THE LINCOLN DEBATE :
The Raleigh Tavern Philosophical Society
February 28, 2002
“Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” Abraham Lincoln (July 4, 1861)
“…Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable, --a most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit...”
Abraham Lincoln – January 12, 1848 speech before Congress on war with Mexico
“…I hold that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. …If the United States be not a government proper, but an association of States in the nature of contract merely, can it as a contract, be peaceably unmade, by less than all the parties who made it? One party to a contract may violate it…but does it not require all to lawfully rescind it? …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.
It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union, --that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances. I therefore consider that, in view of the Constitution and the laws, the Union is unbroken…”
Lincoln’s First Inaugural Address – March 4, 1861
Focus and Purpose
In this paper I focus on several issues: Abraham Lincoln’s use of his Executive office to suspend the writ of habeas corpus during the Civil War; the lively yet tedious constitutional debate of Lincoln’s wartime conduct which has been ongoing since April of 1861; and the precedent that Lincoln set for future administrations. The purpose is to determine if in fact Lincoln did usurp power not granted to him by the Constitution and if he was justified in doing so, and as well, to determine if his wartime conduct compromised the status of civil liberties in the United States legal system. I chose this topic because of the current undeclared “War on Terror” and all that it may entail. I was originally interested in researching the history of the suppression of American civil liberties by the U.S. government during times of war. But that topic proved to be too unwieldy and was more than I could manage in such a short time and space. So I settled on a much narrower topic. Ha. Since there are so many cases in which Lincoln, his administration and the military have been accused of taking liberties with civil liberties, through arbitrary arrests, establishing unnecessary martial law, confiscating property, stifling free speech and the press, etc, etc. during the Civil War, I chose to mainly focus on his suspending of the writ of habeas corpus. Even among all of the cases where the writ was suspended, I do not refer to all of them to make my point.
Habeas Corpus – A Brief History
A brief history of habeas corpus is in order so that we may understand its significance in our own system of government. Habeas corpus has been referred to as “the great bulwark against tyranny,” “the great writ of liberty,” the “most extraordinary writ,” “a fundamental part of the unwritten common ‘law of the land,’” “fundamental to American and all other English common law derivative systems of jurisprudence,” and according to Edmund Burke, along with English common law, the “sole securities either for liberty or justice.” Habeas corpus translates from Latin to English to mean, “you should have the body.” It is a prerogative writ, which originates from Anglo-Saxon common law. According to civil liberties attorney, Joseph Robertson, habeas corpus is ancient, dating back to well before the Magna Carta in 1215. Although the exact origin is unclear “in light of its antiquity, its principle effect was achieved in the middle ages by various writs,” which in totality had the same impact as today’s writ. Originally, it was a prerogative of the King and his courts. Over time, it has become a prerogative writ of all people, so that anyone imprisoned without due process may initiate the writ for himself. “Upon proper application . . . a court is empowered . . . to [command] one who is restraining liberty to forthwith produce before the court the person who is being restrained” and justify his restraint. Be aware that the writ does not determine or concern itself with guilt; it is only a test of whether someone has been afforded due process. To quote the Magna Carta:
No free man shall be taken or imprisoned or disseised or
exiled or in any way destroyed except by the lawful judg- ment of their peers or by the law of the land.
The Magna Carta was an English response to European civil law infiltrating (or invading) the English common law legal system that began with William’s Norman invasion in 1066. Tensions that were caused by the confrontation between the arbitrary nature of the Norman invader’s civil law and the ancient Anglo-Saxon common law lasted up through the 1640s. Arbitrary civil law “found its bloody end on the chopping block in 1649” along with Charles I. The privilege of the writ of habeas corpus was finally formalized by the English Parliaments’ enactment of the Habeas Corpus Act of 1679.
By the time of the American Revolution, the writ of habeas corpus was a part of everyday life for British colonials and considered a fundamental and guaranteed protection for all citizens. In fact, one of the many grievances of the British colonists leading up to the Revolution was the frequent refusal to issue the writ. As a result, the Founding Fathers saw fit to include the following in the U.S. Constitution, found in Article I, Section 9, Clause 2: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.” While other important individual rights were mere amendments to the U.S. Constitution, “afterthoughts” added two years after its ratification, the framers clearly gave more credence to the Writ of Habeas Corpus as a fundamental right. Even its placement within the Constitution demonstrates its significance.
