about it. the military has sided with the president. there's no enforcement power in the courts. but again, this is sort of an unprecedented move for an american president to do is to, number one, put habeas corpus on. number two, to ignore from the courts. now, there was a question again about constitutionality of this act from the beginning, because there is a provision in the constitution that says in times insurrection or rebellion that you can suspend the writ of habeas corpus that is in article one of the constitution. article one belongs to the congress. article two belongs to the executive, the president. article three belongs to the judiciary. that's really clear. lincoln said maybe not so much. he puts the defense of his decision forward just to just a

short while later and. he says it is insisted that congress, not the executive is in is vested this power. but the constitution itself is silent as to which or who is to exercise the power. and as the provision plainly made for a dangerous emergency cannot be believed, the framers of, the instrument intended that in every case, the danger should run its course. congress could be called together, the very assembling of which might be prevented, as was intended in this case by the rebellion. there's two key points here, and let's take them one at a time. the first is the constitution is silent as to who has this authority. well, abe lincoln has his nickname, honest abe for a reason. he really was honest. the day is long and that's all of his contemporaries sort said, except maybe right, because this is probably most disingenuous statement that abraham lincoln ever made when the founders, when gouverneur morris, who i don't know if you know in the committee of style at the time of the he's the one who took it

from a bunch of articles and whittled it down to the final seven articles that they actually put together. and he organized it very explicitly. article one congress. article two, the president article three, the judiciary. he not go through line by line and, say the congress shall the congress shall. the congress shall. he didn't need to. everything in article one belongs to congress unless it says otherwise. in fact, if you in article one, section nine, where provision about habeas corpus is listed just the next three lines are right here, no bill of attainder or ex post facto shall be passed. no capital union or other direct tax shall be weighed. no tax duty should be weighed on articles exported from any state. it doesn't say congress. congress shall, congress shall, because it doesn't need to. it's in article one. these are clearly all powers solely for the rights of congress, not of the executive. so the one before about habeas corpus, clearly the responsibility of congress honest abe may maybe playing fast loose here, but let's talk

about the part of lincoln's statement. there was an emergency. couldn't congress was not in session at the time. he didn't have them to turn to. and he had get these troops through this difficult corridor and in there to suppress the rebellion. maybe he has a point here, but congress then comes into session two months later, july of 1861 and they start passing a whole bunch of laws to authorize, to raise troops, to pay them, to really finance and construct a war model so that he can suppress rebellion. they don't the writ of habeas corpus. that doesn't happen until 63, two years later. and over those two years, the lincoln administration arrests incarcerates almost 10,000 people, mostly american citizens. and they it again for speaking out against the government, speaking out against the war, potentially political adversaries that were involved in this or some cases of that 10,000 are arrested, not based on his executive order, not on

any authorization from congress. now, why would one can do that? and why would he think he has the power to do it? and of all the things that we're talking about here this evening, this next statement is probably the most important. if we're thinking about how lincoln thought his responsibilities in this time of crisis under the constitution. abraham lincoln said in 1862 and september as commander, chief of the army and navy in time war. i suppose i have a right to take any measure which may best subdue the enemy any measure which may which which may best subdue the enemy. now, if you think back to the constitution, ratification process way back 1788. patrick henry, the man of individual liberty. give me or give me death. the reason henry opposed the was because this was greatest fear that a executive would look at the constant and look for ways to sort of move between the lines, not a strict construct produced like a film or a pierce or a buchanan in.

but to be able to maybe especially in time of national crisis with the military by his side effectively make himself a king as they had thought about it in terms of the monarchs of who had this ability to take any measure that they felt was appropriate. now there's in the constitution that says that he can this the provision about being commander chief that's in there in article two, simply the president is the commander in chief of the army and navy doesn't say anything else. so it doesn't really put guardrails on but nobody to date and certainly interpreted this broadly that the president can effectively anything he wants. and we're going to see it now in a couple of other examples. beyond all these arrests that he's being the timing of this statement was not accident. nine days after this, lincoln issues an executive order for something he had said the year before. he wasn't going to do and he couldn't do. and that's called the emancipation proclamation. he wrote the draft out actually july. this is in his hand.

