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

[Non-Sequitur]

Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better.

Sounds more like Lincoln's talking about an inherent right to rebellion.

[Irontank]

Sounds more like Lincoln's talking about an inherent right to rebellion

I'm missing the distinction you're drawing

[Non-Sequitur]

The southern supporters here would have us believe that the southern acts of unilateral secession were legal acts. Lincoln is obviously talking about rebellion, rising up and throwing off the existing government. Such actions are not legal and by definition the government would be right in opposing such an act.

[x]

I see you are still up to your old games of intellectual obfuscation.

I see you are as obnoxious and mannerless as ever. Only an boor would start a communication as you did. Apparently, you are another bumptuous jackanapes who gets his hands on a manual of logical fallacies and convinces himself that he can refute every argument he doesn't like by sticking a logical label on it. Would that life were that simple.

My point was that we can say now that communism or fascism or nazism wouldn't last -- that they were internally unstable or contradictory and doomed to fall apart. This didn't help people in 1939 or 1947 who had to figure out what to do about aggressive dictatorships. It didn't help them much to think that "sooner or later" such ideologies would die out "on their own." And indeed, the "inevitable" collapse of repressive regimes was largely a result of the fact that people took a stand against them.

So it is with slavery. Someone's idea now that slavery's decline was "inevitable" means little to people in the 19th century who saw slavery growing ever stronger. If slavery collapsed it had a lot to do with people who acted against it. You might want to look at Time on the Cross and other works by Fogel and Engerman to see how some scholars question whether slavery really was dying out. In any case, people at the time didn't know that slavery was "dying out" and weren't wrong in thinking that what would happen depended very much on what they did and didn't do.

You might also want to take another look at the work by Thomas Kettell that you refer to. It's not good economics, but Kettell's argument is that slavery was economically strong and that the American economy depended on it. Not a good work to cite if you believe that slavery was on its way out.

Hummel's argument is too clever by half: let the South go and runaways from the Confederacy to the North would make slavery uneconomical. But it's one of those off-the-wall, counterfactual conjectures that it's impossible to prove or disprove. And really the contention that the Confederate states wouldn't or couldn't do what was necessary to prevent large-scale slave escapes, when they'd been organizing slave patrols and pass systems for years is pretty flimsy grounds for an argument.

Consequences do matter. People judge the consequences of Lincoln's actions. They judge the consequences of the means he used. Yet some people simply assume that the Confederacy equals freedom. They don't look at what the Confederates were after and what their victory would mean. They also aren't very curious about or critical of the methods the rebels used or what they would mean. They simplistically identify secession with greater freedom, but that's not the case. They also assume that once you declare that you are oppressed you can do as you like, and that's not a responsible approach to political problems, either.

I mentioned that not everyone believed that secession was a right before the Civil War in order to counter another widespread assumption about the era. Not only Lincoln, but Buchanan and his Attorney General Stanton believed secession to be unconstitutional. Even Robert E. Lee, early in 1861, believed unilateral secession to be against the Constitution.

It was a widespread view of things. What the government could do if a state declared itself to be outside of the union is another matter about which people disagreed, but it simply isn't true that everyone accepted secession as constitutional. I don't argue that this "proves" that secession was unconstitutional, but it does controvert claims that "everyone" or pretty much everyone believed in a right to secession.

People disagreed about such matters. If there was any consensus about the matter, it wasn't that states could leave the union whenever they wanted to. That's something not enough people realize. Questionable arguments about this or that state having discussed secession in the past don't change how things were in 1860.

If an amendment isn't ratified it isn't a part of the Constitution. If an amendment was thought necessary to allow for secession it's clear that those who supported it recognized that the Constitution did not unambiguously allow for secession. That's pretty simple.

The real vote on this was procedural and closer. It was the vote on whether to have a vote. Once the procedural vote was lost, some Congressmen changed their mind and supported the resolution. At about the same time Congressmen dealt with your proposed amendment they unanimously voted for this resolution:

Whereas the Constitution of the United States is the supreme law of the land, and its ready and faithful observance the duty of all good and law-abiding citizens: Therefore--

Resolved, That we deprecate the spirit of disobedience to that Constitution wherever manifested, and that we earnestly recommend the repeal of all statutes, including nullification laws, so-called, enacted by State legislatures, conflicting with and in violation of that sacred instrument, and the laws of Congress made in pursuance thereof; and it is the duty of the President of the United States to protect and defend the property of the United States.

