The First Amendment was not built for good men with good motives. It was built for the man behind the door in Dayton.

Start with the door.

A door in Dayton, Ohio, oak and ordinary, set in a house on a quiet street.

It is the fifth of May, 1863, and the hour is half past two in the morning. A man sleeps behind it. Down in the street the gaslight on the corner catches the wet shine of bayonets, and the soldiers stand close together against the cold, waiting for the order to break in.

The man at the window is no hero. He is a racist and an opportunist, a former congressman who has spent the war telling crowds that it is a wicked thing, fought to free the Black man and enslave the white. He is the worst kind of man to find on the right side of a principle.

And he is about to be exactly that.

This is the trouble with the story. It will not let you keep your sympathies clean.

You want the man behind the door to be worthy of the door, and he is not.

The Republic does not get to choose its hard cases. They arrive in the night, wearing whatever face they please.

The Order

There was a general named Ambrose Burnside, and the war had used him badly. At Fredericksburg in December he had sent his men up a hill into the guns again and again until the hill was a thing you could not look at, and the men did not come back, and the country knew his name the way a country knows the name of a disaster.

They moved him west to command the Department of the Ohio, which was a kind of mercy and a kind of exile both.

Out there the trouble was not Confederate. It was the Copperheads — the Peace Democrats who wanted the war stopped and the Union let go and the South let be.

Burnside, who had failed at killing the enemy, decided he would succeed at silencing the friends who would not fight. On the thirteenth of April, 1863, on his own authority and asking no one, he issued

General Order No. 38.

The order said that the habit of declaring sympathy for the enemy would no longer be tolerated in the department. It said offenders would be arrested and tried by military commission, or sent beyond the lines into the country of their friends. It said that treason, expressed or implied, would not be allowed. Two words. Or implied. In those two words a general drew no line at all between a man who carried a rifle for the South and a man who carried only an opinion.

He made the opinion a crime, and he made himself the court.

The Speech

Vallandigham saw the order for what it was. Not a threat — a ladder. The party had withheld the governorship from him, and here was Burnside handing him the one thing he could not buy: a martyrdom. He had only to be arrested for it. So he announced he would speak at Mount Vernon on the first of May, and he knew Burnside’s men would be in the crowd with their pencils, and he went anyway.

He went because of it.

The crowd was large — they said fifteen thousand, they said twenty. He talked for two hours. He called the war wicked and cruel and unnecessary. He said it was not being fought to save the Union but to free the Black man and enslave the white, and the ugliness of that line is not softened by the years; it should not be softened.

He called the President King Lincoln and said he should be put down. And then he came to Order No. 38, and he told them he despised it, that he spat upon it and trod it under his feet, and that his right to stand there and say so came not from any general but from General Order No. 1 — the Constitution of the United States, signed by General George Washington.

It was a taunt. He meant it as a taunt.

Down at the foot of the platform a captain in plain clothes was writing it all down in shorthand, and that shorthand would be the whole of the evidence, because no full transcript of the speech survives.

What we have is the charge sheet — the government’s own account of what he said, set down by the men who came to arrest him for saying it.

Remember that. The Republic recorded this speech only in the words of its prosecutors.

The Door, Again

Four nights later the soldiers came. He would not open the door, and he shouted down that no officer had the lawful right to take him, and the captain in the street did not argue the law. He said the name on the warrant was the man at the window, and that man was his, and he ordered the door broken.

An axe went through the oak. A woman screamed inside. They took him through the rooms and put him on a train to Cincinnati before the town was awake.

By morning Dayton was burning. A mob took the office of the Republican newspaper and put torches through its windows, and the fire ran to the stores beside it, and when the firemen came their hoses had been cut. It took soldiers to put the town back in order. The arrest meant to quiet Ohio had lit it instead.

This is the first lesson of the thing, and the Republic keeps having to learn it: you cannot make a man small by making him a prisoner. You only make him large.

The Tribunal

They tried him before eight Army officers. He was a civilian, in a loyal state, where the courts were open and the judges sat and the juries were empaneled every week of the year. None of that was used. He stood and said the commission had no power over him, and he refused to plead, and so they entered a plea of not guilty for him and went on without his consent. His defense never denied the speech. It denied the court. His lawyer argued only that soldiers had no business judging the words of a citizen where a citizen’s judges were a few streets away and idle.

They convicted him and sentenced him to close confinement in a fortress for as long as the war should last — not the two years that the legend later assigned him, but the whole of the war, however long that proved.

Burnside named Fort Warren, out in Boston Harbor. And in the cabinet, men who served the President wrote in their diaries that the thing had been arbitrary and unwise, that it had handed bad men a good question to ask, and that good men now found it hard to defend the government they wished to defend.

Lincoln’s Choice

Lincoln had not ordered the arrest. He was handed it the way a man is handed a live shell, and he had to decide what to do with it before it went off in his hand.

• To overturn Burnside was to break a general in the middle of a war and tell every agitator in the Midwest that the army’s orders were paper.
• To uphold the prison sentence was to keep a martyr fed and watered in a cell where the whole country could watch him suffer.

So he did a third thing, and it was the work of a political mind of the first order.

He commuted the sentence and ordered the man banished — sent south, across the lines, into the Confederacy he claimed was being wronged. In one stroke Lincoln backed his general, emptied the cell, and pinned upon Vallandigham the one badge he could not survive: the badge of the enemy.

He did not make him a prisoner.

He made him a Confederate.

The martyr became, overnight, a man who had been given exactly what he said he wanted.

