by John Yoo
Lincoln refused to believe that the Constitution withheld the power for its own self-preservation. Rather than seek a greater power outside the law to protect the nation, he found it in the Chief Executive Clause. That gave Lincoln the authority to decide that secession justified military coercion, and the wide range of measures he took in response: raising an army, invasion and blockade of the South, military government of captured territory, suspension of the writ of habeas corpus, and tough internal security measures. Lincoln consistently maintained that he had not sought the prerogative, but that the Constitution gave him unique war powers to respond to the threat to the nation's security. Lincoln's political rhetoric invoked Jefferson, but his constitutional logic followed Hamilton.
Perhaps the most important defense to the charge of dictatorship is that the normal political process operated in the North throughout the war. An opposition party continued to challenge Lincoln's wartime policies, and regular elections were held in the states and national governments, with the crucial 1864 election giving voters a choice between more of Lincoln's war or a cessation of hostilities. While the administration took vigorous, sometimes extreme, steps to prevent assistance to the Confederacy from behind the lines, it refused to interfere with the normal workings of politics at home. Full-throated competition for elections and debate over the war continued between Republicans and Democrats, to the point where Lincoln worried that he would have to hand over the Presidency to his opponent, retired General George McClellan.
Throughout the war, the institutions of government kept their characteristic features. Congress controlled the power of the purse and initiated most domestic policies, such as the Homestead Act, a protective tariff, land grant colleges, and subsidies for railroad construction. Lincoln followed a hands-off approach on domestic priorities and disclaimed any right to veto laws because of disagreements on policy. He rarely interfered with legislation, often consulted with members of Congress in making important appointments, and displayed little interest in the work of agencies with domestic responsibilities.7 He was profoundly aware that members of Congress and his cabinet enjoyed many more years of public service and experience than he. Initially, he spoke in the language of deference to Congress and sought its ex post approval of his actions at the start of the war.
Nonetheless, Lincoln was not reluctant to disturb relations with the other branches of government in pursuit of his war aims. From the very beginning, he had set the stage to make it difficult, if not impossible, for Congress to reverse his initial military decisions. He excluded Congress from important war policies and vetoed early congressional efforts to dictate the course of Reconstruction. But Lincoln could not rule out all congressional participation in the war. Congress's cooperation was critical to any sustained war effort, for it alone controlled taxing and spending, the size and shape of the military, economic mobilization, and the regulation of domestic society. Lincoln did not refuse to obey any congressional laws, but he maintained his independent right to act in areas of executive competence, such as the management of the war, and to act concurrently with Congress in areas that might usually be thought to rest within the legislature's purview. Lincoln, not Congress, decided the goals of the war, the terms of the peace, and the means to win both.
Lincoln's attitude toward the judiciary is even more at odds with today's conventional wisdom. He lost confidence in the courts after Dred Scott v. Sanford, which recognized slave ownership as a property right and made it unconstitutional for Congress to restrict slavery's spread in the territories.8 Challenging the legitimacy of Dred Scott defined the young Republican Party. In his famous, losing debates with Stephen Douglas, Lincoln rose to national prominence by arguing that Dred Scott applied only to the parties in the case. In other words, the Supreme Court's decisions could not bind the President or Congress, who had the right to interpret the Constitution too, or most importantly, the people. "I do not deny that such decisions may be binding in any case, upon the parties to a suit, as to the object of that suit," Lincoln explained in his First Inaugural Address. Decisions of the Court should receive "very high respect and consideration in all parallel cases by all other departments of government." It might even be worth following erroneous decisions at times because the costs of reversing them might be high. But "if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," Lincoln argued, "the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."9
Lincoln laid the foundations of his Presidency on a vigorous and dynamic view of his right to advance an alternative vision of the Constitution. If Lincoln and the Republican Party had accepted the supremacy of the judiciary's interpretation of the Constitution, Dred Scott would have foreclosed their core position that the federal government should stop the spread of slavery. Likewise, Lincoln's Presidency could not have achieved its successes without a proactive exercise of his constitutional powers. A passive attitude that conceded to Congress the leading role in setting policy, or one that waited on the Supreme Court to decide matters, would have led to a sundered nation or military disaster. Lincoln became America's savior because he preserved the Union, freed the slaves, and launched a new birth of freedom. He set in motion a political, social, and economic revolution, but one that had the conservative goal of restoring the nation's constitutional system of government. He could have achieved none of this without a broad vision of his office.
