The Bush administration's actions since 9/11 have made
scholars and commentators reexamine questions concerning the proper sphere
for executive power within a constitutional system of separated powers.
Unlike much political research, which disappears into academic journals,
newspaper articles abound with conclusions reached by political scientists
regarding the need for, and the limits and consequences of, an expanded
executive power.1
For examples, see Robin
Toner, New York Times, November 18, 2001; Tamara Lytle,
Orlando Sentinel, September 9, 2002,
http://www.orlandosentinel.com/; Charles Lane, Hartford
Courant, September 4, 2002,
http://www.ctnow.com/about/custom/thc/. For
examples of the scholarly debate since 9/11, see, Fatovic 2004a; Baker 2003;
Fisher 2003: Elsea
2003; Kassop 2003; Lindsay 2003; Baker
2002.
The issue has arisen because of the perception by many policy makers
that 9/11 has precipitated a crisis requiring extraordinary executive
powers that would not otherwise be countenanced in ordinary times.
Underlying this perception is the more general question of whether
constitutionalism itself can survive in an age of increased insecurity.
Locke describes constitutional government as follows: “Whoever has
the Legislative or Supream Power of any Commonwealth, is bound to govern
by establish'd standing Laws, promulgated and known to the People,
and not by Extemporary decrees.”2
Locke 1988, 353 (IX, 131); see also ibid., 359 (XI, 137). For these and all subsequent
references to Locke's Second Treatise, the Roman numerals
and numbers in parentheses represent, respectively, the chapter and
section numbers for those using other editions of the text.
A
constitution seemingly proscribes any governmental action not envisioned
and thus legitimized by the laws of the land. But what is to be done when
standing laws do not address the actions required to meet present security
threats? As good constitutionalists, must we deny ourselves safety for the
sake of legal purity? Should we allow the law to impose shackles on the
government's power, despite the risk, in order to avoid the
alternative risk that an unshackled government poses to our security?
3 Here I use Federalist 23, which makes
the opposite argument: “The circumstances that endanger the safety
of nations are infinite; and for this reason no constitutional shackles
can wisely be imposed on the power to which the care of it is
committed” (Hamilton, Jay, and Madison
1937, 142).
Or must we agree with Justice Thomas, whose
dissenting opinion in
Hamdi v. Rumsfeld claims that the founders
“chose to create a Federal Government that necessarily possesses
sufficient power to handle any threat to the security of the
Nation?”
4 Hamdi v. Rumsfeld,
542 U.S. 507 (2004).
And, as has been
generally true at least since Locke's doctrine of executive
prerogative, in Thomas's dissent the extraordinary powers believed
necessary to handle “threats” naturally flow into the
executive branch.
5 As Scigliano (1989) shows, Edward Corwin (1984) first introduced the notion that the
Constitution's executive was based upon Locke's notion of
executive prerogative; see Pious 1979,
46–84. For an account that notes the fact that neither The
Federalist nor the Constitution specifies that these powers belong to
the executive, which at the same time shows—through an examination
of Locke—why they would most naturally belong to this branch, see
Tarcov 1990.
Thomas's reasoning is sound: the president's
“structural advantages,” especially the unity of the executive
branch, are best suited to protecting our national security. But, as
Scalia's dissenting opinion argues, such indefinite and illimitable
authority is particularly dangerous in a system of law. While recent
Supreme Court opinions are more nuanced, too often the debate does not
move beyond the level of simplicity for which Lucius Wilmerding chastised
the public fifty years ago in the aftermath of President Harry
Truman's seizure of the steel mills:
Two doctrines … equally fallacious and equally
dangerous, have been started. One is that the President, as sole possessor
of the executive power, has a legal authority, granted him by the
Constitution itself, in cases of imperious necessity, to do whatever needs
to be done in the public interest. The other is that, under no necessity
whatsoever, can an officer, even the President, be excused from departing
from the law.6
Having moved beyond this level of simplicity, the scholarly debate
and, to a lesser extent, the public discourse has been characterized by a
second debate, which agrees on the need for executive prerogative, but
questions whether or not it is properly considered a constitutional
exercise of power. One view, broadly associated with Thomas Jefferson and
which finds its most prominent modern proponent in Arthur Schlesinger,
understands the prerogative power as outside the Constitution and thus,
strictly speaking, as illegal though justifiable by extraordinary
necessities. In this view, it is better to maintain an established, almost
pristine, Constitution that establishes what can and cannot be done while
acknowledging that necessity may force presidents outside its bounds, than
to allow the Constitution itself to bend with claims of necessity.7
See Schlesinger 1989,
especially the afterword accompanying the second edition. Also see Barber 1984, 168–96; Scigliano 1981; Scigliano
1989; Monaghan 1993; Robinson 1996. In his dissenting opinion in
Korematsu v. United States, Justice Robert Jackson also
articulates this postion. (Korematsu v. United
States, at 242–48). For the “Jeffersonian”
roots of this power, see Schmitt 1989; Bailey 2004; Fatovic 2004a.
Of Jefferson's understanding, Fatovic writes: “Although
Jefferson believed that an extraordinary act of executive power could be
illegal and legitimate, his constitutional theory draws such a close link
between legality and legitimacy that each and every exercise of
prerogative is necessarily presumed to be criminal until and unless the
president convinces the people and their representatives of the merit of
his actions” (2004a, 434).
The alternative view, broadly
associated with Alexander Hamilton, holds that it is preferable to
understand the Constitution as inherently flexible and as possessing
within it whatever powers are necessary for its own preservation—an
interpretation that typically points to the executive as possessing
Lockean prerogative.
8Lincoln's Precedent
The American Civil War was the watershed event during which the
survival of a constitutional order was most in jeopardy. Could a
constitutional government withstand external and internal threats and yet
remain constitutional? As Lincoln asks with uncommon grace,
“Must a government, of necessity, be too strong for the liberties of
its own people or too weak to maintain its own existence?”9
Not surprisingly, it is during this war that the question
of executive prerogative became most salient, both then and to generations
of historians and political scientists since. Also, not surprisingly,
Lincoln's actions and justifications form a central core of the
research on the broad question of executive power in American
government.
10 See Corwin
1984, 167, 266–67, 495; Arnhart
1979, 125–30; Pious 1979,
55–60; Bessette and Tulis 1981,
21–22; Barber 1984, 187–96; Robinson 1987, 128–29; Schlesinger 1989, 322–23, 458–60; Scigliano 1989, 252–53; Franklin 1991, 46–48; Storing
1995, 382.
In the aforementioned second debate, there is no clear consensus
regarding with which side Lincoln himself would have agreed. Schlesinger
cites Lincoln, along with Franklin D. Roosevelt, as examples of defensible
prerogative, claiming that “by declining to use claims of inherent
presidential power to justify their actions, Lincoln and Roosevelt took
care not to give lesser men precedents to be invoked against lesser
dangers.”11
Schlesinger 1989, 460. Schlesinger seems to think that
Lincoln would agree with his understanding of the constitutional basis of
prerogative, although this is not quite clear from Schlesinger's
argument. For some indication that Schlesinger thinks Lincoln held the
Hamiltonian view, see pp. 148–50.
