Civil Liberties in Wartime: Lincoln Had the Right Approach. By Mackubin Thomas Owens
http://www.nationalreview.com/article/389928/civil-liberties-wartime-mackubin-thomas-owens
Throughout the history of the American Republic, there has been a tension between two virtues necessary to sustain republican government: vigilance and responsibility. Vigilance is the jealousy on the part of the people that constitutes a necessary check on those who hold power, lest they abuse it. As Thomas Jefferson wrote, “it is jealousy and not confidence which prescribes limited constitutions, to bind those whom we are obliged to trust with power.”
But while vigilance is a necessary virtue, it may, if unchecked, lead to an extremism that incapacitates a government, preventing it from carrying out even its most necessary and legitimate purposes, e.g. providing for the common defense. “Jealousy,” wrote Alexander Hamilton, often infects the “noble enthusiasm for liberty” with “a spirit of narrow and illiberal distrust.”
Responsibility, on the other hand, is the prudential judgment necessary to moderate the excesses of political jealousy, thereby permitting limited government to fulfill its purposes. Thus, in Federalist 23, Alexander Hamilton wrote that those responsible for the nation’s defense must be granted all of the powers necessary to achieve that end. Responsibility is the virtue necessary to govern the republic and to preserve it from harm, both external and internal. The dangers of foreign and civil war taught Alexander Hamilton that liberty and power are not always adversaries, that, indeed, the “vigor” of government is essential to the security of liberty.
Lincoln and the War Power
Lincoln’s actions as president during the Civil War reflected his agreement with this principle. Owing to the unprecedented nature of the emergency created by a serious domestic rebellion, Lincoln believed that he had no choice but to exercise broad executive power.
The steps Lincoln took are well known. Under his constitutional powers as commander-in-chief of the military, he declared martial law and suspended the writ of habeas corpus in certain locations. He blockaded Southern ports. He shut down some opposition newspapers. He created tribunals similar to the ones that George W. Bush established when he was president. At one point early in the war, convinced that the Maryland legislature was poised to vote an ordinance of secession, he ordered Federal troops to arrest and detain pro-secessionist lawmakers. Lincoln justified this last step on the grounds that there was “tangible and unmistakable evidence” of their “substantial and unmistakable complicity with those in armed rebellion.”
Both Lincoln’s critics and his supporters have argued that Lincoln essentially assumed dictatorial powers during the Civil War — that he took extra-constitutional steps to save the Union. Indeed, Don Fehrenbacher once observed that Lincoln has been described by historians as a dictator far more than any other president.
But if Lincoln was a dictator, he was one unlike any other in history. Modern dictatorships are characterized by unlimited, absolute power, exercised in an arbitrary and unpredictable manner, with no regard for political legitimacy. A dictator doesn’t go out of his way to respect legal limits as Lincoln did, despite his belief that the emergency required special measures. In addition, a dictator is not subject to the pressures of public opinion, congressional constraint, and party competition that Lincoln faced during his war presidency. Finally, a dictator doesn’t risk an election in the midst of an emergency, especially one that he thinks he might lose.
Judging Lincoln’s actions today requires us to understand that he was sailing in uncharted waters. The emergency he faced was unprecedented. To meet it required the exercise of the president’s constitutional source of power: He is the commander-in-chief, a status that directly bestows upon him powers in times of military crisis that are not derivative of any congressional power. While the Constitution is silent on some of the steps he took, it is possible to argue that everything Lincoln did was justifiable under the powers stipulated in Article II of the Constitution.
Lincoln firmly believed that the power he needed to deal with the rebellion was a part of the executive power found in the Constitution. As he wrote to James Conkling in August of 1863, “I think the Constitution invests its commander-in-chief, with the law of war, in time of war.” He found his war power not just in the commander-in-chief clause, but also in the clause of Section 2 requiring him to “take care that the laws be faithfully executed,” and in his presidential oath “to preserve, protect, and defend the Constitution of the United States.”
Some constitutional scholars, e.g., Edward Corwin and Raoul Berger, have rejected Lincoln’s claim that the commander-in-chief clause and the “faithfully execute” clause provide an inherent presidential war power. But these scholars seem to take their constitutional bearings from normal times, during which the rights of the people are secure and the main instrument of majoritarian representative government is the legislature, which expresses the will of the people. During normal times, the president, although he possesses his own constitutional source of power, primarily executes the laws passed by Congress.
