by John Yoo
It would be a year and a half before the Supreme Court considered the constitutionality of Lincoln's immediate actions. The Prize Cases presented a demand for damages by the owners of several vessels seized by the Union blockade in the summer of 1861. They argued that international law limited blockades only to wars between nations, which conflicted directly with Lincoln's theory that the Confederacy was only a conspiracy of lawbreakers. If the Civil War were a war, the plaintiffs continued, Lincoln could not act without a declaration of war from Congress first.
A 5-4 majority of the Court upheld Lincoln's actions, with or without congressional authorization. It began by endorsing Lincoln's initial judgment that secession had begun an insurrection, not a war with a separate nation. They also agreed that the scope of the insurrection nevertheless granted the United States the rights and powers of war against a belligerent nation. "[I]t is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other."22 Even though the South would never be recognized as a nation by the United States, the very nature of the conflict required that it be recognized as war, rather than as a matter for the criminal justice system. "When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war."23 Lincoln's imposition of a blockade on Southern ports, though legal under international law only against another nation, was a legitimate exercise of war power under the Constitution.
The Court found that Lincoln did not need a declaration of war to respond to the attack on Fort Sumter. "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority."24 It did not matter whether the attacker was a foreign nation or a seceding state. The firing on Fort Sumter constituted an act of war against which the President automatically had authority to use force. "And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral'." The Court expressly declared that the scope and nature of the military response rested within the hands of the executive. "Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him."
Judicial review would not extend to the President's decisions on whether to consider the Civil War a war, and what type of military response to undertake. Justice Grier wrote for the majority, "this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted." The Justices only entertained the need for legislative approval as a hypothetical to buttress its conclusion, and never held that Congress's approval was necessary as a constitutional matter. "If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor and efficiency."25 Both the courts and Congress vindicated Lincoln's constitutional position of the early days of the war.
We tend to focus on these early presidential acts because they raise questions of the gravest moment -- presidential power to act even in areas of clear congressional authority during emergency. What is sometimes forgotten is how quickly Lincoln took direction of the Union's response. In addition to deciding the fundamental question that secession was illegal, Lincoln managed the events following his election to put the South in a difficult position. He made the decision, announced in his First Inaugural Address, that the Union would keep all federal installations and bases, and he made the call that Fort Sumter would be resupplied.
Lincoln did not consult with Congress whether to seek a political compromise, or whether to let the South go its own way. This is striking not just in light of Buchanan's narrow view of presidential power, but also the history of negotiations between the North and South over slavery. Congress had passed the Missouri Compromise of 1820; the Compromise of 1850, which admitted California as a free state, allowed slavery in the other territory conquered from Mexico, and enacted the Fugitive Slave Law; and the Kansas-Nebraska Act of 1854, which allowed "popular sovereignty" to decide on slavery in the Kansas and Nebraska territories. Henry Clay, Daniel Webster, and Stephen Douglas crafted the agreements; Presidents played bystanders with little influence. Congress's superior role turned on its sole constitutional powers to regulate the territories and to admit new states to the Union, but it also took advantage of presidential weakness during much of the antebellum period.
Imagine what might have happened had Congress assumed the lead in the period between Lincoln's election and his inauguration. In early December, the House of Representatives established a committee of 33, with one member for each state, while the Senate named Senators Stephen Douglas, Jefferson Davis, John Crittenden, and William Seward to a committee of 13, to reach a deal on slavery. The Crittenden Compromise, as it became known, would have revived the Missouri Compromise line and absolutely protected slavery where it existed. The House committee proposed an unamendable constitutional amendment that would prohibit federal interference with slavery in the states.
Although he seemed aloof from the political horse-trading, Lincoln scuttled the whole affair. While still in Springfield, Illinois, he wrote to Republican legislators: "Let there be no compromise on the question of extending slavery. If there be, all our labor is lost." Lincoln welcomed a split sooner rather than later: "The tug has to come, & better now, than any time hereafter."26 It is true, as historians have concluded, that the North went to war in 1861 with conservative goals in mind: the restoration of the Union as it was, which allowed slavery to exist in the South. At the same time, that system contained the mechanism -- control over slavery in the territories -- that allowed Lincoln to keep faith with his moral commitment to end slavery. Lincoln was unwilling to give up the fruits of electoral victory, and the workings of constitutional democracy, to reach a settlement between North and South.27
Lincoln displayed presidential initiative not just when the war came, but after. He exercised clear command over the generals and often urged Union forces to attack while his subordinates preferred more time for training and organization. After the defeat at the first Battle of Bull Run in July 1861, Lincoln began to intervene in military decisions. He replaced General McDowell with General McClellan, and in November 1861 he removed General John Fremont for his conduct in the Department of the West.28
The burdens of the command fell heavily on Lincoln, especially as Union casualties soared. Nonetheless, he urged the overcautious McClellan to use his growing Army of the Potomac to move south, and he removed and reinstated generals until he found the ones -- Ulysses S. Grant and William Tecumseh Sherman -- who agreed with his strategy of going on the offensive. Lincoln's frustrations with his generals fill history books. It was Lincoln who approved the broader strategy to control the Mississippi River and divide the Confederacy in two, and it was Lincoln who saw, earlier than most generals, that the war would become a war of attrition where Northern resources would overwhelm a South with no industrial base and a small population.