Sotirios Barber
unequivocally cites Lincoln's decisions and justifications as the
preeminent example of prerogative as illegal but justified.
12 Robert Scigliano concurs, but claims that Lincoln's
actions and, especially, the claims he made to justify them departed from
this standard, introducing a much broader notion of executive prerogative
than either Locke or the founders would have defended.
13 In fact, Scigliano (1989) claims
that Locke intends a more limited definition of prerogative than appears
on the surface, but “disguised this meaning regarding prerogative in
order to defend himself” (p. 243). On the surface, Locke (1988) points to an executive who has the power, at its
extreme, “to do several things of their own free choice, where the
Law was silent, and sometimes too against the direct Letter of the law,
for the publick good” (Second Treatise, XIV, 164). For an
incisive treatment of Locke's prerogative, see Mansfield 1989, 181–211. Mansfield would
disagree with Scigliano's interpretation; he finds that Locke points
to an executive who is necessarily “‘arbitrary’ …
the very thing his constitution was formed to prevent” (p. 189). See
also Pasquino 1998; Fatovic
2004b.
By contrast, George Thomas points to Lincoln's
actions to disprove what he calls the “legalist” theory
regarding the illegality of executive prerogative, instead placing Lincoln
in the Hamiltonian tradition.
14 Similarly, Larry Arnhart defends a version
of the Hamiltonian theory of prerogative, but finds Lincoln guilty of
setting “an example of violation of the Constitution that could only
have a pernicious effect upon his successors.”
15 As this brief survey shows, much of the literature on Lincoln's
use of executive power analyzes his actions in terms of a larger theory
regarding the proper relation between constitutionalism and prerogative.
Lincoln's arguments are often treated as illustrative and are not
explicated in terms of what they can teach us about this relationship on
their own. As we can see by the tremendous disparity in the literature
concerning the substance of Lincoln's lesson, Lincoln's
“internal” argument demands more explicit attention than it
has heretofore received to clarify his own understanding of these matters.
More importantly, Lincoln's thoughts on executive prerogative
actually provide a corrective to this second debate. This debate's
concern about the constitutionality of prerogative has obscured a more
publicly useful point concerning the necessarily extraordinary nature of
prerogative. As I will explore below, Lincoln points to executive action
that is extraordinary and cannot—and should not—be
regularized, institutionalized, or legalized.
Perhaps the relative inattention to Lincoln's internal argument
among scholars of executive power derives from the conventional wisdom
regarding Lincoln's example. It had been thought that, if we can
learn anything from Lincoln, it is what not to do. Wendell Philips calls
Lincoln an “unlimited despot” and describes his government as
a “fearful peril to democratic institutions.”16
Dwight Anderson calls him a “tyrant
who would preside over the destruction of the Constitution in order to
gratify his own ambition.”
17 More sympathetic
criticism of Lincoln maintains that he was a man pressed by necessity into
becoming a dictator, though a benevolent or a “constitutional
dictator.”
18 Rossiter, 1948, 238. Rossiter endorses Lincoln's actions
and claims constitutional republics must resort to such
“constitutional dictatorships” in times of crisis. See also
Dunning 1965, 20–21; Stephenson 1920, 120; Milton
1944, 78–80; Roche 1952, 598; Dietze 1968, 38. That Lincoln created a
“constitutional dictatorship” to traverse the Civil War has
become the textbook view; see Pious 1979, 57.
For a critique of the concept of constitutional dictatorships, see Belz 1998, 17–43.
Though friendly to
him, these defenses of Lincoln's dictatorship typically point out
that there were little to no limits upon his conception of his power
during the Civil War,
19 Randall (1963), one of Lincoln's most friendly historians,
writes: “It would not be easy to state what Lincoln conceived to be
the limit of his powers” (pp. 513–14). Many who ascribe to
this view of Lincoln also ascribe to him the origins of twentieth-century
statism; see, for instance, Wilson 1962,
99–130; Dietze 1968, 17–62; Kendall and Carey 1970, 84–95.
In other
words, in the words of one not altogether unsympathetic scholar, Lincoln
remains a “revolutionary figure” because he appealed
“beyond the Constitution.”
20 Loss 1990, 90. This seems to be the
case even for Rossiter's concept insofar as it reminds one more of
the temporary dictatorships used by the Romans, about which Hamilton
writes at the beginning of Federalist 70. Hamilton implies that
this Constitution will be superior to the Romans' because it will
constitute a strong executive within it (Hamilton, Jay, and Madison 1937,
454–55).
More floridly, William Weeden writes, “To
call that man a monarch and despot showed a jurist intoxicated with the
musty fumes of legal lore; inebriate with texts and unfitted for the
necessary deeds of any desperate time. And the simple, uninstructed, but
not ignorant people knew it.”
21 James Ford Rhodes
concludes: “never had the power of a dictator fallen into safer and
nobler hands.”
22 As much as they may
redeem Lincoln from his critics, such defenses cannot guide us because we
cannot be confident that the present man in the White House (or, for that
matter, anyone) has the virtues necessary to put our trust in him as
dictator. As Hugh Gallagher writes: “The danger of allowing a
President like Lincoln to act without regard to constitutional restraints
in a great crisis is that lesser men may take Lincoln as precedent in
lesser causes.”
23 Gallagher 1974, 223. It was such worries that caused
Locke (1988) to write “That the Reigns of
good Princes have been always most dangerous to the Liberties of their
People” (p. 378, XIV, 166).
If these arguments are correct,
one must conclude that we should not learn the only thing Lincoln's
example appears capable of teaching us: that in grave crises the
Constitution should recede in favor of the rule of one.
24 Lundberg (1980) thinks the Civil
War teaches that, “Either way, whether he approves or disapproves of
the President, every citizen lives under a constitutional sword of
Damocles. Or, put another way, he is like a rat in a constitutional trap.
In no other constitutional system does so much depend upon one man,
whether saintly or evil” (p. 271).
This view of Lincoln as establishing the necessity of a
“constitutional dictatorship” during a time of crisis finds
its way into contemporary discourse. In fact, much of scholars' worry
about Lincoln found new life during Richard Nixon's presidential
overreaching. In a fascinating (though chilling) interview with David
Frost in 1974, Nixon provided fuel for this worry when he justified his
authorization of the dubious activities of federal officials in the
“Huston Plan” by claiming “when the President does it,
that means it is not illegal,” citing as precedent Lincoln's
activities during the Civil War:
Lincoln said, and I think I can remember the quote almost
exactly, he said, “Actions which otherwise would be
unconstitutional, could become lawful if undertaken for the purpose of
preserving the Constitution and the Nation.” Now that's the
kind of action I'm referring to. Of course in Lincoln's case it
was the survival of the Union in war time, it's the defense of the
nation and, who knows, perhaps the survival of the Union.25
New York Times, May 22,
1977.
Nixon believed that presidential power conferred upon him an
illimitable power to take any steps necessary for the defense of the
nation. On the other side, Mario Cuomo wishes that President George W.
Bush “had not been inspired by Lincoln when it came to the
suspension of constitutional rights in the name of security.”26
Whether Cuomo is right that Bush actually was inspired by
Lincoln is another question; what is important is that a certain view of
Lincoln as dictator persists into the present.
