Tag Archives: habeas corpus

Lincoln, law, and necessity

By Michael Lynch

I asked the students in my introductory Lincoln course to write an essay on Lincoln’s use of presidential power.  I told them to decide whether Lincoln abused his authority and overstepped the Constitution, whether he was too timid, or whether he used his power judiciously, and to defend their answer in a short paper.

Although I assured the class that there was no “right” answer to the question, and that they were free to excoriate Lincoln as harshly as they wanted, the results came back overwhelmingly in his favor.  Of some two dozen students, only three found his use of power excessive.  The rest of the class generally agreed that Lincoln acted properly, given the circumstances he faced.

Interestingly, though, the two groups defended their positions quite differently.  The students who argued that Lincoln assumed too much presidential power cited specific passages of the Constitution to make their case.  Lincoln’s suspension of habeas corpus, in particular, came in for criticism.  As these students noted, the Constitution permits such an act “when in Cases of Rebellion or Invasion the public Safety may require it,” but this passage is found in the article dealing with powers of Congress.  The legality of a presidential suspension of habeas corpus while the legislature was out of session was therefore a matter of controversy during the Civil War, and it remains so today.

Adalbert Volck depicted Lincoln as Don Quixote with his foot on the Constitution in this 1861 etching. Image from the National Portrait Gallery, Smithsonian Institution.

The students who defended Lincoln, by and large, did not try to cite law and precedent to demonstrate that his actions were legal.  Instead, they argued from necessity.  Rebellion on the scale of the Civil War was something no other president had faced, and most students felt he had no choice but to act as he did in order to preserve the Union.

A few of the students who defended Lincoln did find him a bit too hesitant in one respect; they wished he had issued his emancipation decree sooner.  But they also noted that their preferences in timing weren’t necessarily practical, and agreed that Lincoln had good reasons for waiting as long as he did.

I found it interesting that the two groups of students differed in their approaches, because Lincoln himself used both law and necessity in defending his more controversial policies.  Referring to his suspension of habeas corpus in a message to Congress in 1861, he noted that “the attention of the country has been called to the proposition that one who is sworn to ‘take care that the laws be faithfully executed,’ should not himself violate them.”  At the same time, however, he observed that all the Constitution’s provisions were essentially going unenforced “in nearly one-third of the States.”  Was it acceptable for “all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?  Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?”

In any case, Lincoln continued, his suspension of habeas corpus was not a case of “disregarding the law.”  He believed he had acted within the limits established by the Constitution.  After all, that document permits habeas corpus to be suspended in a case of rebellion, and while it does not explicitly permit the executive branch to exercise this power, neither does it explicitly forbid it.  Besides, since “the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

Lincoln thus hedged his rhetorical bets in his message to Congress.  He made a case for the constitutionality of his actions, and if that failed to convince his critics, he asked whether they preferred to see one law stretched and the Constitution saved or watch the whole Constitution tossed aside by the rebellion while the Union’s hands remained tied.

If my students’ essays are any indication, many modern Americans will support leaders who use extraordinary means so long as they believe the ends are worthwhile.

—Michael Lynch graduated from LMU with a degree in history, worked at the Abraham Lincoln Library and Museum as an assistant curator, and now teaches survey-level history courses on campus. He holds an M.A. in history from the University of Tennessee and blogs about historical topics at pastinthepresent.wordpress.com.

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Weber: Lincoln “tended not to overreach” when it came to extraordinary measures

Jennifer L. Weber has written a concise analysis of Abraham Lincoln’s expansion of presidential power for the New York Times Civil War blog. She argues that Lincoln’s infringement of civil liberties was both proportional to the situation and modest in comparison with actions taken by Woodrow Wilson and Franklin Roosevelt:

Lincoln’s reputation is less marred because his accrual of power was equal to the threat facing the nation. His authority grew incrementally and his administration tended not to overreach. The obvious exceptions are a handful of high-profile cases involving politicians and newspapermen. Still, we should keep some perspective. [Mark] Neely concludes that most of the arrests and detainments involved people who were actually breaking the law, not those merely speaking out against the government.

By contrast, Wilson’s administration systematically pursued leftists, immigrants and political dissidents not because of their actions but because of their political beliefs. Roosevelt incarcerated an entire class of people based on their ethnicity. Like Wilson, Roosevelt’s action was methodical.

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Who is Thomas DiLorenzo arguing with, anyway?

By Michael Lynch

The SCV is kicking off Savannah’s sesquicentennial observances with a talk by Thomas DiLorenzo.  DiLorenzo, of course, is a critic of Lincoln and of the celebratory view of him that’s become woven into the fabric of American memory over the past 150 years.

“While Lincoln is a hero to many,” according to the reporter who wrote the piece linked above, “‘Honest Abe’ is no hero to DiLorenzo. ‘There is the fairytale version of Abraham Lincoln that he was sent from God to free the slaves,’ he said. ‘My book is much more realistic of who he was.'”