The specific nature of civil liberties is important to understand, so that we may fully appreciate the decisions made and actions taken during wartime. The word “civil” was formed from the Latin word civis, meaning “citizen.” A citizen is someone who “owes allegiance to some organized government” within a society. Every civilized society seeks to maintain an appropriate balance between the freedoms and order among its people. Both history and common sense tell us that when a society’s security is threatened by war, the balance is tilted in favor of order. American history demonstrates that during war we, as a people, have accepted (some more than others) the extended political power of our government and certain restrictions on our own personal freedoms. During America’s most significant wars, our U.S. governmental leaders have, usually with some reservations, found it necessary to suspend or limit American’s civil liberties in order to preserve our shores, protect our citizenry and safeguard our liberties (ironically enough). This wartime mentality is often summed up in the Latin maxim Inter arma silent leges, which means, “In times of war the laws are silent.”
After the terrorist attacks of September 11th in 2001, many politicians have been very careful to tread lightly on the issue of civil liberties. Within days of this tragic event, while considering White House security proposals, House Majority Leader Dick Armey stated, “we will not violate people’s basic rights as we make this nation more secure.” Senator Max Baucus of Montana chimed in with, “this does not mean that we can allow terrorists to alter the fundamental openness of U.S. society or the government’s respect for civil liberties. If we do so, they will have won.” I say, nonsense. You can’t have it both ways in times of war. History teaches us that. Security has always won out over liberty during our national crises. And when each particular crisis ended, so did the personal restrictions – usually quicker than they were adopted, too. William Rehnquist asserted in All the Laws But One, “it is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime.”
Undoubtedly it was the times of “declared” war in the twentieth century (WWI and WWII) when the U.S. government was most inclined to infringe upon individual civil liberties. While there was no formal war declaration in the Civil War, the nature of that war caused the Lincoln administration to determine that it was essential to the war effort to take actions that may violate individual civil liberties. In addition, our courts, during war, have typically been averse to decide a case against the government on an issue of national security, i.e., to uphold certain civil liberties, as in the Schenck and Hirabayshi cases. Even so, we appear to be none the worse for the wear during times of peace. Courts are more likely to uphold wartime claims of civil liberties after the war is over, as in the post-civil war Milligan case. As Chief Justice William Rehnquist so succinctly put it, “in every conflict between individual liberty and governmental authority the former should not prevail.” That is not to say that the courts should completely silence the laws during war, but they should give the laws a different voice. The fact is, wartime restraints have always been temporary and have never been a plausible threat to the stability or existence of our peacetime democracy.
Recently, a number of civil liberties watchdog groups have been voicing concerns about possible civil liberties violations in the wake of the 9-11 tragedy. They look back and lament those innocents who were harmed by the wartime policies of past presidents. Policies such as FDR’s Executive Order 9066, which led to the internment of Japanese-Americans during World War II after the attack on Pearl Harbor and Wilson’s 1917 Espionage Act and 1918 Sedition Act, which targeted war critics like the IWW and the Socialist Party during World War I are often bemoaned and debated today. These watchdog groups remind us of how far the past administrations would go in suspending the free press, free speech and habeas corpus in order to achieve national security, and they warn us not to let the current administration do the same. The website entitled In Defense of Freedom states:
We need to ensure that actions by our government up-
hold the principles of a democratic society, accountable government and international law, and that all decisions
are taken in a manner consistent with the Constitution.
Even though current defenders of civil liberties view the Japanese internment as governmental tyranny, many civil-liberties defenders during World War II did not. Surprising to many of us today, the American Civil Liberties Union of the 1940s did not oppose or even respond to the internment camps until several years later. While some did challenge FDR’s administration, the 1943 Supreme Court, not wanting to challenge the President’s policy during war, skirted the issue of internment and upheld the curfew issue in the Hirabayshi case stating,
Whatever views we may entertain regarding the loyalty
to this country of the citizens of Japanese ancestry, we
cannot reject as unfounded the judgment of the military
authorities and of Congress that there were disloyal mem-
bers of that population.
And during World War I the Supreme Court, led by Justice Oliver Wendell Holmes, unanimously upheld the conviction of Charles Schenck (Socialist Party general secretary) in 1919 under the Espionage Act for printing some 15,000 handbills opposing the Conscription Act and mailing them to young draftees (Schenck v. United States). The court held that,
…in many places and in ordinary times the defendants in
saying all that was said in the circular would have been
within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done …
The most stringent protection of free speech would not
protect a man in falsely shouting fire in a theater and causing
a panic … What must be determined is whether the words
are used in such circumstances as to create a clear and present danger which would have brought about substantive evils
which Congress had a right to prevent … When a nation is
at war, many things that might be said in time of peace are
such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard
them as protected by any constitutional right.
Within two weeks of this case, the Court made similar decisions to uphold convictions for violating the Espionage Act in Frohwerk v. United States and Debs v. United States. And in the case of Abrams v. United States (1919), the conviction for sedition of Russian immigrant and anarchist Jacob Abrams was upheld in a 7-2 decision. The message was clear: during war, safety first.
