Lincoln, law, and necessity

Cross-posted at the blog of the Abraham Lincoln Institute for the Study of Leadership and Public Policy

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.

Southern Lincolns abound

The Old Dominion has embraced Honest Abe, at least according to this article.

The writer claims that Tredegar’s sculpture of Lincoln and Tad is “the only statue of Lincoln in the South, where many people still refer to the Civil War as the War of Northern Aggression.”  I must beg to differ.  In fact, if you visit my alma mater here in East Tennessee, you’ll find three of them: a standing Lincoln at the main entrance, a copy of Paul Manship’s larger-than-life “Hoosier Youth” in the museum atrium, and a depiction of Lincoln as a lawyer in front of the library.

There’s also a Lincoln statue at the state capitol in West Virginia, and Kentucky has more Honest Abes than you can shake a stick at.

One more quibble.  I’ve lived in the South for more than thirty years, and I’ve only heard one person refer to the Civil War as “the War of Northern Aggression.”  The guy who said it was a reenactor; ironically, I was at an event in a state that never joined the Confederacy.  Most of my fellow southerners aren’t nursing a grudge over a war that ended before their great-grandparents were born.

Blagojevich finds new vocation teaching Civil War history

Here’s an exciting opportunity for all you loyal readers at the Federal Correctional Institution Englewood in Littleton, CO.

Your fellow inmate Rod Blagojevich, former governor of Illinois, is now teaching Civil War history.  If you’ve got some time on your hands—and I’d imagine you do—why not celebrate the sesquicentennial by learning a thing or two?

You might recall that, during his time in office, Blagojevich slashed funding for the Illinois Historic Preservation Agency and gave the state’s historic sites the cold shoulder.  I love a good redemption story.

The Lincoln screed checklist

This guy’s got all his ducks in a row.

Reference to the USSR?  Check.  Use of the felicitously vague label “progressive”?  Check.  War attributed to tariffs?  Check.  The Greeley letter quoted in blissful ignorance of the chronology surrounding the decision for emancipation? Check.  Quote from the Charleston debate?  Check.  Lerone Bennett citation?  Check.

Bonus points for conflating the slavery debate as the cause of the war with abolition as a Union war aim from the get-go…”Moreover, if, according to the progressive version of history, abolition of slavery was the cause of the Civil War, why didn’t Lincoln free the slaves right off the bat?”

…and for overlooking the wee matter of the Battle of Antietam: “Why did he wait for many months — and do it only when the war took a bad turn for the Union, and, more important, when the superpowers of the day, Great Britain and France, were about to recognize the Confederacy and come to its aid?”

Support a Civil War film project

I just got this message from a filmmaker named Alexander Fofonoff:

I am in my last year at NYU Tisch for film, and about to embark on my thesis film. It is a 19th century post civil war period piece that deals with how returning soldiers dealt with not only the transition from war to peace, but a national transition, how to accept half the country that’s been considered an enemy for the last four years, and what price is paid for that acceptance.

I recently launched an indiegogo campaign, in an attempt to have my project crowd-funded (small donations from a lot of people).

You can get more information at the film’s WordPress site, and make a contribution toward the production at Indiegogo.

Ladies and gentlemen, meet your newest national historic landmarks

Thirteen new sites just made the list, including Camp Nelson in Kentucky, Harriet Beecher Stowe’s house in Connecticut, Honey Springs Battlefield in Oklahoma, and an eighteenth-century frame house in Virginia.

Interested in Appalachia’s Civil War?

Then come to the third War in the Mountains Symposium this April at LMU’s Abraham Lincoln Library and Museum.

A proclamation visitation

The honest-to-goodness original Emancipation Proclamation came to Nashville for a limited engagement, and since my cousin and I are dedicated history aficionados, we hit the road to see it.  I would’ve snapped a photo, but…

Anyway, as an unexpected bonus, we got to see the Thirteenth Amendment, too.  The Tennessee State Museum hosted these items as part of a special Civil War exhibit from the National Archives, and even if you don’t see the proclamation itself, the exhibition is still worth a visit.  It uses NARA holdings to illustrate various subjects relating to the war, so you get a sense of the incredible variety and value of primary sources from the period as well as learning about the conflict itself.  Check out Gordon Belt’s blog for some photos.

This was one of the most rewarding public history experiences I’ve had in a long time.  Getting to see the proclamation was great, of course, but what I enjoyed almost as much was seeing the other visitors enjoy themselves.  People of every age and background were there; the TSM was open late to accommodate the crowds, and as we left, the line of ticket holders and standbys was as long as it had been when we entered.  While everyone waited to be admitted, the staff passed around handouts with transcriptions of the proclamation’s text, and visitors huddled in groups to read them, discussing particular passages and arguing over implications and meanings.

Miscellany

• If you’re within driving distance of Nashville, don’t forget about the special exhibition of the original Emancipation Proclamation at the Tennessee State Museum, Feb. 12-18.  Viewing hours are limited and lines may be long, so click here to learn how to make advance reservations.  Some time slots are already full.
• Hey, speaking of Lincoln, did you know that in addition to leading a Marxist war effort, he was also an “unscrupulous fascist“?  A sneaky devil, that Lincoln.
• Here’s an interesting history of the sites associated with Lincoln’s early life.
• Thoughts from East Tennessee on the importance of family heirlooms.
• There’s another proposed state law to prevent people from fiddling with or renaming monuments.  This one is right here in Tennessee.
• Some info on the sesquicentennial commemoration of the Chattanooga Campaign.
• Mt. Vernon has acquired an original painting by Benjamin Latrobe.

Rep. Joe Courtney makes a mountain out of a molehill

I can understand why he’d be miffed that Lincoln wrongly depicts representatives from his state voting against the Thirteenth Amendment, but sending a letter to Spielberg asking him to fix it in time for the DVD release is going a little overboard.