Congress was confused at this point, striking out in different directions to try to resolve the crisis, so I don't think your proposed amendment is the ace in the hole that you appear to think it is.

[nicollo]

On December 12, 1860, the United States House of Representatives proposed the following Constitutional Amendment:(revised and revisited on 12/17/60)

That the House passed a constitutional amendment does not make it an affirmative act of history. The constitution remained unchanged. So many amendments, many, even passed by one house or the other. Some, even, by both. Even fewer, then by the necessary number of states or state conventions. So few -- count 'em -- passed by both houses and 3/4ths the states.

Just because an amendment made it so far does not mean that it made it that far. The wish does not exceed the fact.

[Ditto]

I'm missing the distinction you're drawing

Read the Declaration of Independence which makes the distinction quite clear.

[Irontank]

The southern supporters here would have us believe that the southern acts of unilateral secession were legal acts. Lincoln is obviously talking about rebellion, rising up and throwing off the existing government. Such actions are not legal and by definition the government would be right in opposing such an act

I don't see where unilateral secession is illegal...it is not a power prohibited to the states under the Constitution...and, while I would acknowledge that the Constitution gives the federal government the power to call out the militia to suppress rebellions...I'm not sure that the secession of a group of states would qualify as the a rebellion against the US government...at least as the Founders understood it

The Confederate states were not trying to overthrow, supplant or replace the existing US federal government...only to withdraw from it and establish a new federal government. As you know, the Founders drew heavily on John Locke...and a fundamental principle of Locke was that any power granted could be reclaimed. This language was included in several states' ratification documents. In 1789, the sovereign states delegated some of their powers to a new federal government to act as their agent on some matters that are better suited to be exercised by a federal government...but they always retain the right to reclaim those powers granted

Interestingly, at the Constitutional Convention, a proposal was made to give the federal government the powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of Dr. FRANKLIN) were agreed to witht. debate or dissent. The last clause of Resolution 6.11 authorizing an exertion of the force of the whole agst. a delinquent State came next into consideration.

But that proposal was rejected and tabled when James Madison objected:

Mr. MADISON observed that the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively and not individually. -A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse12 unnecessary, and moved that the clause be postponed. This motion was agreed to nem. con.
--Notes of Debates in the Federal Convention of 1787 by James Madison, Thursday May 31

Notes of Debates in the Federal Convention of 1787 by James Madison, Thursday May 31

Hamilton, as well...probably the leading advocate of a powerful federal government, argued for the federal power to tax citizens directly rather than collect taxes from the states because he did not want the situation to arise where one or more states would refuse to pay taxes over to the federal government.

So, in the NY state ratifying convention Hamilton stated:

It has been observed, to coerce the states is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single state. This being the case, can we suppose it wise to hazard a civil war?

Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves? What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against the federal head.

Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself -- a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government. But can we believe that one state will ever suffer itself to be used as an instrument of coercion? The thing is a dream; it is impossible.

Indeed...how can, in Hamilton's words, any "reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself"?

[x]

If secession was unconstitutional, as many believed it was, then it was likely that the federal government had the right to act against the rebels to defend US citizens who had fallen under their control. It's not the case that a breakaway faction that seizes power is automatically "the people" and a legitimate government. You might review the allegations of voting fraud in the referendums on secession.

I think I've disposed of your claims about Kettell in our last exchange, and you haven't added anything new since. It doesn't look like you're actually making any specific arguments or points, simply spilling out contradiction and abuse. And you're a fine one to talk about ad hominems.

If you'll recall our last exchange I took the time then to research your previous posts. What a cheap fraud you are. Here's my last post on this topic:

It's not my style to make other posters the issue -- at least not until I've gotten to know them well and have communicated with them on many occasions -- but let's look at your record. Here's a few examples:

I am a research assistant at a major New England learning center, and having done quite a bit of research on the slave breeding in the South, maybe I can help you. ...

I have online access to electronic versions of the following peer-reviewed economic journals: ...

Well, after all, I am a historian with several degrees. I am from the South originally, and therefore am considered an expert on Southern culture. I attended several Southern universities, studying under notable historians. Later, migrating North, I achieved graduate degrees, and completed several papers on the history of slavery. One undergraduate paper I did was on slave breeding, and interestingly enough, I used the Internet to source new material. ...

