Law & Politics in Crisis: Abraham Lincoln's War Powers and Andrew Johnson's Impeachment Trial

Civil War-era history has mistakenly deemphasized the role of law as an autonomous force in shaping the course of events from Abraham Lincoln’s expansive assertions of executive power to Andrew Johnson’s impeachment trial before the United States Senate. Close examination of these two moments of distinct constitutional crisis—one in the opening days of the war and another in the midst of Reconstruction—shows that while legal understandings were pushed to their limits, many Americans remained dedicated to or at least constrained by the law as an independent force. This is not to claim that the law was dispositive on every issue for every actor. Instead this paper argues that even in the darkest moments of the Civil War-era the law mattered. The law shaped Congress’ response to Lincoln’s expansive claims of executive power. The law constrained Andrew Johnson and Radical Republicans in their clash over Reconstruction. The law set the terms of the debate over the constitutional status of the Confederate States both during and after the war. The law defined the scope Johnson’s impeachment trial and contributed to its outcome. To understand the force of law in Civil War America, this paper does not primarily focus on legal arguments made by lawyers and judges in traditional legal forums. Instead this paper examines law in the hands of those most likely to convert it into a mere political tool—politicians with pressing political objectives facing unprecedented crises—to show that while it was a tool for some the law still retained independent force in American politics and society.