One Nation Under God, Indivisible: Commander-in-Chief

          In order to defend the Confederacy they so love, Neo-Confederates routinely try to justify their position by castigating Lincoln. As we discussed in the last posting, they love to paint him as a racist who didn’t care one whit about slavery except insofar as it served his political ambitions. And of course his main political ambition was the expansion of power, namely his. The very claim I made last time--that Lincoln was in any way inhibited by a concern for rule of law and the Constitution--is laughable in their eyes.

            We addressed the two main personal attacks on him in the last posting (he was an egregious racist, and he didn't care one whit about slavery per se), but in this one I want to briefly discuss his conduct as President and Commander-In-Chief. Krannawitter, citing Don Fehrenbacher, claims that Lincoln has been described by more historians as a “tyrant” than of any other president. 

            Why? What are the specific accusations?

            Before we get to those, we need to acknowledge that first and foremost the NC argument rests on their claim that the Southern states had the legal right to peacefully secede from the Union. Therefore, it follows that Lincoln had no legal right to attempt to hold them in the Union by force. Really this is the main dividing line between NC’s and those who defend Lincoln and consider him one of our greatest presidents. If the Confederates did have this right and were the political and philosophical heirs of the American Revolution, then pretty much everything Lincoln did was outside his legal rights and responsibilities as President. If they didn’t have this right, if what they called secession was in fact just an act of rebellion against legally constituted authority, then he had a lot more leeway.

            We’ve dealt with their claim to the legal right of secession in an earlier post, but we have to concede that just because they didn’t have the right doesn’t mean that Lincoln wasn’t a tyrant. Even if a nation is at war, that doesn’t give the president Carte Blanche to do whatever he feels like doing in prosecuting it.

            But to be perfectly honest, it seems a little odd to be condemning President Lincoln for using emergency powers in an emergency.  

            The first one that’s always brought up is his suspension of Habeas Corpus. That term’s thrown around a lot, so I needed a little refresher on what the term actually means. The Wiki article describes it as “A writ of habeas corpus, also known as the ‘great writ,’ is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner.” In other words, under normal circumstances you can’t just be rounded up by the military, held in jail, denied legal counsel, or imprisoned without being legally charged and tried. A government that does things like that under normal circumstances is a police state, not a free one. 

            So what exactly did Lincoln do? Before we get to that, we need to be aware of one of Lincoln’s biggest immediate problems: Geography. Maryland A) was a state where slavery was legal, B) had a substantial population which sympathized with the Confederacy, C) had not officially sided with the Confederacy, and, D) well, see the problem?

Washington D.C. had Virginia (which held the capitol of the CSA) on its southern border. Maryland surrounded it on its northern border. All rail lines from New York, Philadelphia, and Harrisburg ran through Baltimore, and this was the only way for Washington D.C. to be supplied with troops and other supplies. Here’s where I quote from Supreme Court Justice William Rehnquist:

"Four days after Lincoln issued his call for volunteers, a Massachusetts regiment arrived from Philadelphia at Baltimore's President Street Station....The ninth car stopped momentarily, and in a trice all of its windows were broken by rocks and stones....The mob placed rocks and sand on the horse-car tracks, and the soldiers alighted and fell back to the station whence they had come....

[In front of them] was a mob of twenty-thousand Confederate sympathizers. The troops decided to fight their way through on foot, and the mob closed in behind as they marched...Soon the crowd loosed a volley of stones at the soldiers, who finally turned and fired their rifles into the crowd. In the final tally, sixteen people were killed, four soldiers and twelve civilians."

           

After that, Confederate sympathizers burned railroad bridges leading into Baltimore, effectively cutting off rail transportation into and through the city, and cut the telegraph lines between Baltimore and Washington to prevent further troops from entering the state.

On April 22, 1861, President Lincoln responded to a Baltimore committee that had requested he secure peace in Baltimore by stopping all U.S. troop movement through the city. Mr. Lincoln's frustration is manifested in his language:

            ‘You, gentlemen, come here to me and ask for peace on any terms, and yet have no word of condemnation for those who are making war on us. You express great horror of bloodshed, and yet would not lay a straw in the way of those who are organizing in Virginia and elsewhere to capture this city. The rebels attack Fort Sumter, and your citizens attack troops sent to the defense of the Government, and the lives and property in Washington, and yet you would have me break my oath and surrender the Government without a blow.  There is no Washington in that – no Jackson in that – no manhood, nor honor in that. I have no desire to invade the South; but I must have troops to defend this Capital. Geographically it lies surrounded by the soil of Maryland; and mathematically the necessity exists that they should come over her territory.