and he said his justification of this was things had gone from bad to worse until i felt that we had reached the end of rope on the plan of operations. we had been that we had a bout, played our last card and must change our tactics or lose the game. i now determined the adoption of the emancipation policy and consistent with the top line about he has now the authority as commander chief to pretty much do whatever he wants. he can free the slaves for military very necessity. that was his justification in the areas that were actively in. now, in terms of the military necessity part, there's absolutely there's no question there is a military for the north by the emancipation proclamation, several hundred thousand slaves escaped to their freedom in the north. that denies the south and the south and the military of the the services of all those and about 100,000 blacks actually joined the union, which was another provision in the emancipation proclamation, opening up to fight for the union army.

so no question there was a military advantage. but did he have the constitutional authority to do this? these arrests, the emancipation? well, lincoln again, continued to address this. he would write letters that he knew were going to be made public because he was getting criticized about this, not just from the south, but even some people in the north. and so in 1863, he writes couple of letters. this one is to albert hodges. was it possible to lose the nation and yet preserve the constitution by general law, life and limb must be yet often a whim must be amputated to save a life. but a life is never wisely given to save a limb. i felt that measures otherwise unconstitutional might become lawful by becoming to the preservation of the through the preservation of the nation. right or wrong, i assume this ground and now a valid in his mind if he has to the constitution in order to save it

to save the country preserve the union that was within his authority to do so. again, those other presidents that we talked about, fillmore, pierce, buchanan, they would never have made these kinds statements. that wasn't their view of the constitution. lincoln, in his role, he thinks this is necessary and it's appropriate. last one on on some of the acts that lincoln took he actually thought that by all those arrests he might have made a mistake. he might have actually waited too long. and should have started arresting people before they even committed a crime. lincoln said that of how little value the constitution or provision i have quoted will be rendered if arrests shall never be made until defined crimes shall have been committed. and in this to erastus corning, he lists by name confederate leaders that he said, you know what? i probably should have arrested them because we knew were going to be treasonous and go join the confederacy before they even. once again, taking this notion

of sort of violating the constitution in order to save it really to a level that is unprecedented. again he says in view of these similar cases i think the time might not unlikely come when i shall be blamed for having made too arrests rather than too many. now, most in the north actually supports this approach that arrests this morning letter that was read by millions of people. it was one of the most widely read documents of the entire civil war. most of the people in the north support this perspective. the the principle of trying to preserve the union was paramount on top of everything else. but not everyone. he certainly was criticized. in fact, the democratic platform in 1864 is sort of a laundry list of the president violated the constitution with this with this with this with this. so there is political opposition including from one of his predecessors, franklin pierce. franklin pierce, who had gone back new hampshire actually goes on the record criticizing lincoln.

really strongly. again, this different view of that oath of office and the responsibility is of the president. he said at the time, lincoln declared martial law early in the war. is this not the worst form of despotism? martial law declared throughout the land? let be no more talk of sovereign states of. constitutional rights of trial by jury. jury of legal protection for persons and property. this is wrong according to pierce. we don't violate the constitution in order to save it for the emancipation proclamation when it comes out. this is what pierce said. the last proclamation of the president caps the climax of folly, wickedness. what were the world say of a proclamation emanating from the president, the united states, in defiance of the fundamental law of the country, for the upholding of which he ought to have been willing to shed his own blood. they both took the same oath to preserve, protect and defend the constitution. they have very different interpretations of what that meant and different very outcomes. as we wrap things up, i want to talk about those outcomes for

just a moment. and what is history about this? and we sort of painted this this story of three presidents who, you know, strictly enforced sort of the rigors of the constitution and their oath and their outcomes weren't very good. the country basically breaking under them. lincoln along and sort of changes all that he's willing to break the constitution in order save it and eventually he actually the two most important things maybe any president has ever done. he preserve the union. he freed the slaves. so does the end justify the means? well, what is his what does history say? so we're on speed c-span today. so i pulled up there. survey of presidents. of course, there are several other ones out there. and we know here at wheatland that this is a common about sort of where does james buchanon in the overall scheme of things. if you look at the three strict construction, they're all near the bottom. fillmore, pierce and, buchanan, lincoln breaks constitution to save it. in this number one, you most of the survey says one or two him

in washington kind of go back forth. but what's interesting to me this, again, is, well, what's the criteria that use to assess these presidents and at one point, again, as i was going through my journey and writing my books, i'm trying to figure out, wolf, if i wanted to rate these presidents, what criteria would use. and to be honest with you, i stopped because i kept arguing with myself and i couldn't come up with really something that i was convinced was the right criteria. this is the criteria that the folks at c-span use individual leadership and there's ten of them. there's nothing wrong with any of the ten. the ten are all really good. and this is i mean, you look at the people credible respect the people who actually vote on this this this different survey. but i do believe there's a couple of things missing. when i was putting my list together a couple of things that i would have put on, and one of them is fidel's 82. the oath that preserved and defend the constitution. it's up here and i'm not saying that that's going to drop. lincoln 30 spots or it's going to raise other ones by 20 spots.