But in times of extraordinary emergency, the principle of salus populi suprema lex trumps all other considerations and justifies extraordinary executive powers. As Thomas Jefferson observed in a letter to Caesar A. Rodney, “in times of peace the people look most to their representatives; but in war, to the executive solely . . . to give direction to their affairs, with a confidence as auspicious as it is well-founded.”
This of course is the limited “prerogative,” described by John Locke as “the power [of the executive] to act according to discretion for the public good, without the prescription of the law and sometimes even against it.” Since the fundamental law that the executive ultimately must implement is to preserve society, it is “fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved.”
The prerogative is rendered necessary by the fact that laws arising from legislative deliberation cannot foresee every exigency. For the safety of the republic, the executive must retain some latitude for action. Jefferson expressed the spirit of the prerogative in a letter to John B. Colvin. Responding to Colvin’s question concerning “whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law,” Jefferson wrote:
A strict observance of the written law is doubtless one of the highest duties of a good citizen, but it is not the highest. The laws of necessity, of self preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means. . . . It is incumbent on those only who accept of greatest charges, to risk themselves on great occasion, when the safety of the nation, or some of its very high interests are at stake.
Lincoln made the same point in his speech to Congress in special session after Fort Sumter in defense of his suspension of the writ of habeas corpus:
The whole of the laws which were required to be faithfully executed were being resisted, and failing of execution in nearly one third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly: Are all the laws but one to go unexecuted, and the Government itself to go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken if the government should be overthrown, when it was believed that disregarding the single law would tend to preserve it?
Lincoln did not believe he had violated the law, because the privilege of the writ of habeas corpus may be suspended “when, in cases of rebellion or invasion, the public safety may require it.”
Many scholars have taken issue with the idea that the prerogative should form a part of constitutional government. They ask if the powers implied by the prerogative, as understood by Lincoln, mean, in effect, that it is impossible for presidents to violate their constitutional oath, so long as they are motivated in their conduct by the sincere desire to maintain “free government” against those whom they view as its enemies, foreign or domestic.
Lincoln answered in the affirmative. An emergency power is useless unless it is sufficient to meet the emergency. Since the magnitude and the character of the emergency determine the extent of the necessary power, the president is in the best position to determine how much power he needs. In revoking General David Hunter’s emancipation order in South Carolina, Lincoln stated that the decision to free slaves would depend on his determination that such a step “shall have become a necessity indispensable to the maintenance of the government.” The exercise of such a power, he continued, “I reserve to myself.” In September 1862, Lincoln declared that an emancipation proclamation was part of his power as commander-in-chief, which gave him “a right to take any measure which may best subdue the enemy.”
But Lincoln’s emphasis on preserving republican government taught him, as it should teach us, that the use of the prerogative is limited by prudence and the will of the people, which, “constitutionally expressed, is the ultimate law for all. If they should deliberately resolve to have immediate peace even at the loss of their country, and their liberty, I know not the power of the right to resist them. It is their own business, and they must do as they please with their own.”
In addition, Lincoln entertained no doubt that any extraordinary powers were limited to the duration of the emergency and not applicable to normal times. In his reply to Erastus Corning and a group of New York Democrats who had criticized his war measures, Lincoln wrote:
I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not lawfully be taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good for a well one. Nor am I able to appreciate the danger apprehended by the meeting [of the New York Democrats] that the American people will, by means of military arrest 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, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.
Lincoln and Civil Liberties
By far the most controversial element of Lincoln’s war presidency was his treatment of civil liberties. Even many defenders of Lincoln argue that he overstepped constitutional bounds by declaring martial law, arbitrarily arresting civilians and trying them by military tribunal, and shutting down opposition newspapers. After the war, the Supreme Court criticized many of these measures in Ex parte Milligan.
The dilemma that a president faces in time of emergency was expressed by James Madison in a letter to Thomas Jefferson: “It is a melancholy reflection that liberty should be equally exposed to danger whether the government have too much or too little power.” Lincoln addressed this dilemma during his speech to a special session of Congress after Fort Sumter. “Is there,” he asked, “in all republics, this inherent, and fatal weakness? ‘Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?’”
