If Lincoln had not died

[Liz Rosenthal]

Rob, I just love your response! I would like to especially highlight your point that the rebellion of the southern states was unprecedented. As Lincoln didn't have a blueprint for handling this kind of situation, he basically had to improvise almost everything he did.

One thing that non-lawyers routinely do in discussing the Constitution is assume it to be a static document that can have no meaning beyond whatever may be viewed as its literal interpretation. (I see that especially today in people's characterizations of measures taken by our current President.) The Constitution's meaning has been steadily evolving since its adoption to meet the needs and challenges of a growing and developing and modernizing society. This evolution is the work of 200 years of jurisprudence; in our common law system, case law (i.e., decisions concerning lawsuits) has as much, if not more, to say about the meaning of the Constitution than the Constitution itself does within its four corners.

But, as Rob said, Lincoln had nothing to go on in dealing with an unprecedented crisis. And one thing that many Americans don't seem to realize today is that the Civil War was - and still is - the biggest crisis ever faced by the United States. The only thing that comes close to it is World War Two, and even then we didn't have the broad internal discord that we had during Lincoln's presidency.

During the Civil War, we faced an existential threat - a threat to our very existence as a nation and a democracy - and this threat came from within. The United States was literally falling apart. Lincoln just about managed to keep the North together - with the political equivalents of string, glue, and tape - let alone keep the South in the Union!

An excellent book to read on the topic of Lincoln's use of power is Mark Neely's 20-year-old volume, The Fate of Liberty: Abraham Lincoln and Civil Liberties. If I remember correctly (and someone please correct me if I'm wrong), Neely argued that Lincoln's use of things like the suspension of habeas corpus and the imposition of martial law were not nearly as "arbitrary" as has often been said and were more narrowly targeted than he has gotten credit for. Unfortunately, Lincoln couldn't be everywhere all the time; his "lieutenants in the field" often got carried away with their authority or what they perceived to be their authority and caused Lincoln a lot of headaches. The most notorious example of this overreaching is, I think, the arrest of Clement Vallandigham, the copperhead politician from Ohio, which Lincoln did not order and which he would have preferred to not have happened.

Another interesting book to read on this general topic is Lincoln and the Press, by an author named Harper, which was published in the 1950s. It's pretty clear that a lot of the trouble that local editors faced were in overzealous local authorities and angry mobs of civilians and soldiers on leave.

Anyway, I think we need to separate our feelings about what we might tolerate in today's environment with what might have been appropriate, or at least understandable, in a time of secession and Civil War. If we can do that, we might be able to look at some of the things Lincoln did in a different light.

(01-09-2013 08:24 AM)Rob Wick Wrote:  

Quote:Was he aware of the damage that he did, as far as respecting (disrespecting, actually) the Constitution, and the precedent it might set for future presidents? Or did he sort of muddle through his presidency and do whatever it took to obtain his goals of abolition and preserving the Union, rather than carefully planning it all in advance? Did he see himself as a sort of Messiah, or handpicked by God, or fated to lead the country through the Civil War and Reconstruction?

First, I have to respectfully say I disagree with your premise. Lincoln no more set precedent for future presidents than Thomas Jefferson did when he negotiated the Louisiana Purchase. Jefferson never believed that he had any constitutional authority to buy land, but did so as a buffer against French influence in the region and to keep free trade flowing through the Mississippi. Also, one might say the same of the judiciary branch, specifically the Supreme Court. Nowhere in the constitution does it mention the term "judicial review" yet, when the court heard Marbury vs. Madison (and even before that point) it was practiced. My point is that it is easy to look at Lincoln's self-interpretation of his constitutional powers as having no precedent, but that's not correct. Before William Henry Harrison died in office, there was a question as to whether the vice-president was acting president or whether he assumed the duties as president. Things which are unprecedented sometimes happen that require actions which in other circumstances would have been wrong. Before the southern states seceded, there had never been an internal attempt at rebellion which had gone this far. Lincoln had very little choice if the nation was to survive.

Also, Lincoln's goals at the outset of the war did not include abolition. His only goal, stated or otherwise, was preserving the Union. Lincoln NEVER embraced abolitionism (at least in the sense we understand the concept) up until three years before he was murdered, and even then I think he would have preferred some sort of compensated emancipation followed by voluntary colonization. Lincoln never saw himself as a messiah. That came from others after his assassination.

Best
Rob