Lessons from Lincoln

The American Enterprise Online ^ | January 18, 2006 | Joseph Knippenberg

[neverdem]

Lessons from Lincoln

By Joseph Knippenberg

Last month, I made the argument that the debate over the Bush Administration’s use of warrantless wiretapping would ultimately be resolved politically, not legally or judicially. The question, I argued (following John Locke), was whether “the public good” was better served by a rapid and unencumbered response to new intelligence, or by strict adherence in all instances to legal procedures. When this occurs, the ultimate safeguards of our liberty reside in the character of those acting on our behalf, and in the capacity of our political system to rein them in—either through the legislative process or the electoral process.

 

Inspired by a piece by political scientist Benjamin Kleinerman, I wish to bring some additional considerations to the table. Kleinerman focuses on the paradigmatic case of civil liberties during wartime, evident during the Presidency of Abraham Lincoln. As you may know, Lincoln pulled out almost all the stops in defending the Union, suspending habeas corpus and imposing martial law. Because such actions weren’t uniformly popular, Lincoln was compelled to respond to his critics. It’s from these debates that Kleinerman extracts a series of lessons we can learn from Lincoln.

 

The first lesson:

 

First, action outside and sometimes against the Constitution is only Constitutional when the Constitutional union itself is at risk; a concern for the public good is insufficient grounds for the executive to exercise discretionary power.

 

Our general temptation, Kleinerman argues, is to be none too fastidious when it comes to procedure. We’re all inclined to be results-oriented, wanting our leaders to be problem-solvers first and Constitutionalists second (if at all). While this attitude might be defensible if our very survival is at stake, all too often it carries over into ordinary politics. What Lincoln’s example offers us, Kleinerman says, is a standard or principle on the basis of which we limit executive prerogative. With such a standard, we don’t have to choose between a government too limited to protect us and one too strong not to be a threat.

 

Kleinerman’s second lesson:

 

Second, the Constitution should be understood as different during extraordinary times than during ordinary times; thus discretionary action should take place only in extraordinary circumstances and should be understood as extraordinary. Since it is only necessitated by the crisis, the action should have no effect on the existing law. To preserve Constitutionalism after the crisis, the actions must not be regularized or institutionalized.

 

Lincoln was careful to claim a warrant of necessity, not mere legality, for his actions, asking, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” He also insisted that “certain proceedings are Constitutional when, in cases of rebellion or invasion, the public safety requires them, which would not be Constitutional when, in absence of rebellion or invasion, the public safety does not require them.” Rather than weave the extraordinary measures into the fabric of our “normal” politics, Lincoln held them apart, preserving the possibility that, at the end of the crisis, our dependence upon and attachment to them would recede.

 

The novelty of our current situation is that our crisis seems to be open-ended. It will be hard for anyone to definitively declare victory in President Bush’s global war on terror. Given the decentralized nature of al-Qaeda, it won’t end with the capture of Osama bin Laden, Zawahiri, or Zarqawi. Stable political settlements—however you define them—in Iraq and Afghanistan most likely won’t prevent those housed within some other failed, ineffective, or tyrannical state from plotting mayhem against us, at home and abroad. An effectively endless string of “extraordinary” risks is becoming the new “ordinary.” Limits on our civil liberties, initially defended as circumscribed wartime measures, become part of our normal lives.

 

Kleinerman’s third lesson offers us some assistance here:

 

Third, a line must separate the executive’s personal feeling and his official duty. He should take only those actions that fulfill his official duty, the preservation of the Constitution, even, or especially, if the people want him to go further.

 

We and our political leaders must be able to distinguish between the merely desirable and the Constitutional, recognizing that the two are not identical, and that the former does not imply the latter. Not everything that is good is thereby Constitutional. An easy example comes from Lincoln’s case. His abhorrence of slavery knew only one bound—the Constitution, which did not give him the power, under ordinary circumstances, to abolish it. Hence he presented the Emancipation Proclamation as an exercise of his “extraordinary” war power, not as an exercise of a power normally available to the federal government. The Thirteenth Amendment, which was necessary to abolish slavery, followed from this understanding.