While the FDR and Wilson administrations are often revisited in the debate concerning civil liberties violations, the constitutionality of Abraham Lincoln’s policies during the Civil War has received the most attention and criticism (how long can you beat a dead horse anyway). Did he or didn’t he? This is the question Americans have been debating since that fateful day in April of 1861 when, then, President Lincoln first authorized the suspension of the writ of habeas corpus. Did he violate the constitution by unilaterally authorizing the suspension of the great writ? Do extreme circumstances allow for extreme measures? Lincoln certainly was facing the most extreme emergency this country had and has since ever experienced – a civil war. Lincoln’s Secretary of the Navy, Gideon Welles, remembering the pressures facing the White House in the early days of the war later wrote:
Few, comparatively, know or can appreciate the actual
condition of things and state of feeling of the members
of the Administration in those days. Nearly sixty years
of peace had unfitted us for any war, but the most terrible
of all wars, a civil one, was upon us, and it had to be met.
Congress had adjourned without making any provision for
the storm, though aware it was at hand and soon to burst
upon the country. A new Administration, scarcely acquainted
with each other, and differing essentially in the past, was compelled to act, promptly and decisively.
On April 14th, 1861 Fort Sumter fell to the Confederacy. With that, Lincoln issued a proclamation the next day calling for volunteer troops to assemble in Washington and he then called for a special session of Congress to meet July 4th. Lincoln had not recognized the action of the Southern States as secession. To him it was an “insurrection.” By that definition, Lincoln was justified in raising an army to put down the rebellion under the Act of Congress of 1795 which limited the use of a specially called militia to thirty days after the beginning of the next session of Congress. By delaying the special session of Congress for over two-and-a-half months, Lincoln was able to extend the use of the militia against the South before Congress could convene and debate his actions. When Lincoln did finally address Congress on July 4th, he defended his actions against the Southern States by saying,
these measures, whether strictly legal or not, were ventured
upon under what appeared to be a popular demand and public necessity, trusting then as now that Congress would readily
Because Baltimore provided a central rail junction for northern and western troops to reach the capitol city, and because the state of “Maryland teetered both geographically and ideologically between North and South” the clash that occurred in Baltimore in April and May of 1861 was unavoidable. “Known colloquially as ‘Mob City’” Baltimore was the scene of mob rule. Citizens initiated violent and deadly riots along with bridge-burnings to prevent federal troops from passing through their fair city. During a public meeting the Governor of Maryland and mayor of Baltimore encouraged violence by telling the residents of that city to resist the military “invasion.” Meanwhile in Washington, Lincoln’s concern turned to fear as days passed and “troops did not come, ships did not arrive, railroads remained broken, messengers failed to reach their destination …” and telegraph lines were severed. Washington seemed isolated, “virtually cut off from the rest of the North.” Finally, after much deliberation and consultation with cabinet members, on April 27th, 1861, President Lincoln communicated the following message to his General-in-Chief of the Army, Winfield Scott:
You are engaged in repressing an insurrection against
the laws of the United States. If at any point on or in
the vicinity of the military line which is now used …
you find resistance which renders it necessary to suspend
the writ of habeas corpus for the public safety, you per-
sonally or through the officer in command at the point
where resistance occurs are authorized to suspend that writ.
To paraphrase his own words, Lincoln believed that even though the Constitution denied him the direct necessary authority to preserve the Union, it was his responsibility to preclude the risk of losing the Union that gave life to that very Constitution.
On May 25th, 1861 state legislator John Merryman was arrested and denied a writ of habeas corpus for his involvement in the destruction of railroad bridges after the April 19th riot in Baltimore. In his final decision, U.S. Supreme Court Chief Justice and Maryland Circuit Court Judge, Roger B. Taney narrowly interpreted Article I of the Constitution in the Merryman case (one of the more celebrated cases during the Civil War) when he wrote that the President did not have the authority to suspend the privilege of the writ of habeas corpus – only Congress had such power. In addition he narrowly interpreted Article II ruling that no implied authority of the President existed in regard to habeas corpus under presidential “war powers.” Lincoln’s response to Taney was to ignore him. The public barely winced at Lincoln’s snub. In his address to Congress on July 4th, Lincoln defended his order to Scott and the action against Merryman by asserting that the Constitution was “silent” regarding which branch of government had the authority to suspend the writ of habeas corpus, and he claimed that since Congress had not been in session during the outbreak of the crisis, he, as President, was authorized to do so. And in referring specifically to the Merryman decisions he said:
… are 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 be-
lieved that disregarding the single law, would tend to
While he had made bold statements justifying his policies to Congress (scattered as they were), by early 1862 Lincoln ordered “all political prisoners still in military custody be released upon taking an oath not to give aid and comfort to the enemy.” He explained that the prisoners were to be freed because the problems he had faced early in the war (the threat of treason, public apprehension, and military reversals) causing him to adopt “extraordinary powers which the Constitution confides to him in cases of insurrection,” could now be better handled by a better-prepared administration. When the U.S. Congress finally passed the Habeas Corpus Act of March 3rd, 1863 it was quite ambiguous as to whether Lincoln’s suspension was only just then legal or had been legal since its inception.
