(March 28, 1867)
Following passage of the Reconstruction Act, The Nation raised fundamental questions about which side in the Reconstruction debate, Congressional Radicals or President Johnson, properly interpreted the U.S. Constitution. Johnson, the editor explained, assumed that civil government essentially had been restored in the former Confederate states, and thus opposed Congress authorizing martial law in the South and regulating voting rights. Advocating that the nation’s leaders adhere strictly to the Constitution but not construct it in a strict manner, The Nation sided with the Radicals.
. . . Some journals—the New York Times for one—which, during the war, unhesitatingly justified the suspension of the habeas corpus without the authority of Congress, the establishment of military commissions in loyal States, and various other measures the unconstitutionality of which is no longer in doubt, if it ever was—are now amazed and afflicted at what they assume to be the unquestioned disregard of Congress for the Constitution. In this lamentation they are of course joined by that larger number of journals which denounced the unconstitutional acts of Mr. Lincoln, but applauded to the skies the more unconstitutional (because less necessary) acts of Mr. Johnson. . . .
The next objection is to the suspension of the habeas corpus by act of Congress, a measure for which we have no special affection, but as to which we must here consider only the question of legitimate power, and not the question of expediency. It is said that the rebellion is over, and therefore that the power to suspend this writ has expired. It is true that all organized war is over; but is it to be imagined that the suspension of the writ must cease upon the instant that the last rebel army lays down its arms? Do all the rights of war cease at that moment? If so, no prisoner of war could have been lawfully detained after that time, and all the precautions and machinery incident to a state of war must then have been instantly abandoned. We all know that there is no such rule. Mr. Johnson certainly never acted upon it. No government or military commander ever did. The state of war lasts until society is restored to its natural and normal condition. If the war is between distinct nations, it lasts until a treaty is signed, even though months elapse, during which the vanquished nation has not a man under arms. If the war is a civil one, it lasts until civil government is fully restored by legitimate authority. This has not been done in the Southern States. Mr. Johnson thinks it has, and utterly ignores all contrary opinions. His veto messages have been carefully framed not to controvert the arguments by which Congress justified its action, but to give the impression to the world at large that no such arguments were thought of by any one. There is something ingenious, but not ingenuous, in this mode of carrying on a public controversy; and the fact that ten men read the veto messages to one who reads the speeches or other arguments in confutation of them, gave Mr. Johnson an immense advantage. Such tricks of argument are common among unscrupulous lawyers, and it is by some such persons, we surmise, that the Presidential messages have been written.
Of the same class is the objection to the recent law regulating the elective franchise in the rebel States. Mr. Johnson suggests, with an air of mild surprise, that it has never before been deemed within the power of Congress to regulate that subject within any of the States. The fact that these States had become so utterly disorganized as to make the interference of the national Government necessary, in pursuance of an express provision of the Constitution, and the further fact that he had himself acted upon this theory, regulating the right of suffrage in these same States according to his own will, he entirely keeps out of sight.
This poor example of an unworthy Executive is religiously followed by all his supporters and apologists. They gladly quote every hasty expression of impatience with constitutional restraint which they can find in the speeches of Congressmen opposed to the President’s doctrine; but they never allow their readers to suspect that the Congressional policy is believed by any one to be warranted by the Constitution. The establishment of martial law in the rebel States is probably the most doubtful of any of the measures of Congress; yet its validity, assuming the continuance of the war, has been expressly affirmed by four judges of the Supreme Court, one of them being a Georgia Democrat. Nor did the opinion of the majority of the court in the Milligan case at all affect this question, unless by inference it conceded the power to Congress. Mr. Johnson certainly claimed this power for himself, maintaining and administering martial law until civil government in his opinion was regularly organized. Congress simply proposes to do the same thing until in its opinion civil government is regularly organized. Its power to do so is far more clear than was Mr. Johnson’s, while its jurisdiction to determine the validity of the governments set up at the South is indisputable.
In conclusion, we expect always to advocate a strict adherence to the Constitution, but not a strict construction of it. Such a construction has been vehemently advocated, but never maintained. Jefferson, who was its ablest advocate among our earliest statesmen, was compelled to violate it; and Calhoun himself would have done so had he been President in a time of emergency. No human wisdom could frame a detailed plan of government that would not at some period suffocate the nation if strictly construed. We do not believe that the framers of the Constitution ever contemplated the possibility of such a war as we have just witnessed, and we therefore do not believe that all its restrictions were designed to be severely applied to such a case. A very wide scope must be allowed to legislative action under such difficulties, and a liberal interpretation should be given to the general words of the Constitution. But we do not imagine that Congress is absolved by these difficulties from obedience to the fundamental law, nor have we seen any evidence that Congress supposes itself to be so. It has preferred some other dictionary to Johnson’s, and this is the origin of all the trouble.