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

[4CJ]

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,"

Lincoln is at odds with his own Lieber Code, Article 38 stating, "[p]rivate property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity", and even then, "the commanding officer will cause receipts to be given." Receipts, so that the owner may be indemnified.

I'd also stated that the Supreme Court had ruled before the war that measures such as Lincoln claimed were illegal:

There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner.

... Our duty is to determine under what circumstances private property may be taken from the owner by a military officer in a time of war. And the question here is, whether the law permits it to be taken to insure the success of any enterprise against a public enemy which the commanding officer may deem it advisable to undertake. And we think it very clear that the law does not permit it.
Chief Justice Taney, Mitchell v. Harmony, 13 How. 115 , 134, 138 (1852)

A position reiterated by yet another Supreme Court decision:

"We fully agree with the presiding justice of the Circuit Court in the doctrine that the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield. We do not controvert the doctrine of Mitchell v. Harmony, reported in the 13th of Howard; on the contrary, we approve it."
Justice Field, Dow v. Johnson, 100 U.S. 158, 169, (1880)

[tpaine]

Heyworth remarked:

-- 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.

Your state government has no power to force an individual to renounce US citizenship.

All persons/civilians in the seceding States remained citizens of the US unless they personally renounced citizenship or aided the rebellion.
By seceding & making war, those in actual rebellion had forfeited their rights to be treated as citizens. As belligerents, their rights to life, liberty or property could be lost.

[4CJ]

Your state government has no power to force an individual to renounce US citizenship.

It seems we have a Tory in our midst. At that time a person possessed American citizenship by virtue of state citizenship. If a person chose to remain a citizen of the US, all they had to do was move to a state remaining in the union. No one forced them to stay.

Secession did not mean war - is simply meant that the people of that state chose to exercise their powers as described under the Declaration of Independence, and guaranteed by the Tenth Amendment of the federal Constitution. The seceded states did not send armies to Washington to depose Lincoln and overthrow the federal government. As belligerents, their rights are still God-given:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Lincoln waging war against the seceding states was a war against the Declaration.

[x]

Using the term hearsay, which was refuted several posts back, is also a major misappropriation of logic:

Rubbish. You don't know the meaning of "hearsay" or "refute."

Semmes, Bledsoe, Howison, Duyckinck, Avirett, Dabney, and Lossing weren't there. Charles Adams, who's still alive, obviously wasn't there. Therefore, their testimony is second-hand, or in legal terms, hearsay. They aren't giving independent testimony about one incident or about different incidents. Rather, they're repeating one or more stories about which they had no first-hand knowledge.

Some of them retell the Baltimore Sun or Baldwin stories. Others, like Semmes, relate what appears to be the same alleged incident, but put different words in Lincoln's mouth. That's a sign that they aren't working from real sources but from Confederate folk history or mythology of the era. There's nothing that Semmes or Bledsoe or Avirett says that proves anything or provides independent confirmation of any claim.

John Baldwin did meet with Lincoln, but his account -- available at the Library of Congress website -- isn't wholly reliable. See John Minor Botts's The Great Rebellion, also available on line. Botts backs Baldwin on one point, but doesn't express much faith in Baldwin's memory or character in general.

That leaves the Sun story attributed to Fuller. Perhaps the story did come from Fuller, a Baltimore Baptist minister born at Beaufort South Carolina and a defender of slavery as scripturally justified. Perhaps it didn't. Perhaps Lincoln said what the Sun, a paper edited by pro-slavery pro-Confederates, attributes to him. Perhaps he didn't. But it's hardly convincing evidence of any great conspiracy on Lincoln's part.

Revenue is something that any national leader thinks about, and has to think about. It may have been on Lincoln's mind at that moment. But that doesn't mean that revenue was the only or chief consideration on his mind, or that it was "my tariff" that was most important to him, or that the US was going to go to war chiefly or entirely on that ground.

I do have to wonder about the Fuller meeting. Sumter was attacked on April 12-13. Everyone knew that war would be the likely result afterwords. Yet here's this Southern-born minister supposedly telling the President give in on everything, let them have what they want and you'll have peace. Imagine someone telling Roosevelt that after Pearl Harbor or Bush after 9/11. Imagine someone making such a remark at a moment when the country didn't even know if its capital was secure.

If I were President, I'd scarcely know how to respond to such nonsense. I suppose that a clergyman would be justified in making such a request, but there's something a little strange about the whole alleged incident. It's not impossible that Fuller or the Sun writer condensed Lincoln's remarks to put a negative spin on them.

Elsewhere, Lincoln made his prewar rationale clear: the courts, the mails, national defense, and import duties were four ways the federal government expressed its authority. So long as the federal courts were in session, the mails delivered, the forts maintained, and the tariff collected, one could believe that the union was intact. If none of these federal activities was practiced, the union was clearly broken. That's a major reason why the tariff was so much on Lincoln's mind during the Sumter crisis.

But after Sumter war was a fact whatever was done about the tariff. And war was bound to cost more in outlays than it could ever bring in as revenue. I can't answer for what a president might say behind closed doors in a moment of national catastrophe, but there's something questionable about the whole argument that the war was fought for tariff revenues.

Now as for "refute": nothing that you've said "refutes" anything. You simply throw out a little abuse and sarcasm and a mock superior attitude, and assume that you've proved something, when all you've done is cut and paste some text and typed a comment underneath. Whatever name you post under, you're still just a little nit or gnat or fly or flea buzzing around trying to attract attention to yourself.