27 It is not clear that President Bush has been inspired by
Lincoln in his post-September 11th actions. In fact, it is not clear what
has guided his extension of power. This is in part because, unlike
Lincoln, Bush has spent little time publicly defending an increase in
executive power in response to the crisis.
As we see in the example of Nixon, Lincoln's precedent can
empower presidents to take actions they might not otherwise take, serving
as their implicit or explicit justification for taking any action deemed
necessary for the public good. And insofar as those opposing such actions
evaluate Lincoln's precedent in the same manner, they must show that
Lincoln was wrong. The struggle this imposes on some is clear in
Cuomo's chapter on Lincoln and civil liberties. Though finding that
Lincoln “promised a return to strict compliance with the
Constitution as soon as peace returned” and that “at least he
acknowledged that only in the kind of emergency he faced should a
president ignore the Constitution as he did,” Cuomo still writes,
“I wish that the great Lincoln had stood by the Constitution despite
the strong temptation not to.”28
This opinion regarding Lincoln's dictatorship has begun to
change, however. The historian Herman Belz, for example, concludes that
“Lincoln was neither a revolutionary nor a dictator, but a
constitutionalist who used the executive power to preserve and extend the
liberty of the American founding.”29
Belz 1998, 43. Rostow (1989) too claims: “It seems contrary to the most
elementary notions of legal theory to claim that Lincoln's conduct of
the Civil War … was unconstitutional” (p. 745). He, however,
does not develop his grounds for this claim. Adler (1988) also defends Lincoln's actions as
constitutional; he also does not, however, develop the precedents that we
can learn from Lincoln.
The legal scholar Daniel Farber similarly
defends Lincoln's attention to the Constitution, claiming that
“many of the acts denounced as dictatorial … seem in
retrospect to have reasonably good constitutional justifications under the
war power.”
30 Farber 2003, 174–75. My analysis agrees with
both Belz and Farber that Lincoln was attentive to the import of the
Constitution and to constitutionalism more generally. For an alternative
view, see Neely 1991.
By continuing to recover just how much Lincoln remained devoted to the
preservation of a constitutional Union during the Civil War, we
can extract timely political and constitutional lessons. By piecing
together his various speeches on this subject, several principles emerge
that articulate the constitutional bounds on his use of executive power.
These principles constitute an important antidote to the current debate
between Jeffersonian and Hamiltonian prerogative, not because Lincoln
points to a new alternative legal theory, but because he emphasizes the
political necessity, rather than the legal justification, for his actions.
By recognizing his principles, we can also perceive Lincoln's attempt
to create precisely that political culture that would not allow subsequent
executives to misuse his precedent to enlarge their power at the expense
of the constitutional order. Finally, Lincoln's principles cast
important light on the problematic nature of any legalization of those
actions that may be necessary in the “war on terror.”
Dangers of Executive Discretion
Edward Corwin once famously called the Constitution an
“invitation to struggle.” He was speaking about the
“privilege of directing American foreign policy,” but the
point applies more generally.31
Our system of separated
powers seems to invite each branch to enlarge its power as much as
possible over and against the other branches.
32 In fact, such struggle seems to be required for our system of
separated powers to succeed as the founders envisioned. “Ambition
must be made to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place.” (Hamilton, Madison, and Jay 1937, 337). For a
discussion of the founders' conception of the separation of powers,
see Tulis 2003, 88–91.
But
Lincoln's example teaches some caution in accepting this
“invitation to struggle” during national crises. While the
executive branch must enlarge its domain to respond to a crisis, such a
crisis should not be treated as an opportunity to enlarge permanently the
executive domain. Instead, we should expect the executive to proceed with
the prudence and caution commensurate with an awareness that such crises
could, even unintentionally, destroy the constitutional republic. The
founders warn us that executive power, necessarily enlarged during a
crisis, can subsume all other aspects of government even after the initial
crisis has passed,.
33 See, for instance,
Hamilton's argument in Federalist 8 and Madison's
arguments as Helvidius in 1793. Ibid., 41–47; Hamilton and Madison 1976.
Insofar as the
people perceive a kind of permanent crisis. Hamilton writes,
“[T]he continual effort and alarm attendant on a state of
danger, will compel nations the most attached to liberty to resort for
repose and security to institutions which have a tendency to destroy their
civil and political rights.”
34 Hamilton, Madison, and Jay 1937, 42 (Federalist 8).
The best guide to this problem remains Locke's Second Treatise. While
showing the need for executive prerogative, he also shows its dangers to
the very constitution it is meant to preserve. Mansfield (1989) writes: “But what exactly is a
constitutional executive? It is often thought to be an executive
subordinate to the constitution. But could it not also be considered an
ambivalent, submissive recognition of the need for a strong executive?
What then is the precise relationship between the constitution and this
executive power? Locke's political science shows that the modern
constitution and the modern executive are mutually dependent and yet
antithetical. Each needs and opposes the other” (p. 181). Also see
Dunn 1969, 154.
While our present national crisis is obviously different, the dangers
of exaggerated executive power seems as pressing now as during the Civil
War. After all, there is little that creates more “effort and
alarm” than the threat of terrorism.35
For an account of the effect of fear upon our national
security measures, see Rosen 2004. He calls for
“enlightened political leadership” that will “have the
courage to challenge the public's emotionalism, rather than
encouraging it at every turn” (p. 223).
Yet as it
aggregates extraordinary powers, the Bush administration seems insensitive
to the danger it poses to the constitutional order. In a recent issue of
Presidential Studies Quarterly examining the effects of 9/11
on presidential power and constitutional government, one theme united
nearly all of the otherwise disparate articles: the Bush administration is
seeking strenuously to increase the executive power permanently.
36 See Kassop 2003;
Baker 2003; Elsea
2003; Fisher 2003. Lindsay (2003) is more optimistic about the return of a balance
between the three institutions after the crisis subsides. Also see Baker
(2002), who writes, “The executive branch
has made multiple assertions of unilateral authority to respond to the
terrorist threat, including the claim that the other branches lack
competence to review its assertions” (p. 775)
Given
“an invitation to struggle,” these attempts to use the crisis
to increase executive power permanently make some sense. The executive has
merely seized the opportunity that exists in the post-9/11 world.
However, because the executive's enlarged discretionary power is
“extra-constitutional,” it can undermine and, ultimately,
destroy constitutional power even after the initial crisis has
subsided.
Once discretion is permitted outside the ordinary course of law, the
potential for arbitrary and unnecessary prerogative arises. What Locke
calls “the power of doing good without a rule” can quickly
become the power to do whatever one desires. Locke solves this problem by
arguing that the people will be the “umpire,” determining
whether executive discretion truly aims at their good.37
Locke 1988, 378, 427 (XIV, 166;
XIX, 242). Engeman (1982) writes: “Locke
recognized the extraordinary danger this [prerogative] power
presented to his limited constitutional government. Faced with the evident
necessity of such a power—and the danger of executive tyranny which
could result from it—he saw no other expedient for its abuse than
his famous, ominous, summons of the devil of rebellion: ‘The
people,’ Locke says, ‘shall judge’ whether the executive
threatens their liberty and hence their preservation” (p. 272). For
a discussion of the problem of “popular consultation,” see
Kendall 1959, 124–31.