The banishment had its comedy.

The Confederacy did not want him either — a man preaching peace is no use to men prosecuting a war — and he ran from the South as fast as a blockade-runner would carry him, to Bermuda, to Canada, to a rented room in Windsor on the Canadian shore with the Detroit River between him and the country that had thrown him out.

From there, in absentia, he ran for Governor of Ohio. He lost by a hundred thousand votes.

Gettysburg and Vicksburg had come in July and taken the argument that the war could not be won and buried it in the same ground as the dead.

The Letter

The case might have stayed a quarrel about one bad man. Lincoln would not let it. When a meeting of New York Democrats sent him a protest, he answered it in June with a public letter — the Corning letter — and he saw to it that the letter was printed and printed again until something near a third of the country had read it. It is the most important thing any President has written on the question of how much of the Constitution survives a war.

Lincoln gave his enemies one sentence they could have built a monument on. If Vallandigham had been seized, he wrote, for no reason but words spoken at a public meeting in criticism of the administration, then the arrest was wrong. He conceded it. He wrote it down where the whole nation could read it: if that was all, the arrest was wrong.

Then he moved the ground. The arrest, he said, was not for criticism. It was because the man was working, with some effect, to keep soldiers from being raised and to coax soldiers already raised into desertion — because he was warring on the army, and the life of the nation hung on the army.

And then the line that has framed the argument ever since, the line a country leans toward when it is afraid:

“Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?”

It is a powerful question. It is meant to make you ashamed of your scruples. And it carries inside it the whole danger of the doctrine, because every government that has ever wanted to silence a man has been able to say that his words, somewhere down the line, cost it a soldier.

The strength of the argument is exactly its weakness.

Once you grant that speech may be punished for what it might persuade a man to do, you have handed the state a knife with no handle, and it will cut whoever holds it.

The Court That Would Not Look

His lawyers carried the case to the Supreme Court.

In February of 1864 the Court gave its answer, and the answer was that it had no answer. It held that it had no power to review by certiorari the proceedings of a military commission ordered by a general commanding a department. It did not say Burnside was right. It did not say he was wrong. It said it would not look. Taney, who had stood against the administration before, joined the majority this time. Everyone wanted the case to go away. Only Vallandigham wanted it decided, and Vallandigham was the one man the Court could safely disappoint.

So the case that gives this profile its title produced no ruling on speech at all.

It produced a turned head. The principle had to be built afterward, on other men, in other years — in Milligan in 1866, which held at last that the army may not try a civilian where the courts are open; and far down the century in the speech cases, where the law crept slowly toward the very thing Vallandigham had claimed for himself, that mere opposition, mere denunciation, mere telling a President he should be voted out, is not a crime the state may punish.

The bad man had been right about the law.

He was just the wrong man to be right, and the Court could not bring itself to say so to his face.

The Last Demonstration

He went home after the war and practiced law, and he was good at it, and the years took the war off the front of men’s minds. In June of 1871 he was defending a man named McGehan in a town called Lebanon, on a charge of murder. His theory was that the dead man had shot himself — had drawn his own pistol clumsily while rising from his knees and fired it into his own body. To show the lawyers how it might have happened, Vallandigham took up a revolver from the bureau in his hotel room. He believed it was the empty one. It was the loaded one.

He drew it as the dead man would have drawn it, and it caught, and it fired into his stomach. My God, he said, I have shot myself. He died the next morning.

And here is the last turn of a life made entirely of turns: the demonstration worked. He had proved that a man could kill himself by accident in just that way, proved it past any juror’s doubt, and they acquitted his client.

He had spent his life arguing that the accidental could be made to look like the deliberate, and at the end he made the case with his own body, and won it, and was not there to hear the verdict.

The Consequence

So what do we do with him?

He was a bigot. He courted his own arrest for the lowest of reasons. He shook hands, almost certainly, with men plotting against the government of his own states. None of that is in question, and none of it should be smoothed away to make him fit a frame he does not fit.

And he was wronged. The Army broke his door at half past two in the morning and dragged a citizen before soldiers for the crime of a speech, in a state where the courts sat open and waiting.

Both things are true. They are not in tension. They are the whole point.

The First Amendment was never built to protect the speech of good men with good motives; good men with good motives have rarely needed protecting. It was built for the man behind the door in Dayton — for the worst possible speaker, making the best possible case, because if it will not hold for him it will not hold for anyone, and a freedom that protects only the deserving is not a freedom but a reward.

A republic endures only when it is willing to pay the private price of a public principle. The price here was Vallandigham — the indignity of having to defend, in law and in memory, a man you would not have in your house.

Lincoln paid part of it when he chose banishment over the cell and wrote the country a letter wrestling with his own conscience in public.

The Court declined to pay it at all, and turned its head, and left the bill for later.

We are still paying it.

Every time a nation at war is told that the safe thing and the right thing are the same thing, the door in Dayton swings open again, and the question Vallandigham asked from the platform comes back down the years, in his unworthy voice, carrying its worthy freight:

By whose order do you silence me — and where, in the whole Constitution, is it written?

He was the worst possible man to be right.

The Republic owed him the truth anyway.

That debt is the freedom.

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Next in this series: William Wallace Cranston — He Crossed Into Enemy Fire to Carry a Wounded Confederate Out

Charles C. Jett is the author of the Courage and Consequence series and writes at criticalskillsblog.com and civicsage.com. A former Cold War submarine officer and executive search specialist, he writes about judgment, character, and the decisions that define them.