Lincoln s Precedent. Nick Kraus. The American Constitution is arguably one of the most influential documents ever written; its direct

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1 Lincoln s Precedent Nick Kraus The American Constitution is arguably one of the most influential documents ever written; its direct result, the most powerful nation in the world. Testing the longevity and vitality of the still experimental republic, the Civil War was an essential event in the history of the country. President Abraham Lincoln took the challenge of the war in stride, confronting the Southern secessionists with aggressive political and military offensives. Claiming secession was unconstitutional, Lincoln s primary objective was the preservation of the Constitution. Defining the Union as perpetual, the seceding states forever members of the Union and, as such, revolutionary under Article IV Section 4, he claimed that if destruction of the Union by one or by a part only of the states be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity. 1 Lincoln, associating the survival of the Union with the vitality of the Constitution, did not take his position lightly and proceeded to make a number of controversial decisions, including the suspension of Habeas Corpus and the Emancipation Proclamation, invoking his self-proclaimed right and duty as Commander-in-Chief in a time of war to supersede some constitutional governmental rights in order to protect the Constitution itself. While some may deem Lincoln s actions as a despotic abuse of power, in reality they were and are still entirely within the rights of the president to ensure the preservation of the Constitution and were entirely legally justifiable. Lincoln s efforts to expedite the federal legislation process were fully encompassed by his role as Commander-in-Chief and were necessitated by the extraordinary circumstances, serving solely to protect the Constitution in a time of crisis. However, despite his eventual victory in the Civil War, Lincoln s decisions did create a dangerous precedent which has been abused more frequently than most would care to admit. The executive powers vested in the office of President of the United States reside, in no small part, in his role as Commander-in-Chief of the military. No specific powers for this position are defined; it is simply stated in the Constitution that the President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States. Without any specific assignments or restrictions of power we must consider the role of the Commander-in- 1 Lincoln, First Inaugural Address

2 Chief in within the context of the Constitution as a whole. That is, we must consider the general design of the Constitution to determine what the Commander-in-Chief may or may not do. In his address to some Chicago clergymen, Lincoln asserts, as Commander-in-Chief of the army and navy, in time of war, I suppose I have a right to take any measure which may best subdue the enemy. 2 As far as Lincoln was concerned, his primary duty was to protect the nation. Whereas in some necessary cases, restrictions were specified in the Constitution, many sections were purposefully written to grant vague or undefined powers. These sections have been found to be purposefully unspecific so as to foster the evolution and flexibility of the law. As with the broad powers found to be granted Congress by the necessary and proper clause in McCulloch v. Maryland, the open-ended role of Commander-in-Chief is able to access a broad range of authority in order to accomplish its goals. 3 As chief officer of the nation s army and navy, the primary goal of the Commander-in-Chief is military victory. Lincoln s assertion of power during the Civil War clearly falls in line with the vague, empowering words of the Constitution. It is apparent that, as Commander-in-Chief and leader of the military, the President is meant to secure victory (as any good general should) and ensure the safety of the United States and its people by all means available to him. The question is what those means constitute. The position of chief executive officer grants the President many powers, military might being one of the most influential. During a normal state of affairs, the powers of the Commander-in-Chief are limited; however, during a state of emergency such as the Civil War, these powers are expanded dramatically as the role of the military rises to the forefront of national affairs. In the Prize Cases, the Supreme Court clearly ruled that, a war may exist where one of the belligerents claims sovereign rights as against the other. As such, even without an official declaration of war or further military measures, a state of war may legally exist in the nation. 4 A time of war by definition necessitates military action of some kind, thrusting the Commander-in-Chief to the foremost position of power in the nation. Even Benjamin Curtis in his Executive Power admits in times of great public danger, unexpected perils may imperatively demand instant and vigorous executive action. 5 Curtis, however, believed that the Civil War did not constitute such an exceptional case and feared Lincoln would establish a system. Here he was erroneous. A war which has consumed the entire nation must be considered exceptional and, due to the rare nature of the event, will not establish a system of abuse of powers. Such a state of emergency, necessitating military 2 Curtis, Executive Power 3 McCulloch v. Maryland. 6 Mar Prize Cases. 10 Mar Curtis, Executive Power