But this
safeguard has troubling implications for constitutionalism if Locke is
also correct in claiming that the “People are very seldom, or
never scrupulous, or nice in the point: they are
far
from examining Prerogative, whilst it is in any
tolerable degree
imploy'd for the use it was meant.”
38 If constitutionalism requires extra-constitutional
discretionary power that is, by its nature, difficult for other branches
of the government to check, one would hope that the people are quite
scrupulous in determining whether such power aims at their good.
Unfortunately, the people are not as scrupulous as they may need to be. In
claiming that the people will accept prerogative so long as it is not
“manifestly against” their good, Locke emphasized this
conclusion. Anecdotally, William Rehnquist makes the same point when
discussing the fact that some of Lincoln's subordinates went far in
suppressing the freedom of speech of several New York newspapers:
“Remarkably, other New York papers did not rally round the sheets
that were being suppressed. Instead of crying out about an abridgement of
First Amendment rights—as they would surely do today—their
rivals simply gloated.”
39 The dangers of an enlarged executive power attend even if the
executive intends to preserve the people's security. The problem is
not only that the people will permit an executive to do “good
without a rule” in order to protect them; citizens may also find the
immediacy and flexibility of executive power more satisfying than the
constitutional process itself.
To illustrate this, consider this anecdotal evidence from the Civil
War. Mark Neely, in his authoritative book on Lincoln's record on
civil liberties, describes the extent to which many of Lincoln's
subordinates began using the enlarged military power that resulted from
the suspension of the writ of habeas corpus for purposes that were not
strictly military.40
The privilege of the
writ of habeas corpus is constitutionally guaranteed “unless when in
Cases of Rebellion or Invasion the public Safety may require it.” It
guarantees to someone detained by the government an appearance in court
before a judge to determine whether or not that person is imprisoned
lawfully. With its suspension, the government is able to detain people
without having to show cause. The writ of habeas corpus is often thought
to be the fundamental safeguard against lawless and arbitrary state
action.
For instance, they prosecuted those who were pursuing
designs of fraud and corruption—crimes that, while they might have
been made possible by the war, had little to do with the goals of the war
itself.
41 Associate Judge Advocate Levi C. Turner stated some of the reasons for
using martial law in these cases. First, “Claim Agents, who advise
and aid in the manufacture of false & fraudulent amounts against the
Govt. and present them for payment—and obtain payment—violate
no existing Law of Congress.” They could only be punished if they
“have violated some state Law,” which was often not the case.
Further, “A military officer makes out a false account for
subsistence … The officer takes his money (from $500 to $10,000)
and then resigns.” In that case, again “there is no law of
Congress or of any State authorizing the arrest & punishment of such
plundering.” Once these fraudulent and plundering military or civil
officers resigned, after having “filled their pockets,” they
were “beyond the reach of military or civil Laws.” They were
not, however, beyond the reach of a discretionary executive power. Of
desertion, Turner writes, “Persons, all over the country, are
engaged in procuring bogus substitutes and aiding and promoting
desertions.” And while “it is true that a citizen who
encourages and aids desertions can be indicted and tried in criminal
courts,” the process is “so slow and inefficient, that
prosecutions for aiding desertions seldom occur, and convictions
never.”42
Again, they were not beyond the reach of the martial
law imposed by executive decree.
In these cases, the enlargement of executive power stemmed from
motivations other than simple avariciousness. Turner's reasoning had
no nefarious intentions. The insufficiency of congressional law and the
inefficiency of the criminal courts led to the use of that which was
neither insufficient nor inefficient: executive power. For Turner, the use
of executive power followed from a desire to see defrauders receive their
just deserts and not slip through legal loopholes.43
For a discussion of the ways in which post-9/11 laws to
prevent terrorism are used to catch other sorts of crime, with the
people's acquiescence, see Rosen 2004,
130–57.
Precisely because of its great degree of discretion, executive power
can promptly and efficiently punish injustice without worrying about legal
niceties. Moreover, so long as power is used to effect justice, its
solutions are as attractive to the citizenry as they are to those who
possess its power; it would be a rare people that could insist on
adherence to laws that would allow the unjust to go free. Very few are
attached to legal forms as such, no matter the consequences for those
protected. In short, the inherent inefficiency and insufficiency in law
points toward an extension of that power which possesses the discretion
necessary to correct these defects.
In crises, when people's security seems most threatened, they are
even more likely to look to executive power to keep them safe. Its unique
institutional structure makes it most capable of the “energy”
necessary to provide safety. One can imagine innumerable situations in
which such discretionary power is necessary for the preservation of
society: Lincoln argued that such was the case during the Civil War. The
difficulty arises because, once such power is used, it becomes easier for
future executives to assume the same power for lesser causes. But the
problem is not just dangerous usurpation. The deeper problem is the
people's attitude toward what might be called
“benevolent” usurpation.44
One
observer wrote during the Civil War: “One of the most interesting
features of the present state of things is the illimited power exercised
by the government. Mr. Lincoln is, in that respect, the equal, if not the
superior, of Louis Napoleon. The difference consists only in the fact that
the President rests his authority on the unanimous consent of the people
of the loyal States, the emperor his on the army.” Quoted in Rhodes 1899, 3:442.
The people's
acceptance of extreme remedies during a crisis—acceptance that often
is necessary for their safety—sows the seeds for the ultimate
destruction of a limiting constitution.
45 Theodore Roosevelt (1906) wrote:
“In great crises it may be necessary to overturn constitutions and
disregard statutes, just as it may be necessary to establish a vigilance
committee, or take refuge in lynch law; but such a remedy is always
dangerous, even when absolutely necessary; and the moment it becomes the
habitual remedy, it is a proof that society is going backward” (p.
54).
Upon this insight comes the saying, cited by Locke:
“[T]he Reigns of good Princes have been always most
dangerous to the Liberties of their People.”
46 Such unreflective popular opinion about prerogative suggests the
problematic nature of the Jeffersonian standard by which public acceptance
legalizes an otherwise illegal act. If the public is too willing to accept
discretionary activity, then such a standard invites usurpation,47
In fact, Jefferson's presidency itself
reveals the problem of his standard. For instance, Levy claims that a
study of Jefferson's presidential record reveals a quasi-dictator
willing to go to any length to crush his political enemies. That
Jefferson's understanding of discretion permitted such activities is
suggested by the following: “On great occasions, every good officer
must be ready to risk himself in going beyond the strict line of law when
the public preservation requires it … The Feds, and the little band
of Quids, in opposition, will try to make something of the infringement of
liberty by the military arrest and deportation of citizens, but if it does
not beyond such offenders as Swartwout, Bollman, Burr, Blennerhasset,
Tyler, etc., they will be supported by the public approbation.”
Quoted in Levy 1963, 84–85. For a more
favorable view of the effects of Jeffersonian prerogative, see Bailey 2004, 747–52.
or doing the
“publick good without a rule.”
48 Thus Jeremy Bailey is partly correct when he defends
Jefferson's standard by claiming that “the dazzle of the
president's prerogative, which exposes execution to popular judgment
rather than enshrouding it with legal argument, becomes the very guarantee
that the power will be used for the public good.”