Congress set the stage for renewed civil liberties conflict when in July of 1862 it passed the Militia Act (also known as the Militia Draft), authorizing Secretary of War Edwin Stanton to draft for nine months militiamen of the states that had not raised their militias. With the Militia Act authorized, on September 24th, 1862 Lincoln announced a new proclamation to nationally suspend the writ of habeas corpus, which was meant to enforce the conscription law. Not many people took notice of this proclamation, however, because six weeks prior, Stanton issued similar orders “by direction of the President” to suspend the writ of habeas corpus for draft dodgers and people arrested for “disloyal practices.” The War Department also announced that U.S. marshals and local police chiefs had the authority to arrest and imprison those persons participating in any “disloyal practice,” and such persons “may be tried before a military commission.” Riots broke out and draft dodgers were arrested. The number of northern arrests made the first month after Stanton’s orders was a staggering 354+. However, after September, the number of northern arrests fell sharply.
The year after Stanton’s orders and Lincoln’s habeas-corpus proclamation, Lincoln once again found himself defending his policies. Attorney and former Ohio Representative, Clement Vallandigham had been arrested on May 5th for violating General Order No. 38. He had criticized the military measures of “King Lincoln” and the very Order which caused his arrest. The General Order had been issued the month before by General Ambrose Burnside, military district commander over Ohio, Indiana, Illinois, and Kentucky, to put an end to and arrest those in “the habit of declaring sympathies with the enemy.” It allowed for civilians to be tried before military commissions. Northern Democrats protested so vehemently to the arrest of Vallandigham that Lincoln found it necessary to explain his policy to the public again (even though he believed Vallandigham’s arrest to be a grave error by an overzealous General). He defended Vallandigham’s arrest in a letter written to New York democrats dated June 12th, 1863 (that he made sure Horace Greeley published), by referring back to Andrew Jackson who, in 1815, established martial law in New Orleans and then resisted a writ of habeas corpus. Lincoln wrote:
the permanent right of the people to public discussion,
the liberty of speech and the press, the trial by jury, the
law of evidence, and the Habeas Corpus, suffered no
detriment whatever by the conduct of Gen. Jackson, or
it’s subsequent approval by the American congress.
Lincoln’s policy had clearly been intended for dangerous southern sympathizers like John Merryman and for bridge destroyers in Missouri and for draft resisters across the country, not really for political activists like Vallandigham. Lincoln said that Vallandigham was not arrested for political reasons, for that would be wrong. Lincoln justified Burnside’s arrest of him by saying that Vallandigham’s speech challenging the draft and encouraging desertions undermined the effectiveness of the war effort. Then, with this example, he made his point:
Must I shoot a simple-minded soldier boy who deserts,
while I must not touch a hair of a wily agitator who
induces him to desert? I think that in such a case, to
silence the agitator, and save the boy, is not only con-
stitutional, but, withal, a great mercy.
Lincoln’s letter did not move the Northern Democrats. In answer to Lincoln’s letter of reply to their protests, they wrote back:
…The fact has already passed into history that the sacred rights
and immunities…have not been preserved to the people during
your administration… we cannot accord to you the despotic
power you claim… That the suspension is a legislative, and not
an executive act, has been held in every judicial decision ever
made in this country, and we think it cannot be delegated to any
other branch of the government.
Lincoln was widely criticized in the North for the Vallandigham case.
The Vallandigham arrest was one of the exceptions to the rule, an exception that causes historians and others to participate in a futile debate over despotism. According to Mark E. Neely, Jr., McCabe-Greer Professor of Civil War-Era History at Pennsylavania University, “the dominant popular view today has been forged outside the historical profession, where literary critics, political scientists, and historical novelists unembarrassedly assume that Abraham Lincoln was a dictator.” He points specifically to Edmund Wilson, Gore Vidal and Dwight Anderson who have each referred to Lincoln as a dictator and/or tyrant. In Wilson’s 1962 book Patriotic Gore, he compares Lincoln to Bismarck and Lenin as “uncompromising dictators” that were each able to unite a “great national power.” In Anderson’s 1982 book Abraham Lincoln: The Quest for Immortality, Lincoln is portrayed as “demonic,” a “Robespierre,” and “a tyrant who would preside over the destruction of the Constitution in order to gratify his own ambition.” And in Gore Vidal’s 1984 novel Lincoln, Lincoln was portrayed as an “absolute dictator.” While these men are unashamed to vilify former President Lincoln and his wartime policies, Neely asserts that most historians are afraid to even broach the topic. He believes that the reason there are less serious historical accounts is because historians have been “embarrassed by Lincoln’s record on the Constitution” and, therefore, have “shied away from the subject.” Which leaves the general public to feed on the opinions and interpretations of those other than academic historians.