3 dominance, is easily determined generally, as it would involve obvious hostilities. During the Civil War, the determination was even easier, given that the public voted for martial law. 6 Martial law, in assigning governance to the military, assigns the leader of that military, the Commander-in-Chief, complete control over state affairs, including legislation. Between his role as executive in a time of national strife and his martial powers, Lincoln had just claim to the full scope of his clout. As the most supreme commander in the military during a time of war, the President is provided extensive powers, given that it is his bounden duty to put down the insurrection the means and instruments to suppress it are lawfully in his hands. 7 The executive powers are not specifically defined by the Constitution, as they are designed to protect the Constitution. The document could not be protected under extreme circumstances if the compromised law itself defined the manner in which protection should be achieved. Furthermore, measures meant to restrain governmental power may, in times of crisis, actually hinder the defense of the very document they are meant to uphold. The sole point where the Constitution mentions its own defense is in Article II in the presidential oath, where the executive officer is sworn to execute the office of President and will to the best of my ability, preserve, protect, and defend the Constitution of the United States. In the oath, the executive duties of the President and the protection of the Constitution are separated; they are two independent tasks. As such, the defense of the nation, of the very document declaring these laws, cannot be restrained by any limitations on the executive branch, but must be considered an additional duty of the office of the President. The oath mandates that in a time of emergency, it is the responsibility of the President to ensure the survival of the Constitution. Lincoln, along with many other Americans, was convinced that Southern secession was unconstitutional. In his First Inaugural Address, Lincoln states, One part to a contract may violate it break it, so to speak but does it not require all to lawfully rescind it? 8 Since the Constitution had already been defied, extraordinary measures were both allowable and needed in order to maintain the contract. Had the intention been to enforce strict adherence to a set of guidelines in a time of crisis, an entire constitutional article would have been written outlining emergency powers of the government. As this was not the case, we are left only with the tasking of the matter to the President in his oath. Due to the lack of any indication of restrictions pertaining to this charge, it must be assumed that, in these times of necessity, the President is granted access to the full force of 6 Benjamin A. Kleinerman Lincoln s Example: Executive Power and the Survival of Constitutionalism. Perspectives on Politics 3.04 (2005): Bates, Opinion on the Suspension of Habeas Corpus 8 Lincoln, First Inaugural Address

4 governmental power in order to defend the Constitution of the United States. Thus far it is clear that President Lincoln, due to the extraordinary nature of the Civil War, properly utilized his executive and military powers in order to preserve the Constitution and the nation. Opposition to these points has been raised on the grounds that Lincoln far overstepped his abilities as President, encroaching on those of Congress, and that the precedent Lincoln established provides the President with grounds for near dictatorial power. While there is cause to fear the standard put in place by Lincoln, the powers called upon by the President are clearly within his dominion. The cases of Ex parte Merryman and Ex parte Milligan are prime examples of the claims that Lincoln overextended executive power. Addressing the suspension of Habeas Corpus, Merryman claims that the power lies with Congress only. Milligan states that martial law, such as was declared along with the suspension, cannot exist where civil courts are operating. The argument laid out above supports the fact that the President, in a time of crisis, must act as Commander-in-Chief and act in the defense of the nation. The ability to achieve such a goal lies not only in military strength, but also in political force. The suspension of Habeas Corpus was directly related to the defense of the nation because it expanded the power of the courts to punish confederates and their sympathizers. As Bates states, it is a power necessary to the peace and safety of the country. 9 The President, as Commander-in-Chief, is best suited to make such decisions as he is directly tasked with matters of war and national defense. Furthermore, in order to more directly address Milligan, it is necessary to understand the extraordinary nature of the Civil War. Powers such as revoking Habeas Corpus may easily be considered unnecessary in an ordinary war; however, the Civil War, which encompassed the entire nation, was no ordinary war. Though Lincoln claimed his actions were necessary, it is impossible to determine, even in retrospect, whether certain decisions were truly necessary. Had he avoided making any of these controversial decisions, the war may still have been won by the Union. As such, while his ability to claim such extensive powers is clear, Lincoln did set a bad precedent with his wartime decisions. As Curtis puts it in Executive Power, The uses of power, even in despotic monarchies, are more or less controlled by usages and customs. 10 The times were desperate and, as such, it may have seemed to Lincoln that his only option was an extreme extension of executive power. Lincoln reiterates time and time again the importance of his necessity test, even going so far as to [imply] that this standard, rather than popular opinion, will better limit the spread of martial law. 11 These warning are not sufficient, though; as Kleinerman goes on to write, the public is not sufficiently aware of 9 Bates, Opinion on the Suspension of Habeas Corpus 10 Curtis, Executive Power 11 Kleinerman, Lincoln s Example

5 constitutionalism to act as the necessary electoral deterrent to the abuse of these powers and, without this check, the definition of necessary has been stretched to its limits. Using the example of 9/11 and the detainment of suspected terrorists, Kleinerman asserts that the powers of the executive branch have been stretched to their limit. As opposed to the definite crisis that was the Civil War, the war on terror is formless on all fronts, lacking a foreseeable end and a clear enemy. Thus the necessity test is insufficient to prevent the abuse of these powers, as Lincoln had hoped. While they may have seemed necessary at the time, it is unclear whether the benefit was worth the current cost of constitutional indiscretion. The powers of the President, acting as Commander-in-Chief in a time of war, are extensive so as to provide for the defense of the nation. In extreme circumstances where the Constitution itself is threatened, these powers are expanded from simply military and executive authority to encompass the entire weight of governmental authority. These powers may not be expressly in opposition to constitutional law; however, they do encompass the entirety of federal power expressed in the Constitution. As, in a time of peace, Congress has the power to pass such legislation as the Emancipation Proclamation and to suspend Habeas Corpus, it follows that, in a time of constitutional crisis, the President gains these powers for the sake of practicality. Emergencies call for action, not deliberation, and it is the sole duty of the executive to ensure the Constitution survives such emergencies as the Civil War. This being said, Lincoln should not have been so quick to invoke his emergency powers as the precedents he set have had severely negative consequences in current governmental decisions. As was feared by the Founding Fathers, the executive has begun to increasingly exercise power to influence governmental affairs and lessen the importance of Congress. The necessity test may have seemed effective to Lincoln; however, it established a precedent which, while clear to Lincoln, has increased the temptation to abuse executive power.