Saturday, June 26, 2004


Pundits on both sides invoke Abraham Lincoln in the modern debate over Bush's war against Saddam, the disposition of terror suspects, and the Patriot Act.

I'm not interested here in comparing the Constitutional complications of the 1860s and those of today. The nature of the U.S. government and its powers have changed enormously since Lincoln's day -- largely as a result of the Civil War itself, and the Reconstruction amendments. Anything more than a superficial comparison only is possible amid a jungle of explanatory paragraphs swarming with footnotes.

The situations, too, are different. Lincoln faced the economic and physical disruption of the union, with a third of its population and a great deal of its revenue-generating section trying to depart. He faced the sudden emergence of a new world power on the doorstep of the remaining section, with potential powerful allies like Britain and France eager to see the fall of the United States.

After Sept. 11, Bush faced relatively fewer, more distant, and scattered enemies. But they were ideologically focused, not on escaping from the U.S., but on going right to the heart of it and unleashing fatal poison. And they are capable of a hellish destructive force never dreamed in Lincoln's day.

Many of the constitutional issues do run in parallel, however, and Lincoln's response to the crisis echoes Bush's. (Their careers have broad similarities, too: Both men had checkered pasts and won disputed elections without a majority; both were blamed for starting a war unjustly when negotiated settlement was possible and for exploiting a national crisis to advance their private agendas and attain partisan goals).

Lincoln offers a model, good or bad, for the role of a president in times when the nation sails into murky waters and faces conditions not imagined when the laws were written.

Like Bush in 2001, Lincoln in 1861 faced a legal fog in defining his enemy, and delineating his war. Even among many people in the North, the power of a state to secede from the union was held to be a legal right. The Constitution, as read by many, was seen as silent, or ambiguous, on the issue. A range of positions could be defended. Buchanan's attorney general, for instance, had investigated the laws and concluded that, while the secession was not legal, the government had no authority to stop it.

Meanwhile, the seceded states formed themselves into a new nation. Lincoln's official position was that the Confederacy did not exist and that he was suppressing an internal rebellion. Yet in practice, he treated the South as a sovereign power. He blockaded its coast. His administration acknowledged its sea-rovers as privateers and not as pirates. When rebels invaded the North and were captured at Gettysburg they were treated as POWs, not as traitors to be hanged for treason, because they were commanded by officers holding commissions from the Confederate government.

In fact, Lincoln made every attempt to have it both ways, because his powers, as president, were limited differently in each case. Whichever situation gave him what he needed, that is how he painted the war/rebellion in that case.

He did so to recruit and maintain a large standing army to fight a modern war, and in doing so he broke the Constitution he had sworn to uphold, which was structured to provide temporary, minute-man armies (in a system little changed since King Alfred's aldormen led the Anglo-Saxon fyrd to repel Viking marauders).

He did so in sweeping aside civil rights, including habeas corpus, and filling Northern jails with men never charged with any crime. He did so in full knowledge that his nation was full of dissent, and his agents couldn't, or didn't care to, distinguish honest loyal opposition from active treason.

Lincoln had at his back a Congress driven by his allies. And he managed to skillfully avoid the courts. When he couldn't avoid them, he defied them. In the Merryman case in 1861, Chief Justice Roger B. Taney denounced the notion of arbitrary military arrest and defended civil liberties, and pointed out that only Congress had the right to suspend habeas corpus. And he admitted he could do nothing to enforce his ruling in the face of a military force "too strong for me to overcome." Taney wrote as defiantly as any anti-Bush zealot today. And the cause for his wrath was more immediate and dangerous than the Patriot Act:

“I can only say that if the authority under which the constitution has confided to the judicial department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.”

Lincoln wrote out a standing order for Taney's arrest, but it was never served. But Merryman set the tone and left it to the justices to decide whether to provoke fights, legitimate or not, that they had no power to win.

Lincoln got a break when an important case came to Justice James M. Wayne, who was perhaps the staunchest war supporter on the Court. In U.S. v. Colonel Gorman Wayne upheld Lincoln’s extra-legal (at best) recruiting drive in 1861 and its retroactive endorsement by Congress. “It is my opinion,” Wayne ruled, “that Congress has constitutional power to legalize and confirm executive acts, proclamations, and orders done for the public good, although they were not, when done, authorized by any existing laws.”

Even some who supported the Northern cause blanched at this notion, but it was in keeping with the general spirit of the administration and the pro-war press, which was to “preserve the union at all costs.”

Lincoln used his presidency to pack the Supreme Court with justices who would be more sympathetic to his purposes. Three of five justices who sustained the administration in the important Prize case of 1863 were new Lincoln appointments.

But the full question of whether the Constitution gave the president a special power to suspend the writ of habeas corpus during wartime never got to the Court. In large part that's because the administration made sure it didn't. It had a valid fear that the Court would rule against there being such a power under the Constitution, and such a ruling would undermine the war effort. On the other hand, by keeping the matter away from the Court, the administration could largely accomplish its policy.

Opposition, especially in the press, clamored for a test case to settle whether the arbitrary arrests were legal. Secretary of War Stanton thought it would be wise to do so, too, but Attorney General Bates talked him out of it. In a letter of Jan. 31, 1863, Bates wrote to Stanton that a Supreme Court decision against the habeas corpus policy “would inflict upon the Administration a serious injury,” and would do more good to the rebels “than the worst defeat our armies have yet sustained.”

Only after victory was secure, and only gradually and tentatively at first, did the Supreme Court begin to put the nation back on a Constitutional basis, which Lincoln and the Radicals in Congress had disrupted. Both Lincoln and Taney were dead by this time.

Lincoln had done what was necessary to his purpose, which he saw as saving America's future, and he let the lawmakers catch up as they would. Or he left it to the courts to undo the changes long after they ceased to be necessary. Some of them were never undone, and America after 1865 was never again ruled by the government that had been created in 1787.

History forgives him these transgressions (though they are more bitterly remembered in the South) because the war he led America into had a great (if unintended) result of freeing slaves. It gave them an imperfect freedom, to be sure. The backlash brought explosive violence into their lives. And real civil rights didn't come their way for another century.

Yet however imperfectly he did it, Lincoln defeated slavery -- an institution that had enjoyed the protection and support of the U.S. government until then. (Even so radical an anti-South man as Thad Stevens once took a case on behalf of a master reclaiming his runaway slave.) And history gives him that honor and Americans rank him among their greatest presidents.