The multiplicity of views in this timely debate is tedious and mind boggling, if not nauseating. While perusing the various search engines on the internet, using the fairly narrow topic (so I thought) of “Lincoln” and “habeas corpus,” I came up with over one-hundred-thousand web sites. In the wake of the September 11th terrorist attacks, this has been a hot topic due to current White House proposals and public discussions of military tribunals, suspending civil liberties, ethnic profiling and comments such as those made by Attorney General Ashcroft that such an “emergency does indeed call for the maximum exercise of governmental power and concomitantly flexible constitutional interpretation.” And from what I’ve been reading it is now more fashionable than ever to criticize former President Lincoln for his very debatable transgressions. Yet, here I am, adding to the debate, futile as some may think it to be.
The media, politicians, pundits, and everyone with a high school degree and a little time on their hands are putting their two cents into the currently most popular topic, Civil Liberties - love ‘em or leave ‘em. Interpretations, opinions, quotes and misquotes of our history and our constitution are aplenty. I have identified three basic groups within the debate: the defenders, who believe Lincoln had every right to suspend civil liberties during the Civil War, whether the Constitution specified the Executive branch or not; the deliberators, who view each executive action independently, crediting him for some decisions and criticizing him for others – for the most part they say many of his actions were constitutionally improper but defend him anyway; and the demonizers, who would lynch “the hideous ape-like…despot” if he were here. I like to call them the “constitutional moralizers,” borrowing the term from Neely’s description of the Civil War-era “sore losers” such as former Confederate V.P. Alexander Stephens. Stephens claimed that Lincoln viewed the Union with “religious mysticism” therefore his interpretation of the constitution could not be trusted.
Among the more recent (and interesting) Lincoln critics, nationally syndicated columnist Joseph Sobran calls Lincoln “high-handed,” believing that he “was a greater menace to civil liberties than the infamous McCarthy.” He translates Taney as saying that Lincoln was a “dictator” and claims that “it was Abraham Lincoln, not Joseph McCarthy, who conducted a ‘reign of terror.’” Sobran goes so far as to ponder why McCarthy, who was really quite benign when all was said and done, instead of Lincoln, was made to be a “symbol of political repression.” Beware of “Lincolnism?” Another Lincoln detractor, William Safire, is of the opinion that Lincoln “willfully crushed civil liberties” and “played fast and loose with the Constitution.” And yet another disgruntled guardian of civil liberties, Joshua Kleinfeld, wrote that “when Lincoln suspended the writ of habeas corpus, he clothed himself with more power than any individual had possessed in America before, or since.” I would argue that those clothes have since been worn.
Libertarian Myles Kantor refers to Lincoln as a “tyrannical genius” and blames him for “revolutionizing American nomocracy and advancing interventionist policies.” He goes on to say that Lincoln caused the “erosion of federal republicanism and freedom” through his “arrogatin of legislative powers, Whiggism [and] militarism of American government.” In addition, conservative political scientist Marshall DeRosa states that “…Lincoln’s expansive interpretation of presidential powers made him the most imperial president in American history, thereby setting a dangerous precedent for predisposed successors.” In Lincoln’s defense, Timothy Sandefur wrote that, “few historical figures have suffered more at the hands of libertarians and conservatives than Abraham Lincoln . . . [and] the general conclusion that Lincoln was a tyrant or a fool is not justified at all.” In regard to Lincoln suspending habeas corpus Sandefur defends Lincoln by simply stating that, “the Constitution specifically permits the suspension of habeas corpus during civil insurrection.” He is right. It does. But the location of that prerogative within the Constitution has given generations of Americans fits in their heated debate over Lincoln’s authority, not to mention his integrity.