Yes, today what we might call luxuries were lavished upon the breeding class in the middle states. However, studies show that the more luxuries they obtained, at one point procreation related activities began to decline, producing, if you will, a breeding bell curve. And thank you for your suggestion that recreation leather ball point acquisition, and procreation scoring might be affected by an external independant variable, instead of direct causation. This may require further data review. I will take this concept of yours to my moderated research and discussion group to view their research, and obtain a final answer.
Best wishes from Boston
Cosmo ...

Greetings from Boston.
I believe that I have told you, or perhaps someone else here, that I wrote my thesis on New England Politics of the 18th Century. ...

Greetings from Boston.
Here is the perspective on Lincoln from my dissertation -->Even though the large majority of Americans, North and South, believed in a right of secession as of 1861, upon taking office Lincoln implemented a series of unconstitutional acts of such monumental proportions that no man who had the least bit of respect for constitutional liberty could have done such things. ...

Hello and Greetings from Boston
As you may remember, I am a noted historian and former resident of the South. I beleive you said "No distortion is too low for him or his gullible fans." ...

Noted historian, research assistant, or just bulltosser? No "expert" or "noted historian" would boast so openly as you do. They'd let their erudition speak for itself, as your errors in spelling, syntax, and logic do.

Far be it from me to draw any conclusions based on your posts, but others might find them a pretty clear self-portrait of a braggart, liar, and buffoon. That may be par for the course on the Internet, but you're in no position to accuse others of making things up.

That was three months ago, but it doesn't look like you've changed any. One thing my have changed, though -- I don't have any trouble drawing conclusions based on your previous posts any more.

[Non-Sequitur]

I don't see where unilateral secession is illegal...it is not a power prohibited to the states under the Constitution...

States are admitted to the Union only with the consent of the other states through a vote in Congress. Once they have been allowed to join, they cannot split into two or more states, combine with any other state, even change their border by a fraction of an inch without the approval of the other states through a vote in Congress. It is no great stretch to come to the conclusion that they should require the consent of the other states to leave entirely as well. The interest of the other states are entitled to protection.

The Confederate states were not trying to overthrow, supplant or replace the existing US federal government...only to withdraw from it and establish a new federal government.

The southern states walked away from the Union and all the obligations built up by the nation as a whole while they were part of it. They abrogated responsibility for their share of the national debt, took whatever federal property they wished without compensation, and blocked remaining states from access to the sea. How can their actions be considered fair treatment towards the remaining states? Why aren't the interests of the rest of the U.S. of any consideration in this? Why do only the seceding states count?

[4CJ]

Actually secession is not prohibited - it's a reserved right (see the 10th). The states were the arbiters of federal power, not the federal government.

With secession not prohibited, the 10th as an antecedent clause overriding any earlier ones, it renders Article I clauses moot, with Article I addressing the rights and powers of states IN the union, not those departed.

Regarding the suspension of habeas corpus, it's a LEGISLATIVE power in Article I - not an executive power. Secondly, the US Supreme Court held in ex parte Bollman and ex parte Swartwout that the suspension was a legislative function as well. Chief Justice Taney and several Circuit courts also authored similar opinions holding that the power was one to be wielded by the legislature.

The federal legislature did attempt to legalize Lincoln's suspension retroactively (ex post facto which is unconstitutional).

[Restorer]

FWIW, the Loyalists weren't traitors. Anyway, many of them weren't. They were merely Americans who stayed loyal to the King when their neighbors chose to change their allegiance and rebel. As the Loyalists had sworn no allegiance to the rebel cause, it was not possible for them to "betray" it.

Their situation is much more analogous to that of the many southerners who remained loyal to the Union when a majority of their neighbors decided to secede. They were a majority in many areas, notably WV and other mountainous areas of the Confederacy. Similarly, Loyalists were probably a majority in several colonies, particularly NY and GA.

Whether secession constituted rebellion or not was the primary factor over which the war was fought. Men of honor have disagreed profoundly, then and now, about whether states had a right to secede. You have every right to believe that they did, if you wish, but their right to do so is not a fact, it is an assertion.

The South chose to assert its right to secede on the field of battle rather than by using legal or constitutional means. It is poetically just that war proved them wrong.