 

Adhering to this distinction between the good and the Constitutional requires exceptional self-discipline on the part of leaders and citizens alike. It requires a cultivated affection for the Constitution and for what some have called the forms and formalities of Constitutional government. If we are simply results-oriented, if we readily and unthinkingly acquiesce in the cynical view that “everything is political” and allegiance to the Constitution is naive or impossible, then we will lack the moral and intellectual resources required to defend our liberties.

 

I am far from conceding that all who rail against the Bush Administration’s “domestic spying” are justified in their complaints. There’s another element of civic education required as well. Just as we must be clear about the distinction between the Constitutional and the desirable, so also must we cultivate the capacity, as clear-sightedly as possible, to recognize the necessary. If sad necessity is to be the justification for the (limited) abrogation of our liberties, then we had better be able to understand it.

 

What this requires in our citizens and our leaders is a certain level of clear-sightedness or (dare I say it?) “realism” about the world. We have to be able to appreciate the threats we face and understand the appropriate means of dealing with them. We have to be able to conduct our debates, not simply on the basis of Constitutionalism, as if nothing else mattered, nor simply on the basis of national security, as if nothing else mattered. We have to be able to hold the two considerations in balance.

 

In his article, Kleinerman emphasizes public education in Constitutionalism, arguing that the major threat follows from our all-too-ready acquiescence in extraordinary security measures. I would argue that there’s an equally strong temptation to let our guard down, to regard temporarily successful avoidance as terminal success. More than ever, we depend upon the character of our leaders, upon their allegiance to both national security and the Constitution.

 

There is no institutional mechanism adequate to secure and assure these twin allegiances. But there are elections, where we can take the measure of a man’s—or a woman’s—character, asking if he—or she—has demonstrated adherence to Constitutional forms and formalities in ordinary times and if he—or she—has a clear sense of the scope and power of the threats we face.

 

I’d love to say that there’s a law that will make everything better. But there isn’t. All we have is our best assessment of the people upon whom we call to lead us. And we have their solemn vow to “faithfully execute the Office of the President of the United States, and…to the best of [their] Ability, preserve, protect, and defend the Constitution of the United States.”

 

 

Joseph Knippenberg is a professor of politics and associate provost for student achievement at Oglethorpe University in Atlanta. He is a weekly columnist for The American Enterprise Online and a contributing blogger at No Left Turns.

Posted:  January 18, 2006

[Heyworth]

Perhaps you can enlighten me before doing so, specifically what clause of the Constitution grants the executive or military the power to seize private property without renumeration.

I can point to the opinion of Justice Marshall in Brown v. US, "That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall chuse to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the Court."

That will, which Marshall requires, came from the Congress in the form of the first and second Confiscation acts.

[rustbucket]

Why not give the newspapers the benefit of the doubt?

You mean the newspaper that said the following (as I posted above):

No man, anywhere in the North, proposes for a moment to interfere with Slavery in any Southern State. No man proposes to exclude Slavery by Congressional action from any Territory. No man proposes to interfere in any way with the execution of the Fugitive Slave law ...

I'm sorry. I can't resist skewering the Times.

And from one of my earlier quotes from the Times on another thread:

In our judgment, the [Lincoln] inaugural cannot fail to exert a very happy influence on public sentiment throughout the country.

And from the Times naval expertise (posted above):

No matter how brave or skillful the Southern troops may be, they will be under a fire which will render the entire stoppage of relief to Fort Sumpter [sic] nearly impossible.

The Times also put forth a lot of verbiage and articles claiming that the objective of the ships and troop transports being sent south was Texas. I don't know whether this was false info being slipped to the paper by the Administration to throw off the Charlestonians or just a faulty (intentional or otherwise) interpretation by the Times.

Here is blurb they published about Texas on April 11th:

The fact is well known also, that a large portion of the Texan population, if not a majority, is loyal to the Union; and that it has been overpowered by the organized band of outlaws, known under the title of the Knights of the Golden Circle.

The fact seems to be lost sight of, is that the Federal Government is authorized and bound to "repel invasion" of the States, even when not called upon by the local Legislature or the Governors. Texas has been invaded by Indian tribes, and is threatened by lawless bands from Mexicans. Here, then, is legitimate ground for interference, in addition to the ordinary right of the Executive to send troops to any part of the Union.