Much more realistic than what, exactly?  The notion that Lincoln was sent from God, like some nineteenth-century John the Baptist?  I would certainly hope so.

The article also quotes DiLorenzo as stating that Lincoln “was a real-life politician and not some God-like creature.”  One wonders who, among serious Lincoln researchers, believes that Lincoln was something other than a real-life politician.  Sure, the “apotheosis” of Lincoln was very much a part of the mythology that developed after the war, and one doesn’t have to look very hard to find examples:

But I’m curious as to why any scholar would feel that debunking such romanticized notions is worth his time.  Of course Lincoln “was a real-life politician and not some God-like creature.”  If sentimentalized patriotic myth is the standard of credibility against which DiLorenzo wants us to measure his portrait of Lincoln, then I think the odds are in his favor.

If you want to sift through the debris that’s accumulated after 150 years of myth-making and try to make sense of what it all means, that’s a fine and worthwhile endeavor.  But again, trying to prove that popular mythology is not the same thing as objective truth seems to be aiming rather low.  Merrill Peterson and Barry Schwartz have already done an excellent job of dissecting Lincoln’s place in American memory.  But simply stating that myths are, indeed, just myths seems sort of like reminding us all that Blackbeard didn’t really lead a crew of zombies to capture a live mermaid as he does in the latest Pirates of the Caribbean installment.  Sure, what you’d be saying would be true, but most of us already get it.

Whenever I read a newspaper article about DiLorenzo, I get the feeling that the person who wrote it doesn’t really know with whom or what DiLorenzo is arguing.  Indeed, sometimes I suspect that DiLorenzo himself isn’t really sure who or what he’s trying to engage.  He’s been a vocal critic of Lincoln scholars, using terms such as “court historians” and “the church of Lincoln.”  But rather than engaging the work of serious Lincoln researchers, he seems to spend much of his time either knocking down the straw men of popularized memory, as noted above, or relating common knowledge and then drawing all manner of sinister implications from it:

Before entering politics, Lincoln was a businessman. “Lincoln spent 25 years of his life involved in economic policy debates about money and power,” he said. “He was an advocate of a government-run bank.

“He supported what we today call corporate welfare, including tax subsidies for corporations to build railroads,” DiLorenzo said. “I argue that this was a very important part of why he was elected president and what he did as president.”

That’s all very well and good, but DiLorenzo is hardly the only person “arguing” this.  Indeed, this so commonly known that I don’t think stating it constitutes an “argument” at all.  Like any good Whig of his day, Lincoln was a firm believer in government support for internal improvements and commercial activity.  Anybody who’s read any decent work on nineteenth-century politics or on Lincoln himself should already be aware of this.

At the time he was president, Lincoln was reviled by many people, perhaps the most reviled president of all, DiLorenzo said. “After his death, he was turned into a martyr by the Republican party with the help of the New England clergy,” he said.

“In the northern states, Lincoln shut down over 300 opposition newspapers and suspended habeas corpus,” DiLorenzo said. “He enforced military conscriptions and there were draft riots. It’s not too hard to understand why he was so unpopular. That all changed after his death.”

Again, most of this is common knowledge.  Readers can find discussions of Lincoln’s suspension of habeas corpus, his conscription policies, and the criticisms he received as a result of these measures in any good treatment of the war or of Lincoln’s administration. In fact, Mark Neely devoted an entire book-length study to Lincoln’s curtailment of civil liberties.  (It’s also worth noting that conscription, rioting, and an invasive government weren’t limited to the Union.  The Confederacy also drafted soldiers, provoked civil unrest, and involved itself in various aspects of life to a degree that would have been remarkable in peacetime.)  The only thing that DiLorenzo really seems to be adding to the mix is his polemical tone.

Maybe that’s what he’s after; maybe he’d rather we see him as a political critic, not a historical scholar who’s out to make an original contribution to our understanding of the past.  Perhaps he wants to engage present-day policymakers and voters, rather than historians.  Or perhaps he simply wants to knock down the idealized Lincoln sentiments of popular historical memory (but again, I think that’s a rather modest ambition).

If DiLorenzo wants a hearing from Lincoln scholars, he’ll need to engage the work that these scholars have done, rather than the straw men of historical memory.  Whoever he’s trying to take on, I doubt he’ll run into much disagreement at SCV-sponsored speaking gigs like the one mentioned in the article.

—Michael Lynch graduated from LMU with a degree in history, worked at the Abraham Lincoln Library and Museum as an assistant curator, and now teaches survey-level history courses on campus.  He holds an M.A. in history from the University of Tennessee and blogs about historical topics at pastinthepresent.wordpress.com.

(Both Lincoln images above taken from Wikimedia Commons)

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