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Lessons from Lincoln
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.
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