by John Yoo
Lincoln's fellow Republicans did not let his pocket veto go unchallenged. The authors of the bill, Senator Benjamin Wade and Congressman Henry Davis, issued a "manifesto" in the New York Tribune attacking Lincoln for his "grave Executive usurpation." Congress, not the President, controlled the restoration of the Union. The President's veto to protect his Reconstruction policies violated the separation of powers. "A more studied outrage on the legislative authority of the people has never been perpetrated," they claimed. In words not much different from those of the Democrats who had long accused Lincoln of dictatorship, they portrayed his veto as "a blow...at the principles of republican government" and declared that "the authority of Congress is paramount and must be respected." The President "must confine himself to his executive duties -- to obey and execute, not make the laws."89
Coming a few months before the 1864 election, the Wade-Davis manifesto gave heart to Lincoln's opponents. Democrats praised the two Republicans "found willing at last to resent the encroachments of the executive on the authority of Congress." It also inspired Republicans who wanted to replace Lincoln. Their electoral fortunes that summer had waned with Union failures to capture Richmond and Atlanta. The future turned so bleak that Lincoln drafted a "Memorandum on Probable Failure of Re-election" for his files. Lincoln believed it "exceedingly probable that this administration will not be re-elected" and declared his duty to "cooperate with the President elect, as to save the Union between the election and the inauguration."90
Sherman's capture of Atlanta on September 4, 1864, marked a turnabout in Lincoln's fortunes. Democrats helped by nominating General McClellan as their presidential candidate on a platform that sought a "cessation of hostilities" because of "four years of failure to restore the Union by the experiment of war." Boosted by the fall of Atlanta, Lincoln unified his party by removing his Postmaster General, who was hated by the Radical Republicans, and announcing that he would appoint Chase, whom he had forced to resign as Treasury Secretary for leading the Republican opposition, to the position of Chief Justice.
While Lincoln exerted all his energies to ensure his reelection, he never questioned the importance of holding the elections themselves. "We cannot have free government without elections," he told serenaders after his reelection. "[I]f the rebellion could force us to forego, or postpone a national election, it might fairly claim to have already conquered and ruined us."91 Lincoln won an overwhelming victory: 55 percent of the vote and 212 electoral votes to 21 for McClellan. His overall share of the popular vote had grown by more than 340,000 votes, and Republicans increased their control of the Senate to 42-10 and the House to 149-42.92 To Lincoln, the election answered the "grave question whether any government, not too strong for the liberties of its people, can be strong enough to maintain its own existence, in great emergencies."93
Returned to office with a more secure electoral base, Lincoln pursued Reconstruction anew. As David Donald has observed, Lincoln and Congress had very different goals in mind. Lincoln wanted to use Reconstruction to end the fighting. He believed that quickly forming loyal governments in recaptured territory might encourage other Confederate states to rejoin the Union. Radical Republicans, by contrast, were concerned about a host of other issues, such as the continuing strength of the white elites and the economic and political rights of the black freedmen.94 Reconstruction involved the intersection of executive and legislative powers: The President had the authority as Commander-in-Chief to govern occupied enemy territory and the executive power to pardon rebels; Congress controlled the seating of members of Congress, the rules governing the territories, and the admission of states. Lincoln wanted a quick restoration of the Union; Congress wanted to remake Southern society first.95
After his election, Lincoln threatened to veto any congressional effort to deny admission to Louisiana, which had been reconstructed according to his 10 percent plan. While congressional Republicans in 1864 had passed the Wade-Davis Bill, in 1865 they could not override Lincoln's approach. When he first came to the legislature, "this was a Government of law," Congressman Davis exclaimed. "I have lived to see it a Government of personal will."96 Nevertheless, in a demonstration of the checks that Congress still possessed over executive war policy, Radical Republicans filibustered a Lincoln-supported proposal to admit Louisiana in the spring of 1865. Lincoln had recognized Congress's power in his December 1864 State of the Union message. Some Reconstruction questions, he admitted, "would be beyond the Executive power to adjust; as, for instance, the admission of members of Congress, and whatever might require the appropriation of money."97
It was in this political setting that Lincoln delivered one of his greatest speeches, the Second Inaugural Address. He would not venture a prediction for the end of the war, but held "high hope for the future." Lincoln's main purpose was to argue not just for Reconstruction, but reconciliation. It is true, he said, that insurgents had sought to dismember the Union to preserve slavery, which the government could not permit. "Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came."
