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Civil War

Last Updated: 2006

The experience of the Civil War compelled citizens to make significant changes in the structure of American federalism, but these changes emerged in unexpected and often unlikely ways. Secession itself posed a direct challenge to the very idea of a federal union, and the repudiation of secession enshrined both the permanence of the federal union and the supremacy of the nation-state. The process of emancipation during the war forced the national government to assume powers that few Americans would have granted it before the conflict. Ensuring freedom in the postwar period required still greater expansions of federal authority, mostly under the auspices of new civil rights legislation. The longevity and intensity of the conflict bolstered the national government at the expense of the states as well. The federal government organized state militia units into a huge national army; established close relationships with the railroads, munitions manufacturers, and other military suppliers; and initiated long-sought legislative changes to create a truly integrated national economy. None of these changes was established easily. The era was marked by conflicts between advocates of expanded federal authority and those who sought to protect the prerogatives of the states. Nor were these changes established with perfect foresight. The necessities of war demanded new policies and new institutional arrangements, but the chaos and uncertainty of war blurred the nature of those changes.


The most public conflicts in the North over the extension of federal power revolved around Lincoln’s suspension of habeas corpus and the jailing of political prisoners. The issue erupted as soon as the war began. Lincoln suspended habeas corpus before Congress came into session in 1861 and periodically throughout the war. The first test of the president’s authority to suspend habeas corpus came with the arrest of a Marylander in 1861. John Merryman, a pro-Confederate saboteur, blew up several bridges in Baltimore County to prevent the movement of Union troops. In April, Lincoln had suspended habeas corpus for the area stretching from Washington, D.C., to Philadelphia in order to facilitate the movement of troops into the capital. Merryman was arrested by the military and held in Fort McHenry. Military authorities refused to recognize the writ of habeas corpus issued by Merryman’s lawyers to move the case to civilian courts. Merryman was released after seven weeks and later indicted for treason in civil courts, but never tried. The national consequences of his case came in the decision Ex Parte Merryman. The U.S. Supreme Court Chief Justice Roger Taney, sitting as circuit court judge in Baltimore, issued a writ for Merryman’s release and denied Lincoln’s authority to suspend habeas corpus. Lincoln ignored the order, citing Article I, Section 9, of the Constitution, which permits the suspension of the writ “when in Cases of Rebellion or Invasion the public Safety may require it.” Taney argued that only Congress could suspend it, but since Lincoln controlled the military he could refuse to release Merryman upon Taney’s writ. Lincoln’s victory in this dispute, dependent as it was upon his ability to use the army to enforce his decisions, was indicative of how conditional the changes to national authority were during the war.

Conflicts over the extent of executive power continued through the war, as Democrats and civil libertarians in the North protested the suspension of habeas corpus. Lincoln’s opponents also took aim at the arrests of political prisoners. The State Department possessed control over internal security at the war’s start and under Secretary William Seward’s aggressive leadership, hundreds of people, mostly in the border states, were arrested and detained without trial. In February 1862, the War Department assumed control over security and Secretary Edwin Stanton reduced arrests and established commissions to examine the cases of those still in prison. Most were released upon taking the loyalty oath. Arrests rose again in late 1862, as draft opponents demonstrated against the expansion of federal power embodied in the national draft. Union authorities arrested at least 15,000 people during the war, many of which were legitimate arrests of people actively encouraging desertion or draft resistance. But many also were editors, politicians, and others who criticized the administration’s policies. Lincoln himself admitted to preferring to err on the side of too many arrests rather than too few, since civil courts prosecuted crimes slowly and people awaiting trial could continue their treasonable activities. Most of the arrests occurred within the border South, which constituted a sort of war zone throughout the conflict. Though Lincoln’s opponents attacked both the principle upon which he justified the imposition of martial law and the particular cases where he exercised it, Lincoln’s actions were more restrained than the sedition laws enacted during World War I and the mass arrests and detention of Japanese Americans during World War II. Lincoln also made it clear that he did not consider his actions any kind of precedent for future presidents; the decisions he made were taken in the midst of war only to prevent the immediate dissolution of the nation.

The most famous case in the North revolved around the Democratic politician Clement Vallandigham, who was arrested in Ohio in the spring of 1863 for his inflammatory speeches. Charged with disloyal activities, a military court convicted Vallandigham and sentenced him to imprisonment for the duration of the conflict. Despite the furious opposition of Democrats and many moderate Republicans, the local federal judge refused to issue a writ for his release. Seeking to exploit the situation, Ohio Democrats nominated him for governor. Lincoln came under intense pressure to overrule the conviction, but instead he sidestepped the issue and commuted Vallandigham’s sentence to banishment to the Confederacy. Vallandigham escaped the South on a blockade runner to Canada and continued his gubernatorial campaign from there, though without success. Vallandigham appealed his case from abroad, arguing that civilians could not be tried by military courts if civilian courts were functioning, but the U.S. Supreme Court refused to hear it. Like Congress, the Court sanctioned the wartime expansions of the president’s authority.

