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.

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Filed under Abraham Lincoln, Civil War

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