49 As we
shall see, Lincoln agreed, at least in part, that prerogative should be
proclaimed openly and not shrouded in legal argument. In fact, it is
precisely because it should
not be shrouded in legal arguments
that the Jeffersonian
and the Hamiltonian standards remain too
legalistic. The difficulty with Bailey's argument arises from popular
judgment itself.
Lincoln's Example
Before he was a Republican, Lincoln was a member of the Whig Party,
which held that presidents should remain deferential to Congress in
matters of both domestic and foreign policy.50
Howe 1979, 87–89. Donald
points to a Whig tradition within which an executive could defer to the
legislature in matters of legislation while remaining strong in matters of
war and security. Donald (2001) writes:
“Both in strongly asserting his powers and in weakly deferring to
Congress, he [Lincoln] was following the Whig creed in which he
was raised” (p. 174). He builds his case upon one speech by John
Quincy Adams and the document William Whiting produced during the war. One
could produce far greater evidence that the Whigs desired presidential
deference in all matters, especially in the Whig reaction to Polk's
Mexican-American war.
Lincoln had consistently subscribed to this
principle and articulated its underlying logic with persuasive clarity.
For instance, in a speech to the House of Representatives in 1848, Lincoln
stated the Whig case against presidential involvement in legislative
activities, and argued repeatedly that the U.S.-Mexican War was
“unnecessarily and unconstitutionally commenced by the
President.”
51 Lincoln 1953, 1:515. Binkley (1937) writes: “Surely no one could have guessed
that in this harassing critic of the war policy of President Polk there
lurked even the possibility of a war President who was to deal with
Congress and the Constitution at times in a manner more imperious than any
President before or since” (pp. 114–15).
In a
subsequent exchange of letters with his friend William Herndon, the two
debate the constitutionality of the presidential commencement of war. The
question before them was whether “if it shall become necessary, to
repel invasion, the President may, without violation of the Constitution,
cross the line, and invade territory of another country; and that whether
such necessity exists in any given case, the President is to be the sole
judge.” In his response to Herndon (in which one assumes that
Herndon has made this argument), Lincoln states the republican logic that
demands such power
not be given to presidents: “Kings had
always been involving and impoverishing their peoples in wars, pretending
generally, if not always, that the good of the people was the
object.” For this reason, the Convention explicitly sought to
separate the war-making power from the president so “that no one man
should hold the power of bringing this oppression upon us.” And,
Lincoln says, the view Herndon has espoused, that the president should be
the sole judge of the necessity of preemptive war, “places our
President where kings have always stood.”
52 Lincoln 1953, 1:451. For a
discussion of the modern growth of presidential power to encompass
Herndon's view, see Fisher
1995.
For Lincoln in 1848, the Constitution is explicit that a president, at
least in regard to war with foreign nations, must be controlled by more
than his impression of what constitutes the people's good.
Locke's federative prerogative is denied to the president of this
republic, in order to guard against the oppression of the people by one
person.53
The oppressor
pretends the people's good as he involves them in wars; so the
American Constitution guards against such pretenses by denying to its
president even the possibility of preemptive wars without congressional
approval.
Lincoln shows, moreover, that it is the constitutional structure that
must contain this sort of prerogative, and not popular judgment. In a
speech delivered a month before his letter to Herndon, Lincoln claimed
that President James K. Polk escaped scrutiny about the beginning of the
Mexican war “by fixing the public gaze upon the exceeding brightness
of military glory—that attractive rainbow, that rises in showers of
blood—that serpent's eye, that charms to destroy.”54
When Polk “unnecessarily and
unconstitutionally” commenced war with Mexico, the public succumbed
far too easily to the seductive glory that attends military conquest,
forgetting the war's unnecessary and unconstitutional beginnings. The
constitutional structure, however, allows Lincoln to do what the public
will not, that is, to use his podium as a member of the House of
Representatives to call attention to the unsavory beginning of the war,
and use his power to vote for a resolution declaring such to be the
case.
55 Lincoln's crucial problem with Polk's action was that he
took it for “some strong motive” with no basis in necessity.
In fact, he repeatedly called on Polk to explain the need for his
action—which Polk was unwilling to do. Lincoln claimed that Polk
would not defend his decision to go to war because “he is deeply
conscious of being in the wrong” and knew “that he ordered
General Taylor into the midst of a peaceful Mexican settlement, purposely
to bring on a war.”56
Perhaps if Polk could show the
necessity of his actions even to his strongest critics (something which,
as we will see, Lincoln, as president, is willing to at least attempt),
Lincoln's constitutional complaints might have been appeased. Or,
perhaps what is required, at the minimum, is the attempt itself; if Polk
had tried to show the need for his actions, he would have conceded that
the attempt was necessary, thus also conceding that the
Constitution's structure does not simply recede with the promise of
glory. The Constitution imposes that which the people might not: the need
for an argument regarding the necessity of
“extra-constitutional” action. Lincoln's speeches always
pair necessity and constitutionality. If Polk could show that his actions
were necessary for the preservation of the Constitution itself, they would
have become constitutional; because he could and would not, they were
unconstitutional.
This emphasis on necessity, first and foremost, provides the first
lesson from Lincoln's words and deeds.57
Contrary to conventional wisdom according to which Lincoln
establishes no precedent of military restraint, Carnahan (1998) concludes: “The reminder that military
necessity can limit the destruction of war, beyond serving as a
justification for destruction, is the most important legacy of
Lieber's development and Lincoln's application of military
necessity over 130 years ago” (p. 231). For an investigation into
the “nearly-forgotten work of Francis Lieber,” an American
political scientist who Lincoln asked to encode the laws of war, see Farr 1990.
In an 1864 letter to Albert G.
Hodges, a newspaper editor, in which Lincoln had been asked “to put
in writing the substance of what I verbally said the other day,”
Lincoln reflects on the actions he took during the course of the war.
Lincoln writes, “I felt that measures,
otherwise
unconstitutional, might become
lawful, by becoming
indispensable to the preservation of the constitution, through the
preservation of the nation.”
58 Lincoln 1953, 7: 281 (emphasis added). Apparently,
this is the quotation Nixon had in mind in the previously cited interview
with David Frost.
For Lincoln, the Constitution only countenances
actions taken outside its bounds when those actions can be justified by
the strictest understanding of necessity, namely the preservation of the
document itself. In this letter, Lincoln's understanding of
prerogative is neither Hamiltonian nor Jeffersonian, but some combination
of both—which removes the potential for abuse otherwise inherent in
both views. He understands his measures as “otherwise
unconstitutional,” which reminds one of the Jeffersonian standard;
however, his measures “become lawful,” not through public
affirmation, as in Jefferson's standard, but through
necessity—the Hamiltonian standard. Because the public is
insufficiently vigilant, it is dangerous to claim that an unconstitutional
action becomes constitutional if the public accepts it as aiming at the
public good. And because there is always the danger that Nixons will
become president, the Hamiltonian view is insufficient insofar as it
slides into a limitless Constitution.
