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Monday, November 13, 2023

The 1861 Joint Session of Congress

One way to study constitutional crises is to a look at a crisis that was averted. One example was the 1861 Joint Session of Congress that counted the electoral votes for Lincoln. By then, Lincoln was the President-Elect and some states had seceded.  If you look at newspapers, recollections, and diaries from February 1861, you see three pressing concerns about that Joint Session.

First, what if southerners stole the electoral votes? Literally. The Twelfth Amendment says that the ballots must be opened and counted in the Joint Session. What if the ballots themselves were stolen, lost, or destroyed? Would that mean that Lincoln could not be President? To address this concern, the ballots were given extra security. They were not stolen or destroyed.

Second, suppose the Vice President boycotted the Joint Session? Vice-President Breckenridge ran for President in 1860 as the Southern candidate and lost. He would later join the Confederacy. Suppose he refused to certify Lincoln's election. Would that prevent a transition of power? There were precedents for holding the Joint Session when the Vice-Presidency was vacant (in 1845 and 1853.) Would the same apply, though, if the Vice President was in office but did not show up? But Breckenridge did attend and preside over the Joint Session.

Third, what if a mob attacked the Capitol to stop the proceedings? General Winfield Scott addressed that fear by having troops and artillery stationed around and nearby. There were also security sweeps to make sure that no bombs were hidden in the Capitol. While there was an angry crowd protesting outside, they did not enter the Capitol. And Lincoln's election was confirmed.

Charles Francis Adams, in his diary that day, said: "In truth the Constitution is in many parts a very weak 1instrument, and it owes its success more to the absence of trials than to its innate vigour." 

Posted by Gerard Magliocca on November 13, 2023 at 08:21 AM | Permalink


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