More consequential than either the suspension of habeas corpus or the arrest of political prisoners was Lincoln’s decision to issue the Emancipation Proclamation. Though rarely framed in terms of its impact on federalism, Lincoln’s decision represented a significant shift in authority on one of the most divisive issues in American history. Although the U.S. Constitution did not use the word “slavery,” it sanctioned the institution—in the Fugitive Slave Clause and the Three-Fifths Rule—and federal courts had always recognized the constitutionality of slavery in states that sanctioned the institution. When emancipation occurred before the Civil War, it was due to state officials revising their constitutions. During the 1860 presidential campaign, Lincoln repeatedly pledged himself both unwilling and unable to interfere with slavery in those states where it already existed. He maintained this position well into the war, as demonstrated by his efforts to convince border state officials to enact emancipation on their own. The longevity of the conflict, the process of self-emancipation by slaves escaping to Union Army camps, and the necessity of keeping Great Britain and France out of the conflict all drove Lincoln to reconsider his position on whether he possessed the power to enact emancipation. When he did finally issue the Emancipation Proclamation, he did so with the careful language of a lawyer conditioning and justifying his decision. It was undertaken, Lincoln declared, “by virtue of the power in me vested as Commander-in-Chief . . . in time of actual armed rebellion against authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion.” Lincoln knew that his decision would be condemned by those who saw it as an unconstitutional violation of the balance of federal powers, but he argued that without such an action there would soon be no federal government at all.


The Lincoln administration expanded federal capacities in a number of nonmilitary areas as well. With southern Democrats absent from both chambers, Republicans were able to pass a sequence of long-sought legislative initiatives that elaborated the national market system that emerged in the antebellum period. All of these bills drew on federal authority with regard to land, economic development, and market regulation. The Homestead Act, passed in March 1862, was long-sought legislation that gave 160 acres of land to anyone who remained on it for five years. Under its auspices, 80 million acres were given away in 500,000 parcels, broadly expanding access to the western territories. The Land Grant College Act gave each state 30,000 acres per electoral vote to create agricultural and mechanical colleges. In February 1863, Congress passed the National Bank Act, which authorized the creation of new national banks founded on holdings of U.S. bonds. Congress later imposed a 10 percent tax on state bank notes, effectively ending the independent state bank system. The Legal Tender Act introduced national banknotes, helping to stabilize the northern economy and generating a precedent for the federal government’s issuance of paper money. Last, Republicans finally enacted a Pacific Railroad bill, ending a long prewar dispute over the route of the nation’s first transcontinental railroad line. In order to pay for the building of the line, the federal government granted 6,400 acres of public land for each mile of track to the Union Pacific and Central Pacific Railroad Companies. This land was then sold by the companies to generate the revenue to build the railroad itself. All of these elements demonstrated the deeply Whiggish outlook that the Republicans had inherited from their predecessors. They all used the federal government to develop and organize the national economy and infrastructure. Northern Democrats, for their part, opposed virtually all of these legislative initiatives, arguing that they were unconstitutional expansions of federal authority and unwise public policies.


Perhaps surprisingly, given the emphasis placed on states’ rights as a justification for war in the postwar period, the Confederacy experienced a growth of national authority similar to what occurred in the United States. Because the Confederate constitution enshrined the principles of state sovereignty, Confederates faced a more contradictory situation, but the war demanded centralization and a strong government. Most of the significant policy initiatives were undertaken by Jefferson Davis, with the Confederate Congress occasionally obstructing but usually sanctioning his actions. Governors emerged as the most vocal opponents of Davis’s measures, though his vice president, Alexander Stephens, became a vociferous critic of the administration as well. Governor Joseph Brown of Georgia, in particular, frustrated Davis’s efforts to solidify national control over manpower and resources in the Confederacy. The Confederacy never organized its Supreme Court, so there was no final arbiter to decide the merits of the arguments between Davis, Brown, and others.

Just as in the North, the issue of the suspension of habeas corpus animated critics of federal authority. In 1861, some Confederate commanders arrested civilians for disloyal activities and refused to respond to writs issued by civilian courts. Davis did not interfere, in effect sanctioning their actions. In February 1862, the Confederate Congress authorized Davis to suspend habeas corpus in advance of Union General George McClellan’s attack on the Richmond Peninsula. Davis was consequently granted the authority to impose martial law in several places, though each time the power was tailored narrowly to meet the situation. These actions brought the wrath of civil libertarians down on him, even though he used the power more sparingly than did Lincoln. The battle between nationalists and libertarians in the Confederacy raged throughout the war, but Davis’s aggressive pursuit of expanded federal authority should not necessarily be read as a complete abdication of the prewar southern tradition. Like Lincoln, Davis sought to respond to the situations with which he was confronted; he argued that unless he used federal power to protect the Confederacy, the Confederacy would not last.