WAGING WAR
ONE OF LINCOLN'S most remarkable exercises of presidential authority often goes unremarked. His decision that secession was unconstitutional and that the Union could oppose it by force was fundamental to the beginning of the Civil War. Today, most accept Lincoln's view, but they forget that the Constitution does not explicitly address the question, nor does it spell out who has the right to decide it. In today's environment of judicial supremacy, we have grown accustomed to the idea that constitutional questions are for the Supreme Court to decide. The Court, however, would not reach the question of secession until the Civil War had ended.10
One need only contrast Lincoln's approach to that of his predecessor, James Buchanan, usually thought to be the nation's worst President. The South had ensured Lincoln's election by walking out of the Democratic convention and nominating its own candidate for the Presidency, sitting Vice President John Breckinridge. Senator Douglas, who became the nominee of the Democratic Party in the North, took the position that the people of each territory should decide the slavery question for themselves -- the doctrine of popular sovereignty. This was not good enough for Southern Democrats, who wanted Congress to enact a code making slavery sacrosanct throughout the territories. When it became clear that Lincoln had won, South Carolina led the Deep South toward secession.
Buchanan believed that secession was illegal but that he lacked the constitutional authority to stop it. In the waning days of his administration, his Attorney General concluded that the executive only had authority to defend federal property, and that he could not call in the militia to enforce federal law because no federal law enforcement officials remained in the South. The Constitution gave neither the President nor Congress, the Attorney General's opinion reasoned, the power to "make war" against the seceding states to restore the Union.11 In his December 1860 annual message to Congress, Buchanan blamed the crisis on Northern agitation to overturn slavery. Even though the South could not secede, he could not "make war against a State," leaving the federal government powerless.12 After the rest of the Deep South seceded and formed the Confederate States of America, Buchanan again declared that the executive power did not include the use of force against a state, and humbly requested that Congress, "the only human tribunal under Providence possessing the power to meet the existing emergency," do something.13 Buchanan's narrow understanding of the constitutional powers of the office meant that the federal government was helpless before th
e greatest threat to the nation in its history.
Lincoln understood that the Constitution empowered him to do much more than issue a polite invitation that the South return home. The Confederacy made his case easier by seizing federal property and attacking Fort Sumter first. He had no need to address Calhoun's nullification arguments, or even those of Jefferson and Madison against the Alien and Sedition Acts, that states had a right to resist obviously unconstitutional actions by the federal government. The Confederate States were frustrating the constitutional system and denying the results of nationwide democratic elections. They had seceded from a national government that had yet to pass any law prohibiting slavery in the territories or the South itself. In his First Inaugural Address, Lincoln promised not to interfere with the bargain reached in the Constitution that the Southern states could decide on slavery as a matter of their own "domestic institutions." He construed his constitutional duty to execute the law to require him to enforce the Fugitive Slave Clause and refrain from any interference "with the institution of slavery in the States where it exists."14Secession, however, was an unconstitutional response to his election by the democratic process. Echoing Jackson, Lincoln declared that the Union, as a nation, was perpetual. It preexisted the Constitution; it preexisted the Articles of Confederation. Even the Constitution recognized this fact by providing, in its Preamble, for a more perfect Union. Because secession was illegal, Lincoln reasoned, the Southern states were still part of the nation, and "the Union [was] unbroken."
Resistance to federal law and institutions was the work not of the states themselves, but a conspiracy of rebels who were illegally obstructing the normal operations of the national government. The Constitution called upon Lincoln to use force, if necessary, against these rebels in order to see "that the laws of the Union be faithfully executed in all the States." Though on a much greater scale, the Civil War triggered the same presidential power invoked by Washington during the Whiskey Rebellion and Jefferson during the Embargo. Lincoln did not believe he had any choice; the Constitution required him to put down the rebellion. "You have no oath registered in Heaven to destroy the government," Lincoln told the South, "while I shall have the most solemn one to 'preserve, protect and defend' it."15
Where Buchanan and previous Presidents found only constitutional weakness, Lincoln discovered constitutional strength. He patiently maneuvered circumstances so that Jefferson Davis's troops would fire the first shot. Federal officials who sympathized with the Confederacy handed over armories, treasuries, and property, but federal installations in several ports remained in Union hands. Fort Sumter in Charleston Harbor held symbolic importance as a flashpoint again, just as it did during the nullification crisis.
On April 4, 1861, exactly one month into his term, Lincoln ordered the navy to resupply the Union fort and to use force only if fired upon. Jefferson Davis ordered bombing to begin before the ships could arrive, and Union forces surrendered on April 14. Lincoln did not consult Congress, which was not in session, nor did he call Congress into session, as he could "on extraordinary Occasions" under the Constitution. He did not launch offensive operations against the South, but he placed American forces in harm's way, which carried a strong risk of starting a war between the states.
The North was woefully unprepared. Its small army was deployed primarily along the Western frontiers; its navy had only a few warships ready for action in American waters.16 After the fall of Fort Sumter, Lincoln sprung to action. On April 16, he declared a state of rebellion and called forth 75,000 state troops under the Militia Act. He proclaimed that groups in the South were obstructing the execution of federal law beyond the ability of courts and federal officials to overcome.