[tpaine]

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.

Your state government has no power to force an individual to renounce US citizenship.

All persons/civilians in the seceding States remained citizens of the US unless they personally renounced citizenship or aided the rebellion.
By seceding & making war, those in actual rebellion had forfeited their rights to be treated as citizens. As belligerents, their rights to life, liberty or property could be lost.

It seems we have a Tory in our midst.

Bizarre use of 'Tory'. -- I support our Constituttion as written, you claim States can ignore it.

At that time a person possessed American citizenship by virtue of state citizenship.

Absolute bull. Quite a few of our US Citizens in those days lived in 'territories', areas that were not yet States. Territories were administered by the federal government and citizens rights under both jurisdictions were equal.

If a person chose to remain a citizen of the US, all they had to do was move to a state remaining in the union. No one forced them to stay.

Are you claiming that a seceding State could ~force~ a citizen to sell out & leave because he refused to actively support the Confederacy?

Secession did not mean war - is simply meant that the people of that state chose to exercise their powers as described under the Declaration of Independence, and guaranteed by the Tenth Amendment of the federal Constitution. The seceded states did not send armies to Washington to depose Lincoln and overthrow the federal government. As belligerents, their rights are still God-given -

All of us hold these truths to be self-evident, that all men are created equal, that they are endowed with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
-- Yet 'states rightists' want a State to have the power to ignore those rights for some of the men that reside within its borders.. Men that do not agree with the majority politically.

Lincoln waging war against the seceding states was a war against the Declaration.

Whatever. I can't argue against irrational calls to 'save liberty' by ignoring the Constitutional rights of individuals within a State.

[Heyworth]

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

Not at all, although I've seen a few Lost Causers do so. There was one guy a year or so ago who thought slavery such a fine institution that he said he'd consider becoming a slave himself if it meant he'd be fed and cared for the rest of his life.

My point, though, was that while you claim the EP was pure propaganda, you also state that it had the effect of keeping France and England out of the war for fear of appearing to support slavery. Clearly it could not have had such an effect if slavery wasn't, in fact, seen to be a moral wrong by those European powers. The fact is that, whatever the southern fantasies of having European armies fighting by their side against the United States in order to guarantee the flow of cheap cotton, there was never any serious consideration of it. Slavery WAS a moral albatross around the south's neck, and the southern cause wasn't that popular with the working (and voting) masses from the outset because of it. Hell, the British had essentially invented abolitionism. The EP simply had the effect of silencing the small minority that supported intervention.

[R. Scott]

… that he said he'd consider becoming a slave himself if it meant he'd be fed and cared for the rest of his life.

Sounds like some felons I knew. When they were released from prison, they had a hard time adapting to freedom. One of them actually tossed a brick through a store window, sat on the sidewalk and waited for the police.

My point, though, was that while you claim the EP was pure propaganda, you also state that it had the effect of keeping France and England out of the war for fear of appearing to support slavery. Clearly it could not have had such an effect if slavery wasn't, in fact, seen to be a moral wrong by those European powers.

So you are saying it wasn’t a propaganda ploy because it was successful propaganda?

[Heyworth]

So you are saying it wasn’t a propaganda ploy because it was successful propaganda?

Well lots of things can be taken as propaganda ploys. Are presidential inaugural or state of the union addresses propaganda ploys? The EP did function as a legal and military document. While no slaves were "actually freed" in the instant Lincoln lifted his pen from his signature, in a legal sense the Union would no longer recognize slaves as the property of their owners, in the areas under rebellion. As the war went on, and hundreds of thousands of slaves freed themselves by walking off the plantations and heading for Union lines, the EP had very real effect.

But everyone will admit that the EP's greater impact was as a statement of principle in the same way as an inaugural or State of the Union address. And that statement, that when this whole thing was over, slavery would be fatally crippled if not dead, did have a real impact. In America (and read some of the howling southern editorials after the EP for some fun) and in cowing the minorities in England and France who thought cheap cotton somehow trumped basic morality.

As for the Union slave areas, the process of abolition was well underway, with the job finished when the 13th amendment was passed.

[4CJ]

Your state government has no power to force an individual to renounce US citizenship.

Why? A state ratifying the Constitution can FORCE federal citizen on parties not desirous of such. Again, citizens derived status by virtue of state/territorial citizenship. It's ludicrous to assert that a person can possess federal citizenship without residing in a state/territory. But yet again, even the Supreme Court acknowledged the fact:

Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle.
Justice Grier, The Prize Cases, 2 Black 67 (1863)

Note that it's not illegal, it took force of arms to determine the issue.

[tpaine]

Your state government has no power to force an individual to renounce US citizenship.

All persons/civilians in the seceding States remained citizens of the US unless they personally renounced citizenship or aided the rebellion.

Why? A state ratifying the Constitution can FORCE federal citizen on parties not desirous of such.

Force? Daffy idea. -- Anyone can renounce citizenship.

Again, citizens derived status by virtue of state/territorial citizenship. It's ludicrous to assert that a person can possess federal citizenship without residing in a state/territory.

Who asserted that?

But yet again, even the Supreme Court acknowledged the fact:

Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle.
Justice Grier, The Prize Cases, 2 Black 67 (1863)

Note that it's not illegal,

Note that ~what~ is not illegal?

it took force of arms to determine the issue.

You obviously think you've made a point, but its not evident. Try again..