Lincoln addressed the issue of civil liberties during a time of war and rebellion in the aforementioned letter to Erasmus Corning, who had sent him the resolutions of the Albany Democratic Convention. The Albany Democrats had expressed loyalty to the Union but had censured the Lincoln administration for what they called unconstitutional acts, such as military arrests of civilians in the North. To the Albany Democrats’ claim that they supported the use of “every constitutional and lawful measure to suppress the rebellion,” Lincoln replied that he had “not knowingly employed . . . any other” in the past nor did he intend to in the future.
The Albany Democrats invoked the safeguards and guarantees for the liberties of citizens under the Constitution, observing that they “were secured substantially to the English people after years of protracted civil war, and were adopted into our Constitution at the end of the revolution.” Lincoln replied that their point would have been stronger had they said that these safeguards had been adopted and applied during the civil war and during our revolution, rather than after the one and at the end of the other. “I, too,” said Lincoln, “am devotedly for them after civil war, and before civil war, and at all times, ‘except when, in cases of rebellion or invasion, the public safety may require’ their suspension.”
Lincoln then argued that those who wished to destroy the Constitution were relying on the fact that “the government would, in great degree, be restrained by the same Constitution and law from arresting their progress.” If anything, Lincoln continued, he waited too long to implement emergency measures. “Thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degree I have been forced to regard as being within the exceptions of the Constitution, and as indispensable to the public safety.”
The core of Lincoln’s argument was that the courts of justice are incompetent to handle cases arising out of a vast emergency. Suspension of habeas corpus is the constitutional provision that applies in such cases. The drafters of the Constitution, he said, understood that there were emergency instances in which “men may be held in custody whom the courts, acting on ordinary rules would discharge.” Habeas corpus does not discharge those proved to be guilty of a defined crime. The Constitution permits its suspension “that men may be arrested and held who cannot be proved to be guilty of defined crime, ‘when in cases of rebellion or invasion the public safety may require it.’” This is because, in times of emergency, arrests must sometimes be made not for what has been done, but to prevent things that probably would be done.
Lincoln pointed out that a number of high-ranking Confederates, whose sentiments were then known, were in the power of the government when the rebellion broke out. Had they been seized, the rebellion would have been weaker. But none of them had committed a crime defined in law, so they would have been discharged on the basis of habeas corpus if the writ were permitted to operate. “In view of these and similar cases, I think I shall be blamed for having made too few arrests than too many.”
The Albany Democrats had called the arrests of civilians in areas where the rebellion did not exist unconstitutional. Lincoln replied that the Constitution made no such distinction. His actions, he continued, were constitutional wherever the public safety required them, whether to prevent the rebellion from spreading, to prevent mischievous interference with raising and supplying the armies necessary to suppress the rebellion, to restrain agitators who sought to encourage desertion—in other words, his actions were “equally constitutional at all places where they will conduce to the public safety, as against the dangers of rebellion or invasion.”
The Albany Democrats criticized the arrest and trial by military tribunal of the antiwar Ohio Democratic congressman Clement Vallandigham, merely for his words. But Lincoln replied that Vallandigham was encouraging desertion from the army, upon which the nation was depending to save the Union. He noted that the Albany Democrats supported the suppression of the rebellion by force. But this depends on an army, and one of the biggest problems armies face is desertion, an act so serious that it is punished by death. “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?”
Lincoln said that if he was wrong on the question of his constitutional power, his error was in believing that certain actions that are not constitutional in the absence of rebellion or invasion become constitutional when those conditions exist, in other words “that the Constitution is not in its application in all respects the same in cases of rebellion or invasion involving the public safety, as it is in times of profound peace and public security.”
As noted above, Lincoln argued that the means appropriate for an emergency are not appropriate for normal times. A sick man is given medicine that would not be good for a well one. Lincoln’s argument here is quintessentially prudential.
Civil Liberties in the Confederacy
One of the enduring falsehoods regarding the war arising from the dominance of the Lost Cause school of Civil War historiography is that while Lincoln ran roughshod over civil liberties in the North, the Confederacy adhered to a strict constitutionalism in defense of civil liberties. But in his indispensable book Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism, Mark Neely argues that Jefferson Davis was not the staunch defender of civil liberties and constitutionalism that he claimed to be in his history of the Confederacy.