Lincoln's proclamation prompted the upper Southern states to secede, led by Virginia. The President issued a call for volunteers, increased the size of the regular army, and ordered the navy to enlist more sailors and purchase additional warships. He also removed millions from the Treasury for military recruitment and pay. Article I, Section 8 of the Constitution expressly vests in Congress the power to raise an army and navy and to fund them; the President has no authority to exercise either power.
Lincoln put the army and navy to immediate use. He ordered a blockade of Southern ports and dispatched troops against rebel-held territory. Lincoln called Congress into special session but, significantly, not until July 4. While of obvious symbolic importance, the July 4 date ensured that the executive branch, not Congress, would set initial war policy. Lincoln had three months to establish a status quo that would be difficult for Congress to change. This was remarkable leadership for a President who had been the underdog to win his party's nomination, who had not won a majority of the popular vote, whose cabinet was filled with men with far more distinguished records of public service, and who did not have close relationships with the congressional leaders of his party.
Rapid events forced Lincoln to exercise broad authorities on defense as well as offense. Maryland was a slaveholding state, and the state legislature and most city officers were pro-Confederacy. If it seceded the nation's capital would be utterly isolated. Mobs in Baltimore attacked the first military units from Massachusetts and Pennsylvania to reinforce the capital, and rebel sympathizers cut the telegraph and railroad lines to Washington.
Lincoln interpreted his constitutional powers to give him the initiative in responding to the emergency. On April 27, 1861, he unilaterally suspended the writ of habeas corpus on the route from Philadelphia to Washington and replaced civilian law enforcement with military detention without trial. Suspension prevented rebel spies and operatives detained by the military from petitioning the civilian courts for release. The Constitution surely describes this power in the passive tense: "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." But it is located in Article I, which enumerates Congress's powers and its limits. But Congress would not meet until July 4. Had Lincoln seized the powers of another branch?
A case presented Chief Justice Roger Taney, Jackson's Attorney General and author of Dred Scott, with the perfect opportunity to answer this question. Union officers arrested John Merryman, an officer in a secessionist Maryland militia, for participating in the destruction of the railroads near Baltimore. Upon the petition of Merryman's lawyer, Taney issued a writ of habeas corpus ordering the commander of Union forces in Maryland to produce Merryman in court.17 The general refused to appear and instead sent an aide to notify Taney that Merryman had been detained under the President's suspension of habeas. Taney held the general in contempt, but the marshal serving the order could not gain entry to Fort McHenry.
Taney was left to issue an opinion, which sought to pull the heart out of Lincoln's energetic response to secession. He held that the Suspension Clause's placement in Article I, and judicial commentary since ratification, recognized that only Congress could suspend the writ. If military detention without trial were permitted to continue, Taney wrote, "the people of the United States are no longer living under a government of laws." Under presidential suspension, "every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found."18Taney's opinion clearly questioned the legal bases for Lincoln's other responses to secession. Beyond suspending habeas corpus, he wrote, the Lincoln administration "has, by force of arms, thrust aside the judicial authorities and officers to whom the constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers."19
Merryman was not just an attack on Lincoln's suspension of the writ, but upon the President's right to interpret the Constitution. Taney declared that it was the responsibility of "that high officer, in fulfillment of his constitutional obligation" under the Take Care Clause to enforce the Court's orders. It was another declaration of judicial supremacy in interpreting t
he Constitution, to be expected of the Justice who had written Dred Scott, though perhaps not from Jackson's Attorney General. Taney wanted to dramatize the conflict between the President and the judiciary. He appeared before a crowd of 2,000 on the Baltimore courthouse steps to receive the commanding general's response, and declared that the officer was defying the law and that even the Chief Justice might soon be under military arrest.20Lincoln answered Taney, and the widespread claims of executive dictatorship, in his message to the July 4 session of Congress. Lincoln stressed that the Confederacy had fired the first shot before the national government had taken any action that might threaten slavery. Secession attacked only the process of "time, discussion, and the ballot box." In response, "no choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation." He recited the litany of actions that followed: calling out the militia, the blockade, the call for volunteers, the expansion of military spending. Lincoln claimed that he had moved forcefully with the support of public opinion. "These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them."
Lincoln avoided the question of whether he had acted unconstitutionally. He sought justification from Congress's political support, after the fact. "It is believed that nothing has been done beyond the constitutional competency of Congress." Congress enacted a statute that did not explicitly authorize war against the South, but declared that Lincoln's actions "respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made valid," as if "they had been issued and done" by Congress.21 Congress gave approval through its explicit control over the size and funding of the military but did not seek to direct Lincoln's war aims or the conduct of hostilities.