59 Sorenson (1989), a strong proponent
of Hamiltonian prerogative, argues that Publius's doctrine
“culminates in a government with unlimited powers” (p.
278).
In Lincoln's formulation, the Constitution remains limiting
because it only permits action outside its bounds that aims at its own
preservation. Thus, Lincoln's famous metaphor, in the same letter to
Hodges, may limit as much as it empowers: “Often a limb must be
amputated to save a life; but a life is never wisely given to save a
limb.”60
As much as this may empower an executive to
take those steps he believes necessary in crises, it also limits an
executive from taking extralegal or illegal steps when no crisis exists.
Thus, Lincoln's metaphor may resemble what Justice David Davis wrote
in
Ex parte Milligan: “As necessity creates the rule, so it
limits its duration.”
61 Because of this singular focus on necessity, Lincoln abandoned the
congressional deference with which he began the war.62
For a discussion of the modification of Lincoln's
attitude toward Congress over the course of the war, see Binkley 1937, 122–30; Nicolay
and Hay 1890, 9:121–22. In passing, Corwin (1984) also argues that Lincoln's views of his
relation to Congress “underwent a gradual stiffening” (p.
167). Benedict (1991) argues that Lincoln
remained a Whig, deferential to Congress on these matters throughout the
war.
Lincoln became less deferential to Congress as he became
more convinced that only necessity, not public approval or congressional
legislation, could justify action outside the Constitution. At the
beginning of the war, Lincoln claimed that actions “whether strictly
legal or not, were ventured upon, under what appeared to be a popular
demand, and a public necessity.” He continued: “[I]t
is believed that nothing has been done beyond the constitutional
competency of Congress.” At this time, Lincoln's notion of
prerogative remained close to the Jeffersonian standard. While this
position maintains the importance of necessity, Lincoln also justified his
actions by citing “popular demand,”
63 Many of those who defend Jeffersonian prerogative make much
of this term “popular demand” in this speech. See, for
instance, Schlesinger 1989, 458.
thus
eroding constitutionalism because the people will ask only that the action
improves the public good. Perhaps the same could be said of Congress. For
instance, Congress's willingness to approve Jefferson's
Louisiana Purchase may have legalized his action, but it did not prove
that the action was truly necessary and so justifiably
unconstitutional.
By the end of the war, Lincoln wrote to General Butler a statement
that indicates both that he thought discretionary power must rest firmly
on necessity and that this position had become more clear for him over the
course of the war: “Nothing justifies the suspending of the civil by
the military authority, but military necessity, and of the existence of
that necessity the military commander, and not a popular vote, is to
decide.”64
If martial law is needed, the
military commander is in a much better position to decide than the public.
At first, this position seems to stem from a political calculation on
Lincoln's part—his worry being that the public will not vote to
create martial law even if it is necessary. However, the public had
already voted to create martial law,
65 Ibid., 7:488 n. 1: “At a
Norfolk election held under Butler's orders, citizens voted to retain
martial law.”
thus Lincoln's position seems truly to
stem from what he writes subsequently: “In your paper of February,
you fairly notified me that you contemplated taking a popular vote; and,
if fault there be, it was my fault that I did not object then, which I
probably should have done, had I studied the subject as closely as I have
since done.” In fact, Lincoln implies that this standard, rather
than popular opinion, will better limit the spread of martial law:
“Whatever is not within such necessity should be left
undisturbed.” Henceforth, he counseled his general to place
“whatever you feel is necessary to be done, on this distinct ground
of military necessity,
openly discarding all reliance for what
you do, on any election.”
66 Ibid., 7:488; italics mine.
For Lincoln, the Constitution itself pointed to the necessity of its
preservation through the habeas corpus clause; more than that, it pointed
to a distinction between ordinary times and extraordinary times—the
second lesson of Lincoln's words and deeds. In an 1863 letter to
Erastus Corning, he claimed that “certain proceedings are
constitutional when, in cases of rebellion or Invasion, the public safety
requires them, which would not be constitutional when, in absence of
rebellion or invasion, the public safety does not require them.”
Lincoln understood his extraordinary use of executive power as necessary
precisely because the situation was truly extraordinary. In using it, he
did so constitutionally, but only because the situation was, in
fact, extraordinary: “[T]he constitution is not its
application in all respects the same.” It is different “in
cases of Rebellion or invasion, involving the public safety” than it
is “in times of profound peace and public security.” Lincoln
thus broadened the habeas corpus clause, claiming that the Constitution
allows whatever strong measures are necessary for its preservation. They
are “good medicine for a sick man.”
But these measures may not be “good food for a well
one,”67
insofar as they are necessary
departures from ordinary law, they should not be institutionalized or
regularized. The existing law is not the problem and so need not be
changed to meet the crisis. Just as a doctor must give a sick man certain
medicines that would destroy his healthful life, Lincoln administered
“medicines” to a sick and divided nation that would destroy it
if permanently institutionalized.
Lincoln believed that maintaining this critical distinction between
the ordinary and the extraordinary substantially removed the danger of his
actions.68
Anastaplo (1999) similarly writes: “Lincoln would have had
his fellow citizens understand that not all crises are like a civil war
and that not all Presidents need be entrusted with extraordinary powers.
Fundamental to his approach here is his Fourth of July observation that
‘when an end is lawful and obligatory, the indispensable means to
it, are also lawful, and obligatory’” (p. 196). See, also,
Fehrenbacher 1987, 122. By contrast, Dietze
(1968) claims Lincoln did create a precedent for
the use of extraordinary powers in ordinary times: “The exercise of
emergency power could conceivably not remain confined to emergencies like
war or civil war. It could possibly be claimed by a President in times
that were normal, or, by objective standards, quite normal. In the end,
the state of emergency possibly could become the rule rather than the
exception. Under the pretense of executing the will of the people, a
President could thus emerge as a rather permanent dictator” (pp.
57–58). It seems precisely for this reason that Lincoln realized he
should not claim to execute the will of the people.
His own
worries about the permanent increase of executive power influenced his
response to his critics. It is not enough to say that the requirements of
a crisis override concern about individual liberty. If, in responding to
the crisis, Lincoln destroyed the constitutional basis of the Union, his
actions would have been self-defeating. Because his overriding concern was
the survival of a
constitutional Union, any departure from the
bounds of the Constitution must also point back to its restoration.
Because of this distinction between the ordinary and the extraordinary,
Lincoln claimed to be unable
to appreciate the danger, apprehended by [others],
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 indefinite peaceful future which I trust lies before
them.69
In the next clause of this letter, Lincoln repeated but slightly
modified the metaphor comparing executive power to a drug. He was as
unable to believe that a danger existed for the nation in the future as he
was “[un]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.”70
This rephrasing of the medicine metaphor should not, however, quiet
our worries as much as Lincoln claimed it should. While medicine good for
a sick person may be bad for a healthy one, it is less clear that that
truth will cause him to cease feeding upon it. Lincoln must have known of
soldiers who began taking morphine while sick and did not stop once
healthy. Isn't there always the danger that drugs one takes while
sick will become addictive? Couldn't this same danger exist for the
nation with regard to executive power—that the people will become
addicted to the expedient justice of which the executive is uniquely
capable. Because the executive can achieve the public good in a more
immediate and comprehensive manner than the legislature, the people will
not be willing to return to the constitutional separation of powers at the
conclusion of the war.71
For instance, Locke
(1988) writes: “And therefore he, that
will look into the History of England, will find, that Prerogative was
always largest in the hands of our wisest and best Princes: because the
People observing the whole tendency of their Actions to be the publick
good, contested not what was done without Law to that end…. The
People therefore finding reason to be satisfied with these Princes,
whenever they acted without or contrary to the Letter of the Law,
acquiesced in what they did, and, without the least complaint, let them
inlarge their Prerogative as they pleased, judging rightly, that they did
nothing herein to the prejudice of their Laws, since they acted
conformable to the Foundation and End of all Laws, the publick good”
(pp. 377–78 [XIV, 165]).
