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

Posted on 01/18/2006 1:03:24 PM PST by 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.




TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Foreign Affairs; Government; News/Current Events; Politics/Elections; US: District of Columbia; War on Terror
KEYWORDS: abelincoln; greatness; lessons; lincoln; presidents; union; victory; wiretapping
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1 posted on 01/18/2006 1:03:25 PM PST by neverdem
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To: neverdem
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.

This is nonsense...respect for the Constitution would have ended slavery...and would have done so peacefully and without the abuse of the Constitutional limits on the power of the federal government that Lincoln engineered.

Of course, Abraham Lincoln supported the Fugitive Slave Act... an unconstitutional act of sweeping federal power designed to protect slavery in the southern states as an inducement to keep the southern states in the union. At the Hampton Roads Peace Conference, Lincoln assured the Confederate representatives that, if they re-joined the union, the Emancipation Proclamation would become inoperative. Moreover, at that conference, Lincoln and Seward attempted to persuade the confederate states to re-join the Union by reminding them that they could defeat the pending 13th Amendment that would have ended slavery in the US...an amendment that was sure to pass unless the southern states re-joined the union. Lincoln himself, in his first inaugural address, expressed support for the original proposed 13th Amendment...which would have protected slavery wherever it then existed. Lincoln had little moral concern about slavery and great concern about "preserving the union"...but at what cost and why? Why the need to have sovereign states submit unwillingly to rule from Washington DC?

That people who believe themselves to be Constitutional conservatives support and even deify Lincoln is quite strange. Lincoln's countless unconstitutional actions put in motion and made possible the centralization of power in the federal government during the 20th century and the effective end of the Constitution and the Founders' vision of a decentralized republic designed to keep government power in check

2 posted on 01/18/2006 1:45:29 PM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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To: neverdem

Lincoln stinks.


3 posted on 01/18/2006 1:52:55 PM PST by Texas Federalist (Extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.)
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To: neverdem

Interesting, but I don't agree.


4 posted on 01/18/2006 1:53:20 PM PST by Mrs. Darla Ruth Schwerin
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To: Irontank

"That people who believe themselves to be Constitutional conservatives support and even deify Lincoln is quite strange. Lincoln's countless unconstitutional actions put in motion and made possible the centralization of power in the federal government during the 20th century and the effective end of the Constitution and the Founders' vision of a decentralized republic designed to keep government power in check."

There ya go! Perfect. Perfect. Perfect. You get 3 stars and a brownie button for this post! Lincoln did a substantial amount of unconstitutional things...Most importantly, is he paved the way for the extreme centralization of government that we see today. He also put forth the idea that it's okay if we are mean, rude and nasty to one another. Oh, I forgot the beating up part. How much sense does it make for a country to attack itself. And no...nobody was trying to install a new government...so no definitions of civil war, please. I think immature, sounds like a good reason for what Lincoln did!


5 posted on 01/18/2006 2:11:18 PM PST by Mrs. Darla Ruth Schwerin
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To: kjenerette

...reading.


6 posted on 01/18/2006 2:59:38 PM PST by Van Jenerette (Our Republic...If We Can Keep It!)
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To: Irontank
At the Hampton Roads Peace Conference, Lincoln assured the Confederate representatives that, if they re-joined the union, the Emancipation Proclamation would become inoperative.

Inaccurate. In his preliminary EP issued after Antietam in 1862, Lincoln offered to exempt any state from its provision that returned to its allegiance by January 1, 1863. None did.

At the HRPC, Lincoln had only two absolute requirements, return to the Union and abolition of slavery. Anything else was negotiable. As these were also the Confederacy's non-negotiable issues, only in reverse, nothing was settled.

Moreover, at that conference, Lincoln and Seward attempted to persuade the confederate states to re-join the Union by reminding them that they could defeat the pending 13th Amendment that would have ended slavery in the US...an amendment that was sure to pass unless the southern states re-joined the union.

I've read a number of accounts of this conference, but never heard of this. What's your source? It sounds like something Lincoln would have done much earlier in the war, but not in February of 1865.

7 posted on 01/18/2006 3:14:48 PM PST by Restorer
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To: neverdem
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.

Not exactly. The Emancipation Proclamation did not free a single slave under Union control. It freed only those slaves not under Union control – in other words, it was a piece of propaganda.
8 posted on 01/18/2006 3:15:57 PM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: Restorer
This is from the account of the conference by CSA Vice President Alexander Stephens in the second volume of his 1868 multivolume book A Constitutional View of the Late War Between the States: Its Causes, Character, Conduct and Results
9 posted on 01/18/2006 3:37:26 PM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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To: Irontank

Stephens may just have had an incentive to "spin" what happened at the conference. All reports I have read, with the exception of those quite obviously trying to be Confederate apologists, agree that Lincoln's terms were: reunion, acceptance of emancipation, immediate cessation of hostilities, and the disbanding of all Confederate forces.

Some differ on exactly what was meant by "acceptance of emancipation," but I have noticed that the pro-Confederate sites tend to leave this plank out entirely, making it logical to assume that their story on other issues may be less than complete.