In his essay, Lincoln’s Abuse of Power During the American Civil War, Brian Pulito stated that Lincoln’s act of suspending the writ of habeas corpus was unconstitutional because “that right belonged to Congress alone.” Mr. Pulito based much of his conclusion on Roger B. Taney’s contention that the right to suspend the writ of habeas corpus “has not the slightest reference to the executive branch” and only “Congress could declare the writ removed.” The fact is, while conditions to suspend the writ of habeas corpus are described in Article I of the Constitution, which admittedly is reserved for legislative powers and duties, the constitutional framers were vague in regard to the execution of such a suspension. The lack of specificity within Article I, Section 9, Clause 2 leads to an ambiguous interpretation and creates an atmosphere of doubt, usually at times when clarity is of critical importance. The constitutional framers have left certain questions unanswered. Who establishes that an invasion or rebellion has even taken place? Who determines if and when the public safety is in jeopardy? What if an emergency occurs with Congress in recess? In that case, would it be the President’s duty to invoke the suspension when necessity presents itself? Like many others, Pulito believes it would not.
Whereas Pulito considers Lincoln’s suspension of the “great writ” to be a heinous crime, he is undisturbed by Lincoln’s intrusion upon an entire region of the country with a sweeping proclamation to seize their property. I’m naturally referring to slaves and their owners, the southern secessionists in rebellion. With regard to the Emancipation Proclamation, some critics such as Sanford Levinson assert that Lincoln “unilaterally ordered one of the most extensive confiscations of property in world history [by] taking property without due process or compensation.” But Pulito briefly portrays Lincoln as a “hero” who “gave a people held in bondage, American slaves, the freedom they so desperately deserved.” Naturally this is the popular view, making that civil liberties violation beside the point. (Of course, ending slavery was not Lincoln’s original goal. His focus was only on the preservation of the Union. But the fact that the abolition of chattel slavery in the United States was an unintended consequence of the Civil War does not undercut the historic significance of that accomplishment.) Many of the analyses of Lincoln, like Pulito’s, are contradictory, but then, Lincoln himself was somewhat of a paradox. With all that came of it, Lincoln’s presidency “witnessed the simultaneous culmination and repudiation of the American Revolution.”
I could go on and on with the differing opinions and interpretations within this endless debate, but after awhile it gets repetitive. Most of the published works do not offer serious academic arguments. In 1991, Mark Neely claimed that, “the historical literature on civil liberties [was] strangely unsatisfying,” pointing out that there had not been a “book-length scholarly treatment” of the subject since James G. Randall wrote Constitutional Problems under Lincoln in 1926. Even at that time Randall stated that “so little has been done by historians in searching the voluminous legal material of the Civil War period that I have felt myself to be breaking new ground.” The only books that Randall had available to him were those written by partisan Democrats (between the Civil War and WWI) who denounced Lincoln as a Republican tyrant. And Neely points out that a number of assumptions, instead of thorough research, were made in most of those works. For example, in John Marshall’s American Bastille (1869) there was no serious investigation into the actual number of arrests made and the supposed “tens of thousands of civilian prisoners” were assumed to all be from the “Free Northern States.” Martyrs were aplenty, including Marshall who claimed to have been arbitrarily arrested himself in 1861.
By the Progressive Era, when Randall was attempting to publish his manuscript, the actions of Lincoln and his administration were being reconsidered. Most progressive reformers came to accept and even admire Lincoln’s bold leadership, strength and nationalism. This view is best seen in historian Nathaniel Stephenson’s Lincoln and the Progress of Nationality in the North (1923) in which he endorsed Lincoln’s right to assume great executive authority during a national crisis. Even so, the “legacy of fear” left by the Espionage Act during WWI and the spread of dictatorships after that war could not help but alter how Civil War civil liberties were interpreted. At the very least this gave pause to Lincoln scholars. In 1926 a Harvard law professor “warned” that civilians who question the validity of future wars in this country will be in peril. And constitutional historian Andrew McLaughlin wrote “that a president armed with the ‘war power,’ may some day wreck the whole constitutional system is theoretically possible, and the dictator, if he ever appears, may discover precedents in the conduct of Lincoln.”
By the mid-1930s, the fate of Lincoln’s image took another turn when revisionist historians “proved” that there was no Vast Left-Wing Conspiracy (if I may be so bold). In other words, the idea that there was extensive disloyalty among Northern Democrats opposed to the war was rejected, and Lincoln’s “frequent arbitrary arrests” were condemned. Finally in the 1960s and ‘70s, historians had completely discredited the myth of the “Copperhead menace,” leaving Lincoln’s image with egg on his face. By the 1970s, because of the ongoing civil rights movement, the focus shifted away from constitutional issues during the Civil War to constitutional issues during Reconstruction. The interest was now in black civil rights, not white civil liberties. And so less and less was being said about Lincoln’s administration, which was just as well for the academic world, which seemed to prefer to keep that dirt under the rug.