Lincoln did his best to
establish a strict distinction between the ordinary and the extraordinary
to prevent such a sickness; but perhaps this last metaphor indicates that
dangers still abound once a constitutional government departs from the
constitutional form.
Most importantly, the constitutional form prevents the arbitrary use
of power by its possessors either for personal gain or out of moral
conviction. As discretionary power increases, so too does the possibility
that it will be used in an arbitrary manner that does not seek the public
good, or by executives who imagine that precisely their concern for the
public good necessitates arbitrary and unconstitutional action. So, the
people must beware first that, having given up their constitution for the
benevolent rule of a trustworthy executive, they find themselves
defenseless against one less trustworthy. The second would not be
worrisome if one could be sure that “trustworthy” executives
would take such action only when it was demanded by true political
necessity—saving constitutionalism itself. But they may also find
that the “trustworthy” executive had a moral agenda far
grander than the limited ends of a constitutional politics.72
Roosevelt (1906)
writes: “There certainly never was a more extraordinary despotism
than this; the despotism of a man who sought power, not to gratify
himself, or those belonging to him, in any of the methods to which all
other tyrants have been prone; but to establish the reign of the Lord, as
he saw it” (p. 213). For a discussion of the more limited ends and
disputes of the constitutional polity defended in The Federalist, see
McDowell 1993.
Because one might go so
far as to say what Franklin said of the people: “[T]here
is a natural inclination in mankind to Kingly government,”
73 and because powerful executives can exploit this
tendency to their detriment, the people must learn an attachment to their
Constitution that does not come naturally to them.
74 Engeman (1982) writes: “A
good cause can be made that Publius and Lincoln, aware of the limits of
the Constitution, were all the more adamant in maintaining the
public's attachment to it” (p. 279). For a discussion of
cultivating the people's attachment to their Constitution, see Manzer 2001.
For instance, Lincoln often appears unconcerned with the moral urgency
of slavery because he insisted upon the unconstitutionality of a simple
emancipation proclamation by Congress or the president.75
Consider again Engeman (1982), who
explores Lincoln's thought on the limitations upon Congress's
power of emancipation.
Many would have had him abandon the
Constitution to fulfill a higher moral demand. In a letter to Orville
Browning concerning John C. Fremont's proclamation freeing the
slaves,
76 In a proclamation issued on August
30, 1861, General Fremont had attempted to free the slaves of all rebels
against the Union. See Neely 1991, 34.
Lincoln shows an awareness of these people: “[G]oing the
whole figure [freeing the slaves by simple proclamation] I have
no doubt would be more popular with some thoughtless people, than that
which has been done.”
77 In fact, Mark Neely
claims, “One cannot be certain without public opinion polls, but it
seems likely that the most unpopular measure taken by President Lincoln in
the first year of the war was his revocation of Fremont's
emancipation proclamation for Missouri.”
78 Neely 1991, 49. More generally,
Neely claims that, while conscription shook the North and provoked
numerous conflicts, the issue of civil liberties provoked little dissent
during the Civil War. On this same point, Rhodes (1899) writes: “That the protests against the
arbitrary arrests lacked energy and persistence, that the infringements
upon the bill of Rights of the Constitution were not actively resisted, is
explicable only by the confidence the people had in Abraham Lincoln”
(4:171).
The people are not just willing to accept prerogative,
they are naturally attracted to it because of its ability to effect
justice immediately and uncompromisingly. So, Lincoln chose to revoke
Fremont's proclamation not because such an extension of executive
power was not popular but, at least in part, because it was: “You
[Browning] speak of it as being the only means of saving the
government. On the contrary it is itself the surrender of the
government.”
79 The people's
willingness to embrace such actions by their executive would spell the end
of constitutional government.
To avert this danger, Lincoln drew the brightest line possible between
that which the survival of the Constitution mandates and that which his
personal moral feelings might desire. After revoking General
Fremont's proclamation freeing the slaves, he explained to Orville
Browning that such a proclamation, at that time in the war, was
“purely political, and not within the range of military law, or
necessity”—and so, “simply dictatorship.” Even
though if he were a member of a state legislature, he would have supported
emancipation, his position as president during a crisis did not allow him
to “expressly or impliedly seize and exercise the permanent
legislative functions of the government.” In his 1864 letter to
Hodges, Lincoln repeated this distinction between personal moral feelings
and constitutional duty: “I am naturally anti-slavery. If slavery is
not wrong, nothing is wrong.” But he did not understand the
presidency to confer upon him “an unrestricted right to act
officially upon this judgment and feeling.”80
Earlier, in
his 1862 public letter to Horace Greeley, written after Lincoln had
decided he would issue the Emancipation Proclamation, he made clear that
his “paramount object in this struggle is to save the Union, and not
either to save or to destroy slavery.” Again he claimed to have
“stated my purpose according to my view of
official
duty” intending “no modification of my oft-expressed
personal wish that all men every where could be free.”
81 He drew this line because of, not despite, his
discretionary actions as executive during the crisis. In drawing this line
and thus merely fulfilling his oath of office, to preserve the
Constitution, he remains within the broader bounds of a constitutional
polity.
82 Again, the understanding of
Lincoln as remaining within a constitutional polity during the Civil War
contrasts with even some of the older views of Lincoln. Henry Adams (1958) claims the civil war “for the time
obliterated the Constitution” (p. 195). Even Lincoln's own
Secretary of State wrote: “We elect a king every four years and give
him absolute power within certain limits, which after all he can interpret
for himself.” Quoted in Schlesinger 1994,
159.
Drawing such a line also teaches the people restraint: they
learn that they should neither ask nor allow a
constitutional
executive to use his extra-constitutional power to fulfill either his or
their moral wishes. Only this education can prevent the descent of the
constitutional order into absolutism.
I have uncovered three principles from Lincoln's action. First,
action outside and sometimes against the Constitution is only
constitutional when the constitutional union itself is at risk; a concern
for the public good is insufficient grounds for the executive to exercise
discretionary power. Second, the Constitution should be understood as
different during extraordinary times than during ordinary times; thus
discretionary action should take place only in extraordinary circumstances
and should be understood as extraordinary. Since it is only necessitated
by the crisis, the action should have no effect on the existing law. To
preserve constitutionalism after the crisis, the actions must not be
regularized or institutionalized. Third, a line must separate the
executive's personal feeling and his official duty. He should take
only those actions that fulfill his official duty, the preservation of the
Constitution, even, or especially, if the people want him to go
further.