10 posted on 01/18/2006 3:41:48 PM PST by Restorer
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To: Restorer
Stephens may just have had an incentive to "spin" what happened at the conference. All reports I have read, with the exception of those quite obviously trying to be Confederate apologists, agree that Lincoln's terms were: reunion, acceptance of emancipation, immediate cessation of hostilities, and the disbanding of all Confederate forces

The only reports you will read are from, or based on the accounts of, the men that were there....none of which will be purely objective. You suggest in post #7 that the Confederate representatives demanded the continuation of slavery (one of Lincoln's demands "in reverse")...yet no accounts, from any side, indicate that the Confederacy was demanding anything other than independence. One need not be a "Confederate apologist" to understand that Lincoln full well understood that slavery was a dying institution...the secession of the southern states would have expedited this. Lincoln himself stated this...Lincoln advocates like Harry Jaffa have stated this...Professor Jeffrey Hummel laid out a lengthy economic analysis in his book Freeing Slaves, Enslaving Free Men that confirms this. We should take Lincoln at his word that the war was waged to prevent the southern states from seceding...not to end slavery per se...and, again...the question is why? What moral or Constitutional authority did the federal government or the union states have to force the southern states to submit?

11 posted on 01/18/2006 4:00:07 PM PST by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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To: Irontank

You know, if you want your questions answered, there are many tens of thousands of posts on similar thread you could look up. It's late, and I don't really care to get into it all again.

I do, however, think it is ludicrous to blame Lincoln for the collapse of constitutional government, as with the notable exception of Reconstruction the pre-war conditions returned after the war for many decades. Depending on whom you want to believe, the gradual growth in the power of the federal government really began with Teddy R., with Wilson during WWI, or with FDR and the New Deal.

Lincoln provided a precedent for what a President might have to do to preserve the Union in a civil war. Not for our present overpowering federal government during peacetime.

BTW, most of the "unconstitutional acts" of Lincoln were also implemented by Davis. War, especially civil war, is really, really hard on civil rights. War is Hell, and all that. People fighting for their lives are allowed to kill justifiably. States or nations fighting for their lives will probably also do things they would never do when they weren't forced into it.

If you think the old boys who wrote the Constitution were advocates of civil rights for the opposition during a civil war, look up how they treated the Loyalists. A great deal worse than how Lincoln treated traitors.


12 posted on 01/18/2006 4:12:36 PM PST by Restorer
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To: neverdem
[Quoting article] 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.
[Emphasis added.]

Action "outside" and "against" the Constitution is never constitutional: thus the Supreme Court, in opinions rendered after the Civil War and reaffirmed recently in Hamdi vs. Rumsfeld , has held that the Constitution is in operation at all times, and that no "war exception" exists to the requirements of the oath to uphold and defend it that bind every state and national officeholder.

13 posted on 01/18/2006 5:42:34 PM PST by lentulusgracchus ("Whatever." -- sinkspur)
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To: Restorer
....with the notable exception of Reconstruction the pre-war conditions returned after the war for many decades

No, they didn't. The States became afterthoughts, bypassed by the "malefactors of great wealth" who understood that "access capitalism" meant access in the national capital where all power lay.

The old Republic was dead forever, replaced by something else -- a national empire, run by plutocrats and paid for by the prostrate People, who had to pay "all the traffic will bear" while perforce selling their crops and herds into markets controlled and manipulated by the malefactors.

14 posted on 01/18/2006 5:50:03 PM PST by lentulusgracchus ("Whatever." -- sinkspur)
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To: Restorer
BTW, most of the "unconstitutional acts" of Lincoln were also implemented by Davis.

"They all did it" isn't an argument, it's an excuse -- just like "I was only following orders." Henry Wirz's jury and executioners didn't buy that one, and neither should we.

15 posted on 01/18/2006 5:53:09 PM PST by lentulusgracchus ("Whatever." -- sinkspur)
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To: lentulusgracchus
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.

We are talking about AEI here...any non-praise of the 16th president is swept under the rug. Forget Milligan, the new (and old it seems) Republican mantra is to keep doing something until someone tells you to stop. Then feign ignorance as if you didn't really know it was wrong to do it.

16 posted on 01/18/2006 6:12:38 PM PST by billbears (Deo Vindice)
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To: Texas Federalist

Hell, let's take it one step further...Lincoln sucks! :)


17 posted on 01/18/2006 6:26:56 PM PST by TexConfederate1861
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To: Mrs. Darla Ruth Schwerin

Lincoln was just a tyrant. Plain and Simple.

Oh yea...a great, big UNRECONSTRUCTED Freeper welcome to a loyal Southron woman! :)


18 posted on 01/18/2006 6:31:39 PM PST by TexConfederate1861
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To: Restorer

"A great deal worse than how Lincoln treated traitors."

Yep, those are fighting words for sure....
My ancestors weren't traitors. Secession wasn't rebellion.
You really should watch your verbage. By the way, we aren't discussing Davis. Just Lincoln.


19 posted on 01/18/2006 6:37:02 PM PST by TexConfederate1861
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To: billbears
We are talking about AEI here...any non-praise of the 16th president is swept under the rug.

I guess that whatever Lincoln did, then, is fair for Bush to do. Why doesn't he invade a "blue" state or two and burn them down for supporting treasonable people like, oh, Hillary Clinton?

"All the laws but one," and all that.

</sarc>

20 posted on 01/18/2006 6:59:05 PM PST by lentulusgracchus ("Whatever." -- sinkspur)
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