Through the course of the war, the Davis administration responded progressively to pressures placed on the new nation by the war. In the face of a severe manpower dilemma in early 1862, the Confederacy imposed the first national draft in American history, one part of which automatically reenlisted for three years all those men who had signed up for one-year terms of service. The draft was vigorously opposed by soldiers and civilians alike, who regarded it as an illegal usurpation of authority by the national government. In September 1862, amendments to the draft were passed that included carefully crafted rules for exemptions. These exemptions gave the federal government enormous control over the shape of the civilian workforce. In effect, the Confederate government controlled all of nation’s manpower by the end of 1862. Conflicts also developed around the tax-in-kind, a 10 percent tax in key foodstuffs adopted in early 1863, which hit yeomen very hard. The law angered states’ rights advocates still more because the foodstuffs obtained by the Confederate government were redistributed to poor families, putting the Confederacy in the business of dispensing welfare, something that even local governments had eschewed in the prewar South. Another piece of centralizing legislation that clearly broke with prewar traditions was impressment. Adopted in late 1863, this law gave the government and the army the authority to seize needed supplies and reimburse people in the rapidly depreciating Confederate scrip. Like the tax-in-kind, this measure was deemed necessary to maintain the war, though it drew the ire of states’ rights activists around the Confederacy. Governor Brown of Georgia engaged in a long correspondence with Davis, protesting the constitutionality of a variety of measures that Davis advocated. Unlike governors in the North, Brown went so far as to obstruct the ability of federal agents to carry out laws such as conscription and impressment.


The similarities in governance between the North and the South were mirrored in the reactions of citizens of each section to the changes undertaken by their respective governments. Most civilians complained bitterly about the expansion of national authority, but most accepted it as the price for winning the war. Within each section, a die-hard political opposition did not accept the changes as legitimate and spent much of the war articulating its opposition to the policies of centralization. In the North, Democrats formed the main body of opposition to the Republicans’ legislative initiatives. They had opposed Whigs’ efforts before the war to use the government on behalf of business, and they saw little improvement in the cozy relationship between Washington and the railroad companies during the war. Their opposition was both principled and political. They sincerely preferred a federal system with balanced national and state authority, and they condemned the way that Republicans used new federal powers to build their constituency.

Conservative Northerners strongly opposed the draft, which passed after the Confederate version but was similar in most respects. The high point of opposition came in the infamous New York City Draft Riots of 1863, when gangs of white laborers attacked and murdered dozens of the city’s black residents. Alongside the principled policy opposition to the draft made by politicians was a deep anger among conservatives at the notion that white men were being forced to fight a war for black freedom. Thus, in the North more of the anger toward the draft came from its racial implications than from the change it constituted in federal-state relations. Confederates articulated their opposition to the draft in more principled terms than Northerners but opposed it just as strongly. Likewise, they denounced the tax-in-kind, impressment, and various other centralizing measures as violations of the new Confederate constitution. Still, a majority of residents in both sections sanctioned the governments that passed these laws, especially in their willingness to send men to fight and die in the armies. Accepting the necessity of wartime measures did not mean that civilians in either section anticipated that the centralizing elements would make a substantive difference in how their governments functioned after the war. The notable exception is the category of northern economic legislation, which was strongly supported by well-connected and powerful communities across the North. The reluctance that attended most of the changes in governance should discourage any easy assumption that the Civil War was an inevitable stop on the path to a “modern” United States. Federalism advanced in the shadow of war, which was impossible to predict or direct. The repudiation of secession guaranteed the supremacy and permanence of the federal government, and the Union’s endorsement of emancipation obligated it to devise the mostly federal structures that would ensure it lasted, but Republicans did not completely abandon their antebellum orientation. In general, Republicans, and most Northerners, remained committed to preserving state power as a balance to federal authority. The North did not engage in the type of broad centralization of power that accompanied nationalist movements in Europe at the time. Indeed, the history of the era following Reconstruction reveals the limits to Republicans’ vision, as new reformers felt compelled to organized themselves to combat the corporate autonomy and influence that had been so central to northern victory in the war.

SEE ALSO: Economic DevelopmentFederal CourtsGovernors and FederalismHomestead Act of 1862Jefferson, ThomasReconstructionSecessionSlaverySovereigntyTaney, Roger BrookeWelfare Policy


Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (New York: Norton, 1978); Richard Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (Cambridge: Cambridge University Press, 1990); Harold Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (New York: Harper & Row, 1982); Mark E. Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991); Mark E. Neely, Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism (Charlottesville: University Press of Virginia, 1999); and George C. Rable, The Confederate Republic: A Revolution against Politics (Chapel Hill: University of North Carolina Press, 1994).