Lincoln did not seek congressional involvement in the strategic decisions about the war. Congress's main job was to supply the resources needed to win on the battlefield, a task it performed far more effectively than its Southern counterpart. Taxes were raised, bonds were sold, a federal bank reestablished, paper currency introduced, and money spent (the federal budge
t increased by 700 percent in the first year of the war).29 Hundreds of thousands of soldiers were trained, equipped, and organized into units, and once on the front they were fed and supplied far better than the enemy.
The Senate established a Committee on the Conduct of the War that became a forum for investigation and criticism of Lincoln's commanders, especially those perceived to be too cautious, and for praise of those willing to take aggressive measures. Lincoln and his second Secretary of War, Edwin Stanton, did nothing to shield the generals from congressional criticism, but instead seemed to see it as a welcome prod to McClellan and his fellow West Pointers.30 Beyond its oversight function, however, Congress played little significant role in setting war policy or strategy. As Phillip Paludan has written, "Congress left most decisions on the fighting to the generals, the secretary of war, and the president."31 Military strategist Eliot Cohen has shown that the development of Civil War strategy was largely a process of civilian struggle for control of the military, which boiled down to a contest between Lincoln and his generals.32
Throughout the war, Lincoln stayed in close contact with Grant and Sherman, reviewed their movements, and continued to suggest different strategies. He asked Francis Lieber, an expert on the laws of war at Columbia University, to draft the first modern code on the rules of warfare, and he issued it as General Orders No. 100 in April 1863. He did not ask Congress to enact it by statute. Upon learning that Confederate troops had executed surrendering black soldiers and their white officers, he threatened retaliatory action.33But perhaps no military policy was as far-reaching as the decision to emancipate the slaves, a measure he executed solely under his authority as Commander-in-Chief.34
In the first years of the war, Radical Republicans in Congress had kept up a drumbeat of criticism against Lincoln for not immediately ending slavery. In 1861, Lincoln reversed General Fremont's emancipation order in Missouri, and the following year he overturned General Hunter's freeing of slaves in Georgia, Florida, and South Carolina. Lincoln was concerned about keeping the loyalty of the slaveholding border states, especially Kentucky, the third most populous slave state and occupant of a strategic position in the Western theatre.35 Lincoln reportedly said that he hoped for God's support, but he needed Kentucky's.36
Whether the federal government even had the power to abolish slavery remained unresolved. As he had proclaimed in his First Inaugural Address, Lincoln believed that slavery's preservation was a matter of state law and that the federal government had no power to touch it where it already existed. Emancipation might qualify as the largest taking of private property in American history, for which the government would owe just compensation under the Fifth Amendment. Another question that remained unclear was whether the United States had the right as a belligerent, under the laws of war, to free slaves. A nation at war generally had the right to seize enemy property when necessary to achieve its military goals, but it also could not, as an occupying power, simply take all property held by private citizens.37
As the conflict deepened, Lincoln's view on whether to order emancipation as a military measure underwent significant change. He had overturned Generals Fremont and Butler because their proclamations were essentially political -- they sought to free all slaves in their territories, even those unconnected to the fighting. When General Benjamin Butler in Virginia declared that slaves that escaped to Union lines were "contraband" property that could be kept by the Union, Lincoln let the order stand.38 Congress urged a more radical approach by enacting two Confiscation Acts: the first deprived rebels of ownership of their slaves put to work in the war; the second freed the slaves encountered by Union forces. Because both laws required an individual hearing before a federal judge before a slave could be freed, neither had much practical effect.39
Of greater impact was the July 1862 Militia Act, which freed the slave of any rebel, if that slave joined the U.S. armed forces.40 On August 25, 1862, Secretary of War Stanton authorized the raising of the first 5,000 black troops for the Union army. As the war grew increasingly difficult, Lincoln became convinced that emancipation would be a valuable weapon for the Union cause. It would undermine the Confederacy's labor force and economy while providing a much-needed pool of recruits for the Union armies.