We should not be surprised that the Confederacy’s commitment to civil liberties in wartime was no greater than that of the North. The fact is that, the Lost Cause narrative’s portrayal of the South as united against Yankee tyranny notwithstanding, dissent was widespread within the seceded states.
Lincoln faced opposition primarily from Peace Democrats or “Copperheads,” who, like Clement Vallandigham, actively interfered with recruiting and encouraged desertion. Indeed, they generated so much opposition to conscription that the Army was forced to divert resources from the battlefield to the hotbeds of Copperhead activity in order to maintain order. Many Copperheads actively supported the Confederate cause, materially as well as rhetorically.
But Unionists in the South did many of the same sorts of things that Copperheads did in the North. Some Unionists, like their Copperhead counterparts up north, limited their dissent to political opposition. But, as Daniel Sutherland writes in his introduction to Guerrillas, Unionists, and Violence on the Confederate Home Front, “the most staunch wartime Unionists — the so-called “tories” — endorsed Union political ideology, encouraged hostility to the Confederacy, and sought to end the war at all costs.”
Unionist sentiment was most prevalent in eastern Tennessee, western Virginia, and western North Carolina, but there were also Unionist enclaves in northern Louisiana, Mississippi, and Alabama, as well as central Texas. It is a little-recognized fact that, with the exception of South Carolina, every seceded state provided at least one regiment of white troops to the Union cause.
As the war dragged on and the appalling human and material cost of the war began to mount, even many loyal Confederates began to turn against it. As in the North, conscription constituted a flash point. It is sometimes forgotten that the South turned to conscription a year earlier than the North did. The exemption of large slaveowners from the draft, the so-called “20 nigger law,” fed dissent and led to the often-voiced complaint that the conflict was “a rich man’s war, but a poor man’s fight.”
Desertion was a problem for both sides, but, as the war began to turn against the South, it became an epidemic in the Confederacy. Confederate generals, including the gentlemanly Robert E. Lee, did not hesitate to shoot deserters, but even the prospect of such a punishment did not stanch the loss of manpower to the Confederate cause.
Attempts by the Confederate government to do so, along with other efforts to suppress dissent in the seceded states — including intimidation by Confederate soldiers, militia, conscription and impressment agents, and “watchful secessionist neighbors” — often provoked guerrilla warfare, carried out not only against pro-government civilians but also Rebel military units.
Neely examined the records of the arrest and detention of over 4,000 civilians and concluded that the Confederate restrictions on the rights of civilians were at least equal to those of the Union. And the restriction began early. Indeed, Confederate authorities arrested a Florida newspaper correspondent on the same day Fort Sumter was fired upon and held him without trial. “There would never be a day during the Civil War when Confederate military prisons did not contain political prisoners.”
The Lost Cause narrative has portrayed southerners as ardent supporters of individual rights above all else. But in the South, as in the North, most civilians accepted restrictions on their liberties because they believed the restrictions constituted temporary, necessary measures that ensured stability and would help win the war. Southern society was not nearly as “obsessive about liberty” as previously thought.
Neely’s most important sources are the records of the “habeas corpus commissioners,” a semi-official group of civilian lawyers who worked for the Confederate War Department. Operating with virtually no supervision or guidelines, the commissioners reviewed the cases of the civilian prisoners in Confederate military prisons, determining whether to release them, send them to a civilian court for trial, or leave them in jail indefinitely. Neely concludes that these commissioners in effect operated as “mobilization officers,” subjecting disloyal civilians to military service if possible and otherwise keeping them out of the way.
Neely rejects the characterization of Davis as a staunch defender of civil liberties, arguing that Davis, like Lincoln, was committed to the survival of his country. Early on, Davis spoke of “sacred civil liberties” in an attempt to persuade the border states to secede. But as Union forces penetrated deep into Confederate territory, Davis sacrificed individual rights to the preservation of what remained of the Confederacy.
Indeed, the Confederacy, like the Union, acted “as modern democratic nations [do] in war,” placing restrictions on individual liberties out of perceived military necessity. The fact is that both the Union and the Confederacy faced the enduring dilemma of republican government: how to balance vigilance and responsibility.
— Mackubin Thomas Owens teaches in the Master of Arts in American History and Government (MAHG) program at Ashland University in Ohio. He wrote this article, among others, for his MAHG course on the Civil War and Reconstruction.
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