Lincoln avoided placing the blame on individuals or on states. "Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease." Both sides were guilty of miscalculation. "Each looked for an easier triumph, and a result less fundamental and astounding." He emphasized their common heritage, too. "Both read the same Bible, and pray to the same God; and each invoked His aid against the other." While Lincoln remarked that owning slaves was not his idea of a good Christian -- "it may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces" -- even there he insisted, "let us judge not that we be not judged."98
Lincoln was not interested in assigning responsibility for the amazing costs of the war. He referred to the war almost as an act of God: "All dreaded it -- all sought to avert it." He saw it as God's punishment of the nation as a whole for the sin of human slavery. "He gives to both North and South, this terrible war, as the woe due to those by whom the offence came." No one wanted the war to go on. "Fondly do we hope -- fervently do we pray -- that this mighty scourge of war may speedily pass away." But it would be God, not man, who would decide how long the war must continue to atone for slavery.99
If the Civil War was God's judgment upon a sinning nation, Reconstruction should have pursued healing, not retribution. Lincoln's final paragraph is among the most eloquent in American public speeches, and it is a plea for mercy and reconciliation. "With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right," the North should "strive on to finish the work we are in." That work was "to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan." The goal was to "achieve and cherish a just, and a lasting peace, among ourselves, and with all nations." While the Second Inaugural Address is widely praised for its eloquence, it also explained Lincoln's reasons for a more lenient Reconstruction.
As the Union armies moved closer to victory, Lincoln continued to signal flexibility on his Reconstruction plans. Sherman had captured Savannah by Christmas, and Columbia and Charleston in early 1865, while Grant's steady pressure had forced the Confederate government to abandon Richmond. Lincoln held the upper hand. He was the first President since Andrew Jackson to be reelected, the head of a party that had just won stunning majorities in Congress, with a cabinet staffed with political allies. Nevertheless, as the end of the war approached, his constitutional authority would weaken because the reach of his Commander-in-Chief power would narrow.
After news of Lee's surrender reached Washington, Lincoln used the occasion of an impromptu celebration outside the White House to give a speech on Reconstruction. After giving thanks to God for General Grant's victory, Li
ncoln declared that the "reinauguration of the national authority" in the South would be "fraught with great difficulty" and that there was great division in the North about the right policy. He pled again for the quick admission of Louisiana, but in a new sign of flexibility he declared that he would drop his public demands for it. "But as bad promises are better broken than kept," Lincoln said, "I shall treat this as a bad promise, and break it, whenever I shall be convinced that keeping it is adverse to the public interest." Lincoln said he had yet to be convinced, however.100
This time, Lincoln did not want to open up the difficult constitutional issues involved. He observed that he had "purposely forborne any public expression upon" the question of whether the Southern states had ever left the Union as a matter of constitutional law. Deciding that question, Lincoln now thought, would only distract from the more important goal of restoring those states "into that proper practical relation" with the Union. It would be easier to embark on a quick Reconstruction without deciding whether the Southern states had actually seceded. "Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad."
Louisiana had met Lincoln's terms and it had adopted a new constitution abolishing slavery. Lincoln admitted that he wished the reconstructed Southern governments had broader popular support and had extended the franchise to the "very intelligent" blacks or those who had served in the war; he clearly hoped that the states would grant the freedmen their political and civil rights without the use of federal power. But the question was whether Louisiana, and the states to follow her, would be restored to the Union "sooner by sustaining, or by discarding her new State Government." It would be better to get a start immediately by nurturing the new state governments into the Union than to ruin the loyal effort in Louisiana. Lincoln also observed that quickly readmitting Louisiana and other states might help the Thirteenth Amendment reach the three-quarters vote of the states required for ratification.
Lincoln closed with an offer of negotiation to the Radical Republicans. He declared that Reconstruction was so "new and unprecedented" that "no exclusive, and inflexible plan can safely be prescribed as to details and collaterals." Radicals in Congress reacted negatively to Lincoln's failure to protect the full political and civil rights of the freedman, even though his April 11 speech made him the first American President to call for black suffrage of any kind. Pressing forward with plans for a quick Reconstruction, Lincoln decided at a cabinet meeting on April 14 (with General Grant in attendance) to set in motion plans for military governors in the Southern states, who would exercise martial law until loyal civilian governments could be established. Lincoln planned to set Reconstruction on an inalterable course before Congress could act. "If we were wise and discreet," Lincoln said at the cabinet meeting, "we should re-animate the States and get their governments in successful operation, with order prevailing and the Union re-established, before Congress came together in December."101 Lincoln believed that several members of Congress were simply so "impracticable" or full of "hate and vindictiveness" toward the South that the executive branch would accomplish more good without legislative participation.
John Wilkes Booth assassinated Lincoln at Ford's Theatre that very night. It is impossible to know whether Lincoln's second term would have brought about a different kind of Reconstruction than the one that followed, but it seems clear that Lincoln intended that the executive would take the lead through its constitutional powers over the making of war and peace. With hostilities winding down, Lincoln wanted to create a state of affairs in the South that Congress would be unable to undo. He was following the same strategy toward Congress at the end of the war that he had adopted at its start -- he would take swift action under his Commander-in-Chief and Chief Executive powers while the legislature remained out of session.
