Abraham Lincoln, it would seem, is in the midst
of a career revival. In recent years, the 16th president has been praised by
the likes of author Doris Kearns
Goodwin, and Lincoln boosterism has been prominently featured on high-traffic
political blogs such as Power
Line. Amid this torrent of praise, it is worth examining the legacy that
is being celebrated.
Without a doubt, Lincoln achieved important results during his political career.
Most notably, his presidency marked the beginning of the end of the nefarious
institution of slavery. For this – as well as for laying the groundwork
that extended the equal protection of the laws to all races and creeds –
Lincoln has earned a hallowed place in our national history. This is the story
we are all familiar with from high-school civics class. However, there is another
aspect to Lincoln's legacy – one that is less well known, but one that
is dutifully studied in neoconservative political circles, where Lincoln's career
has taken on a meaning and import of another kind.
For the neoconservatives, Lincoln's primary utility lies in providing ideological
and historical legitimacy to their vision of a bold, expansive executive authority.
As careful readers of history are aware, Lincoln flexed the muscles of the executive
branch to a remarkable degree. During the Civil War, he unilaterally suspended
habeas corpus, arrested scores of political opponents and newspaper editors,
and deployed troops to New York City to force conscription on an unwilling populace.
One of Lincoln's contemporaries – Congressman Clement
Vallandigham of Ohio – listed among Lincoln's trespasses "the
quartering of soldiers in private homes without the consent of the owners, and
without any manner having been prescribed by law" and "the censorship
over the telegraph, and the infringement, repeatedly, in one or more of the
States, of the right of the people to keep and bear arms for their defense …
free speech, too, has been repeatedly denied."
As if to underscore its accuracy, this speech led to Vallandigham's arrest
and his subsequent incarceration in a military prison.
Abraham Lincoln's legacy was not lost on the coterie who surrounded President
Bush in the days after 9/11. Lincoln's heavy treading on the Constitution was
reflected in the crisis-management model the Bush administration adopted in
the months after the 2001 terror attacks. For the neoconservative set, Lincoln's
presidential career illustrates a central, animating theme: namely, that extraordinary
methods can be mainstreamed and legitimized when pressed into the service of
a noble goal. From this vantage point, the stress that Lincoln applied to key
constitutional guarantees was not merely tolerable but appropriate and necessary,
for he ultimately prevailed, and in doing so secured a higher good – the
preservation of the Union's integrity. As Lincoln himself asked in the wake
of the Supreme Court's Merryman
decision, "Are all the laws but one to go unexecuted and the government
itself go to pieces lest that one be violated?"
The actions of today's neoconservatives – from their prosecution of the
Iraq War to their domestic counter-terror policies – parallel those of
Lincoln in their vigor and their bold design. Today's neoconservatives wish
to act decisively in the present in order to secure and preserve the future.
While we certainly live in times that call for decisive actions, the prudence
of those actions is as important as the urgency that animates them. The neoconservatives,
caught up in their epic vision of a clash of civilizations, have drawn the wrong
set of conclusions from Lincoln's experience – particularly regarding executive
power and the rule of law.
Lincoln spoke eloquently and often about the rule of law, but he refused to
follow it in many important respects. He addressed this conundrum when he spoke
to Congress in 1861 and posed his now famous rhetorical question, "Must
a government, of necessity, be too strong for the liberties of its own people,
or too weak to maintain its own existence?"
Lincoln and his associates clearly chose the former option and cast aside
key constitutional constraints during their prosecution of the Civil War. The
current president holds an equally generous vision of his plenary powers, which
he views as including the ability to detain U.S. citizens in military brigs,
absent a suspension of habeas corpus, and the authority to conduct long-term,
warrantless wiretapping programs with a domestic nexus. For the neoconservatives,
the president has the power to do all of these things simply by virtue of holding
office during a time of war. Both Abraham Lincoln and George W. Bush read much
into the provisions of Article
II, including a host of unenumerated emergency powers, which they exerted
The ability to exert power, however, does not permit one to rewrite the Constitution
in one's own image, though there are many who have advocated this in substance,
if not in syntax. In this camp we find John Yoo (formerly of the Justice Department,
and now of Boalt Hall) who has held
that the Constitution allows the president to declare war without the consent
of Congress. While Yoo has tried to ground his reasoning in an originalist analysis,
his argument essentially boils down to the following: America has engaged in
over 200 armed conflicts in its history, but has only declared war on five separate
occasions. Therefore, true war-making authority rests with the president, not
Congress, despite the fact that the Constitution places the power to declare
war squarely in Article
I. If Yoo is correct, then the Constitution is a malleable document that
can easily bend to accommodate executive necessity. This analysis puts him at
odds with the very logic of the Constitution itself. The employment of extra-constitutional
methods does not make them constitutional by default. One cannot deform the
Constitution to one's wishes (as Lincoln believed) in order to preserve it for
use another day. Once bent, any doctrine is difficult to return to its previous
state. This idea was once central to conservative constitutional theory –
at least until recent years.
