Monday, April 4, 2016


The American Civil War spawned a vigorous debate on a plethora of concerns surrounding adherence to the Constitution. Many, if not all, of these controversial issues endure to the present day. Chief among them are the scope and scale of powers afforded to the President during a direct threat to the nation’s sovereignty and safety. Throughout the Great Rebellion the mandate of President Abraham Lincoln, America’s first Republican President, was to preserve the nation’s sovereignty and safety, and he interpreted his Executive war powers to be broad and sweeping. But he also applied them with the precision of a surgeon’s laser. Lincoln’s goal was to utilize his war powers only to the extent they would cause the warring rebels great hardship, and to end the rebellion as swiftly as possible.

In the intervening time between the outbreak of the Civil War on April 12, 1861 and the convening of a special session of Congress on July 4, 1861 up until that time President Lincoln invoked the boldest use of Executive war powers in the Republic’s history. They included increasing the size of the army and navy; appropriating money for the purchase of arms and munitions without congressional authorization; declaring a blockade of the southern coast, and suspending the privilege of the writ of habeas corpus. Less than two years later, on January 1, 1863, the President proclaimed an executive order known as the Emancipation Proclamation, freeing all slaves held as property within the rebellious states. The President defended his position on the Proclamation as a “military necessity” having constitutional support through his Executive war powers. “The most that can be said, is, that slaves are property. Is there-has there ever been-any question that by the law of war, property, both of enemies and friends, may be taken when needed?”

Scholars debating the merits of Lincoln’s actions predominantly focus on the constitutional arguments that support or rebuke Lincoln’s decisions. But there are overarching reasons that animated the President’s bold actions. Lincoln was obsessed with maintaining the Union, and he grappled with his conscience as how to accomplish this while upholding his constitutional duties as President. A case can be made that the Constitution was always at the forefront of Lincoln’s conscience as he grappled with the unique challenges he faced throughout this American crisis.

Critics of President Lincoln’s actions were numerous during the Civil War. Practically from the day he took office Lincoln was branded a dictator, in one form or another. Lincoln clashed with Chief Justice of the Supreme Court Roger Taney, who delivered the majority opinion in the Dred Scott case, over Justice Taney’s opinion in the ex parte Merryman (1861) case. In that case Lincoln suspended the privilege of writ of habeas corpus in the area between Philadelphia to Washington, D.C. Taney ruled that, under the Constitution, only Congress had the authority to suspend the privilege of writ of habeas corpus. Justice Taney accused the President of virtual tyranny writing,

“The people of the United States are no longer a government of laws. But every citizen holds life, liberty and property at the will and pleasure of the army official in whose military District he may happen to be found.”

Taney’s opinion in Merryman incited national and international accusations of a Lincoln dictatorship. In 1862 Benjamin Curtis, a former justice of the Supreme Court, and one of the dissenters in the Dred Scott case, published a pamphlet that accused Lincoln of assuming dictatorship powers. The London Times issued a report of the “absolute despotism of the present government in Washington.” In 1890 Lord Bryce compared Lincoln to Roman emperors and Oliver Cromwell in assessing his presidency.

President Lincoln’s war power measures were drastic, but they were not without constitutional context. It is outside of the scope of this paper to explore an exhaustive examination of the constitutionality of every war power instituted by the President, but there is ample precedence for his actions when evaluating them from a macro constitutional level. Although Article 1, Section 8, Clause 11 vests only in Congress the power to declare war, Article II, Section 1 has the President swear to “…faithfully execute the Office of the President, and…preserve, protect and defend the Constitution of the United States.” As a means for the President to fulfill his/her pledge Article II, Section 2 confers the President as permanent Commander in Chief of the Army and Navy, with the power to direct America’s troops. This entails, at a minimum, the authority to deploy troops to repel sudden invasions, even in the absence of prior legislative authorization. Constitutional scholar Akhil Amar notes, “During the Civil War, Lincoln repeatedly pointed to his authority as commander in chief to justify his various actions…to suppress what he (rightly) deemed an unconstitutional rebellion against the Constitution itself.

The Framers contemplated a robust Chief Executive; one they described as having the “energy” to provide for the national defense. Unlike Articles I and III- which vested legislative and judicial power in multimember bodies that would switch in and out of session-Article II evolved around a one-man President always on duty. With this basic structure, the Framers aimed to infuse the Executive branch with “energy”. In Federalist 23 entitled “The Necessity Of A Constitution, At Least Equally Energetic With The One Proposed” Alexander Hamilton writes that the authorities essential to the care of the common defense should be vested with “…powers [that] ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.” In Federalist 70 Hamilton describes an “energetic” Chief Executive. “Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks…” John Locke, who’s philosophy of government was highly influential in the drafting of the Declaration of Independence, defined Executive power as “the power to act according to discretion for the public good, without the prescription of law and sometimes even against it.”

In practice up until the Civil War there were multiple instances wherein the President invoked an energetic approach to Executive war powers.