As the cost of the war in blood and treasure became ever dearer, demands for an end to slavery grew louder in the North. At the same time, the border states rejected proposals for gradual emancipation paid for by the federal government. By late July 1862, Lincoln had a draft proclamation of emancipation ready and had notified his cabinet, which advised him to wait for a Union victory. Antietam provided Lincoln the moment.
While Union casualties were steep (6,000 dead and 17,000 wounded -- up to that point the most American casualties ever suffered in a single day), the Army of the Potomac had forced the Confederate army from the field. On September 22, 1862, five days after the battle, Lincoln issued the Emancipation Proclamation as President and Commander-in-Chief. It declared that all slaves in areas under rebellion as of January 1, 1863, "shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons."41 Lincoln stated his intention to ask Congress for compensation for the loyal slave states that voluntarily adopted emancipation and for Southerners who lost slaves but remained loyal to the Union.
The President remained clear that the war was not about slavery, but "for the object of practically restoring the constitutional relation between" the United States and the rebel states. Nevertheless, his proclamation freed 2.9 million slaves, 75 percent of all slaves in the United States and 82 percent of the slaves in the Confederacy.42 On January 1, 1863, Lincoln issued the final Emancipation Proclamation, "by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States." The President rooted the constitutional justification for the Emancipation Proclamation as "a fit and necessary war measure for suppressing said rebellion."43
Lincoln's dependence on his constitutional authority explains the Proclamation's careful boundaries. He did not free any slaves in the loyal states, nor did he seek to remake the economic and political order of Southern society. Lincoln never claimed a broad right to end slavery. Rather, the Emancipation Proclamation was an exercise of the President's war power to undertake measures necessary to defeat the enemy.
With the cost of war in both men and money rising steeply, emancipation became a means to the end of restoring the Union. Shortly before issuing the preliminary Proclamation, Lincoln wrote to Republican newspaper editor Horace Greeley, and through him to a broad readership, that his goal was to restore "the Union as it was." Emancipation was justified only so far as it helped achieve victory. "My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery," Lincoln wrote. "If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that."44
After he issued the Proclamation, Lincoln made clear that the Commander-in-Chief Clause allows measures based on military necessity that would not be legal in peacetime. Responding to critics of the Proclamation's constitutionality from his home state, he admitted that "I certainly wish that all men could be free, while I suppose you do not." Still, emancipation was a valid war measure. "I think the constitution invests its commander-in-chief, with the law of war, in time of war," he wrote. Anything that belligerents could lawfully do in wartime, therefore, fell within the President's authority.
There was no question in Lincoln's mind that taking the enemy's property was a legitimate policy in war. "Armies, the world over, destroy enemies' property when they cannot use it; and even destroy their own to keep it from the enemy." "Civilized belligerents do all in their power to help themselve
s, or hurt the enemy, except a few things regarded as barbarous or cruel," such as the massacre of prisoners or noncombatants. Lincoln would consider anything permitted by the laws of war.
Emancipation did not just deny the South a vital resource, but it also provided black soldiers for the war effort. Lincoln claimed that Union generals "believe the emancipation policy, and the use of colored troops, constitute the heaviest blow yet dealt to the rebellion."45 Black soldiers saved the lives and energies of white soldiers, and indeed, the lives and rights of white civilians. "You say you will not fight to free negroes," Lincoln wrote. "Some of them seem willing to fight for you." But he closed by emphasizing again that emancipation was not the goal, but the means. When the war ended, "it will have been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost." When that day comes, Lincoln promised, "there will be some black men who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet," they helped achieve victory.
The Emancipation Proclamation is usually studied as a question of the war powers of the national government, though it has also been studied as a question of whether it amounted to a taking of property requiring compensation.46 What is sometimes neglected is that the Proclamation was a startling demonstration of the constitutional powers of the Presidency. Lincoln decided that military necessity justified emancipation. The Supreme Court did not reach the question of the wartime confiscation of property until after the war, when it upheld the seizure, transfer, and destruction of private property that supported the enemy's ability to carry on hostilities.47 While Congress passed the two Confiscation Acts, it required individual hearings proving that a slave's owner was engaged in the rebellion or that a slave was being used in the Confederacy's war effort. Lincoln freed the slaves en masse and bypassed the painstaking judicial procedures established by Congress. The legislature authorized the acceptance of escaped slaves into the Union armed forces, but it remained for the President to organize and deploy in combat the more than 130,000 freedmen who joined the Union armies.