While people will forever debate the constitutionality of Lincoln’s actions during the Civil War, the greater debate may lie in the effect that Lincoln’s policies had on the future of civil liberties. While it is difficult to gauge, it is worth considering. His policies did set a precedent for future presidents to look to as a remedy for civil unrest and dissent during wartime, yet, possible peacetime excesses by the executive, congressional and judicial branches seem to be tempered by those same type policies. I say this for several reasons. One is that there have been many civil liberties organizations that have developed in the past century to safeguard and preserve individual rights given to us by the Constitution. These watchdog organizations, while aggravating at times, do serve an important role in our democracy. Second is that, the First Amendment has become more prominent, not less so, as a defense in our legal system and more fiercely guarded. Of all that is written in the Constitution, that is the one clause that most Americans can cite. It truly has “come into its own.” And third, since the Civil War ended, the U.S. Presidents have in fact learned from Lincoln’s mistakes in regard to wartime rights infringements. The government has become much more “politically correct.”
Chief Justice Rehnquist elucidates this phenomenon in his book All the Laws But One by revealing the differences between government conduct during the Civil War and government conduct during the two declared wars of the twentieth century, WWI and WWII. First of all, the Lincoln administration had almost exclusively relied on presidential authority and the orders of military commanders to restrict civil liberties. But during WWI and WWII, Wilson and FDR, respectively, relied more heavily on congressional legislation to justify their restrictions. A second difference is that the courts were used more often in the two world wars of the twentieth century than in the Civil War. One reason for this is that during the Civil War the lower federal courts had limited jurisdiction, and the state courts were typically inexperienced in claims arising under the U.S. Constitution. But the most important reason is that, with the increased reliance on Congress to pass laws of wartime restrictions, the government also relies more on prosecution in the federal courts for criminal conduct so defined by those acts of Congress. While a military commission tried Clement Vallandigham for violating a military order during the Civil War, civil courts heard the cases of those who violated the Espionage Act during WWI. They were defying a law of Congress, not a military order. A third difference is that the Lincoln administration breached the First Amendment by blatantly suppressing public criticism of the war effort with little to no federal objection, while during WWI and WWII, the First Amendment stayed in tact for the most part. During WWI, the Post Master General’s suppression of radical criticism was checked by the courts to be sure, and FDR’s administration made no overt effort to suppress public criticism of government war policy during WWII. The government has apparently learned from past mistakes, leaving the Constitution and the civil liberties contained within it secure.
The somewhat cooperative nature of the Framers when they wrote the Constitution is evident in the document’s flexibility. You won’t hear me say this too often, but one of the reasons that our U.S. Constitution has successfully endured the test of time is that some of it is left to interpretation, to be a guide for the generations and, yes, at times to be guided by the generations. This was deliberate on the part of the Framers. They agreed to disagree on certain issues, painting sections of the Constitution with a broad brushstroke and expecting future generations to clarify the issues for themselves. As a former Whig Lincoln could appreciate this, since Whigs generally took a broad interpretation of the Constitution and what it permitted the federal government to do. In his view it would be impractical to interpret the Constitution too narrowly. And he was practical. It was part of his nature. As a young congressman before the House he gave a speech in 1848 regarding amending the Constitution asserting that the Constitution need not be amended if a reasonably broad interpretation of it were to be taken.
Lincoln’s emphasis on the practical is evident during the Civil War when he would defend his decisions or military actions with practical rationale. And he would always back up his rationale with verifications that the Constitution permitted it. With this mindset, Lincoln understood that in order to preserve the nation’s principles that his paternal grandfather and namesake fought for in the American Revolution he had to be willing to make hard choices that would restrict personal liberties. He believed the privilege of the writ of habeas corpus and all civil liberties to be sacrosanct, but his duty was clear. While he did suspend the writ of habeas corpus eight different times during the course of the war, it was intended as a “preventative precaution, not as a punitive weapon”. It was to be an exception for a temporary emergency. The early suspensions, I believe, were justified. However, his administration did at times go to extremes and make a number of mistakes. Not all of the suspensions throughout the course of the war were justified. In addition, the suppression of the New York newspapers, censorship of the mails and telegraphs, Fremont’s draconian measures and martial law established in Missouri, and the trial by a military commission of the Indianapolis defendants were all cases of an administration and military run amuck, exercising dubious authority at best.