            Our men are not moles, and can't dig under the earth; they are not birds, and can't fly through the air. There is no way but to march across, and that they must do. But in doing this there is no need of collision.

            Keep your rowdies in Baltimore, and there will be no bloodshed. Go home and tell your people that if they will not attack us, we will not attack them; but if they do attack us, we will return it, and that severely.’

Believing that unless the mob violence in Baltimore was immediately contained, it might become impossible to transport troops to Washington, D.C. President Lincoln finally decided to suspend the writ of habeas corpus allowing rioters and those attacking troops and preventing their safe transportation through the city to be detained without approval from any court or judge.

On April 27, 1861, President Lincoln sent the following to General Winfield Scott, the commanding General of the Army of the United States.

            ‘You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs are authorized to suspend that writ.’

            Text of Mr. Lincoln's order:

            ‘Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection.

            Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.

            Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.

            In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.’

It is hard to imagine today, but in President Lincoln's time (when the United States government was much smaller and did much less than it does now) an entire session of Congress might last only a few months, or even only a few weeks. The Thirty-seventh Congress, which had been elected in November of 1860, was not slated to convene until more then a year later in December of 1861. With the bombing of Fort Sumter in April of 1861, President Lincoln had little choice but to begin fighting the war without approval from, or consultation with Congress. Exercising his power under Article III, Section 3 of the United States Constitution, he called for Congress to convene in special session scheduled for July 4th, 1861, in order to ask for congressional approval for his emergency actions (which Congress promptly granted) and to request additional funding for the war effort.

            Now, I ask you directly, does this sound like the work of a tyrant-wannabe, or of a president who’s driven to take temporary emergency powers by an actual emergency?

            My friends, I yield to no one in my belief in limited government and rule of law. But what the Confederate sympathizers were doing were not demonstrations in favor of limited government, government staying within its legal bounds set for it by the Constitution. This was not the rule of law. This was mob rule, and it had to stop.

            A really thorny issue, mentioned above, is that Congress didn’t authorize this at first. It was out of session, and would be for almost a year more. Article One Section 9 of the Constitution says that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This section is in Article One, which lists the “legislative Powers herein granted [which] shall be vested in the Congress of the United States..."

            In other words, it’s a very questionable claim that Lincoln—as opposed to Congress—had the legal right to do what he did. However, in his defense, 1) the Constitution doesn’t specifically say that only Congress has this right, and if ever there was a time when “public safety” was endangered by “rebellion,” this was it, 2) As Lincoln made it clear, Constitutional government and rule of law were in existential danger. He couldn’t wait for several months for Congress to convene while the country fell apart. As soon as he could, he called an emergency session of Congress, and they promptly gave him post facto any authorization he needed.
            When you take it in context, the accusation that Lincoln shredded the Constitution through his suspension of Habeas Corpus seems a bit overwrought, especially when you consider his alternatives. 

            He did other things which rankle civil libertarians, both then and now. He shut down some newspapers which were openly calling for soldiers to desert. He put people in prison for expressing openly their sympathy for the Confederacy.

            This sounds terrible doesn’t it? If it does, you might need to familiarize yourself with some history. We’ve routinely done all sort of things like this in times of war. During World War 2, factories were expropriated by the government in order to manufacture what we needed to fight the war. People were heavily regulated in what they could buy, what they could sell, and what they could say publicly. The First Amendment was put on hold for the duration of the conflict.
            Now, as someone who's really concerned about civil rights, I definitely understand why some people look askance at some of his conduct. I get it.
            But as we discussed in my posting about comparing the North and South as far as liberty goes, sometimes good people or good nations do very bad things, even inexcusable things. I'm open to the argument that Lincoln did some terrible things which we can't excuse, such as jailing dissenting journalists. But that doesn't change the fact that one side was basically good (and occasionally did some bad things) while the other side was a thoroughly bad country, having its very foundation based on race-based slavery. 

            And please keep in mind that we’ve always understood that the government has very broad powers--while it’s at war for its survival--to do things it can’t normally do.  And as soon as the war’s over, we expect that those rights which we normally enjoy will be returned. Again, here’s Krannawitter:

Consider what happened after Lincoln's presidency. Did his supposed maneuvers for big government stay in place--and expand--or were they quickly removed? The answer is the latter (which is what Lincoln wanted, given his lenient Reconstruction policy). In 1863, America witnessed the suspension of habeas corpus, newspapers were held in check, and an Ohio Congressman was deported to Louisiana. By 1866, all such restrictions on civil liberties were gone. In 1865, Confederate states did not have governments of their choosing, and many former Confederates were disenfranchised. By 1877, federal occupation of Southern states had ended, and except for a handful of former Confederates, all Southern white males were again voting.