By a vote of more than three to one, Texans approved the secession ordinance. The low totals against secession matched the vote for the pro-Union party in the 1860 presidential election.

The Knights of the Golden Circle overpowered the state? This seems to have escaped the notice of most historians. However, I did learn something of interest when researching the Knights. Apparently, a mob of Knights (and possibly some Confederate “Rangers”) attacked and destroyed the Alamo Express newspaper in May 1861. The Alamo Express was a Union paper. This is only the second mob action that I am aware of that destroyed a Southern newspaper.

Finally, the fact that the Feds had done a poor job at protecting Texas from invasion was one of the reasons why Texas seceded in the first place. How ironic that the Times thought the Feds could use Indian and Mexican invasions as a pretext to invade Texas.

[x]

I commented extensively on your argument in my last post, yet you ignored most of what I said.

Even when you "responded" you didn't respond. When I said:

"A northern Republican," "this was said," and "this quote" aren't adequate citations, and any decent scholar concerned with truth in research would recognize that.

You feebly responded:

And decent scholar........is that you?

Surely an ad hominem to avoid discussing your poor scholarship.

When I wrote:

Your plagiarism has already been documented.

You also ducked that as well, "forgetting" the post that you made that ditto and I found uncredited plagiarism of other sources in. You claimed another' word as your own and that's on the record.

I don't see much point in carrying on a discussion with you. From your choice of nickname on, Doris Goodwad, you've not been anything more than an annoying little nit or gnat or fly, simply buzzing around to annoy people.

[R. Scott]

Because A. Lincoln was a mean ol' man. Satisfied?

Of course he was - Lincoln was a corporate lawyer before he became a professional politician.

[R. Scott]

Again, you guys slam Lincoln for being a dictator who disregarded the Constitution, then slam him for not being a dictator and ending slavery in Union states by proclamation.

I don’t slam him for ending slavery in the Union by proclamation, because that is something he did not do.

[4CJ]

That will, which Marshall requires, came from the Congress in the form of the first and second Confiscation acts.

Based on the Supremacy Clause of the Constitution, any federal law in contrast to the powers defined in the Constitution is null and void (see Marbury v Madison). Amendment 5 states, "nor shall private property be taken for public use, without just compensation".

Again, the clause is not limited to time of peace, so Justice Marshall's opinion is moot. Again, perhaps you can enlighten as to specifically what clause of the Constitution grants the executive or military the power to seize private property without renumeration?

It's not a difficult question.

[kenavi]

Because they weren't in rebellion, therefore Lincoln didn't have the authority over them as a military measure that he did over the Confederate states.

You are wasting your time making too much sense for these people. I know some people like to argue just to argue, but I never thought I'd see allegedly "patriotic" Americans arguing against the event that kept us as one country and enabled the U.S. to become the greatest nation the world has ever known.

[Heyworth]

I don’t slam him for ending slavery in the Union by proclamation, because that is something he did not do.

Let me use smaller words. He didn't free slaves in the north because he couldn't. He did in the south because he could. This is because the south was in rebellion.

[R. Scott]

Sure he could. All he had to do was ram an anti-slavery law through the Yankee Congress.

[Heyworth]

All he had to do was ram an anti-slavery law through the Yankee Congress.

Again you're declaring Lincoln to be a dictator, then accusing him of being weak for not using his dictatorial powers. Here's a radical idea for you: He wasn't a dictator at all. See how the evidence now lines up?

Here are the facts: The Congress of the United States was of a mixed mind regarding abolition in the first half of the war, but even if they'd been solidly in favor of immediate emancipation in the states still loyal to the Constitution, they couldn't simply pass such a law. It would require a constitutional amendment. Lincoln frequently endorsed such an amendment, and insisted that it be included in the Republican platform for his 1864 reelection. Soon after, the 13th amendment passed Congress and went to the states for ratification. Meanwhile, most of the slave states in the Union outlawed the institution on their own, as they'd always had the right to do.

By the way, if you plan to bring up the standard "Lincoln offered the south an amendment making slavery permanent!" line that you guys always use, I'll simply point out that the proposed amendment also would have the states free to end slavery on their own.

[R. Scott]

Once again, the Emancipation Proclamation did not emancipate a single slave.

[Heyworth]

Once again, the Emancipation Proclamation did not emancipate a single slave.