While Lincoln made debatable decisions concerning civil liberties during the Civil War, he never did waver from his primary goal. The goal he achieved in holding the nation together under one constitution is how most people today evaluate his performance as president. The daunting task of fighting and winning a civil war cannot even be imagined today. Clearly, strong leadership skills were necessary. And no man, except those who have taken the presidential oath of office, can fully appreciate the awesome responsibility of being President of the United States. The most obvious sign to the public that each man, before and since Lincoln, has been transformed by the job is his aged appearance when leaving office. They were all transformed by the presidency, but only some reciprocated in kind. Every United States President has taken some action or made some decision that has been construed to be at the least questionable, at the most impeachable. Even William Henry Harrison made at least one questionable decision in his brief tenure as president when he chose to give a lengthy inaugural address on a cold windy day without his gloves, overcoat or hat. These men are not gods. They aren’t even angels. They are, simply put, exceptional men (for the most part) who have been chosen by the electorate to lead a nation at a given time to serve a specific purpose. Lincoln was one of the most exceptional of these men. We see that in his legacy. I know of no other President that we have had before or since (during their own particular time in office) who could have come into office facing civil unrest and then civil war, deny civil liberties to the extent that they were denied, withstand harsh criticism only to be re-elected by a landslide (in the electoral college), and preserve a presidential legacy that continues to rank him #1 among all of our past presidents by respected historians. The point is that we choose not to highlight his poor decisions and shortcomings, but to view him as the man who used all of his executive resources to save a nation from destroying itself, the man who preserved the Union and ultimately ended slavery. One of the most important reasons we remember him this way is because of who he was as a man, because of his character. While he did make mistakes and he did usurp power not specifically granted to the executive branch in the Constitution, he did not do it selfishly. As he struggled to fulfill his oath of office and persevere in the most trying time in our history, Lincoln was genuine and unassuming. His legacy was not an issue for him, which should be a lesson for Bill Clinton. Character does matter.
 This Roman legal maxim originated two millennia ago in a legal system that had no constitution.
 The Schenck case will be discussed more later. The Hirabayshi case involved breaking the curfew that was imposed on Japanese-Americans during WWII.
 The WWI Espionage Act of 1917 prevented the use of the U.S. mail to send information that might encourage “treason, insurrection or forcible resistance to any law.” In addition, the Sedition Act of 1918 penalized anyone who might “utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States… or the uniform of the Army or the Navy.”
 The civil liberties violations of the post-WWI “Red Scare” led to the formation of the ACLU in 1920.
 In July Merryman was indicted for treason and then promptly released on bond, never to be tried for those charges brought against him.
 The reason that Congress did not convene sooner is because Lincoln did not call them into session sooner. Mark Neely, Jr. asserts that Lincoln did not call them sooner possibly because he was concerned about the early “harrowing” days of the war when troops were having difficulty getting through to defend Washington, which in turn would have made it difficult, if not perilous, for congressional leaders to convene. The problem with that assumption is that, from all that I have read, Lincoln made the call for a special session of Congress to convene in July in the first few days after Fort Sumter fell. At that time he could not possibly see into the future and know the kind of trouble his troops would be having. It is more probable that Lincoln acted unilaterally because he felt that time was of the essence and he could make decisions and take action more quickly than a Congress in debate, and Congress would cloud issues with overzealous speech-making.
 The exceptions were spies and those “whose release would be ‘incompatible with the public safety.’”
 Through proclamation, Lincoln suspended the writ of habeas corpus eight different times in the course of the war.
 The War Dept. worried about public reaction to the national draft passed by Congress the month before.
 These were only arrests as a result of the War Department’s orders of August 8, 1862. Research by Mark Neely, Jr. has revealed that the majority of those arrested were in fact draft resisters and their aids. Political prejudice was not the typical motivation for arrest as earlier thought.
 One of the many things said by Vallandigham was that “the present war is a wicked, cruel and unnecessary war, one not waged for the preservation of the Union, but for the purpose of crushing our liberty and to erect a despotism.”
 Stanton’s Orders of August 1862 influenced Burnside’s action to issue his General Order No. 38.
 Pulito seems to forgive FDR his transgressions during WWII, squarely placing the blame on Lincoln for setting the precedent for FDR to follow.
 The number of total arrests without trial and charges has traditionally been estimated at between 13,000 and 14,000. But historians have recently suggested that the numbers are much higher. With that said, the majority of the arrests were of those from the Border States and the Confederacy itself, not from the North as earlier claimed by “researchers.” And most of them were released within 30 to 60 days of their arrest – usually after swearing a loyalty oath to the Union.
 Randall had a difficult time even getting published because publishers claimed there was “no commercial appeal” – the audience for serious constitutional history in the U.S. was (and is) very limited. He began his writing in 1911 and had a completed draft manuscript by 1918, but could get no publisher to accept it. He finally had to publish it himself.
 Lower federal courts would not have authority to hear cases where lawsuits were based on a violation of the federal Constitution until 1875.
 Article I, Section 8, Clause 18 offers a good example of this.
 Lincoln almost always considered arrests of members of the press to be regrettable and usually learned about them after the fact. He privately criticized these type arrests, but publicly defended the suppression of a disloyal press. As a leader his public face had to remain consistent.