[TexConfederate1861]

Let me ask:

How would you have had them secede? The states called for secession conventions, and in most states, the actions of these conventions were ratified by popular vote. In my state of Texas, secession passed by an overwhelming majority. After this was done, the Confederates sent commissioners to try and meet to settle issues of property, etc. and were rebuffed by Lincoln. War was really the only honorable choice left to them.

[Irontank]

States are admitted to the Union only with the consent of the other states through a vote in Congress. Once they have been allowed to join, they cannot split into two or more states, combine with any other state, even change their border by a fraction of an inch without the approval of the other states through a vote in Congress.

Its funny you mention that...are you aware of the background of the creation of the state of West Virginia? Now, that was almost unquestionably an illegal, unconstitutional act orchestrated by pro-Union forces to punish the state of Virginia.

[Restorer]

If I remember correctly, the Constitution allows for States to take a lawsuit directly to the Supreme Court.

Any of the seceding states could have sued in the Court to have its right to secede under the Constitution ratified by the Court. Given the southerner-heavy composition of the Court at the time, it is not impossible that such a suit would have succeeded.

The reason none did this, of course, is that they were asserting a right to seceded based not on the Constitution, which is silent on the subject, but on their claim to retain certain pre-Constitution rights of sovereignty.

More critically, during the later months of 1860 and early months of 1861, the Confederacy and Union were involved in a propaganda war over the allegiance of Upper South and Border slave states. If all had gone to the Confederacy, secession would have succeeded, with or without war. If all of these had remained in the Union, it is likely that some of the states in the Confederacy would have started drifting back towards the Union. As it turned out, the fence-sitting states split just about evenly, resulting in a long and bloody war due to the balance of forces.

The Confederate leaders had to force the fence-sitters to choose a side, as by far their strongest card was the southern sense of kinship for other southerners in opposition to the yankees. Indeed, once the war started, the Upper South states promptly fell off the fence on the Confederate side. They joined up generally prior to Lincoln's famous call for "invasion."

My point is that once one has chosen to settle an issue by warfare, it is illogical to claim, once beaten, that BTW you had a legal right to do what you did. Such a claim would be far more justifiable if all possible legal avenues had been pursued first, which they weren't in this case.

[retarmy]

4CJ wrote, “Actually secession is not prohibited - it's a reserved right (see the 10th). The states were the arbiters of federal power, not the federal government. “
You are correct that secession was a right, but as Restorer correctly pointed out, the southern states fired upon a federal military installation before the issue of secession was resolved by Congress. Since the military action preceded the legislative action, the states were in insurrection, not legal secession. Everything else fell apart from that act. Who knows how history would have been changed had the Confederate forces allowed the legitimate process to succeed?

[retarmy]

TexConfederate1861 wrote, “War was really the only honorable choice left to them.”
I have been a participant in two different wars and can tell you, unequivocally, that there is nothing honorable about war. As a Virginian, and as a retired Army officer, I understand how Lee felt about the impending conflict when he said, ”With all my devotion to the Union and the feeling of loyalty and duty of an American citizen, I have not been able to make up my mind to raise my hand against my relatives, my children, my home. I have therefore resigned my commission in the Army, and save in defense of my native State, with the sincere hope that my poor services may never be needed, I hope I may never be called on to draw my sword...”

One other point I feel should be made is that the term “Civil War” is a federal term. Southerners referred to the conflict as either “The War of the Northern Aggression” or “The War of the Great Rebellion.”

[Restorer]

Personally, I believe "The War Between the States," another term often used by southerners, is the best descriptor.

A true civil war is usually more ideologically based and less regionally based.

The WBTS is also highly accurate inasmuch as the individual states, both north and south, were heavily involved in the early days in raising troops and money and in coordinating military activities, in both CSA and USA. Had northern governors and legislatures refused to provide troops and men, Lincoln had no real mechanism or resources to compel them to do so.

Later in the war, central govenments in both countries had a great deal more power, since centralization is an inevitable consequence of war, and could have coerced individual states. But not in 1861, which can be seen by the attempt of KY to be neutral, which was more or less successful for several months.

We tend to project the overwhelming power of the federal government back into the past and assume it was the same then, but just to a lesser degree. A highly informative factoid in this regard is that the whole Federal budget in 1860 was $60M. Even counting inflation, $60M won't support the infrastructure necessary for a domineering regime.