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Not to Defend, but to Understand

Critically Thinkin’ Lincoln: Shrewdly seizing power

The presidency is a traditional American square dance, involving a second partner (Congress), sometimes a third partner (the Supreme Court), and occasionally many others (state and federal officials).  They all perform in front of a huge audience (the general public).

Said to be gawky and inept, Lincoln stunned the audience, turning the square dance into a solo interpretive dance.  He glided across the floor, with freewheeling moves, for two-and-a-half months, until Congress joined him on the floor – at his request – on July 4, 1861.

Lincoln (Library of Congress)

A way to think about Lincoln

Historian Phillip Paludan writes:

Lincoln is a giant in almost every respect.  If ever a man deserved admiration, Lincoln does.  But he deserves it as a man.  And that man made mistakes, [and he] was devious and oppressive at times even while he was insightful and honest and struggled to preserve ‘liberty and union, one and inseparable.’ [i]

Early views

Historian David Herbert Donald writes that when Lincoln was a congressman in 1847, “He [Lincoln] claimed that the Constitution gave the war-making power to Congress, not to the Chief Executive.”  Lincoln reportedly said that the Founding Fathers called the war-making power  “the most oppressive of all Kingly oppressions,” and they “resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”[ii]

Lincoln completely reversed his position when he became President.

Calling Congress into session

Historian Don E. Fehrenbacher writes:

Coming as it did when Congress was not in session, the Fort Sumter episode gave Lincoln the opportunity to seize the initiative from the legislative branch—an initiative that he never relinquished.[iii]

On April 15, 1861, “the day after Fort Sumter surrendered, Lincoln issued a proclamation,” calling for 75,000 militiamen and summoning Congress into special session on July 4, 1861.

Fehrenbacher continues:

The very confusion of circumstances, the very uniqueness and urgency of the problems confronting him, amounted to a slate wiped clean, offering an extraordinary opportunity for the exercise of leadership. How did Lincoln respond? Decisively, beyond question.[iv]

Historian and Professor Eric Foner said in a lecture:

From Fort Sumter to July 4, 1861, when Lincoln calls Congress to meet in special session, for three months Lincoln runs the government all by himself.  There’s no Congress meeting, he doesn’t have to listen to the Judiciary, he appropriates money by himself, he raises troops by himself, he suspends the writ of habeas corpus by himself.

Key question

Foner asks:  “What authorized him [Lincoln] to do this?  He’s doing things which the Constitution says other branches of the government are supposed to do.”[v]

Envelope (Library of Congress)

Lincoln’s source of power

Legal historian James G. Randall notes:

The President’s sources of power must be found in the Constitution or in some act of Congress.  Yet the President has large discretionary power – a power which assumes great importance in times of emergency … latent powers which in time of war are capable of wide expansion. [vi]

Foner describes Lincoln’s idea of being a war-powers President:

War power justifies almost anything.  Lincoln understands that war power is this tremendous reservoir of presidential power, and he uses it, and he relies on it … If this is necessary for the war, then it’s unassailable.[vii]

A violation?

Foner states:

When Congress meets, he [Lincoln] says, ‘Well, I’ve done all this.  Have I violated the Constitution?’  He says, ‘No, I have not violated the Constitution.  I have gone beyond the Constitution …

With merit he [Lincoln] says the Constitution was not conceived for a situation like we face, and therefore, it [the Constitution] is irrelevant to the situation I faced when war began and Congress was not in session.  Of course, he [Lincoln] could have called Congress immediately, but he waited for it to meet on July 4, which was of course a very symbolic day.[viii]

Definitions of dictator

Foner said Lincoln wasn’t a dictator.  Undoubtedly, if one defines “dictator” by the examples of iron-fisted, murderous, 20th’Century leaders such as Lenin, Stalin, and Hitler, then Abraham Lincoln pales in comparison.  But in the context of the Constitution, jurisprudence, and the traditional balance of powers, surely Lincoln was, in William A. Dunning’s words, a “temporary dictator.” ”[ix]

Lincoln (Library of Congress)

Faustian bargain?

Lincoln later used his self-proclaimed war powers to emancipate millions of slaves behind Confederate lines, paving the way for abolishing slavery.  His action violated the very fabric of the Constitution as it pertains to the states, Congress, and the judiciary.  Nonetheless, emancipation was a noble, even a righteous deed.

Lincoln also used war powers as a basis for suspending habeas corpus.  Foner paraphrases Lincoln as asking, “Is it legitimate to violate habeas corpus in order that the entire edifice of the law survives?”

Foner states:

This is an impeccable argument, but it is also a loaded gun which passes down from generation to generation, which is seized upon by subsequent wartime Presidents, to justify egregious violations of civil liberties in wartime, such as happened in World War I, in World War II with the internment of Japanese-Americans, [and] has happened during the War on Terror.[x]

Somber warning

Andrew C. McLaughlin states in his Pulitzer Prize-winning Constitutional History of the United States:  “A president armed with the ‘war power’ may some day wreck the whole constitutional system … The dictator, if he ever appears, may discover precedents in the conduct of Lincoln.”[xi]

# # #

Thank you for reading my blog.  Please leave any comments and questions below.

[i] Phillip Paludan, “Toward a Lincoln Conversation,” a review of Lincoln in Text and Context:  Collected Essays by Don E. Fehrenbacher, Reviews in American History, Vol. 16, No. 1 (March 1988), 38.

[ii] David Herbert Donald, Lincoln (New York:  1995), 296.

[iii] Fehrenbacher, “Lincoln’s Wartime Leadership:  The First Hundred Days,” pgs. 2-18.

[iv] Fehrenbacher, pgs. 2-18.

[v] Lecture, “The Civil War and Reconstruction with Eric Foner: The Civil War, 1861-1865, Section 2, The First Year of the War:  Seeking a Union Strategy, CWR 2.2.4 Lincoln and Congress, Columbia Center for New Media Teaching and Learning, https://civilwartalk.com/threads/eric-foner-course-part-ii-the-civil-war-years-1861-1865.106685/page-2

[vi] James G. Randall, Constitutional Problems Under Lincoln (New York:  1926), 35-38.

[vii] Eric Foner interview, CWR 2.2, Lincoln a dictator? , Columbia Center for New Media Teaching and Learning, https://civilwartalk.com/threads/eric-foner-course-part-ii-the-civil-war-years-1861-1865.106685/page-2

[viii] Foner Lecture.

[ix] Foner lecture; Mark E. Neely Jr., The Fate of Liberty:  Abraham Lincoln and Civil Liberties, 226, quoting William A. Dunning, “Disloyalty in Two Wars,” American Historical Review, XXIV (October 1918), 625, 630.

[x] Foner lecture.

[xi] Mark E. Neely Jr., The Fate of Liberty, 230, quoting Andrew C. McLaughlin, Constitutional History of the United States (New York:  1936), 623.

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2 Comments

  1. David Negley

    This paraphrase, “Is it legitimate to violate habeas corpus in order that the entire edifice of the law survives?” reminded me of Pres Bush explaining he suspended free-market principals to save the free-market in regard to TARP. Slippery slope, it does seem.

    • David Connon

      Hi, David. I appreciate your point about a slippery slope. Lincoln specifically wrote, defending his suspension of habeas corpus, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” I disagree with Foner that Lincoln gave “an impeccable argument.” In this case, Lincoln overstates the notion that the government would go to pieces if habeas corpus were protected (that is, if citizens enjoyed due process of law). I’m reminded of a trial where a lawyer tries to give a compelling closing argument. As long as the jury is swayed, the technical accuracy of the remarks might not matter too much.

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