it's going to have maybe maybe, maybe a little bit of an impact. but i think the principle of, if that's the oath that they all take, that should be one of these criteria that we use and again, it's not going to offset all the other good or bad things that they might have done. but i think it's a piece of criteria should be included. so that's one of sort of my historical perspectives on this. the last thing to talk about it is really what about today? you know, if the 1850s, in 1860s was the most perilous and divisive in american history, some people think right now might be the second. most we are divided country and are there any of these kinds of issues that maybe we can learn from because. well we're obviously not talking about the constitution or finality of slavery and slavery expansion anymore. but we certainly are having issues on constant constitutional issues, civil rights states, even secession pops up a little bit. and yes, there is a supreme court decision out there from 1868. if you read it, it's a pretty

weak decision. this could potentially come up again as well. but the one i want to hone in here on the end, this one we've been talking about with mr. lincoln, his view on the power of the executive, particularly as the commander in chief and that statement that is commander in chief of the army and navy in time of war. i suppose i have a right to take any measure which which may best subdue the enemy now in the hands of. lincoln, maybe we trust that statement and as somebody else, maybe not. there's a couple of example one in the 20th century and one of the 21st century. i want to give you that that make you maybe have a little of pause about this at beginning of world war two, the assistance secretary of war by the name of john made the following statement. now, mccloy, not the president of united states, but he said, if if it is a question of safety, the country or the constitution of the united states, where the constitution is just a scrap of paper to me, that's a dangerous statement

from someone who's an assistant secretary of war, who's in the process of recommend to the president of the united states to incarcerate everyone of japanese descent from the west coast to the united states. and we go on to take 120 some odd thousand people of a japanese ancestry, about two thirds of whom are american citizens, are not charged with a crime, not convicted of anything forced to sell a lot of their belongings at, firesale prices and relocate into camps which are effectively prisons where they stay for the next couple of years. all kind of on this same principle is all done by executive order. initially by roosevelt. later, it's instantiated statute as well. but a president taking it upon himself every similar to lincoln's belief that in a time like this you can do anything you want perhaps is a little bit dangerous. 21st century we have another going on and there's a challenge for the administration trying to extract information from enemy combatants and there's a debate

about whether or not we can torture those people in to get that information. obviously is in the iraq war where president w bush and bush goes to lawyers in his administration and they basically come back and you can ignore federal statute, you can ignore international treaties. you're the commander in chief at time of war. you can pretty much do anything you want. you can ignore the constitution if you want to. if, as lincoln said, the best way you think to subdue the enemy again, that's a dangerous. i think we can actually rest pretty comfortably in the fact that lincoln what he did we it was was an intractable problem preserve the union free the slaves again perhaps the two greatest outcomes for any president the history of the country and this case perhaps we can sort of rest comfortably that if he was despotic he was sort of monarchic tendencies. he was a benevolent despot. he had the disorder the best interest at heart, the problem

is, what about the next guy who might not be so benevolent? what would what about this potential precedent of a president can do whatever they want in the guise of national security for someone is less benevolent perhaps a little more selfish a little more vindictive. someone who is less altruistic in his in his motivations. are we prepared? i asked the question, are we prepared for a president to follow lincoln's approach his almost doctrine view where you can do these kinds of arrests, even extra constitutional methods ignore the courts, place people under arrest, usurp the authority of congress and eviscerate elements of the bill of rights whether it's the first amendment, the second amendment, because it's a time of war. you're the commander in chief. you can get rid of all of that. well, again, maybe in lincoln's hand, we're okay with that. and he got great outcomes if somebody maybe, again less benevolent, a little bit more

selfish oriented, that could be a little bit of a problem, could it happen. well, i think history says it happen. and the question then is, should we grapple with that