What about Lincoln and big government? Another accusation from some NC's is that Lincoln started the trend of bigger and bigger government, with higher taxes and an increasingly intrusive "nanny state." Here are some stats from an article by Weekly Standard, one of the biggest voices for conservatism on the web. Allen C. Guelzo lays it out for us:

[The] attempt to portray the Lincoln administration, even in the midst of the Civil War, as the New Deal before its time strains credulity. True, the U.S. federal budget swelled from $76.8 million in 1860 to an astounding high of $1.9 billion in 1865; but it plummeted immediately thereafter to $424 million, fully half of which involved the payment of soldiers’ pensions, and by 1880, the federal budget was only 16.7 percent of what it had been in 1865. The federal civilian workforce rose from 40,000 in 1861 to 194,997 in 1865; but it, too, dropped precipitately by 1871, to 51,000. If this amounts to a revolutionary centralization of government, then we have begun to lose our grip on what we mean by a revolution. 

            Let me submit just one more piece of evidence: The presidential election of 1864. Completely counterintuitively, Lincoln insisted—when the War was far from certain—that the voting citizens of the United States have the regularly scheduled election as a referendum on his policies and conduct. I mentioned before an article on the National Review site entitled “Civil Liberties in Wartime: Lincoln had the right approach” by Mackubin Thomas Owens. Here’s a quote from the comments section which I find very apropos:

There is no better proof that Lincoln did not view himself as a despot and was prepared to honor the Constitution than his willingness to stand for reelection in '64 in the midst of Civil War and Grant's Overland Campaign. The Union was taking horrendous casualties battering Lee's entrenched forces in battle after battle with no breakthroughs in sight. Lincoln fully expected to lose the upcoming election absent a profound turn of Union fortunes in the war. It is recognized all around that it was only when Sherman provided one in the taking of Atlanta and march to the sea that Lincoln was assured a second term.

Further, he expected to lose to his Democratic opponent, General George B. McClellan openly running on a Copperhead dominated platform of peace at any cost[*] that would most likely result in a negotiated peace and a sundered Union a reality if he won. And still Lincoln was willing to risk an election, an unprecedented wartime event at the time, in fealty to the Constitution and to show the world the Union was based on it.

            The issue was that Lincoln saw that what they were fighting for was liberty and rule of law. And as he put it, “We cannot have free government without elections, and if the rebellion should force us to forego or postpone a national election, it might fairly claim to have already conquered and ruined us.”

            On a final note, NC’s with a libertarian background like to criticize Lincoln for bringing the Income Tax into our tax system. In 1861, the first ever income tax was instituted in order to pay for the War. In 1863, the first progressive income tax was levied. But by 1872 all income taxes were gone, and didn’t come back for another 20 years. Another income tax was passed (the first ever in peace-time in America) in 1894 and was struck down the next year by the Supreme Court. We had to get a Constitutional Amendment passed (the 16^th) in order to end the dispute over whether or not Congress could do it. Again, does this sound like Lincoln had a legacy of big government and an oppressive taxation system? If that was his goal, he did a pretty lousy job of it.

            Once more, I think we really need to fully grasp what the stakes were here. Krannawitter:

If a nation of people agrees to settle their political disputes through free elections and ballots, and then some who cannot win that way decide to resort instead to bullets in order to achieve the results they desire, may a president use bullets to vindicate free elections and ballots? If a president does not defend the results of a fair election, does that not set the precedent that whatever cannot be attained through free elections may be attained by violence? And if that becomes the accepted standard for settling political disputes, why will anyone place any stock in the importance or value of elections? If violence becomes the standard, is it not wiser to invest in bullets and pay no attention to ballots?

            Well? 

* It's come to my attention from several sources that we need a little clarification for complete accuracy and fairness here. While it is true that the Democratic platform called for an immediate cessation of hostilities and a negotiated settlement (which virtually assured a divided country), to be completely fair we have to concede that McClellan strongly disagreed with this platform. He accepted the nomination of the Party without accepting the platform on which that Party was running. He, like a lot of others, was a loyal Union Democrat. However, if he'd won the election, it's highly questionable that he would've been able to continue the War with a Party behind him which presented such an official policy.