Oh, so it's that one. Fine. Yes, you're right. It didn't free a single slave. It's significance was purely symoblic. But as a symbol, it was a powerful one. Here's what Frederick Douglass said about it, "and in the fullness of time, we saw Abraham Lincoln, after giving the slave-holders three months' grace in which to save their hateful slave system, penning the immortal paper, which, though special in its language, was general in its principles and effect, making slavery forever impossible in the United States. Though we waited long, we saw all this and more.

"Can any colored man, or any white man friendly to the freedom of all men, ever forget the night which followed the first day of January, 1863, when the world was to see if Abraham Lincoln would prove to be as good as his word? I shall never forget that memorable night, when in a distant city I waited and watched at a public meeting, with three thousand others not less anxious than myself, for the word of deliverance which we have heard read today. Nor shall I eve forget the outburst of joy and thanksgiving that rent the air when the lightning brought to us the emancipation proclamation. In that happy hour we forgot all delay, and forgot all tardiness, forgot that the President had bribed the rebels to lay down their arms by a promise to withhold the bolt which would smite the slave-system with destruction; and we were thenceforward willing to allow the President all the latitude of time, phraseology, and every honorable device that statesmanship might require for the achievement of a great and beneficent measure of liberty and progress."

http://members.tripod.com/~american_almanac/dougorat.htm

And given the way the south squawked over the proclamation, they certainly saw what it meant--that when the war was over, slavery would be ended.

[tpaine]

retarmy wrote:

There are a few elements missing in this discussion. First, Congress (and the President) did have the right to stop the secession. It is covered in the Constitution under two sections:

Section 8 – The Powers of Congress: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

Section 10 - Powers prohibited of States"No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." The states that seceded had their own troops and their own navy. --"

Well reasoned. -- Obviously, some States were engaged in an insurrection, & entering into agreements or compacts with other States.

[R. Scott]

It's significance was purely symoblic. But as a symbol, it was a powerful one.

Yes. As a piece of propaganda it helped keep Europe out of the war. Any country that sided with the Confederate States could be accused of being in favor of slavery.

[Heyworth]

Any country that sided with the Confederate States could be accused of being in favor of slavery.

Damn, that slaveowning thing is a real moral albatross around the neck, isn't it?

[Heyworth]

Amendment 5 states, "nor shall private property be taken for public use, without just compensation".

Except, of course, that the slaves weren't taken "for public use." The United States didn't seize them. It freed them. That might be a distinction without meaning to someone who has all his capital tied up in owning human beings, but it is a difference.

Again, perhaps you can enlighten as to specifically what clause of the Constitution grants the executive or military the power to seize private property without renumeration?

From the Emancipation Proclamation; "Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion,"

The decision in the Prize Cases goes on at length about the right to seize property of enemy belligerents in internal or external war. Here's a sample: "Wherever private property is taken or destroyed, it is because it is of such a character, or so situated, as to make its capture a justifiable means of coercing the power with which you are at war."

But in the end it pretty much comes down to this: If you want the protections guaranteed in the United States under the Constitution, you probably shouldn't go around renouncing your allegiance to it or making war on it.

[R. Scott]

I get the impression that you think I am defending slavery!

[4CJ]

Except, of course, that the slaves weren't taken "for public use." The United States didn't seize them. It freed them. That might be a distinction without meaning to someone who has all his capital tied up in owning human beings, but it is a difference.

Until Kelo the use of eminent domain always applied to public use. Regarldess of that decision, the Constiution is silent about takings for private use, or for simply seizing property at will - the power was not delegated to the federal government nor executive. Whatever power Lincoln claimed to exercise, he only possessed it as Dictator-in-Chief.

But in the end it pretty much comes down to this: If you want the protections guaranteed in the United States under the Constitution, you probably shouldn't go around renouncing your allegiance to it or making war on it.

But in the end it pretty much comes down to this: If you want to claim that the States had not seceded, and were still citizens of the US, then their Constitutional rights are guaranteed. See ex parte Milligan, a 9-0 slam against the powers exercides by the President, authored by his friend Justice David Davis. And that was a friend that offered bribes (cabinet positions to two delegations) to those that voted for Lincoln in convention.

[4CJ]

'exercides' should be 'exercized'