Lincoln wanted Congress's cooperation, and he openly acknowledged that its power over the seating of its members exercised a check on a state's restoration to the Union. But he would not go as far as the Radicals, nor did he agree with Democrats who were content to allow the dominance of the Southern economic and political systems. The Civil War had not just restored the Union -- it had ended slavery. Lincoln wanted the freedmen to have equal rights, but he sought to achieve them through a restoration of the state governments and the traditional principles of constitutional government.
CONCLUSIONS
LINCOLN WAS NEITHER a dictator nor an unprincipled partisan. His unprecedented action to preserve the Union exploited the broadest reaches of the Constitution's grant of the Chief Executive and Commander-in-Chief powers. Once war had begun, Lincoln took control of all measures necessary to subdue the enemy, including the definition of war aims and strategy, supervision of military operations, detention of enemy prisoners, and management of the occupation. He freed the slaves, but only those in the South, because his powers were limited to the battlefield. He took swift action, normally within Congress's domain, but only because of the pressure of emergency. After the first months of the war, Lincoln never again usurped Congress's powers over the raising or funding of the military. He was not afraid of a contest with Congress, particularly over Reconstruction, but the Civil War witnessed far more cooperation between the executive and legislative branches than is commonly thought. But when Lincoln believed Congress to be wrong, he did not hesitate to draw upon the constitutional powers of his own office to follow his best judgment.
Lincoln's administration provides valuable lessons on the nature of civil liberties in wartime. Lincoln undeniably took a tough posture toward citizens suspected of collaborating with the Confederacy and ordered the restriction of peacetime civil liberties, especially the rights of free speech and of habeas corpus. No reduction in constitutional rights is desirable, standing alone, but the measures were part of a systematic mobilization to win the most dangerous war in our nation's history. They had costs, but they also bore benefits for a war effort that eventually defeated the South and left behind no permanent diminution of individual liberties. If anything, the Civil War was followed by the passage of the Reconstruction Amendments and the freeing of the slaves, the expansion of the franchise, and the constitutional guarantee of due process and equal protection rights against the states. To demand that Lincoln should have been more sensitive to civil liberties is to impose the ex post standards of peacetime on decisions made under the pressures of wartime.
Lincoln's greatness in preserving the Union depended crucially on his discovery of the broad executive powers inherent in Article II for use during war or emergency. But not every President is a Lincoln, and not every crisis rises to the level of the Civil War. Once a crisis passes, presidential powers should recede, and if there is no real emergency in the first place, Congress should generally have the upper hand. While great Presidents have been ones who have held a broad vision of the independence and powers of their office, every President who uses his constitutional powers does not necessarily rise to greatness. Presidents may so overstep their political bounds in the use of their constitutional powers that they trigger a reaction by the other branches. Either the President or Congress can succeed in producing a stalemate, which may or may not yield the best result.
Lincoln's Vice President, Andrew Johnson, shows the perils of exercising constitutional powers to bring on, rather than resolve, a crisis. A Tennessee Democrat, Johnson held sharply different views on Reconstruction than the Radical Republicans. Like Lincoln, he favored a quick restoration of the South to its normal status as part of the political community. Southerners only had to pledge an oath of loyalty to the Union, hold constitutional conventions, ratify the Thirteenth Amendment, repudiate the public debts borrowed by the Confederate government, and repeal secession. Under Johnson's plan, many Republican Congressmen believed, the Southern social and economic system would remain intact. Aside from former Confederate government officeholders and military officers, who could not receive amnesty, the Southern elites would remain in charge.102
Co
ngressional Republicans wanted a far more radical reordering of the South. They wanted to grant to black freedmen, whose fate did not figure in Johnson's scheme, equality with whites in the economy, government, and society. They passed the Freedmen Bureau and Civil Rights Acts to continue economic assistance to the freed slaves and to guarantee their equal legal rights, and proposed the Fourteenth Amendment, which guaranteed the rights of due process and equal protection against the state governments. Congress had constitutional powers at its disposal that were the equal, if not greater, than those available to Johnson. While the President was the Commander-in-Chief over the military forces occupying the South, only Congress could determine whether Southern states could reassume their standing as political equals. If the Southern states had formally left the Union, the Constitution gave only Congress the right to admit new states. If the Confederate states had simply been taken over by disloyal conspiracies, but had never lost their status as states, Congress could refuse to seat the Southern Representatives and Senators until the South properly reconstructed their governments.103
Fundamental disagreement over Reconstruction policy prompted the battle between the executive and legislative branches after Lincoln's death. Johnson vetoed the Freedman and Civil Rights Bills for upsetting the proper balance between the powers of the national and state governments and urged the Southern states to reject the Fourteenth Amendment. He allowed rebel-dominated governments to exercise civil authority in the South and assured their leaders that he would push for quick readmission to the Union. Congress was furious. Johnson, who had the unfortunate combination of a terrible temper, political inflexibility, and a zealot's fervor, responded by attacking the Republicans just as angrily as he had once attacked the rebels. Both, the President said in January 1866, were traitors. Southerners stood "for destroying the Government to preserve slavery," while Republicans wanted "to break up the Government to destroy slavery."