I recently had the fortune of reading Abraham Lincoln’s First Inaugural Address with a group of freshman—or “First Year Students,” in my institution’s academically fashionable parlance. We remarked on Lincoln’s consistent and sustained focus on the Constitution, on its explicit provisions, on its implied character, on the solemnly sworn duties of congressmen and the president to uphold it, and on their responsibility to interpret it, even if in so doing they find themselves in disagreement with the Supreme Court. What an amazing thing to do in the face of a looming existential crisis—to recur to first principles and to the limits on what the federal government can do, limits its officers are sworn to respect!
I was about to dig a little more deeply, evoking the “picture of silver” and its “apple of gold,” reminding students of a statement Lincoln made a month earlier, to the effect that “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence,” when a very astute young woman brought us up short. President Lincoln, she said, was one of the greatest abusers of constitutional limits ever to occupy the Oval Office. Didn’t we know that he had suspended the privilege of the writ of habeas corpus, that his government had tried civilians before military tribunals, and so on? The Constitutional protestations of the First Inaugural to the contrary notwithstanding, Lincoln was really enamored of the idea of a military dictatorship.
I decided to throw a little more fuel on the fire: And didn’t he purport to emancipate slaves, despite having said on numerous occasions that he and the federal government didn’t have the power to do so?
How could this purported respecter of the Constitution and its limits, this man who said that his political sentiments derived from the Declaration of Independence, turn around and virtually ignore many of the limits he said he respected?
We can begin to answer this question by following Lincoln’s reflections on the circumstances in which he found himself, as the head of a government facing a powerful rebellion, and yet sworn to “preserve, protect, and defend” the Constitution. These reflections are contained in two letters he wrote, one to Erastus Corning and others in 1863 and the other to Albert G. Hodges in 1864. The first letter is a response to Democratic critics of the Administration’s treatment of the Copperhead, Clement Vallandigham; the second is a summary of remarks the President made to some visitors from Kentucky who reported objections in that state to the Union’s enlistment of African-American soldiers.
Let me begin by quoting at length from the first letter:
Ours is a case of rebellion…in fact, a clear, flagrant, and gigantic case of Rebellion; and the provision of the constitution that “The previlage [sic] of the writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it” is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the constitution that ordinary courts of justice are inadequate to “cases of Rebellion”—attests their purpose that in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge. Habeas Corpus, does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the constitution on purpose that, men may be arrested and held, who can not be proved to be guilty of defined crime, “when, in cases of Rebellion or Invasion the public safety may require it.” This is precisely our present case.… [A]rrests in cases of rebellion…[are] directed at sudden and extensive uprisings against the government, which, at most, will succeed or fail, in no great length of time. In [this] case, arrests are made, not so much for what has been done, as for what probably would be done. [This] is more for the preventive, than for the vindictive, than [an arrest for an ordinary crime].
In a nutshell, Lincoln’s point is that the Constitution anticipates and provides for the prospect of preventive detention when “the public safety may require it.” He goes on to describe the people who might be detainable under these circumstances, mentioning such luminaries as Generals Robert E. Lee and Joseph E. Johnston, as well as the “wiley agitator[s]” who induce “simple-minded soldier boy[s]” to desert. Those who might be detained may not have committed any crime, or at least any crime of which a jury could be found to convict them. There may always, he notes, be a juror “more ready to hang the panel than to hang the traitor.”
So suspending the privilege of the writ of habeas corpus is doubtlessly contemplated by the Constitution, at least under certain circumstances. But how do we decide whether the public safety requires it? Is that not a political question, to be decided by the politically responsible authorities? By placing the provision permitting the suspension of the privilege of the writ in Article I of the Constitution, the Founders seem to answer that question in the affirmative. Of course, its placement would seem, as then-Chief Justice Roger B. Taney argued in Ex parte Merryman, to make suspension a legislative call, while Lincoln proceeded on his own, without waiting for Congressional approval.
But in cases of rebellion or invasion, it may be hard for the legislature to convene, especially if (a wag critical of Lincoln might note) the president doesn’t convene it. Must a determination of what the public safety requires await the results of a potentially dilatory legislative process? And what about the president’s oath to preserve, protect, and defend the Constitution of the United States? Isn’t he obliged by his oath to do what he thinks necessary, when he thinks it is necessary, without waiting for Congress?
This certainly seems to be Lincoln’s view, a view apparently not challenged by Congress during the Civil War. To be sure, after the War, the Supreme Court offered its own view in Ex parte Milligan, ruling that trying a civilian by a military tribunal when the civilian courts were apparently functioning normally was unconstitutional. Viewing the case from what Lincoln would regard as the comfort of post-war hindsight, the Court seems to disagree with his claims regarding the inadequacy of civilian courts to deal with these sorts of challenges. I’m tempted to characterize the Court’s opinion in this case as “legalistic,” but, then again, that’s its job.
Lincoln’s constitutionalism certainly demonstrates a respect for this legalism, as even a cursory glance at his First Inaugural Address would demonstrate. But he recognizes its limits. Here’s the way he puts it in the aforementioned letter to Erastus Corning and others:
If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in the absence of rebellion or invasion, the public Safety does not require them—in other words, that the constitution is not in it’s [sic] application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security.
Roughly a year later, in his letter to Hodges, he says this:
I did understand…that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.
