Guest Essayist: Daniel A. Cotter

The Election of 1864: Constitutional Issues Raised by Lincoln’s Conduct of the War

The 1864 election pitted the incumbent, Republican President Abraham Lincoln, against George McClellan of the Democratic Party.  It was the first election since 1840 in which an incumbent was renominated by his own party.  A major focus of the election was the Civil War and the divided Union.  Lincoln’s actions as President would also be considered by the electorate, which reelected him in a landslide.

The Candidates

Abraham Lincoln was the Republican incumbent in 1864.  His election in 1860 was followed by Southern secession by a number of states before he was sworn in as President.  Shortly after his first inauguration, the Civil War commenced with the attack on Fort Sumter.  Lincoln declared martial law and suspended the right to writs of habeas corpus.  On January 1, 1863, Lincoln issued his now famous Emancipation Proclamation.  The war was still in full force when Lincoln was faced with the additional burden of a re-election campaign.  Seeking unity of a nation divided, Lincoln ran under the National Union Party label.

In the summer of 1864, the North, under the leadership of General Ulysses S. Grant, was facing tough fights and a military stalemate with the South.  Some political leaders, such as Salmon P. Chase (who would become Chief Justice of the Supreme Court in late 1864) and Benjamin Wade, opposed Lincoln’s renomination believing he could not win reelection.  Indeed, Lincoln himself did not believe that he would be reelected.  Fearing defeat, Lincoln signed a pledge and placed it in a sealed envelope and asked each of his Cabinet members to sign that envelope without first reading its contents.  The pledge made it clear that Lincoln intended to win and end the Civil War regardless of whether he was reelected:

This morning, as for some days past, it seems exceedingly probable that this Administration will not be re-elected. Then it will be my duty to so co-operate with the President elect, as to save the Union between the election and the inauguration; as he will have secured his election on such ground that he cannot possibly save it afterward.

Lincoln easily won the nomination for reelection by the Republican Party.

Democrats were split between those favoring continuing the Civil War and those who desired immediate peace without Union victory.  McClellan was a longtime member of the United States Army and, when former Presidential candidate Winfield Scott retired, McClellan became Commander-in-Chief of the Union Army.  Seeking a candidate that would unite the party, Democrats nominated pro-war candidate McClellan for President and anti-war candidate George Pendleton for Vice President.

The Election Campaign

Not since the War of 1812 had an election campaign taken place during a time of war. Lincoln made emancipation the central issue.  Only 25 states participated in the election, and when the votes were tallied, Lincoln had decisively won reelection with 55% of the popular vote and the Electoral College victory by a vote of 212-21.  Union soldiers, many of whom were permitted to vote by their home states, mostly voted to reelect Lincoln.

Lincoln’s Conduct of the War and Impact on the Constitution

President Lincoln aggressively exercised his Presidential powers.  Early in his first term, just after the Battle of Fort Sumter, Lincoln asserted unprecedented war powers, imposed a blockade on Confederate shipments, used funds not yet appropriated by Congress, and suspended the writ of habeas corpus.  Many asserted that Lincoln’s actions were unconstitutional.  Chief Justice Roger Taney was one, ruling Lincoln had no power to suspend the writ of habeas corpus.  Lincoln ignored that ruling (which was upheld by a new court five years later) and countered to his critics that his acts were taken in order to suppress a rebellion, which is specifically mentioned in Article I, Section 9, Clause 2 of the U.S. Constitution, rather than in connection with fighting a war.

On January 1, 1863, Lincoln issued his Emancipation Proclamation, setting free all slaves in Confederate states.  Many questioned the constitutional authority of a President to issue such a proclamation; Lincoln asserted that it was within his authority as a “war power.”  On November 19, 1863, Lincoln gave the Gettysburg Address, one of the most quoted speeches in our country’s history, in which he assured the nation that the bloodshed would not be in vain, but that there would be an end to slavery.  In the summer of 1864, he declared martial law by Proclamation 113.

Lincoln was a vocal enemy of the Chief Justice of the Supreme Court, Roger B. Taney.  The relationship was extremely contentious – the two disagreed on the issue of habeas corpus as well as slavery.  When Taney died on October 12, 1864, Lincoln made no public announcement and did not attend the funeral.


The Civil War and the divided Union were main focuses of the 1864 Presidential Election.  Months later, the war all but over, and three days after giving a speech advocating voting rights for blacks, Lincoln would be dead, assassinated by John Wilkes Booth.  The end of slavery would come in 1865 with ratification of the Thirteenth Amendment.  No President since has exercised Presidential powers as aggressively as Lincoln.

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also Immediate Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.

3 replies
  1. Barb Zakszewski
    Barb Zakszewski says:

    Lincoln did that to SAVE the Union, not destroy it.

    This is a great series thus far, setting our presidential elections within an historical context, showing why that particular president was elected at the particular moment in history.

  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The impetus for Martial Law rests on the fact that in time of war, civil authorities tend to be decimated and/or displaced. As civil authorities lose the ability to function and administer justice, military assume the role due to that vacancy. When Lincoln declared Martial Law in all the states of rebellion, it was pretentious in that the states in rebellion did have working civil authorities in most places until people like General Sherman’s scorched earth policy would scuttle civil authorities in the affected area. The suspension of Habeas Corpus also is a cousin with Martial Law. If there is no civil authority around to present prisoners to a judge, then there cannot be any Habeas Corpus to present a prisoner to a judge to even make a plea because no judge can be provided. And to demand that the next best judicial system of a military court is unrealistic to burden military judges with civil matters when bombs are going off and soldiers are being shot at. The suspension of Habeas Corpus is inherent then when military intervention is required due to the upheaval of civil authorities than may require judges themselves to even flee for their life. An on-scene military commander may recognize a defacto suspension of Habeas Corpus until such time as order may be restored to civil authorities out of expediency and necessity as the military is primarily purposed for fighting war, not running government. On one hand, as the President is called into service as a Commander in Chief in cases of invasion and insurrection, he may deem it prudent to recognize a state of suspension of Habeas Corpus WHEN civil authorities are ousted; but the proper place for suspending Habeas Corpus rests with Congress in all other places where civil authority faculties are still operating.


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