Newt Gingrich – who recently stood in Lincoln's shadow at New York's
Cooper Union – provides an example of how the neoconservative constitutional
critique has shaken the political Right to its foundations. Not so long ago,
Gingrich was poised at the helm of the Republican revolution that swept into
the halls of the nation's Capitol. The '94 Congress came to Washington with
a firm ideological commitment to small-government conservatism, which was formalized
in the famous "Contract
With America." Goldwater-style downsizing and budget-cutting were the
order of the day – from the Department of Education, to federal law-enforcement
agencies such as the BATF. With the fires of Waco still a recent memory, some
in the Republican establishment were openly concerned about constitutional rights
being crushed under the boot-heel of federal authority. Hearings were conducted.
Subpoenas were issued. FBI and Justice Department officials were publicly lambasted
by insurgent Republican representatives. They characterized President Clinton's
intervention in the Waco siege as a tragic mistake at best, a symptom of impending
tyranny at worst.
Flashing forward a decade, we find few traces of that spirit on today's American
Right. Conventional wisdom in Republican circles is that executive agencies
should enjoy expansive powers in the war on terrorism and that President Bush
should be trusted to employ these powers as he sees fit, largely without the
intervention of Congress or the courts. Gingrich, we find, has also remade himself
in accord with this ethos. In a 2006 New Hampshire speech, he addressed the
scope of the First Amendment in wartime and found it to be too permissive, given
the scope of the threat posed by Islamic terrorism. According to Gingrich:
"This is a serious, long-term war. Either before we lose a city or,
if we are truly stupid, after we lose a city, we will adopt rules of engagement
that use every technology we can find to break up their capacity to use the
Internet, to break up their capacity to use free speech, and to go after people
who want to kill us to stop them from recruiting people."
Expanding on his premise, Gingrich said, "I want to suggest to you that
we right now should be impaneling people to look seriously at a level of supervision
that we would never dream of, if it were not for the scale of this threat."
This, then, is the state of discourse within an influential segment of today's
Republican establishment. In the realm of national security, many have forsworn
principles of limited government and original intent and have adopted instead
a constitutional analysis that strays far from the careful formulations of the
Founders. Those who have cast their lot with Lincoln would do well to study
the final outcome of his constitutional experiment, however. Even a casual reading
of the historical and legal record will reveal that Abraham Lincoln's methods
were borne out neither by the courts nor by history. In a series of Civil War
and Reconstruction-era rulings, Lincoln's broad executive initiatives were rejected
by the Supreme Court as violations of constitutional norms and safeguards. Ex
Parte Merryman struck down the Civil War-era assertion of a presidential
prerogative to suspend habeas corpus. While Lincoln ignored the admonitions
of Merryman at the time, it was Chief Justice Roger B. Taney's vision
of presidential power – not Lincoln's – that ultimately prevailed.
Taney's words have helped shape our historical view of the metes and bounds
of habeas corpus, right down to the current court's imperfect – but important
– opinion in the
Hamdi matter. Likewise, the high court rebuked Lincoln for impaneling
military tribunals in states where the civil courts were open and functional.
Taney's language in Ex
Parte Milligan reaffirmed the primacy of the Constitution's guarantee
of civil process, even in the face of grave threats.
"The Constitution," wrote Taney, "is a law for rulers
and for people, equally in war and in peace, and
covers with the shield of its protection all classes
of men, at all times and under all circumstances. No
doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its
provisions can be suspended during any of the great
exigencies of government."
Taney's opinions were a stern reminder to the executive – both then and
now – that even in times of crisis, desired political ends must be achieved
through constitutional means. The fact that we have today such a vigorous public
debate over President Bush's post-9/11 security policies means, ultimately,
that Lincoln's views on executive power proved to be historical footnotes rather
than lasting reformulations of key constitutional doctrines.