It makes no sense, Lincoln asserts, to uphold the Constitution if doing so means that the nation that constitution serves will be lost.
That is surely true, but it just as surely leaves open the question of how and when some element of the Constitution must be sacrificed to preserve the constitutional order in general. Unlike Taney, Lincoln certainly thinks that the president may well be in a position to take action whether or not Congress is ready to agree to it. But in his letter to Corning he adduces two considerations that might provide us some comfort in the face of this exceptional assertion of executive discretion. Here’s the first:
I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not lawfully be taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man because it can be shown to be not good food for a well one. Nor am I able to appreciate the danger…that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the infinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.
After the crisis passes and we return to what was once called “normalcy,” we won’t, Lincoln believes, persist in following practices demanded by our trying times. If we indeed love the liberties and protections he mentions, we will regret their sacrifice when demanded by necessity and enthusiastically welcome their return.
I’ll have a little more to say about this in a moment, but let me first call attention to Lincoln’s other consideration. In his letter to Corning, he remarks that the General who arrested Vallandigham and the judge who denied the petition for the writ of habeas corpus were Democrats, the latter a Jacksonian. He further reminds Corning that General Andrew Jackson maintained martial law in New Orleans between the time peace was concluded and “official knowledge of it…arrived.” In upholding his position, Jackson detained a newspaper editor who protested this, the lawyer who sought a writ for his release, and the judge before whom the lawyer pleaded his case. For good measure, he arrested another man who protested all this. Once the peace was officially announced, he released them all. A few days later, the judged haled General Jackson into court and fined him for his actions; Jackson paid the fine. Some thirty years later, the U.S. Congress refunded to Jackson both principal and interest. As Lincoln observes, “the permanent right of he 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 [sic] subsequent approval by the American congress.”
Lincoln doesn’t explicitly note another lesson of this anecdote, so I will. That Andrew Jackson paid the fine without any expectation of being reimbursed suggests that he was willing, when on the solid ground of peace, to submit to legal discipline. He did what he thought he needed to do, and then suffered whatever consequences would follow. Stated another way, he had the strength of character to do his duty in both war and peace, submitting to the yoke of civilian authority when the conditions for its supremacy had been reestablished, thanks in part (of course) to his own actions. This is, I think, an important example and draws our attention to a point Lincoln makes repeatedly in his letters and speeches. He has, he says, sworn an oath to preserve, protect, and defend the Constitution. He is honor-bound to keep the oath. We had better hope, or rather see to it, that all our presidents are so scrupulous about their duties.
Having made that point in a practical way, let me make it (briefly) in a theoretical way. The rule of law has its limits. In normal times, law is adequate to most circumstances. At the extremes, it cannot keep up with the variability of human affairs. This is where prudence—good judgment informed by moral character—comes into its own.
Let me bring this to a close by making good on a promise and then drawing a larger conclusion. Recall Lincoln’s assertion that he is unable to “believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.” Is this true? Does no one ever become addicted to pain medication? Is it not possible that we can become so accustomed to the peace, quiet, and security provided us by a strong government in time of crisis that we would wish it to continue even when the crisis has passed? Could we not, in other words, become dependent upon strong government? What’s more, if you think of Lincoln’s argument in contemporary terms and apply it to our post-9/11 situation, is not the distinction between war and peace, between extraordinary and normal, a good deal harder to draw? We can’t dispense with the need for strong measures, when strong measures are called for, but our extraordinary time may call for them with greater frequency than Lincoln seems to have anticipated. To use his medical metaphor, our illness may be chronic, and the risk of dependency all the greater because of it.
Under these circumstances, it’s all the more important that we cultivate a love of liberty, so that we’ll yield it only grudgingly and be careful to inquire into the genuine necessity for the sacrifice. Leaders, whether in the White House or on Capitol Hill, need to have to answer to a vigilant populace.
I have now said that the persistence of our constitutional order depends upon the good character and good judgment of both our leaders and our citizens. On the one side, we might have to worry about ambition, on the other about cravenness. But there’s also another concern that Lincoln calls to our attention, and this is where I will end. He begins his letter to Albert Hodges by affirming that “I am naturally anti-slavery. If slavery is not wrong, then nothing is wrong. I can not remember when I did not so think, and feel.” But he goes on to say he was bound by his oath of office not “to practically indulge my primary abstract judgment on the moral question of slavery.” He could not pursue great moral goods against the strictures of the Constitution. Taking this into account, the ambition we have to fear is not just ordinary or extraordinary self-aggrandizement. It’s also the moral ambition that’s impatient of mere forms and formalities on its way to a glorious end whose goodness—it believes, at least—no one can deny. I’m tempted to argue that this sort of ambition is an even greater threat to our republic than is self-aggrandizement. We can recognize the latter for what it is, and we can deprecate and combat it. The former seems pure and admirable and hence hard to resist. If the good is a genuine good, we cannot help but approve of it. And it requires great self-discipline not to be impatient of those usages and institutional safeguards that seem to hinder the achievement of the good. We want results, and woe to anyone or anything that stands in our way. If Abraham Lincoln’s actions give you cause for pause, imagine what might have happened if John Brown’s body didn’t lie a moldering in the grave.
Joseph M. Knippenberg is an adjunct fellow of the Ashbrook Center. He is Professor of Politics at Oglethorpe University.