Conclusion
Long before he became president, Lincoln delivered a speech before the
Young Men's Lyceum of Springfield, Illinois in 1838. This speech,
made much more famous by scholars over the last fifty years than it was
then, concludes with a call for a “reverence for the constitution
and the laws.”83
Such reverence, which
Lincoln argued must be grounded by “reason, cold, calculating,
unimpassioned reason,” is needed because of the threat that future
men of great ambition—those from the “family of the lion, or
the tribe of eagle”—pose to the constitutional regime. These
men will, to fulfill their ambitions, attempt to destroy the “beaten
path” of constitutionalism, seeking instead “regions hitherto
unexplored.” When such a man does arise, “it will require the
people to be united with each other, attached to the government and laws,
and generally intelligent, to successfully frustrate his
designs.”
84 Ibid., 1:114–15. Some have claimed that Lincoln
was, in fact, such a man who sought distinction not by, as he might have,
“enslaving freemen,” but by “emancipating slaves.”
See, for instance, Wilson 1962. For the most
comprehensive alternative understanding of this speech, see Jaffa 1959.
In the context of Lincoln's words and actions during the Civil
War, it is useful to return to this speech because it reveals much about
Lincoln's underlying worries about the relation between the rule of
one and constitutionalism. Prior to the aforementioned passage, Lincoln
had discussed what he called the “mobocratic spirit”—a
lack of respect for the laws in adjudicating justice and a preference for
the immediacy of mob justice. Such a spirit would cause not only the mob
but other good men—“men who love tranquility”—to
turn away from the Constitution in search of that which would once again
make them feel secure.85
In such a country, men of
the greatest ambition would find the citizenry necessary to fulfill their
ambition. Instead, a “Government … constituted like
ours,” Lincoln wrote, requires the “attachment of the
People” for its maintenance. Constitutions require popular
attachment, especially to avert the ambitions of those few who would
destroy the constitutional order to fulfill their own ambition or even to
promote what they think is the public good.
In the Civil War, Lincoln was presented with precisely that situation
which, as he showed in this earlier speech, often leads to the destruction
of constitutional orders. He also found a people insufficiently attached
to their Constitution. In such a situation, Lincoln did more than merely
take those actions necessary for the preservation of the Constitution; he
also publicly announced his reasons behind the constitutionally
questionable actions he took. In fact, it is only because of this that we
can discern the three lessons I have drawn. Lincoln attempted to avert the
danger, suggested by the medicine metaphor, that the public will become
“addicts” of executive power, by trying to teach the public
that his questionable actions were acceptable only within the limits
imposed by the Constitution's preservation.86
Speaking of Lincoln's broader education of the public,
Belz (1998) writes: “Lincoln possesses in
himself and inculcated in the people constitutionalist conviction that
regarded preservation of republican self-government as the nation's
defining and paramount purpose” (p. 94).
If he had simply
assumed new powers without acknowledging the extraordinary nature of the
extension, the public would have been unprepared to retake such power at
the conclusion of the crisis.
In a letter to Edwin M. Stanton in 1864, Lincoln wrote, “While
we must, by all available means, prevent the overthrow of the government,
we should avoid planting and cultivating too many thorns in the bosom of
society.”87
He attempted to do even more than this; he
tried to create that constitutional attachment his Lyceum speech had
claimed was so necessary to maintain a constitutional order. That is, he
tried to forge in the American people an awareness of both the necessity
that permits the abrogation of the Constitution and, as importantly, the
limits upon such abrogation. With this education in mind, it is perhaps
not accidental that two of the boldest strikes at the claims of executive
power occurred immediately after the Civil War: the
Milligan
decision and President Andrew Johnson's impeachment, both of which
claimed that extraordinary executive power was permitted only by
extraordinary situations.
88 Ex parte
Milligan is often seen as a significant judicial blow to some of the more
extravagant claims about the reach of executive power insofar as it rules
that a citizen cannot be tried by a military commission appointed by a
military commander in a place where the courts remain open and
unobstructed.
Lincoln had perhaps created a constitutional
attachment so strong that it was willing to strike even at claims of
executive power associated with Lincoln himself.
Positioned in America with a different threat, we must beware of
simply asserting that current presidents must “be like
Lincoln.” The difference in the nature of the threat matters; there
seemed to be a foreseeable conclusion to the Civil War, after which the
necessity of Lincoln's discretionary power would disappear. In the
case of the “war on terror,” a conclusion seems less likely
and thus it is more difficult to see how events could limit any claimed
extraordinary power.
Nevertheless, we can learn some things from Lincoln's example.
First, justifications for using discretionary power should pass the
“necessity” test, within which the preservation of the
constitutional order itself is at stake. Only political necessity and not
popular or congressional approval can legitimate any discretionary action
taken by a president. Lincoln shows us that this standard allows the
Constitution to be different for different times, but prevents it from
becoming wholly indeterminate and unlimited.
Second, Lincoln's example points to the necessity of a people
attached to the constitutional form as such. Precisely because we cannot
count on current presidents to educate us as Lincoln did, we must use
Lincoln's example to insist on the limitations imposed by
constitutionalism. While the Constitution must accommodate political
necessity, it should not accommodate political expediency. As both Lincoln
and Locke show us, however, this attachment may require a political acuity
that the people do not possess naturally. Indeed, the people may all too
easily acquiesce and even encourage discretion that is not
“manifestly against” their good.
However, Lincoln's statesmanship seems to have produced a
constitutional people, at least for a while. To the extent that we are not
now, perhaps the example of his statesmanship can begin to produce such a
people once again. If the people are sufficiently attached to the limiting
powers of the Constitution, then the Constitution can become again a
potent tool for controlling presidential overreaching. Presidents will
again become compelled to justify their behavior not in terms of the
public good, but in terms of their constitutional
responsibility—reducing the danger of the people's natural
tendency to accept what a well-intentioned leader claims is for their
good.
To create such compulsion, however, we must restore the notion of
executive prerogative to the public discourse on power. Legislation such
as the Patriot Act points toward the legalization of prerogative, but once
prerogative is legalized, it is no longer prerogative. In legalizing such
power, we give the government both too much and too little. New situations
may call for action not envisioned by the legalization, and so too, the
legalization may allow governmental action where it has no legitimate
claim. As action that responds to unforeseen exigencies, the necessary
powers cannot be envisioned and thus cannot be provided for by the
law.
The extraordinary nature of prerogative should instead respond to
political exigencies in such a way as to preserve the constitutional
order. This compels presidents to justify their actions to the people,
thus alerting the people to the dangers of executive prerogative. So long
as extraordinary actions are taken outside the public's gaze, as some
would argue has been the case with the recent round-up of potential
terrorists on the basis of strained readings of existing law,89
the public cannot become
sufficiently aware of either the necessity of prerogative or the limits
upon it. Because naturally the people are insufficiently attached to
constitutionalism, they may not insist upon such justifications on their
own. The question becomes: are we, or can we become, a constitutional
people attached enough to the rule of law so as to prevent the
overextension of executive power? In other words, are we capable of
insisting upon our Constitution even when presidents do not?