• In 1794 citizens in western Pennsylvania engaged in a violent rebellion against the new government's tax on whiskey, which is commonly known as the Whiskey Rebellion. President Washington called up the militia to arrest the rebels. Civilian courts were administered under military direction. Washington justified his actions saying that “the essential interests of the Union demand it” and “that the very existence of government and the fundamental principles of social order are materially involved in the issue…”

• In 1798 President John Adams, empowered by Congress’s passage of the Alien and Sedition acts and in the midst of an undeclared war with France, deported any person who publicly opposed his policies towards France. Even the First Amendment was undermined with the President having newspaper editors who opposed his policies arrested for sedition, tried, and convicted.

• At the end of the War of 1812 General Andrew Jackson, acting on behalf of President James Madison, arrested and imprisoned a civilian newspaper writer for inciting mutiny among U.S. forces. A federal judge issued a writ of habeas corpus to free the writer, and Jackson responded by arresting the judge. The judge was set free, but the writer was tried and subsequently acquitted by a military tribunal.

• In 1817 President James Monroe, in response to cross-border Indian raids, authorized General Jackson to pursue the raiders into Spanish Florida, where Jackson seized forts and towns, and deposed Spanish officials and replaced them with Americans. This broad military incursion into Spanish Florida was conducted without congressional authorization.

• In 1846, without congressional approval, President James Polk ordered U.S. armed forces under General Zachary Taylor to proceed to the Rio Grande where they constructed a fort, blockaded the river, and threatened the Mexican town of Matamoros. U.S. and Mexican forces clashed, thus beginning the Mexican-American War, which Congress subsequently authorized.

Subsequent to the Civil War Presidents continued to invoke their broad constitutional powers during periods of war or national emergencies. President George W. Bush’s war powers actions after the September 11, 2001 attacks are the most recent profound examples. Actually there are parallels between President Lincoln’s challenges and President Bush’s. Neither President had the governmental infrastructure in place to contend with their individual crises. Lincoln’s Attorney General did not have the authority to supervise the nation’s sheriffs and district attorneys for the handling of disloyalty at the outbreak of the war. President Bush had to virtually build the governmental infrastructure for homeland security.

President Lincoln’s action were ultimately sanctioned by Congress vindicating his actions as acting chiefly under the umbrella of Congress’s express, implied, and retroactive authorization when he: (1) initiated preliminary war efforts; (2) issued a blockade against Southern ports; (3) suspended the privilege of the writ of habeas corpus; and (4) proclaimed all slaves in the South free.

President’s Lincoln’s drastic executive actions were not undertaken from a narcissistic or irresponsible point of view. Nor were his decisions the imprudent dictates of a tyrannist. These were the prudent, measured decisions of a student of the Constitution. The Constitution consistently served Lincoln as his moral compass. There are numerous examples of President Lincoln deferring to the Constitution as the ultimate source of morality and law.
Lincoln declared in one of his earliest speeches to the Illinois legislature.

“To those…who in the plenitude of their assumed powers, are disposed to disregard the Constitution, law, good faith, moral right, and everything else, I have nothing to say.”

When Lincoln defended his actions before Congress’s special session on July 4, 1861 he said his actions,
”…whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity; trusting then as now that Congress would ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress.”

On the specific matter of habeas corpus Lincoln famously said.
“Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated? such a case, would not the official oath be violated if the government should be overthrown”? (Along with justifying his actions to Congress to suspend the privilege of the writ, President Lincoln wrote a ten to twelve page letter to New York congressman Erastus Corning on the subject. He also wrote an extensive opinion on the constitutional basis for conscription. )

Despite Lincoln’s opposition to the Dred Scott decision and abolitionist outrage Lincoln said the following about adherence to the Constitution.
“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

En route to his inauguration in 1861 Lincoln remarked.
“When I speak authoritatively, I hope to say nothing inconsistent with the Constitution, the union, the rights of all the States, of each State, and of each section of the country.”

In the closing paragraph of the Emancipation Proclamation the President defended his order.
“And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.”
Within the body of these statements Lincoln conveys his veneration for the Constitution and how he views it as his guiding light for moral and just actions.

I submit that President Lincoln would have agreed with American jurist Richard Posner that the Constitution is not a suicide pact. I also submit that President Lincoln agreed with Thomas Jefferson when America’s third President wrote about the issues that confront wartime Presidents.

“A strict observance of the written law is doubtless one of the highest virtues of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.”

President Lincoln had respect for the formal principles and prohibitions of the Constitution. Regardless his dominating impulse was to protect the very nature of the Republic and not allow the real America to destroy itself, always looking beyond form to character. But President Lincoln always strolled along the corridors of the Constitution with it’s light leading his path to unite the Union. His devotion to the Constitution inspired his conscience to take the moral, just, and prudent action to preserve the Union. 

Lincoln’s final words at his Cooper Union address in February 1860 were “Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it.” President Lincoln, throughout his entire historic administration, embodied his sagacious counsel during America’s time of peril. It was a sine qua non for the Union’s salvation.

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